Ooopsie. They Left Out The Severability Clause

Ooopsie. They Left Out The Severability Clause

by digby

Inept or corrupt? The perennial question:

Quite often, legislators include what's known as a "severability clause" in their bills. These are meant to protect the bulk of a law in the event that a small portion of it is determined to be unconstitutional. That small portion must go, or be changed, but pretty much everything else is allowed to stand.

In a sin of omission, Democrats left such a clause out of the health care law, and now the plaintiffs in at least one of the cases against it want the court to take an axe to the whole thing if the judge decides that the individual mandate provision is unconstitutional.

The good news for supporters of the ACA, according to one leading expert on the reform plan and the suits against it, is that -- even under the worst case scenario -- most of the law will likely remain intact. The bad news is that some of its most important and popular provisions could become ensnared by a ruling against the mandate, and nixed by the court.

I would think this was an inexcusable error if it weren't for the fact that the wingnuts were clearly telegraphing their intentions to the New York Times. It's very hard to believe anyone could possibly be this stupid. But regardless of why they did it, they have left the conservative judiciary a tool with which to smash the already rickety edifice of this program.

Not that it's even necessary. As Adam Serwer wisely observes:

In Citizens' United, the court proved itself willing to go beyond the question originally posed to the court to entirely dismantle campaign finance reform. If anything, that ruling showed that the court is entirely prepared to make broad rulings on matters of partisan fixation. The conservative majority on the Supreme Court will do whatever they have the votes to do, whether it's overturning the law entirely, just eliminating the mandate or merely offering an angry dissent.

Update: Adding that this doesn't seem to apply to yesterday's ruling, which appears to be fatally flawed in its own right according to many constitutional experts.