Scott Brown's election could be the most significant turning point in the whole ObamaCare fiasco. And not because it was an "expression of the will of the people," because, as we've learned, that doesn't matter to our Washington overlords. No, Brown's election has trapped Congress in its own sloppy arrogance.
In a September 8 appearance on Greta Van Sustern's "On The Record," Virginia's Attorney General, Ken Cuccinelli, explained the significance of the Brown victory in the context of Virginia's lawsuit to overturn ObamaCare. In 2010, before ObamaCare was passed, the Commonwealth of Virginia passed its Health Care Freedom Act, which says, more or less, that Virginia residents cannot be required to buy health insurance. After ObamaCare passed, Virginia sued in federal court to have ObamaCare declared unconstitutional because it exceeded the scope of the Commerce Clause. The case already survived its first challenge by the federal government.
On September 3, both parties filed a Motion for Summary Judgment and a Memorandum in Support. To win such a motion, the movant must show that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law" (Fed. R. Civ. P. 56[c].) One section of Virginia's Memorandum in Support of the Motion focused on the issue of severance.
Virginia is asserting that certain portions (that is, the personal mandate) of ObamaCare are unconstitutional. If Virginia prevails, it leaves the question of what happens to the rest of the ObamaCare statute. This is where the concept of severance comes in. Normally, all comprehensive laws contain a boilerplate severance clause: it says that if any portion of the law is found to be unconstitutional, that portion is severed from the rest of the law -- that is, the rest of the law stands.
But ObamaCare contains no severance clause. Virginia is asserting that if it prevails on its substantive claims, the whole law is unconstitutional. (If Virginia does not prevail, any one of the twenty-plus legal challenges have the same severance argument available.)
If a severance clause is normal boilerplate, why does not ObamaCare contain one? This is where Scott Brown's election enters. Recall that the House passed its version of ObamaCare. On Christmas Eve, after much horsetrading and bribing, the Senate passed its version. The Senate version was not drafted to be in its final form; it was drafted to get 60 votes. Normally, these bills would be reconciled in a conference committee, and the final version would have to be voted on again with 60 votes in the Senate. However, before it could be sent to conference and reconciled, Scott Brown won in Massachusetts -- a reconciled bill could no longer get 60 votes! That is why the House had to vote up or down on the Senate bill, which was basically a draft without the normal boilerplate inserted.
As Virginia argued in its Memorandum (Pages 24 to 28), the presence of a severance clause raises a presumption that Congress did not intend the whole statute to depend on the constitutionality of any particular clause. But with no severance clause, they are not entitled to that presumption. A court cannot sever the offending clause on its own if the statute would not function as Congress intended. Attorney General Cuccinelli took clear delight in the box the feds are in. On the one hand, to prevail on its claim that the personal mandate is a proper exercise of the Commerce Clause, the feds must argue that it is necessary and essential to ObamaCare. On the other hand, to get around the severance problem, the feds must argue that the personal mandate is not essential. In the severance portion of the Memorandum (Pages 24 to 28), Virginia cited and quoted the statute itself, the feds' pleadings, and the feds' oral arguments emphasizing the necessity and importance of the personal mandate. I'm sure that section could have been much, much longer, but courts put limits on the size of Memoranda.
Courts sometimes examine the legislative history to divine congressional intent. Cuccinelli cleverly addressed that in his "On The Record" interview. He said there were two possible reasons for the exclusion of a severance clause: 1) sloppiness, or 2) a sort of mutually assured destruction -- that is, these senators inserted their little pet projects, and if they couldn't have theirs, then nobody else could have their pet projects, either. This was clever because against the background of behind-the-scenes wheeling and dealing, it's plausible. So when the feds assert at oral argument that Congress intended severability and cite newspaper articles, congressional records, etc. to back it up, guess what they open the door to.
While it's foolish to hazard a prediction of what courts will do, there is reason for optimism. There are factors in addition to the solid legal arguments against ObamaCare that might influence the court. First, a majority of people hate the law. Second, there is much litigation over it. Third, it is a fundamental and permanent change from a free America to a Euro-America. A single judge can end all that strife. Moreover, if you were a judge, would you like to go down in history as the one who gave up on America?