A Severe Mistake for ObamaCare


By Hadley Heath

I know I wasn’t the only one whose eyes got big reading this in the New York Times:

An earlier version of the legislation, which passed the House last November, included severability language. But that clause did not make it into the Senate version, which ultimately became law. A Democratic aide who helped write the bill characterized the omission as an oversight.

First of all, some definitions:

Severability – (from Merriam Webster’s) capability of being severed; especially:capable of being divided into legally independent rights or obligations

Severability Clause – (from West’s Encyclopedia of American Law) In a statute, an exception of a special item out of the general things mentioned in the statute. A restriction in a repealing act, which is intended to save rights, while proceedings are pending, from the obliteration that would result from an unrestricted repeal. The provision in a statute, sometimes referred to as the severability clause, that rescues the balance of the statute from a declaration of unconstitutionality if one or more parts are invalidated.  With respect to existing rights, a saving clause enables the repealed law to continue in force.

That’s a mouthful! I prefer the dictionary for non-lawyers. 

But really, here’s the nitty-gritty on ObamaCare:  The final version of the law doesn’t have a severability clause.  This means that, should the Court strike down part of it (for instance, the individual mandate), the whole law could be gone too.  What an “oversight!”  Perhaps none of the law’s supporters in Congress expected the firestorm of lawsuits after its final passage.  Or, perhaps none of them read the law carefully before its final passage.

Here’s more from the same NYT article:

Without such language, the Supreme Court, through its prior rulings, essentially requires judges to try to determine whether Congress would have enacted the rest of a law without the unconstitutional provisions. The Justice Department, which represents the Obama administration, acknowledges that several of the law’s central provisions, like the requirement that insurers cover those with pre-existing conditions, cannot work unless both the healthy and the unhealthy are mandated to have insurance. Otherwise, consumers could simply buy coverage when they needed treatment, causing the insurance market to “implode,” the federal government asserts.

Well, no one wants the insurance market to “implode,” especially not the Plaintiffs in the health care lawsuits.  But, as I’ve written before, going back to the drawing board on health reform would be a good thing.  There are other, better ways to help people with pre-existing conditions find affordable, quality health care. 

If ObamaCare’s mandates to insurers won’t work without the mandate to individuals, it would be better to throw them all out.  It was unwise to build the entire health reform on an unconstitutional cornerstone.  And without a severability clause, the whole reform could be gone with it.


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