John Boehner 8TH DISCTRICT OF OHIO

As the Obama administration presses ahead with the health care law, officials are bracing for the possibility that a federal judge in Virginia will soon reject its central provision as unconstitutional and, in the worst case for the White House, halt its enforcement until higher courts can rule….Virginia’s attorney general, Kenneth T. Cuccinelli II, a Republican who filed the Richmond lawsuit, argues that if Judge Hudson rejects the insurance requirement he should instantly invalidate the entire act on a nationwide basis.

Mr. Cuccinelli and the plaintiffs in the Florida case, who include attorneys general or governors from 20 states, have emphasized that Congressional bill writers did not include a ‘severability clause’ that would explicitly protect other parts of the sprawling law if certain provisions were struck 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.

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....Lawyers for Virginia have sought to turn one of the federal government’s arguments on its head.  They note that the health law explicitly refers to the insurance requirement as ‘an essential part’ of the act’s regulatory scheme, and that Justice Department lawyers — in pressing their point that the law permissibly regulates commerce — have called it the ‘linchpin.’  If it is so essential, Virginia’s lawyers have asked, why should a judge believe that Congress intended for the rest of the act to stand without it?  

Any illusion that the cases are not highly politicized was lost when Republican leaders raced this month to file friend-of-the-court briefs in Pensacola, and Democrats responded with briefs from state legislators and supportive economists.  Among the Republicans intervening in the case are Representative John A. Boehner of Ohio, the future speaker; 32 United States senators; and Gov. Tim Pawlenty of Minnesota, a possible presidential candidate.