Into the Void

How the Democrats gave a conservative judge an opening to invalidate the health care law.

Florida Attorney General Pam Bondi

Conservatives pleased about Judge Roger Vinson’s 78-page decision rendering “void” the entire Patient Protection and Affordable Care Act of 2010 can send their letters of thanks to a group that doesn’t get many of them—and is sure to get few from its liberal supporters outraged by the decision. I refer, of course, to Senate Democrats.

One year ago, in the aftermath of Republican Scott Brown’s upset win in the Massachusetts Senate race, Democrats faced a dilemma. They lacked the votes to pass a massive health care overhaul, which had already been passed by the House and Senate but would need to be approved again by both if it were changed in conference committee. They had two options. They could scrap the bill entirely and try to get through a few popular reforms. (This was the approach favored by then-White House Chief of Staff Rahm Emanuel.) Or the House could ram through the Senate’s version of the bill, with no public option and a host of the other problems that crop up in months of messy infighting and committee work.

Democrats chose the second option. The bill became law. Republican attorneys general in Virginia, Florida, and eventually 25 other states joined lawsuits to overturn the law. They argued that the legislation’s individual mandate, which would start in 2014 and fine people who did not obtain health insurance, was unconstitutional. And today, Judge Roger Vinson of Florida’s Northern District ruled that they were right. Oh, and one more thing:

“Because the individual mandate is unconstitutional and not severable,” writes Vinson, “the entire Act must be declared void.”

The bill passed by the House and Senate did not include a severability clause. Most big pieces of legislation include such a clause, which typically explains that “invalidity or unenforceability of one or more provisions of this Agreement shall not affect any other provision of this Agreement.”

So how did the Democrats fumble this? Shortly after Monday’s decision, a few liberal attorneys got on the phone for a call with reporters, sponsored by the Center for American Progress and the American Constitution Society. I asked Neera Tanden, who’s now the chief operating officer at CAP but who was a senior adviser at the Department of Health and Human Services during the passage of the bill, why there was no severability clause.

“One of the reasons there was not was that there was a keen understanding in the process that courts generally have a deferential view of severability and try to make the rulings have the least impact,” she said. “And that took the pressure off the severability clause.”

That was the thinking at the time from plenty of experts. Two months ago, Washington and Lee University law professor Timothy Jost told Brian Beutler—one of the first reporters to notice the severability slip-up—that it was unlikely that a lower court would void the entire health care bill if it voided the mandate, because “the normal rule is that partial invalidation is the required course.”* Today, his optimism left tattered on Judge Vinson’s carpet, Jost intimated that the Senate had made a mess of things.

“This was the Senate bill that was passed in December,” said Jost. “Everyone expected that there would be a conference committee that would straighten out the issues in the bill. And then there was Scott Brown’s election.”

In his decision, Vinson argues that Congress’ failure to include a severability clause was a clear indication that every piece of the law needed to survive for any piece of it to work. He cites the 2006 decision in Ayotte v. Planned Parenthood of New England, arguing that it is not up to the courts to try and salvage the good parts of a law that has been partially struck down.

“Severing the individual mandate from the Act along with the other insurance reform provisions—and in the process reconfiguring an exceedingly lengthy and comprehensive legislative scheme—cannot be done consistent with the principles set out above,” writes Vinson. “Going through the 2,700-page Act line-by-line, invalidating dozens (or hundreds) of some sections while retaining dozens (or hundreds) of others, would not only take considerable time and extensive briefing, but it would, in the end, be tantamount to rewriting a statute in an attempt to salvage it. … Courts should not even attempt to do that. It would be impossible to ascertain on a section-by-section basis if a particular statutory provision could stand (and was intended by Congress to stand) independently of the individual mandate. The interoperative effects of a partial deletion of legislative provisions are often unforeseen and unpredictable. For me to try and ‘second guess’ what Congress would want to keep is almost impossible.”

That rationale makes no sense to Jost. “It’s much more likely that the severability clause wasn’t intentionally left out,” he said today. In plainer terms: It’s much more likely that the Democrats messed up.

Where do they go next? The Justice Department will ask for a stay of Vinson’s decision, which is what it needs for the rest of the health care law to be enforced and implemented. The soonest that this case could be kicked up to the Supreme Court would be 2012. So the administration and other supporters of the law have at least one more year to convince themselves that the problems with the legislation won’t lead to it being shredded when it hits the high court. (They have won two of the four “ObamaCare” cases, not that this matters when they lose a big one.)

Their administration’s lawyers are hoping that the next judges who take this case are more concerned with Supreme Court precedent than with, say, the Federalist Papers. “In a frequently cited law review article,” writes Vinson, “one Constitutional scholar has painstakingly tallied each appearance of the word ‘commerce’ in Madison’s notes on the Constitutional Convention and in The Federalist, and discovered that in none of the ninety-seven appearances of that term is it ever used to refer unambiguously to activity beyond trade or exchange.” The scholar being quoted here is Georgetown’s Randy Barnett, the intellectual force behind the Repeal Amendment.

But Vinson goes further than that. He points out, semi-relevantly, that the mandate isn’t good politics. “I note that in 2008,” Vinson writes in a footnote, “then-Senator Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that ‘if a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house.’ ” At another point, he says that the Founders who rebelled against a tea tax would not “have set out to create a government with the power to force people to buy tea in the first place.”

Liberals can only hope that the next judge who gets to decide whether the health care law is constitutional is more kind than that. The fate of health care reform is where it was yesterday—in the hands of Supreme Court Justice Anthony Kennedy.

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Correction, Jan. 31, 2011: This article originally misidentified Washington and Lee University law professor Timothy Jost as Walter Jost. ( Return to the corrected sentence.)