While everyone waits for the Supreme Court to issue it's final ruling on the Affordable Care act law, better known as Obamacare, many pundits argue that if the high Court strikes down the individual mandate as unconstitutional, the bigger issue is whether that part of the law is severable from the whole health care law as a whole or whether the Supreme Court will strike the entire law because Democratically controlled Congress did not include a "severability clause" into the final bill they passed and Barack Obama signed.
Had the Democratically controlled Congress and Barack Obama included the severability clause in the final bill, instead of removing the clause that was included in prior versions of the bill, there would be no question of the whole law being overturned if the individual mandate was found to be unconstitutional.
...severability clause states that the terms of the contract are independent of each another, so that if a term in the contract is deemed unenforceable by a court, the contract as a whole will not be deemed unenforceable. It may contain two parts: (a) savings language to preserve the validity of all other terms in the event that one provision is determined to be unenforceable; and (b) reformation language to scale back overly broad provisions to terms and scope that are enforceable (such as limiting the time and geographic scope of non-compete covenants).
The severability clause is specifically added for the very purpose of protecting portions of a contract, or in the case of Obamacare, the law, in case other portions of the law are struck down by the courts.
Liberals have opined that not including a severability clause in the Obamacare law was an "error," but as was highlighted by Judge Vinson sitting in the United States District Court for the Northern District of Florida, Democrats removed the severability clause from prior versions of the Obamacare law.
Page 67 of Judge Vinson's ruling, found here, states:
The lack of a severability clause in this case is significant because one hadbeen included in an earlier version of the Act, but it was removed in the bill that subsequently became law. “Where Congress includes [particular] language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the [omitted provision] was not intended.” Russello v. United States, 464 U.S. 16,23-24, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983). In other words, the severability clause was intentionally left out of the Act. The absence of a severability clause is further significant because the individual mandate was controversial all during theprogress of the legislation and Congress was undoubtedly well aware that legalchallenges were coming. Indeed, as noted earlier, even before the Act became law,several states had passed statutes declaring the individual mandate unconstitutionaland purporting to exempt their residents from it; and Congress’ own attorneys inthe CRS had basically advised that the challenges might well have legal merit as itwas “unclear” if the individual mandate had “solid constitutional foundation.” SeeCRS Analysis, supra, at 3. In light of the foregoing, Congress’ failure to include aseverability clause in the Act (or, more accurately, its decision to not include onethat had been included earlier) can be viewed as strong evidence that Congress recognized the Act could not operate as intended without the individual mandate.
That is not an error as Liberals claim, it was there and was consciously taken out before passage of the law. That final version had to passed through the Democratically controlled House of Representatives, the Democratically controlled Senate and then Barack Obama's office for his signature.
No one noticed that it disappeared?
It was either deliberately removed or the House, Senate and White House were extremely incompenent and did not read the full bill before passing it and then signing it into law.
If the Supreme Court rules the individual mandate is unconstitutional, then the whole law should be overturned because by deleting the severability clause, Congress and Obama recognized the law "could not operate as intended without the individual mandate."