As I have discussed here, U.S. District Court Judge Henry Hudson promised to rule by the end of the year on the constitutionality of ObamaCare’s individual mandate. And the White House is worried:

[Obama administration] officials are bracing for the possibility that a federal judge in Virginia will soon reject its central provision as unconstitutional and, in the worst case for the White House, halt its enforcement until higher courts can rule.

The case on which Hudson will render his decision, one of many challenging the authority of Congress to impose such a mandate, was filed by Virginia AG Ken Cuccinelli. And the Obama DOJ has good reason to be nervous:

[They] acknowledge that Judge Hudson’s preliminary opinions and comments could presage the first ruling against the law. ‘He’s asked a number of questions that express skepticism,’ said one administration official who is examining whether a ruling against part of the law would undermine other provisions.

A ruling against the administration would “undermine other provisions” because, as I first pointed out last June, ObamaCare contains no severability clause. That puts the entire “reform” law in real jeopardy:

Mr. Cuccinelli and the plaintiffs in the Florida case, who include attorneys general or governors from 20 states, have emphasized that Congressional bill writers did not include a ‘severability clause’ that would explicitly protect other parts of the sprawling law if certain provisions were struck down.

The omission of a severability clause was a huge screw-up by the Democrats. Such clauses are routinely inserted into important pieces of legislation, but they forgot to add one to ObamaCare (my emphasis):

A Democratic aide who helped write the bill characterized the omission as an oversight … Without such language, the Supreme Court, through its prior rulings, essentially requires judges to try to determine whether Congress would have enacted the rest of a law without the unconstitutional provisions.

As Ann Althouse pointed out yesterday, the WH has long argued that ObamaCare won’t work without the mandate. But to keep the entire law from imploding, the DOJ tried to have it both ways in Hudson’s  October hearing.

I imagine his ruling will show that he isn’t buying such pettifoggery.

Comments 2

  1. ECM wrote:

    You’d think, in a 2000 page bill, that literally everything would be in it (including a complete version of the King James Bible)–what a bunch of incompetent clowns.

    Posted 29 Nov 2010 at 1:18 am
  2. Paul Hsieh wrote:

    David: I hope you’re right. But according to Peter Suderman, the SCOTUS might not actually follow that reasoning.

    This phrase in particular caught my eye:
    “…the Court ‘presumes severability unless non-severability is explicitly specified.'”

    So even though it is is a massive oversight by the Congress, given how politicized this issue is, I don’t necessarily count on the SCOTUS to do the right thing here.

    Posted 05 Dec 2010 at 10:33 am

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