« BACK  |  PRINT

RS

MEMBER DIARY

To Sever or Not To Sever–Trouble Ahead for Obamacare

The new healthcare reform bill has a glaring omission. There was no severability clause. Severability clauses are a legislative drafting technique, whereby the legislative body (congress in this case) provides that if a court deems a portion of the proposed to be unconstitutional, illegal or invalidates for any reason, the remaining portions of the the law will still be effective. The technique is standard fare for virtually any bill passed by congress. When drafting multi-thousand page laws, it is inevitable that congress in its finite wisdom will make some technical drafting error. The severability clause insures that even if congress failed to dot a legislative “i” or cross a legislative “t” that the law will still stand.

According to Greg Scandlen, a senior fellow at the Heartland Institute, says due to a little-known legal concept the entire law would unravel if a single part was found to be outside the Constitution. “Apparently there was no ‘severability’ clause written into this law, which shows how amateurish the process was,” he wrote. “Virtually every bill I’ve ever read includes a provision that if any part of the law is ruled unconstitutional the rest of the law will remain intact. Not this one. That will likely mean that the entire law will be thrown out if a part of it is found to violate the Constitution.”

In addition many private contracts also contain such clauses. This helps assure that if for some reason part of the contract cannot pass judicial muster, the entire contract will not be invalidated.

Because it is so commonly utilized its absence is particularly vexing in a law as complex and far reaching as the 2300 page behemoth health care reform bill. Mr. Scandlin believes was just an amateurish drafting error. But this is hard to accept. If it’s one thing our out of control congress knows how to do, it is to “properly” draft laws that take away, in ever increasing amounts, our property and freedom. Another possible explanation is that congress and the president were so sure that no court would cross them, that it was in effect a judicial dare. If some errant federal judge were so bold as to strike the individual mandate, then he or she would have to live with the consequences of bringing down the entire scheme. Again, this rationalization comes up lacking. There are still many judges on the bench who believe in constitutionalism, federalism and the rights of the individual. They are often quite willing to find fault with over-reaching unconstitutional laws. In this day and age, even traffic court judges rule laws unconstitutional. To even think there’s no federal judge willing to take on congress and the administration is to totally misread American jurisprudence.

The final explanation, that the more cynical among us might believe, is that many in congress were afraid to stand up to the administration to defeat this measure. Therefore, the deliberate omission of the severability clause gives them an out. If some judge with a large measure of intestinal fortitude decides to strike the law and it is eventually upheld, those nominal “supporters” get to express shock and outrage while being let off the hook from the obviously destructive consequences of a bad law.

Either way, the law may well be decided in the US District Court for the Eastern District of Virginia. The Honorable Henry Hudson has allowed a case brought by the Virginia Attorney General to proceed. The case strikes at the very heart of the act, namely the individual mandate to purchase health insurance or suffer a fine at the hands of the Internal Revenue Service. So be prepared for the possible invalidation of the entire health care bill. Proof that even the most grandiose piece of legislation can be sunk by improper drafting.

Get Alerts