Reply #38: Actually, there is a real reason why they missed it for this bill.

[BzaDem]

These kinds of things are dropped off accidentally during frantic last minute staff bill writing all the time.

Where does it all get fixed? Conference committee. There isn't a huge amount of attention paid to the technical minutia during the first round Senate passage, since it always has to go through Conference anyway. That's where all this stuff gets corrected by the legal experts. Conference committee is where everything is checked, double-checked, and triple-checked.

Except... what happened with this bill? It never made it to conference committee, since Scott Brown got elected. That meant the House had to pass the Senate bill word for word -- imperfections and all. They couldn't add a severability clause like they would if they had a conference committee. This was further made clear by the fact that the reconciliation bill -- the one that was pre-negotiated and that they could change in the Senate with 50 votes -- had a severability clause.

In any case, my point was just that courts routinely sever portions of bills even when they don't have severability clauses. The Supreme Court did it again last year, and lower courts do it all the time. The lack of a severability clause does not lead to a presumption against severability -- even judge Vinson admitted that. He acknowledged the normal rule was to sever even when there was no severability clause -- he just said that it would be too hard for this complicated bill, so he'll just throw out the whole law. There is no way his severability analysis (if you could even call it that) will stand up on appeal.