“We have to pass the bill so that you can find out what is in it.” That was Nancy Pelosi last March, promoting that Pandora’s Box known as ObamaCare. Well, it turns out that Pelosi and the bill’s proponents may be upset to find out what is not in it. Namely, they failed to include a severability clause in their haste.
So what is a “severability clause,” and why might it matter? A severability clause is a simple provision stating that if a court later declares one or more subsections of a bill void, the remainder of the bill remains valid and enforceable. Without a severability clause, an entire bill can be jeopardized even if a very small part of it is stricken by the judicial branch. Now, with separate lawsuits challenging ObamaCare quickly proceeding toward judicial reckoning, it is possible that the entire package may crumble if its individual mandate (forcing free citizens to engage in involuntary commerce by purchasing approved health insurance) or some other clause falls.
There is no guarantee in this regard, as the Supreme Court just this year curiously allowed the tangled Sarbanes-Oxley web to survive despite its own absence of a severability clause. Nevertheless, the complete demise of ObamaCare due to the failure to add a simple severability provision could be one positive byproduct of ObamaCare’s sloppy birth.