05/10/2011 06:37 pm ET | Updated Jul 10, 2011

Health Care Law's Defenders See Good Signs In Latest Court Hearing

WASHINGTON -- The most telling element of Tuesday’s Appeals Court arguments over the constitutionality of the president’s health care legislation may end up being what wasn’t said.

Neither the two parties suing the federal government -- the state of Virginia or Liberty University in Lynchburg, Va. -- nor the acting solicitor general arguing on the government’s behalf -- Neal Katyal -- nor the three judges on the panel, addressed the idea of severability. This legal concept, which has important implications for the Affordable Care Act, refers to whether an element of a law can be separated from it without nullifying the rest of the bill.

The omission is illuminating. It gives defenders of President Barack Obama's health care reform bill early hope that the Fourth Circuit Court of Appeals will rule that the act's mandate requiring individuals to purchase insurance is constitutional. If, after all, the three judges were thinking that the individual mandate is illegal, the obvious follow-up question for them or Katyal to ask would be whether it could be “severed” from the rest of the bill.

Such an inference is a logical to make, said Kevin Walsh, a professor of law at the University of Richmond School of Law.

"Judges tend to focus in the oral argument on the questions that are pressing to them. And they had the opportunity to ask about severability” and they didn't, he said.

It’s not because the topic was irrelevant to the debate. When a federal district court judge in Virginia first ruled that the Affordable Care Act illegally forced individuals to buy coverage, he determined that the mandate could be severed from the rest of the bill. The state of Virginia is appealing, in part, that specific ruling. A Florida federal judge, who also ruled against health care reform, said that there could not be severability. So the topic remains unsettled.

The administration had prepped to make the argument that the mandate was removable from the broader law. But the three judges -- Diana Gribbon Motz, Andre Davis and James Wynn -- never asked about it. Nor did the counsels bring it up.

“[S]everabilty was not mentioned once during two hours of arguments,” wrote Ian Millhiser, of the Obama-allied Center for American Progress. “This is as clear a sign as any that the court will uphold the law, because the only reason to ignore the severability question entirely is if you think that it’s not going to come up because the whole law will be upheld.”

Walsh, who attended Tuesday’s oral briefing, did strike a note of caution against reading too much into the omission of severability. In the case of the Fourth Circuit, the topics discussed on Tuesday primarily centered on weightier legal matters, including the reach of the commerce clause and the debate over whether states have the power to sue the national government on the grounds that federal laws interfere with their state regulations.

Additionally, Walsh added, “it is not atypical that severability is viewed as an afterthought to the case,” meaning that the judges could make their own determinations on the matter once they answer the question about the constitutionality of the individual mandate.