ACRU Senior Fellow Ken Blackwell and ACRU Senior Legal Analyst Ken Klukowski wrote this column appearing December 8, 2010, on The Washington Examiner website.
Litigation over Obamacare’s individual mandate has captured the public’s attention. But the ultimate goal in challenging the constitutionality of President Obama’s health care law is not the mandate; it’s severability.
This individual mandate that you must buy health insurance is the most obnoxious provision of Obamacare, eradicating the concept of limited government. If the federal government can tell you how to spend your own money to buy insurance, then it also has the power to command you how to spend the rest of your money in every area of life, from food, to education, to housing.
But the mandate is only one intolerable aspect of Obamacare. One authoritarian provision is the employer mandate, imposing draconian penalties on every employer with over fifty employees who does not offer health insurance. Obamacare includes many such mandates, taxes and administrative burdens.
It also funds abortion, notwithstanding Obama’s executive order to the contrary. (Presidents cannot attach conditions on funding that Congress approves for general use.) Other provisions drive up premiums, like requiring insurance policies to cover children until their mid-twenties.
Many of these provisions are policy choices within Congress’ purview, and cannot successfully be challenged in court.
There is one way to nullify all of these provisions, however. Obamacare lacks a severability clause, which states that if any part of the statute is found invalid, then the remainder continues in full force and effect.
Severability provisions are so common as to be boilerplate. (If you look at a contract around your home, you’re likely to find such a clause toward the end of the document.)
A court always applies a presumption of implied severability. Under severability doctrine, a court will surgically excise an unconstitutional provision from a law if possible. However, if the court finds the invalid provision an essential part of the legislation, then the court can strike down the entire statute.
If the statute cannot work in the manner Congress intended without the provision, then a court can hold if Congress would rather have no statute at all. The presumption that Congress intended severability is weakened in the absence of a severability clause, as is the case with Obamacare.
Thus, if a court finds the individual mandate unconstitutional, and that the mandate goes to the core of the legislative deal, then the entire 2,700-page law can be struck down with a single court decision.
All three major lawsuits challenging Obamacare argue that the individual mandate cannot be severed from the remainder of the statute. Although this issue rarely arises, Supreme Court precedent weighs in favor of holding that the mandate cannot be severed from the statute.
The documentary I Want Your Money quotes Speaker Pelosi’s infamous Obamacare comment that, “we have to pass the bill so that you can find out what is in it.” Well, Madame Speaker, a severability clause is one thing not in the bill. And that may prove its undoing.
Striking down the Obamacare individual mandate would be a historic vindication of the rule of law. But if the courts find that the mandate is not severable from the remainder of the statute, then it could wipe clean the slate of health care reform.
That would return this issue to a new Congress — and possibly a new president — to devise reform legislation that will actually improve health care costs, instead of an unprecedented invasion into the lives and liberties of American citizens.