Of Severability And Sins Of Ommission

From The American Spectator:

Of Severability and Sins of Omission


By David Catron on 12.7.10 @ 6:09AM



On October 18, attorneys representing the Commonwealth of Virginia and the Obama Justice Department squared off before U.S. District Court Judge Henry Hudson to debate the constitutionality of the Patient Protection and Affordability Act (PPACA). Although the primary point at issue was the individual mandate, ObamaCare's requirement that all Americans buy health insurance, the lawyers spent a significant portion of their limited time arguing about a clause that doesn't actually appear in the new law. Few of the journalists present in the courtroom reported on what must have seemed to them an arcane digression, but this was no sideshow. It involved the failure of the Democrats to include a severability clause in PPACA, an omission that could, in theory, bring the whole corrupt edifice crashing down.



If you are like most people, the term "severability" probably doesn't come up much in your water cooler conversations. But the concept does play a role in your life. As Ken Klukowski of the American Civil Rights Union puts it, "If you have a lease, or an employment contract, or service agreement, or even a product warranty, you're likely to find some sort of severability clause toward the end of it." The object of such language is to ensure that, if some part of a legal instrument is declared invalid in court, the remaining provisions stay in force. For obvious reasons, severability clauses are routinely inserted in most important pieces of legislation. But in their headlong rush to ram "reform" down America's throat, the Democrats neglected to include one in ObamaCare.



Predictably, there has been much speculation concerning how they managed to commit such a blunder. One congressional aide told the New York Times it was just an "oversight," a plausible explanation considering the haste and procedural skullduggery with which this particular piece of sausage was produced. Like everything else that happens in Washington, however, the episode has generated a variety of conspiracy theories. The most popular of these among conservative conspiracy buffs posits that the clause was deliberately left out to protect the mandate. In other words, the subtle schemers who wrote the bill knew that few judges would be willing to declare the mandate unconstitutional if that decision also required them to strike down the entire law. Progressive paranoiacs, on the other hand, suspect a dark plot by the perfidious Blue Dogs.



Whether the failure to include a severability clause in PPACA was a simple screw-up or a Machiavellian plot, it was an omission whose significance was not lost on Virginia Attorney General Ken Cuccinelli. Unlike the congressional Democrats who voted on the legislation, Cuccinelli and his staff carefully read PPACA. And, when Commonwealth of Virginia v. Sebelius was filed in the U.S. District Court, the lawsuit explicitly pointed out that ObamaCare "contains no severability provision." This allowed Cuccinelli to argue that, if Judge Hudson agrees with the Commonwealth's contention that the individual mandate is unconstitutional, he is required to strike down the entire law: "Because the individual mandate is an essential, non-severable provision, the entire act is likewise invalid."



At first, like the journalists who attended the October hearing, the Obama administration didn't seem to grasp the significance of the severability issue. Even after the Virgina lawsuit highlighted the potentially disastrous omission, the Justice Department still failed to take it seriously. In its motion to have the Old Dominion's case dismissed, the administration's defense of the mandate played right into Cuccinelli's hands by declaring that ObamaCare is unworkable without it. As Virginia's October filing with the Court phrased it, "Secretary [Sebelius] herself has described the mandate and penalty as the 'linchpin' of PPACA's insurance reforms." The defenders of PPACA explicitly admitted that, even as a purely practical matter, the mandate isn't severable from the rest of the law.



By October 18, however, the administration had stopped imbibing its own talking points about Virginia's "frivolous lawsuit" and decided to address the severability argument head on. Thus, when Justice Department lawyer Ian H. Gershengorn and Virginia Solicitor General E. Duncan Getchell faced off before Judge Hudson, the two had a lively exchange over the issue. But the administration still doesn't seem particularly sanguine about the impression Gershengorn's arguments made on the judge. Hudson has promised to make his decision by the end of this month, and the White House is apparently expecting bad news: "[Administration officials] acknowledge that Judge Hudson's preliminary opinions and comments could presage the first ruling against the law."



This is probably why the White House has made so much of recent rulings by U.S. District Judges George Steeh and Norman Moon, Clinton appointees who dismissed relatively inconsequential anti-PPACA lawsuits. The administration knows, of course, that the Virginia case presents a far more serious threat than either of these cases. It has already survived a motion to dismiss and it was heard in the U.S. District Court for the Eastern District of Virginia, the famous "rocket docket" from which important cases are expeditiously launched to the U.S. Court of Appeals and beyond. As Judge Hudson put it during the October hearing, "[T]his is only one brief stop on the way to the United States Supreme Court." Nonetheless, if he rules in favor of Virginia, the administration will no doubt claim it is ahead two-to-one.



The jumpiness of the White House notwithstanding, it is not a given that Judge Hudson will strike down the entire law. He has shown skepticism about the mandate, but that issue is relatively straightforward compared to the severability question. On the mandate, he can follow the example of Judges Steeh and Moon, who held that the decision not to engage in economic activity somehow constitutes "commerce" as the word is used in the Constitution, or he can rule that such reasoning does too much violence to the intent of the founders. On severability, Hudson's choices are more numerous and the legal precedents are less auspicious. In fact, the Supreme Court recently invalidated an important part of the Sarbanes-Oxley accounting law, which contains no severability clause, while leaving the rest of its provisions in place.



To a layman, such an obscure ruling may seem a dubious basis upon which to decide the fate of a nanny-state abomination like ObamaCare. But, to quote Jonathan Swift, "It is a maxim among these lawyers, that whatever hath been done before, may legally be done again." Thus, it doesn't necessarily matter that the preservation of PPACA would defy "common justice and the general reason of mankind," or that Getchell bested Gershengorn in October's arcane dust-up. The Supreme Court has already provided Judge Hudson with an "out" on the absent severability clause. Will he take it? We'll know in three weeks.



Letter to the Editor



David Catron is a health care revenue cycle expert who has spent more than twenty years working for and consulting with hospitals and medical practices. He has an MBA from the University of Georgia and blogs at Health Care BS.