I am not so sure that's true. I can't recall (with certainty) if the ObamaCare Act contained the usual "severability" clause. But my recollection is that it does not. Thus, if the mandate violates the Constitution, then the entire Act could fall.
When the 11th Circuit struck down the mandate but severed it from the law (in the very case that's been appealed to the Supreme Court), they pretty much obliterated that line of argument:
VII. SEVERABILITY
We now turn to whether the individual mandate, found in 26 U.S.C. § 5000A, can be severed from the remainder of the 975-page Act.
A. Governing Principles
In analyzing this question, we start with the settled premise that severability is fundamentally rooted in a respect for separation of powers and notions of judicial restraint. See Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 32930, 126 S. Ct. 961, 96768 (2006). Courts must strive to salvage acts of Congress by severing any constitutionally infirm provisions while leaving the remainder intact. Id. at 329, 126 S. Ct. at 96768. [T]he presumption is in favor of severability. Regan v. Time, Inc., 468 U.S. 641, 653, 104 S. Ct. 3262, 3269 (1984).
In the overwhelming majority of cases, the Supreme Court has opted to sever the constitutionally defective provision from the remainder of the statute. See, e.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. __, __, 130 S. Ct. 3138, 316162 (2010) (holding tenure provision severable from Sarbanes-Oxley Act); New York v. United States, 505 U.S. at 186187, 112 S. Ct. at 2434 (holding take-title provision severable from Low-Level Radioactive Waste Policy Amendments Act of 1985); Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 68497, 107 S. Ct. 1476, 147986 (1987) (holding legislative veto provision severable from Airline Deregulation Act of 1978); Chadha, 462 U.S. at 93135, 103 S. Ct. at 277476 (holding legislative veto provision severable from Immigration and Nationality Act); Buckley v. Valeo, 424 U.S. 1, 10809, 96 S. Ct. 612, 677 (1976) (holding campaign expenditure limits severable from public financing provisions in Federal Election Campaign Act of 1971).136
Indeed, in the Commerce Clause context, the Supreme Court struck down an important provision of a statute and left the remainder of the statute intact. In Morrison, the Court invalidated only one provisionthe civil remedies provision for victims of gender-based violence. Morrison, 529 U.S. at 605, 627, 120 S. Ct. at 1747, 1759. The Supreme Court did not invalidate the entire VAWAor the omnibus Violent Crime Control and Law Enforcement Act of 1994, of which it was parteven though the text of the two bills did not contain a severability clause.
As these cases amply demonstrate, the Supreme Court has declined to invalidate more of a statute than is absolutely necessary. Rather, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem. Ayotte, 546 U.S. at 328, 126 S. Ct. at 967. Because [a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people, courts should act cautiously and refrain from invalidating more of the statute than is necessary. Regan, 468 U.S. at 652, 104 S. Ct. at 3269.
The Supreme Courts test for severability is well-established: Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law. Alaska Airlines, 480 U.S. at 684, 107 S. Ct. at 1480 (quotation marks omitted) (emphasis added). As the Supreme Court remarked in Chadha, divining legislative intent in the absence of a severability or non-severability clause can be an elusive enterprise. 462 U.S. at 932, 103 S. Ct. at 2774.
B. Wholesale Invalidation
Applying these principles, we conclude that the district court erred in its decision to invalidate the entire Act. Excising the individual mandate from the Act does not prevent the remaining provisions from being fully operative as a law. As our exhaustive review of the Acts myriad provisions in Appendix A demonstrates, the lions share of the Act has nothing to do with private insurance, much less the mandate that individuals buy insurance. While such wholly unrelated provisions are too numerous to bear repeating, representative examples include provisions establishing reasonable break time for nursing mothers, 29 U.S.C. § 207(r); epidemiology-laboratory capacity grants, 42 U.S.C. § 300hh-31; an HHS study on urban Medicare-dependent hospitals, id. § 1395ww note; restoration of funding for abstinence education, id. § 710; and an excise tax on indoor tanning salons, 26 U.S.C. § 5000B.
In invalidating the entire Act, the district court placed undue emphasis on the Acts lack of a severability clause. See Florida ex rel. Bondi v. HHS, No. 3:10-CV- 91-RV/EMT, __ F. Supp. 2d __, 2011 WL 285683, at *3536 (N.D. Fla. Jan. 31, 2011). Supreme Court precedent confirms that the ultimate determination of severability will rarely turn on the presence or absence of such a clause. United States v. Jackson, 390 U.S. 570, 585 n.27, 88 S. Ct. 1209, 1218 n.27 (1968). Rather, Congress silence is just thatsilenceand does not raise a presumption against severability. Alaska Airlines, 480 U.S. at 686, 107 S. Ct. at 1481.
Nevertheless, the district court emphasized that an early version of Congresss health reform bill did contain a severability clause. Congresss failure to include such a clause in the final bill, the district court reasoned, can be viewed as strong evidence that Congress recognized the Act could not operate as intended without the individual mandate. Florida v. HHS, 2011 WL 285683, at *36. The district court pushes this inference too far.
First, both the Senate and House legislative drafting manuals state that, in light of Supreme Court precedent in favor of severability, severability clauses are unnecessary unless they specifically state that all or some portions of a statute should not be severed. See Office of Legislative Counsel, U.S. Senate, Legislative Drafting Manual, § 131 (Feb. 1997) (providing that a severability clause is unnecessary but distinguishing a nonseverability clause, which provides that if a specific portion of an Act is declared invalid, the whole Act or some portion of the Act shall be invalid); Office of Legislative Counsel, U.S. House of Representatives, House Legislative Counsels Manual on Drafting Style, § 328 (Nov. 1995) (stating that a severability clause is unnecessary unless it provides in detail which related provisions are to fall, and which are not to fall, if a specified key provision is held invalid).
Second, the clause present in one early version of the Act was a general severability clause, not a non-severability clause. See H.R. Rep. No 111-299, pt. 3, at 17 § 155 (2009), reprinted in 2010 U.S.C.C.A.N. 474, 537 (If any provision of this Act . . . is held to be unconstitutional, the remainder of the provisions of this Act . . . shall not be affected.). Thus, according to Congresss own drafting manuals, the severability clause was unnecessary, and its removal should not be read as any indicator of legislative intent against severability. Rather, the removal of the severability clause, in short, has no probative impact on the severability question before us.
In light of the stand-alone nature of hundreds of the Acts provisions and their manifest lack of connection to the individual mandate, the plaintiffs have not met the heavy burden needed to rebut the presumption of severability. We therefore conclude that the district court erred in its wholesale invalidation of the Act.