Justice Ruth Bader Ginsberg did not mean to, but she appears to have said that the Supreme Court has, at a minimum, ruled that the individual mandate in ObamaCare is unconstitutional.

As reported by POLITICO, the liberal Justice told the American Constitutional Society on Friday, June 15 that the one remaining ObamaCare question the Court must decide is is whether the whole law must fall if the individual mandate is unconstitutional — “or may the mandate be chopped, like a head of broccoli, from the rest of it?”

But they would not need to decide this question if they had already ruled that the individual mandate passes Constitutional muster.

This suggests, at a minimum, that the individual mandate is gone.  But it may well be that the court has ruled that the entire ObamaCare law is, therefore, null and void because there is no severability clause.

A severability clause means that if one part of a piece of large legislation is ruled unconstitutional by a court, that unconstitutional portion is “severed” from the the bill — but the ruling would not stop the rest of the law from being enforced.

The Democrats at one point included a severability clause in ObamaCare. But they consciously took it out — apparently as a tactic to prevent opponents of ObamaCare from taking the law apart piecemeal.

But the Democrats may have been too clever by half — might have outwitted themselves on this one.

The court may well decide that because the severability clause was deliberately removed by Congress, that it wasn’t omitted by mistake, the clear intent of Congress was that the entire law must stand, or none of it. This appears to be the key debate that is happening, or has happened, in the court.

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