Although the multi-state suit against Obamacare initiated in Florida has received more attention from the media, it has less chance of reaching the Supreme Court than does the lawsuit filed by Old Dominion AG Ken Cuccinelli. Why? Because the latter was filed in the U.S. District Court for the Eastern District of Virginia:
That’s important because it’s the “rocket docketâ€? — the fastest-paced federal trial court in the country. Litigation at the trial level can go on for multiple years … But in the rocket docket, it’s quite possible that this case could go to summary judgment in another six months.
And the Virginia lawsuit raises an interesting issue that may well be Obamacare’s Achilles heel:
Obamacare has no severability clause. What that means is that if any one part of Obamacare is found unconstitutional, then the entire law might be thrown out in court by a single decision.
Is it unusual for a major piece of legislation to escape Congress without a severability clause? Yep.
Almost all legislation has a severability clause. That’s routine language — almost boilerplate — that says if any one part of this law is found unconstitutional, or otherwise invalid or unenforceable, then the remainder of the law will continue in full force and effect.
The absence of such a safeguard must have the Obama administration worried, because it moved quickly to have the case dismissed on the grounds that the state has no “standing” to bring suit. But that move was anticipated and pre-empted by the VA legislature:
Virginia’s legislature passed a law empowering and charging the attorney general to bring suit on behalf of all the citizens of Virginia that would be under the hammer of the individual mandate. Cuccinelli filed suit in accordance with that law.
Cuccinelli plans to respond to the government’s motion later this week. So, we’ll soon know if this legal rocket is going to blow up on the launch pad or fly straight to the Supreme Court.
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