This column by ACRU Senior Legal Analyst Ken Klukowski was published February 1, 2011 on FoxNews.com.
The federal court in the massive 26-state challenge to ObamaCare on Monday held that the health care law’s individual mandate is unconstitutional. And, even more importantly, the judge accepted the argument in my court brief that the mandate cannot be separated from the rest of this 2,700-page legislative monstrosity, and struck down the entire law.
Roger Vinson, of the U.S. District Court for the Northern District of Florida, the judge presiding over this case, did so because of a single word: severability.
A single law usually contains many different provisions. Lawmakers know that if someone challenges the constitutionality of a statute, they often challenge only one or two provisions of it. So lawmakers usually try to make sure at least part of their law will survive.
The process of striking down only part of a law is called “severability.” Therefore Congress almost always inserts a severability clause, saying that if part of the law is struck down, the remaining provisions continue in full force and effect.
Congress did not insert a severability clause in ObamaCare. So even though only a couple provisions of the health care law are being challenged in the Florida case–those two provisions being the individual mandate aka the requirement that every American has to buy insurance and also the sweeping expansion of Medicaid–the issue arises that if a court strikes down either of those provisions, it might strike down the entire statute.
The legal counsel representing the states in Florida, led by Florida Attorney General Pam Bondi (and her predecessor Bill McCollum) and Washington, D.C.-based lawyer David Rivkin raised the issue of severability in this lawsuit (as Virginia Attorney General Ken Cuccinelli likewise did in his Virginia lawsuit).
So I filed a brief in Florida on behalf of the Family Research Council to fully explore the issue of severability to assist the states in challenging ObamaCare.
The states lost on one of their issues yesterday. Judge Vinson carefully considered their argument that Medicaid has become so overbearing that it’s no longer a voluntary program, and thus that it becomes coercive of the states in violation of the Tenth Amendment. The judge said that while this argument was plausible, it goes against every other court to consider Medicaid and is contradicted by the declarations of a couple states in this lawsuit that they could withdraw from Medicaid, so he sided with the Obama administration on that count.
But he also said the Medicaid issue didn’t matter, because he struck down the individual mandate as unconstitutional, and then held that the mandate cannot be severed from the rest of the ObamaCare law.
Thus, in striking down the mandate, the court struck down all 2,700 pages, including the Medicaid overhaul.
Severability is an issue so far off the beaten path that few lawyers have ever dealt with it, even though including a severability clause in legislation–or in contracts–is so common that it’s now boilerplate. So it would surprise most lawyers that a judge would strike down all of ObamaCare.
But it’s not surprising if you look at how the Supreme Court deals with the issue of severability. The High Court instructs that first you look to see if the law doesn’t even make sense anymore, that grammatically and logically it becomes gibberish. If so, you strike down the whole thing.
However, if the law still makes sense grammatically, that’s not the end of it. A court must instead then ask if the challenged provision is integral to the law, such that Congress would rather have no law at all than have the law without the unconstitutional part.
Not only does ObamaCare lack a severability clause, Congress also includes in the individual mandate section (which is Section 1501) a declaration that the mandate is “essential” to the statute functioning in the manner Congress desires. This closely tracks language in the Supreme Court’s precedents for when a court must strike down the entire law.
So Judge Vinson’s actions were not only appropriate, they were necessary. A lower-court judge must faithfully follow the Supreme Court. When it comes to ObamaCare, as I explained in detail in my brief and as Judge Vinson explains in his opinion on pages 63 to 74, the only proper action is for a court to throw out the entire statute, and return this issue to Congress to write a new law.
Judge Vinson shows us in this decision exactly what a good federal judge looks like. This case was a victory for the Constitution and the rule of law, which makes it a victory for the American people.