POLITICS
12/13/2010 05:58 pm ET Updated May 25, 2011

On Key Legal Issue, Even Conservatives Say Health Care's On Safe Ground

WASHINGTON -- Among health-care experts and reform advocates, the immediate reaction to a federal court ruling declaring a key portion of Obama's health care law illegal was one of bitterness, but not dread.

The decision, as handed down by U.S. District Judge Henry E. Hudson, determined that the individual mandate requiring individuals to buy coverage was unconstitutional. Politically, it was a setback -- breathing life into a repeal-and-replace movement that had appeared momentarily dormant -- but the broader health-care overhaul seems to remain on safe ground.

For starters, experts say, the court cordoned off the individual mandate from the rest of the bill, rather than demanding that administration of the entire reform package be halted.

"One important thing to note is that the judge does not enter an injunction" said Tim Jost, a professor of law at the Washington and Lee University Law School, on a conference call hosted by the White House-allied Center for American Progress. "He enters a declaratory judgment with respect to this provision only, and he decides that this provision is severable from every other provision that is not directly dependent on this and makes specific reference to [the individual mandate]. There are no other provisions in the Affordable Care Act that do so. So this decision is solely a decision as to the minimum-coverage requirement."

As Jost suggested, the somewhat-esoteric notion of severability could prove a crucial element in the debate over the health-care law's long-term viability. When being crafted in Congress, lawmakers were widely reported to have -- somewhat inexplicably -- forgotten to add a severability clause to the bill's legislative language. Such clauses are added for the purpose of ensuring that if a portion of a bill is struck down in the courts, it simply "severs" that portion from the legislation rather than invalidating the entire law.

Since health care lacked this language, Republicans hoped that by ruling the individual mandate unconstitutional, the courts could essentially nullify the entire legislation. Hudson, however, declined to issue such a broad ruling. And in interviews with The Huffington Post, even conservatives acknowledged that severability could be applied by the courts, post facto, to a piece of legislation.

"I'm of the opinion that this is really up to the courts. They have shown on multiple occasions that when they look at a constitutional flaw in a bill, particularly a large bill, that they attempt to severe it," said Ben Domenech, who, as a research fellow for The Heartland Institute, a nonprofit organization that promotes "free-market" solutions to health care reform, has written on the subject. "As a legal matter, I think the courts are clearly within their historical backgrounds ... they have clearly taken the opinion that they can strike these things out whether there is a severability clause or not."

Domenech's checkered past as a conservative columnist has not, and would not, make him a political ally for health care's defenders. And, indeed, other officials at Heartland argued that severability was a bit more difficult to apply to the health care bill.

"I think in the end, the court will find it severable, and when I say the court, I mean the U.S. Supreme Court," said Maureen Martin, The Heartland Institute's senior fellow for legal affairs. "But [HHS] Secretary Kathleen Sebelius did not take that position in a press release. She argued in a court that this whole thing is a linchpin. The entire Obamacare act, in her view, she said it is one whole piece of cloth. And the logical extension of that argument is if the individual mandate goes down, the whole bill goes down."

Martin's argument may have more to do with the law's logistical framework than its legal underpinnings. If the individual mandate is ultimately deemed unconstitutional, it wouldn't necessarily mean that the whole bill would be struck down. But it could doom health care's implementation -- dependent, as the bill is, on greatly expanding the base of coverage.

But on this and the legal front, people who know the legislation best say she's wrong.

"There are other ways to replace the individual mandate," said Ron Pollack, the Founding Executive Director of Families USA, a liberal consumer-advocacy group that focuses on health care. "I think the individual mandate is probably the most effective way to make sure that everybody has coverage, but there are other ways to try and make sure that everyone gets coverage, ultimately. So I do not suggest that this is a decision that people should be happy with, but one should not blow out of proportion what this means. The court made clear that it is not invalidating the entire statute, and the key elements, particularly where the costs are, are going to stand."

Ezra Klein, who has covered health-care policy extensively for the Washington Post, framed, Monday's ruling, counter-intuitively, as a victory for the reform law's defenders. The individual mandate, after all, is one of the legislation's most unpopular features. And there are numerous policy replacements that could be added in its absence, the most promising of which may be a Back Premiums penalty, which allows people who forego insurance to pay the costs of the policy should they suddenly need coverage.