If the individual mandate is unconstitutional, will the entire healthcare law be invalidated?

Judges Henry E. Hudson (in Virginia) and Judge Roger Vinson (in Florida) will rule on their case soon. Both of these judges were appointed by Republican Presidents. (The federal judge in Michigan who, in a case decided last month, found the mandate constitutional, was appointed by Bill Clinton.)

Assuming one of these judges says that Congress's power regulate commerce clause does not include a power to make private citizens buy insurance, what happens to the rest of the law? The law does not contain a severability clause. That is, it does not explicitly say what should happen to the rest of the law if part of it is stricken down.

An earlier version of the legislation, which passed the House last November, included severability language. But that clause did not make it into the Senate version, which ultimately became law. A Democratic aide who helped write the bill characterized the omission as an oversight.

Well, that's one hell of an oversight! I can certainly see why someone who wants the bill to survive would attempt to portray this as an oversight, but I don't think that's believable. The need for a severability clause is well-known and obvious.

Without such language, the Supreme Court, through its prior rulings, essentially requires judges to try to determine whether Congress would have enacted the rest of a law without the unconstitutional provisions.

The Justice Department, which represents the Obama administration, acknowledges that several of the law’s central provisions, like the requirement that insurers cover those with pre-existing conditions, cannot work unless both the healthy and the unhealthy are mandated to have insurance. Otherwise, consumers could simply buy coverage when they needed treatment, causing the insurance market to “implode,” the federal government asserts.

So the individual mandate is plainly not severable from at least some of the rest of the law.

In a hearing last month, Judge Hudson remarked on the difficulty of determining Congress’s intent regarding a law with hundreds of disparate provisions. “This bill has more moving parts than a Swiss watch,” he said.

The administration, in arguing for the constitutionality of the individual mandate, has stressed how crucial it is to the success of the entire reform, but that inherently works as an argument against severability.