An excellent piece in American Thinker, Obamacares Fatal Flaw(?), informs us of the potential demise of this enormous government power grab.
Virginia is asserting that certain portions (that is, the personal mandate) of ObamaCare are unconstitutional. If Virginia prevails, it leaves the question of what happens to the rest of the ObamaCare statute. This is where the concept of severance comes in. Normally, all comprehensive laws contain a boilerplate severance clause: it says that if any portion of the law is found to be unconstitutional, that portion is severed from the rest of the law — that is, the rest of the law stands.
But ObamaCare contains no severance clause. Virginia is asserting that if it prevails on its substantive claims, the whole law is unconstitutional. (If Virginia does not prevail, any one of the twenty-plus legal challenges have the same severance argument available.)
If a severance clause is normal boilerplate, why does not ObamaCare contain one? This is where Scott Brown’s election enters.
Read it all, it is most excellent.
I will not, and encourage all not too, consider this a victory until the black robes have performed all their rituals.