In the wake of Monday's ruling by a Florida judge to toss out ObamaCare as a result of the individual mandate, MSNBC's Lawrence O'Donnell asked liberal constitutional lawyer Jonathan Turley Tuesday if the Democrats made a mistake not writing a severability clause into the law.
Turley surprisingly answered, "It was a colossal mistake" (video follows with transcript and commentary):
LAWRENCE O’DONNELL, HOST: Joining me now is Jonathan Turley, professor of constitutional law at George Washington University.
Jonathan, thanks for joining us tonight.
JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY: Hi, Lawrence.
O’DONNELL: Jonathan, the Democrats made a mistake of not writing into the law that the bill is what they call "severable," meaning if courts find bits of it unconstitutional, they can simply sever those bits from the rest of the law. Democrats insist that severability is implicit in this kind of law. Who’s right?
TURLEY: Well, first of all, it was a colossal mistake not to have a severability clause in this legislation. It’s a standard clause in bills. It is not clear why it was kept out. Some people say it was a blunder. Other suggests and I know you know, there’s some suspicion that it might be a sort of game of chicken, that they wanted to make clear, if you take out the individual mandate, you are risking the entire bill to sort of give these judges a bit of sticker shock.
But either way, it was a mistake. It opened the door to allow a judge like Judge Vinson to strike the entire act. Now, it is certainly true that you do not need a severability clause for a judge to sever provision. And, in fact, that’s exactly what Judge Hudson did in the Virginia. He was encouraged to strike down the entire law of Virginia and he chose not to. I agree with that decision. I think he did the right thing there.
But, the Democrats really laid themselves open in how they drafted this act. Judge Vinson is not, you know, totally out of line in saying that severability was put at issue when they did not include the clause. The interesting thing is the severability clause was in an earlier draft of the legislation and was removed.
Something that Judge Vinson notes in his opinion.
O’DONNELL: I can tell you, Jonathan, that’s exactly the kind of mistake that occurs at the staff level when they are in these panic writings, last-minute writings of the legislative language of these bills - - things that they intend to be in there like a severability clause can easily slip out in the word processing.
Fascinating to see two liberals point fingers at Democrats, don't you agree?
Despite them both being correct, they omitted - conveniently or ignorantly - that this is the inherent problem of creating a several thousand page bill that no one reads.
O'Donnell blamed it on the word processing, but how about pointing fingers at all the Democrats in both chambers of Congress as well as in the adminstration that missed this oversight likely because no one read the darned thing? Was it so lengthy and comprehensive that it was impossible for anyone to know what was really there?
Makes you giggle now when you think about House Speaker Nancy Pelosi (D-Calif.) arrogantly claiming people would love the bill once they learned what was in it. You think she had any idea that there was no severability clause and that this could end up spelling the doom of the entire law?
Think she's lovin' it now? I sincerely doubt the Speaker is humming the McDonald's theme song at the moment.
This all becomes more important depending on the timetable of when the Supreme Court will hear this case. Hot Air's Ed Morrissey noted Tuesday that SCOTUS could end up deciding the 2012 elections:
A Supreme Court ruling that supports the mandate still leaves President Obama and his Democratic allies with an unpopular bill under political siege in the Republican-controlled House, no worse or better off than before a final court ruling. Such a ruling might even provide more motivation to the opposition to gain control of the Senate and White House to reverse the PPACA entirely through legislative action.
An adverse ruling by the Supreme Court before the 2012 election would be an unequivocal disaster, however. President Obama and his fellow Democrats spent almost half of the 111th congressional session fiddling on health care while the economy burned, which destroyed their credibility in the midterm elections last fall. They insisted that their work would pass constitutional muster even as the mandate fueled the rise of the Tea Party and came to embody all of the arrogance and elitism of big government, nanny state. A ruling that overturns even just the mandate means that they tossed away their House majority and all of their political momentum for nothing.
What’s more, it will increase the prestige and the credibility of those who fought the passage of the PPACA and who later vowed to repeal it entirely and start reform over from scratch. And that could come just as President Obama runs for re-election and Democrats desperately try to preserve their Senate majority as they defend 13 more seats than Republicans. Not only would their work be discredited, so would their entire approach to governance.
The question of severability in the legal sense will play an important part of the appeals process, up to the Supreme Court sooner or later. The bigger question will be whether President Obama and his party will have any political severability from Obamacare if the Supreme Court overturns it on an expedited review. Voters will give the final judgment on that point, but given Democrats' lack of accomplishment over the past few years, don't bet on it.
This makes the severability omission larger than O'Donnell and Turley cared to admit. As Morrissey noted Wednesday, the Democrats are now in a real bind no matter what happens with SCOTUS:
[O]ne has to presume under the circumstances that the chance to head off a long, contradictory trek through different appellate circuits will appeal to at least the conservative end of the bench, especially since there is zero chance of avoiding the case in the long run anyway. On the other hand, after Bush v Gore, the court may not be terribly anxious to get to that end game and be seen as conducting a political intervention.
If they decide to tackle the inevitable sooner rather than later, the White House and its Democratic allies will face two outcomes: either a fired-up electorate like in 2010, or massive egg on their faces and … a fired-up electorate. There will be no severability from ObamaCare either way.
I don't agree on the Bush v. Gore point, as Obama injected himself into the Court's politics when he foolishly decided to admonish them during his 2010 State of the Union address. As a result, Justice Samuel Alito joined Justices Antonin Scalia and Clarence Thomas in not attending this year's SOTU.
As all you need are four Justices to hear the case, it seems almost a metaphysical certitude one of the remaining six will join Alito, Scalia and Thomas especially as this is going to be a political issue whenever the Court chooses to hear it.
And, no matter what their decision, the 2012 elections look certainly to be a referendum on ObamaCare, for if SCOTUS rules for it, the Center and Right will mobilize like never before to get Democrats out of the White House and the Congress in order to legislatively stop this catastrophe before it's fully implemented in 2014.
If SCOTUS finds the bill un-Constitutional as I expect, the Center and the Right will similarly mobilize against Democrats to toss the bums out that wasted so much of the nation's time during a recession on an issue that wasn't anywhere near as important to the citizenry as the economy and jobs.
This deliciously means that Pelosi was kind of right with her love it claim, for conservatives are all humming the McDonald's theme song now having found out what's not in the bill.
Colossal mistake indeed.
*****Update: Morrissey isn't buying the notion this was an oversight. More of a game of chicken.