The brass ring in Obamacare cases is severability, not the individual mandate

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Litigation over the Obamacare individual mandate has captured the public’s attention, as we’ve written previously for the Washington Examiner and the Wall Street Journal. But the ultimate goal in challenging the constitutionality of President Obama’s health care law is not the mandate; it is severability.

This individual mandate that almost every American must buy health insurance is the most obnoxious provision of Obamacare, eradicating the concept of limited government. If the federal government can tell you how to spend your own money to buy insurance, then it also has the power to command you how to spend the rest of your money in every area of life, from food, to education, to housing. Nothing would be beyond the reach of Big Brother.

But the mandate is only one intolerable aspect of Obamacare. Not all other provisions are innocuous irritations, such as the tax on tanning beds. One authoritarian provision is the employer mandate, imposing draconian penalties on every employer with over fifty employees who does not offer health insurance. Another requires everyone who gives any significant amount of money to any vendor to issue a 1099 tax document. Obamacare includes myriad such mandates, taxes and administrative burdens.

And of course, there are other objectionable parts of Obamacare. For example it funds abortion, notwithstanding President Obama’s executive order to the contrary (since the White House cannot attach conditions on funding that Congress does not impose in the statute’s language). Others drive up premiums, like requiring policies to keep children until their mid-twenties.

But many of these provisions are policy choices within Congress’ purview, and thus cannot successfully be challenged in court.

There is one way to nullify all of these provisions, however, since Obamacare lacks a severability clause. A severability clause states that if any part of the statute is found invalid, then the remainder continues in full force and effect. Severability provisions are so common as to be almost boilerplate. (If you look around your home at any sort of contract, you’re likely to find such a clause toward the end of the document.)

Even without a severability clause, a court applies a presumption of implied severability. Under severability doctrine, a court will surgically excise an unconstitutional provision from a law if possible. However, if the court finds the invalid provision to be an essential part of the legislation, then the court can strike down the entire statute. If the statute cannot work in the manner Congress intended without the provision, then a court can hold Congress would rather have no statute at all. The presumption the Congress intended severability is weakened in the absence of a severability clause, as is the case with Obamacare.

Thus, if a court finds the individual mandate unconstitutional, and that the mandate goes to the core of the legislative deal, then the entire 2,700-page law could be struck down with a single court decision.

All three major lawsuits challenging Obamacare argue that the individual mandate cannot be severed from the remainder of the statute. Although this issue rarely comes up, Supreme Court precedent weighs in favor of holding that the mandate cannot be severed from the statute.

The documentary I Want Your Money quotes Speaker Pelosi’s infamous Obamacare comment that, “we have to pass the bill so that you can find out what is in it.” Well, Madame Speaker, a severability clause is one thing not in the bill. And that may prove its undoing.

Striking down the Obamacare individual mandate would be an historic vindication of the rule of law. But if the courts find that the mandate is not severable from the remainder of the statute, then it could wipe clean the slate of health care reform. That would return this issue to a new Congress — and possibly a new president — to devise reform legislation that will actually improve health care costs, instead of an unprecedented invasion into the lives and liberties of American citizens.

J. Kenneth Blackwell is a senior fellow at the Family Research Council and a visiting professor at Liberty University School of Law. Kenneth A. Klukowski is special counsel at the Family Research Council, a research fellow with Liberty University School of Law, and authors briefs on severability in the Obamacare lawsuits. They analyze Obamacare’s flaws in The Blueprint: Obama’s Plan to Subvert the Constitution and Build an Imperial Presidency.