Severability

A word on severability clauses: in general, the little-c conservative, humble, judicially restrained thing for a court to do is to throw out an entire law when ONE part of that law is thrown out.

That may seem backward to some people, but it's not. Imagine a law that says all income from Washihngton State residents is subject to a five percent tax. Then later in the law, it exempts the first $200,000 of income. There's no severability clause in the bill. Now, in Washington, our precedents say that income is property, and all property of a certain type must be taxed uniformly; therefore, the exemption is illegal (even if you disagree, just go with it for the sake of argument). Now, if we follow the idea that you should leave laws intact except for the illegal parts then the exemption would be removed, and suddenly, everyone in the state is hit with an income tax.

So now in effect, by removing that one part of the law and leaving the rest, the law has been changed substantially from its intent, and the court has, in effect, created a brand new law.

(This is precisely why, in the case of I-1098, the income tax initiative had a severability clause, but exempted the exemptions portion of the initiative: because if the exemptions were thrown out, its authors wanted the rest to be thrown out, too, but if any other part was thrown out, they wanted the rest to stand.)

Of course, a judge's judgment comes into play here, and absent a severability clause, he needs to try to figure out whether he is creating new law or just striking down a part of the law that won't substantially change the rest. So he looks for clues, in the text of the law, in the intent of the lawmakers, and in testimony.

In this case, all three point to the idea that -- in the case of the mandate -- severing it would create a new law that is far different from the intent of the lawmakers who voted for it: the whole point of the law, supposedly, was to create a financially sustainable system for providing health insurance, and everyone has told us that without the mandate, that system as designed in the law won't be financially sustainable.

And maybe you could strike down the "free" health insurance for poor people, and keep many of the regulations, but now you're trying to implement only half a system that maybe the lawmakers wouldn't have approved of.

In other words, it is activist to not strike down the entire law, because you're literally creating a new law and assuming that the lawmakers would have wanted it that way. Picking and choosing from the law is legislating, which is precisely why our President doesn't have, and never will have, a true line-item veto. It would be hypocritical and bizarre for the Supreme Court to strike down only part of the health insurance law after saying a decade ago: If the Line Item Veto Act were valid, it would authorize the President to create a different law, one whose text was not voted on by either House of Congress or presented to the President for signature. Something that might be known as "Public Law 105-33 as modified by the President" may or may not be desirable, but it is surely not a document that may "become a law" pursuant to the procedures designed by the Framers of Article I, 7, of the Constitution.