Video: Lack of severability in ObamaCare a “colossal mistake”
posted at 2:15 pm on February 2, 2011 by Ed Morrissey
Or was it? Larry O’Donnell blames Democrats for rushing the ObamaCare bill to a vote and forgetting to insert the severability clause, but Jonathan Turley isn’t buying the post-Florida verdict spin from Capitol Hill. He suggests that Democrats deliberately left out the severability clause as a triple-dog dare to judges. Take out the mandate, the strategy goes, and lose all of the goodies in the rest of the bill! Unfortunately for Democrats, they lost this particular round of “chicken.” Newsbusters has the video and the transcript:
O’DONNELL: Jonathan, the Democrats made a mistake of not writing into the law that the bill is what they call “severable,” meaning if courts find bits of it unconstitutional, they can simply sever those bits from the rest of the law. Democrats insist that severability is implicit in this kind of law. Who’s right?
TURLEY: Well, first of all, it was a colossal mistake not to have a severability clause in this legislation. It’s a standard clause in bills. It is not clear why it was kept out. Some people say it was a blunder. Other suggests and I know you know, there’s some suspicion that it might be a sort of game of chicken, that they wanted to make clear, if you take out the individual mandate, you are risking the entire bill to sort of give these judges a bit of sticker shock.
But either way, it was a mistake. It opened the door to allow a judge like Judge Vinson to strike the entire act. Now, it is certainly true that you do not need a severability clause for a judge to sever provision. And, in fact, that’s exactly what Judge Hudson did in the Virginia. He was encouraged to strike down the entire law of Virginia and he chose not to. I agree with that decision. I think he did the right thing there.
But, the Democrats really laid themselves open in how they drafted this act. Judge Vinson is not, you know, totally out of line in saying that severability was put at issue when they did not include the clause. The interesting thing is the severability clause was in an earlier draft of the legislation and was removed.
Something that Judge Vinson notes in his opinion.
O’DONNELL: I can tell you, Jonathan, that’s exactly the kind of mistake that occurs at the staff level when they are in these panic writings, last-minute writings of the legislative language of these bills – – things that they intend to be in there like a severability clause can easily slip out in the word processing.
I’m not buying the gee-whiz-look-what-we-forgot explanation. In the age of word processors, bills don’t get rewritten by hand or from scratch; they get worked and reworked by components. The severability clause existed in prior versions, which means that someone made the decision to remove it. Vinson didn’t buy it either, noting in his ruling that the removal of that clause showed the intent to make the bill an all-or-nothing proposition, and for good reason, as the mandate was central to the economics of the plan.
Even if one was tempted to buy the Democratic spin on the bill, it only moves the ball from deliberate brinksmanship with the judiciary to sheer incompetence. One of the main complaints about ObamaCare was the process by which it was written. Democrats insisted on drafting it in secret, and then dumping it on the floor of the House and Senate with just hours to review almost 3000 pages of material. Since its passage, the bill’s flaws have only multiplied, including an idiotic requirement for 1099s on routine, small transactions that will bury small business and the IRS in a flood of paperwork. This is just the latest miscalculation to come to light, and it won’t be the last.
If it was deliberate strategy, the triple-dog dare has clearly backfired. Not only has it resulted in 26 states being freed for the moment of compliance with ObamaCare, the sweeping nature of the ruling has made it at least a little more likely that the Supreme Court will accept an expedited review of the case — and as I wrote earlier, that’s bad news for Democrats and Obama if it happens. Be sure to read all of Noel Sheppard’s post at Newsbusters for further thoughts on that point.