The court cites recent precedents that make clear that severance is preferred as a conservative concept so as to leave intact the will of the legislature if possible. Severability clauses, if in bills, merely give more weight to the concept and make clear Congress’s will and intent. Moreover, if Congress wants to repeal bills when parts of same have been severed, then they can do so.

would be to strike down a whole statute merely due to one provision. I think the confusion on this issue by conservatives here is over the use of severability clauses. Congress knew when it passed ObamaCare that it could include either of the clauses and chose not to, knowing the case law on the subject.

It is those that argue for mandatory non-severability absent such a clause that are making a leap in logic that doesn’t even apply in contract law, which is not the basis of the legal precedents in this area. In any event, courts uphold parts of contracts all the time despite the non-enforceability of other clauses so as not to work an injustice on a party, especially given consideration paid.

In the present circumstance on ObamaCare, Congress could have prevented severability by so stating in the bill and the court would have been bound to strike down the whole bill if one part is unconstitutional. It did not do so.

Now, I find this logical, but as Oliver Wendell Holmes said, the law is based on experience, not logic pre se.

Congress does have the power to require insurance companies involved in interstate commerce to cover pre-existing conditions and to impose all kinds of regulations that would make doing business financially prohibitive. But that must be corrected in Congress and not by courts.

The fact is that to “not sever” is more of an act of overreach than to sever.

Remember, Congress can re-visit the issue after court decisions but we can’t use the courts to correct bad policies that are not unconstitutional.

no more later unless I’m paid…smile

is to include a clause that states that certain or all provisions are not severable.

Most of the case law in which whole bills with no clause on severability are struck down due to one clause is when that clause makes the carrying out of the others impossible and/or makes the law incoherent.

In this case, the other provisions, such as pre-condition coverage etc can be carried out just like other already existing regulations. That they would bankrupt the insurance industry absent the mandate is a matter for Congress to address, not courts.

in cases where the plain language of a bill leaves some component vague. It is always a bit tricky to try and determine intent by reference to the statements of a few legislators. Nothing stopped Congress from including a clause that would have bound the court to throw out the whole bill if it ruled against the mandate.

after having failed to determine intent from the plain language and other tests. The definition of intent being what the words meant to those that passed it.

only that same is not mandated by the circumstances. I do think a good argument can be made for non-severance only that it is not mandatory based on precedent and certainly not by any provision of the Constitution.

Has Congress included a clause that said it was not severable, the court would have been bound to strike the whole bill down. I suspect that the Dems purposely left it vague to give them maximum leverage.