Clarification on Severability

I've been reading a bit on the three day Supreme Court hearings about Obamacare. The first day dealt with the definition of the mandate as whether it is a tax or not. Should it be ruled a tax, the rest of the case gets thrown out because a tax law cannot be challenged in court until at least one year after the tax is collected and the taxes in Obamacare are not collected until 2014.

Day two of the hearings dealt directly with the mandate and whether or not it violates the Commerce Clause of the 14th Amendment. Day three dealt with the lack of a severability clause in the law. It was specifically about the severability clause that I got some edification today.

I was under the impression (I think like most people) that a severability clause is inserted into a bill so that if one part of a law is determined to be unconstitutional then only that part is thrown out and the rest of the law is still good. However, that doesn't seem to be the case. A severability clause is included to denote the intention of Congress that should a portion of the law be found unconstitutional, they don't care if that part is struck out. If they want it, they'll go back and pass it as a separate law in a restructured manner.

The lack of a severability clause, and in this case it was intentionally left out, denotes that it is Congress' intention that they are not kosher with any portion of the law being struck out and therefore intend that if any one part goes down, the whole thing goes down. In the case of Obamacare, the severability clause was left out because the mandate is how this thing is paid for. If it is struck out, the whole thing has no way to pay for itself and will drive itself out of control economically.

Now, whether the Supreme Court sees it quite that way is another question. They could choose to override Congress' opinion and say that the law is still ok even if the mandate is struck down. I doubt it will because so much of the law is layered on top of each other that if the mandate goes, the rest of the law will collapse in a tangled mess of unreferenced strings (think of it as program code with a series of unclosed "if statements").

My own personal opinion is that everything hinges on the second day arguments. I think the Supremes will will rule (perhaps 9-0) that the mandate is not a tax, because it doesn't fit that definition. Plus, they're itching to go at this thing so they're not going to punt this thing three years down the road. If they were interested in punting, they never would have fast-tracked the case to this session.

So it comes down to how the mandate relates to the Commerce Clause. I think it will go 5-4, but I'm not sure as to which way Justice Kennedy will swing. He gave indications during oral arguments that could be read as positive and negative for both sides. We'll find out in June.