[Personal Responsibility]

I am not a legal or constitutional scholar so bear with me while I ask this question.

I recall when the law was passed that “they” were saying the individual mandate could not be “removed” from the bill because of something called severability - and the Obamacare bill did not have it.

Is that still the case? Do things like that change?

[Bruce Campbells Chin]

That's not really accurate.

There is a principle called "severability" that permits a law (or contract, or whatever) to survive even if one of its parts or provisions are tossed out. So, if the law expressly says that its provisions are severable, then tossing one provision means that the rest will definitely survive.

However, the lack of a severability provision does not require the entire law to be tossed just because part of it is stricken. A court may still imply some level of severability, preserving parts of the law even if some other parts are stricken down.

So what all of this means is that the lack of a severability clause means there is a chance the court will strike down the entire law if it strikes down the mandate, but that it is not necessarily required to do that. It could still permit some of it to survive.

I personally think there will be 5 votes to strike down the mandate, but that the tougher argument is going to be how much of the bill is permitted to survive if the mandate is striken.

[Clump]

See post 12.