The Tactics of Severability

Sometimes a clause in a contract is illegal. For example, employment contracts sometimes contain restraint of trade clauses – that the employee may not work for a competitor for a certain period after resigning. Unreasonable restraint of trade clauses can be struck down, but this does not make the entire contract void. Only the offending clause is unlawful. On the other hand, if someone agrees to supply you a gun in exchange for your killing someone the entire contract is void, since supplying the gun is integral to principal clause which is, obviously, illegal.

In longer and more complex contracts resolving what parts are illegal, and whether or not voiding the illegal clauses voids the entire contract, is a delicate process. The same applies to statutes. If Congress exceeds its power by adopting a law which is unconstitutional, the courts have a difficult job in unpicking them. Broadly, they have three options. They can strike down only the unconstitutional clauses, they can strike down those clauses plus any that are dependent on them, or they can strike down the entire law. So far the courts have taken different approaches to the apparently unconstitutional elements of Obamacare.

It is very easy for parties to a contract or legislators drafting a law to avoid this mess. They can include a severability clause. This would say that if part A is struck down then part B continues to apply. The administration and Democrats in Congress specifically declined to include a severability clause in Obamacare, and that is one reason why a court in Virginia has just held the whole thing to be unlawful.

Why would the Democrats take this risk? Why gamble the whole law on the constitutionality of the individual mandate, which everyone knew from the start was open to question? Quite simply, it was a tactical choice.

The individual mandate, which makes buying insurance compulsory, is politically as well as constitutionally controversial. In order to secure Congressional consent for this highly unpopular measure, the administration made the case that it was inherently linked to the popular proposal requiring insurance companies to cover pre-existing conditions. According to its proponents, Obamacare is a delicately negotiated mechanism and if you pull out one clause the whole edifice collapses. At least, that was the position when they wanted nervous Democrats to vote for the whole thing, and not just the bits they liked.

Right now, the administration might be wishing it had included the severability clause after all.

A total of twenty six states have filed a suit claiming that the individual mandate is beyond the delegated powers of the federal government. The administration claims it is a tax, and falls under the federal government’s power to levy taxes. Incidentally, while the law was being debated, the administration insisted it was not a tax.

Common Sense makes no prediction as to how the Supreme Court will rule when the case is appealed there. The case that the law is not severable, however, seems solid. The individual mandate is directly linked to coverage for pre-existing conditions. Between them, they are at the heart of Obamacare. The mish-mash of other measures make some sense on their own, but are not what the law was all about. If anyone is to unpick this mess, it should be legislators, not judges. The law should stand or fall as a single measure.

Article provided by Quentin Langley
Lecturer in PR and Political Communications,
School of Journalism, Cardiff University

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