When you are drafting a contract or just about any legal document that could be challenged, it is customary to put in what is called a "severability clause." This magic clause says that if any part of the contract or document are found to be legally inoperable, then those parts that remain will still be in force. It is one of the first things that a law student learns in contract law.
Guess who must not have gone to law school?
That's right, the folks that brought you the monumental health care bill apparently didn't bother with that saving clause. This is truly stupefying, and explainable only in that they were in such a rush to get it through after the Scott Brown election, that they didn't do their homework.
The Democrat Party has long been advancing the idea that passing ObamaCare would be the same benefit to them as Social Security and Medicare. It is instead becoming a laughing stock of legislation, proof positive that government is inept at the least and incompetent the more likely explanation.
19 comments:
OMG - how delicious. There is nothing more satisfying than watching someone getting hoisted on their own petard. Word to the wise - "READ THE DAMN BILL BEFORE SHOVING IT DOWN OUR THROATS!!!"
Read? Read? We ain't got no time to read no stinkin' bills. Both the ones we write, and the one's we complain about.
Steve--Auntie Lib linked you in the comments at HillBuzz (which may knock your sitemeter out of the park) which brought me here. Thanks, Auntie Lib! I'm always glad to find a new conservative voice of reason, and will be back to explore your archives. So glad you are from Montana, my second favorite state after Alaska.
I am awe of the power of Auntie. Thanks and welcome to all.
Nice try, Steve, but law school students also learn that courts will interpret a legal document so as to give effect to as much of the document as possible.
The argument that an entire federal bill would be rendered inoperable because of a single faulty or repugnant clause is, frankly, foolish.
Aaron, it's wonderful how you are so unselfish in showing your lack of knowledge. Sorry, but without the savings clause, the entire act is inoperable if any part is.
That's why I wrote the post.
When part of a statute is held to be invalid, the remainder of the statute is not affected by the invalidity if the court determines that the remainder of the statute is "severable" from the invalid part. A determination of severability requires an affirmative answer to two questions:
(1) Is the remainder of the statute capable of being given effect after the invalid part is removed?
(2) Would the legislature have enacted the remainder of the statute if the invalid part had not been included in the first place?
The efficacy of the severability clause historically has been a matter for debate. Review of case law indicates that presence of the clause does not guarantee a finding of severability, while absence of the clause does not preclude such a finding.
[Texas Legislative Council Drafting Manual, Sec. 3.13]
"[Texas Legislative Council Drafting Manual, Sec. 3.13]"
You might notice that there is a definitive geographic condition in your point. Not that Texas law applies to the US Code.
Give it up man.
At least I can cite authority for my argument; whereas, you can only give your personal opinion.
Citing to inapplicable authority is not citing to authority. It further reinforces one's perceptions of you as a fool. For your own good, please stop!
Citing to a legislative council is good authority, because legislative councils are responsible for converting session laws into statutory language. You ought to know that.
I am still waiting for you to cite your authority in support of your contention stated above. On the other hand, you can stop being cowardly and evasive, admit that you were wrong, and I will let you off the hook.
Aaron, as the perpetual motion machine for ignorance, take a break. You are wrong, except in Texas.
Cite your authority, kitten.
The fact that you are a pompous idiot? See Aaron Goldberg, op cit.
As to the point you keep ignoring, try this for an example: http://www.answers.com/topic/severability
Now, please remember, that this is an equivalent of a hornbook example, and may be overcome in limited cases, such as your Texas example. Which by the way, does not extend to the US Constitution.
A pompous idiot is someone who advances a legal argument without supporting authority. He is pompous for believing people will accept his argument merely because it came from him, and an idiot for citing to Answers.com for his authority.
All of us know what a severability clause is. What we need to know from you is what case law supports your argument that an entire legislative act will be struck down by a court if a single clause in the act is found to be unconstitutional and the act contains no severability clause.
Aaron, I really don't care what you think. You are wrong. I am sure that you are quite used to it by now. I have pointed you to the source, and will even add the following:1A Singer, Sutherland Statutory Construction §20.22 (6th ed. 2000); 2 op. Cit. §§44.01 et seq.
You are just persistent in your ignorance, but I will be happy to refer you to the Democrats when the law is struck down because there is no severability clause. I am sure they will be happy to cite to you.
Your briefs must be a riot. I suppose you cite to Nutshells, also.
Got any case law we can read?
You don't pay me enough to write a brief.
I get the feeling nobody pays you at all.
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