OBAMACARE !
Red State ran an article by Thomas Crown over the weekend discussing the game of chicken played by the democrats on this. The writer believes that lack of a severability clause was intentional, aimed directly at an ultimate decision by the SCOTUS to uphold or overturn ObamaCare. He goes further and believes that the entire case is aimed at Justice Kennedy, who is the current swing vote in what may be a 5-4 opinion to uphold ObamaCare.
I have always wondered about the lack of a severability clause, and this is the best explanation I have seen. It is not a bug. It is a feature. The problem with this game of chicken is that the newest SCOTUS Justice Elena Kagan may have to recuse herself from hearing the case, as she led the administration’s fight in federal court against the anti-ObamaCare lawsuit by the states before she was appointed to the SCOTUS. Her position is that the states did not have standing to bring this before the court. Orin Hatch (R, UT) has already called for her to recuse herself from hearing the case when it hits the court. And should she do so, the potential vote in favor of ObamaCare goes to 4-4, which allows the lower court ruling to stand. You can read the Red State analysis here:
http://www.redstate.com/thomas/2011/02/06/some-thoughts-on-judge-vinsons-decision-on-the-mandate/