Over at the legal blog, Balkinization, Magliocca seems concerned about the possibility of the Supreme Court striking down the individual mandate of the Health Care bill, so he proposes a counter measure which on about a moment's thought seems highly dangerous if legitimized:
In the absence of a line-item veto, legislatures can coerce the executive to sign a controversial provision into law by putting it into an omnibus bill that contains lots of popular things. In effect, a dare is made that a President or a Governor would rather swallow one bad part rather than block many good parts. This dare does not always work, of course, and legislation structured in this way cannot always pass, but omnibus bills do tilt the balance of power in favor of popular assemblies.
Why can't the same be done with respect to courts? Suppose Congress knows that a certain provision (say about campaign finance) will be constitutionally suspect. They could bundle it with lots of unrelated matters and insert a non-severability clause providing that: "If any portion of this legislation is found unconstitutional by the Supreme Court, then every other portion becomes inoperative." In that case, the SG would solemnly tell the Justices that striking down the contested provision would deprive orphans of milk, stop the construction of a dam in Utah, and so on. This doesn't preclude the Court from acting. It just makes it harder.
As far as I can see, there is nothing unconstitutional about this tactic at the federal level. (At the state constitutional level there may be impediments to omnibus legislation.) There are political checks on the abuse of this sweeping authority by Congress. Many members will not want to risk their pet projects by tying them to an uncertain constitutional fight. Moreover, you need the President (and perhaps 60 senators) to go along. If you jump those hurdles, though, then the Court would face an all-or-nothing choice in constitutional litigation. (An as-applied challenge might not come within a given non-severability clause, but that would depend on how the legislation was drafted.)
In the context of health care, this framing of the issue might have made a big difference. There may be five votes to strike down the individual mandate. It's less likely that there are five votes to strike down the entire 2,000-plus-page statute. If the Court's only choice was between this and upholding the individual mandate, the result might be different from what we will see in a few weeks.
This is a horrible idea. It took me about ten seconds to come up with a plausible hypothetical: RomneyCare Health and Indefinite Secret Detention of Terrorists Act. This near future act would solidify the funding of the Affordable Health Care law by creating funding sources to make up for the hypothetically struck down individual mandate, while also offering the President indefinite secret detention of citizens deemed by the administration to be terrorists and small print authorizing torture, but only in extreme but unreviewable instances. Non-severability clause duly inserted. The biggest problem would be getting enough Republicans to sign on to the health care side, finding enough Democrats to support the 'national security' side would be trivial. So now to get the court to review the most basic civil right--not to be indefinitely detained without court oversight, the Supreme Court will have to strike down the whole health care act.
What could possibly go wrong if we designed court challenges like that?
File this under: don't give sweeping new powers to a branch of government that you wouldn't ever want to see in the hands of your political opponents. Magliocca correctly notes that it is much more likely that the Supreme Court will just invalidate the indivdual mandate rather than the whole act. Turning irritation at the loss of a political skirmish (while leaving the Affordable Health Care Act largely intact) into a suggestion that could easily and literally endanger civil rights across the board is horribly short-sighted. The 'tough on crime' streak in the US makes all sorts of civil rights curtailments much too easy. This would make fighting them in court later almost impossible.