Health care law lacks severability clause

IBD:

One analyst says the Democrats were amateurish in writing their overhaul bill. This might be worth more than a snicker. It could mean the courts can strike down the entire law at once.

Various parts of the Democrats' health care reform law have been held up as pieces that might not stand up to a constitutional rigor.

The individual mandate that requires those who aren't previously covered by insurance to buy a plan is the most likely place for the legal objections to begin. Another provision that is being disputed at the constitutional level is the expansion of Medicaid that forces states to increase their spending on that program.

But those are only two pieces of a legislative leviathan. Even if one or both were stricken, the bulk of the law's burden would remain.

However, Greg Scandlen, a senior fellow at the Heartland Institute, says due to a little-known legal concept the entire law would unravel if a single part was found to be outside the Constitution.

"Apparently there was no 'severability' clause written into this law, which shows how amateurish the process was," he wrote. "Virtually every bill I've ever read includes a provision that if any part of the law is ruled unconstitutional the rest of the law will remain intact. Not this one. That will likely mean that the entire law will be thrown out if a part of it is found to violate the Constitution."

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If true it is legislative malpractice. I routinely included severability clauses in contracts. Even if you are just coping one from a form book you would have one. It certainly raises the stakes in the cases brought against the act. But, the fact is if the individual mandate is struck down the rest of the act will crumble, because the economics do not work without it. To strike the whole thing down at that point would be a mercy killing.

Update: The Sarbanes-Oxley Act, currently being challenged before the Supreme court, does not have a severability clause. We should watch this case with interest.