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.
