In an article found at The Heartland Institute, we have this opinion concerning severability and ObamaCare. Heartland appears to be a Right-leaning (but hardly radical) collection of scholars.
What is likely as to the outcome of this law “ . . . . is that the Supreme Court would just eliminate the portions of the bill which are tied directly to the individual mandate. Some people have claimed the severability clause is absent from Obamacare because the writing process of the bill was such a cluster, the clause was just forgotten. But the reality, I’m told, is that a severability clause would’ve been added in conference between the House and Senate. Except that as you know, no such conference happened — everything had to be done via reconciliation after the House passed the Senate bill. Hence, no severability clause.
Now, the folks at Heartland are much more qualified than a 35 year old Okie carpenter, to discuss such things, expect on the occasion that they do not have all the facts.
This is such a circumstance.
It is all but forgotten, but, in a word, this is what happened to the severability clause and ObamaCare:
Scott Brown. . . . .
That is what happened to the clause.
With his victory, the Boston Globe carried this headline story:
"Republican Scott P. Brown pulled off one of the biggest upsets in Massachusetts political history last night, defeating Democrat Martha Coakley to become the state’s next US senator and potentially derailing President Obama’s hopes for a health care overhaul."
He won his Senate election in Massachusetts, replacing the dead Ted Kennedy, and, with that victory, reduced the majority in the Senate from 60 to 59. You should know that it takes 60 votes (in the Senate) to end discussion of a bill. Without that majority, it was possible for Senate Republicans to stop progress on health care bill. Understand that the bill had been approved by House just prior to Scott Brown's election. During that process, in the House, somehow, the severability clause had been dropped before the vote. After the House voted to pass the law, it was sent to the Senate for approval.
Problem: Scott Brown won his election on the promise of voting against ObamaCare. As a result, the Senate was stuck with the precise wording of the House bill. Without the super majority in the Senate (the 60 vote margin), the Democrats would have to renegotiate the bill if they changed the wording approved in the House. Democrats knew Scott Browns election ended their dictatorial hold on Congress as a whole. They knew the death of ObamaCare was a very real possibility, so they decided to run the bill through the Senate via "reconciliation," and pass the bill as written. The public option could not be added nor could the severability clause be re-inserted. After Brown's monumental election, the Democrats knew that if they did not accepted the bill as approved by the House, the GOP could not stop its passage.
In one of the greatest moments in political history, the GOP had out-smarted the Dems and proved themselves to be more astute at political strategies than they. The omission of the severability clause just might prove to be the single most important factor in the failure of ObamaCare, should that be the case.