Framing the Dialogue

Severable (sev-er-a-bul)

Severable is defined as:  Capable of being severed or separated; separable into legally distinct rights or obligations, as a contract.

Synonyms: divisive, divisible, separable

What does Judge Roger Vinson think:

“Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.”

Can you give some examples?

Example 1:  When contracts are written, especially lengthy ones, there are many components to that contract.  If a conflict occurs between the parties over or an outside person challenges one component of the agreement it puts the remainder of the contract in jeopardy.  Attorneys often include a severability clause into the agreement stating that if one part of the agreement is deemed null/void then the rest of the contract shall remain.  As an example:

If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Example 2:  The most obvious example is the recent decision by Judge Roger Vinson of the United States District Court for the Northern District of Florida to strike down the individual mandate (requires EVERYONE to purchase health insurance) portion of the Obamacare bill.  The massive bill has so many components that one being deemed unconstitutional may not be worthy of celebration by the majority of citizens against the law.   Judge Vinson went further than just nullifying the individual mandate and determined that since the entire law was dependant on the mandate and the mandate is unconstitutional the entire law is unconstitutional.  The White House claims judicial activism, but Judge Vinson used Administration briefs in support of the law to support his position.  The Heritage Foundation reported that,

“Judge Vinson also found that Section 1501 of the act, which forces all Americans to buy government-approved health insurance policies, ‘falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers.’  But then Judge Vinson went even further, concluding that ‘the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit.’ Accordingly, Vinson concluded: ‘Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.’  In reaching the decision to strike down the entirety of Obamacare, Judge Vinson used the Obama Administration’s own words against them, noting that their own filings with the court claimed that the law’s other provisions ‘cannot be severed from the [individual mandate].’ In addition, Judge Vinson notes that Congress could have easily included a severability clause in the legislation if they wanted to, that an earlier version of Obamacare did indeed have such a clause, but Congress intentionally removed the severability clause in the final bill.  Judge Vinson wrote that the Obama Administration has ‘asserted again and again that the individual mandate is absolutely ‘necessary’ and ‘essential’ for the Act to operate as it was intended by Congress. I accept that it is.”

Example 3The Utah Law Review Society cited a case where a judge was considered an activist for allowing severability as part of his review of some legislation.  In this example the legislation, without the removed clause, was fundamentally different and changed the legislation making it contradictory to the original purpose.

Hi Ho, Hi Ho it’s off to the Supreme Court we go!

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