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My Judge Buddy on Severability

BEGIN TRANSCRIPT

RUSH: I talked to the judge last night about severability.  Severability is something that I misunderstood.  Maybe I'm the only one who did.  I don't want to say.  I said in the last hour that everybody misunderstood it because of the way it's reported.  That may not be the case.  I'm sure my legal beagle friends understand it and would not be surprised to hear what the judge told me.  People confuse the rule on severability.  In this case you have Obamacare and the mandate, and what I always thought severability was, if the Congress puts a clause in the bill, the severability clause, then it's a matter of law that any portion of the law can be thrown out but the rest of the law stands.  That, I was told by my judge buddy, is not what it is.  The rule is not whether the constitutional parts of a bill can stand if one or more other parts are unconstitutional.  Instead the rule is whether the Congress would have enacted the bill without the unconstitutional parts. 

Now, in the case of Obamacare, no one is arguing that the bill would have passed without the mandate.  That's the test.  In fact, it most certainly would not have.  The mandate was the funding mechanism, so the rule here is whether Congress would have enacted the bill without the unconstitutional parts.  That's what the judges are supposed to look at in severability.  And it was pointed out to me that Justice Scalia has picked up on this.  The way Congress deals with this kind of issue is to put a severability clause in the bill to specify that if one part of the bill is declared unconstitutional, the other parts will stand nonetheless because that's what they intend. 

A severability clause is absent in Obamacare, and further -- and this I did know, and in fact passed on to you -- the legislative history of Obamacare proves conclusively that they affirmatively took out the severability clause.  It used to be in, in an early version of the bill, and then, for whatever reason, the Democrats took it out.  They took the severability clause out.  Therefore, according to the letter of the law, the entire bill must be stricken.  According to the letter of the law, all of Obamacare must now be thrown out, because Congress never intended the rest of the bill to pass without the mandate in it.  That's what severability means, as explained to me by my judge buddy.  The bill has to be stricken in toto, according to the letter of the law. 

In fact, my judge buddy wrote, "Ain't no question about it."  And then I said, "Okay, well, what's gonna happen?"  And I said, "Isn't that interesting.  The letter of the law says the law's gotta be thrown out," and I still said, "Okay, what's gonna happen?"  Acknowledging the letter of the law will not matter here.  Politics will intercede.  So I asked my judge buddy what's gonna happen.  He said, "I handicap the case at three-to-one the mandate will be stricken, even odds the whole thing gets tossed."  There's an outside chance the five-vote conservative majority will be enhanced by one or more libs.  It could be 6-3, 7-2, to throw the whole thing out, according to my judge buddy.  Letter of the law says it must be stricken.  The whole law must be thrown out. 

If they throw the mandate out, and there's no severability clause because the absence of a severability clause means, according to rule, that Congress didn't intend any of the rest of it to pass without the mandate.  They put the severability clause in to stimulate the rest of the bill we like, the rest of the bill constitutional, the rest of the bill okay.  If you throw anything out, the rest stays.  They took that clause out, meaning they didn't stand behind the bill if a part of it was found unconstitutional.  So I wrote back for clarification on this.  I said, "Under your explanation, is it even harder for a bill to survive because there has to be a showing that Congress intended it?  And without the severability clause it's really hard to prove that they would have intended the bill to stand without the stricken part?"  He wrote back and said, "Correct." 

That's the rule on the severability clause, and that's the letter of the law, which is another thing I find fascinating.  The letter of the law is the letter of the law.  Letter of the law says, because there was no severability clause, and if the mandate gets tossed, the whole thing has to go.  But I doubt that that'll happen.  So the letter of the law will be moderated with political considerations.  Because then the reality sets in.  My judge buddy then said to me, "Are these conservative judges really going to want to throw out an entire piece of legislation by the first black president?"  Are these judges going to really want to have their names on the first black president's signature bill being unconstitutional?  Are these judges going to want to have their names on the whole thing, regardless whose bill it is, being declared unconstitutional? 

Thereby confirming what we all know, that judges do pay attention.  They pay attention to election results. They pay attention to polls. They pay attention to the culture.  But they shouldn't.  This is why they have lifetime appointments.  It's expressly why they have lifetime appointments, so that they are immune from political, cultural, social concerns of the day.  Now, Snerdley is saying, "If the letter of the law isn't really the letter of the law, isn't the new precedent that there is no letter of the law?"  No.  The law's always bendable, flexible.  The scales of justice -- Snerdley, you think this would be the first case where the letter of the law has been -- (interruption) well, the letter of the law is living and breathing, like the Constitution. 

You and I all know, in reality, the letter of the law depends on the prosecutor, depends on the judge, and people are imperfect.  Judges, members of Congress, everybody, we are all imperfect.  That's what the law is supposed to be, a guideline, an establishment of moral character and fiber in one sense.  Libs hate that, by the way, when you say the law is rooted in morality. They hate that, but you can't deny it, but they despise that because they don't like any morality, period.  But the letter of the law, Snerdley, depends on your alphabet.  It's no more complicated than that.  The letter of the law is still subject to interpretation.  Otherwise every decision would be 9-zip, wouldn't it?

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RUSH: Snerdley loves it. Everybody loves it. "The letter of the law depends on your alphabet." It's like the NAALCP. Their letter of the law is gonna be much different than, say, the SEIU. (chuckles) It really depends on your alphabet. That's why we have a critical alphabet theory. On the left you haven't heard of that, critical alphabet theory? It goes along with "critical race theory" by Derrick Bell. Critical alphabet theory and it has to do with the letter of the law and the spirit of the law and the intent of the law and, "How the hell can we break the law?" 

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RUSH: Scott in Ohio, great to have you on the EIB Network, sir. Hello.

CALLER: Hi. It's great to be talking to you and listening to you, Rush. I called because you were just talking a little a while ago about the New York Times looking for who to blame after three days at the Supreme Court, and I'm wondering if you think the left media is just going through the stages of grief. Because I saw Greg Sargent in his online blog last night was saying they're not going to strike down the mandate because it will cause so many problems for the Congress if they do. Not whether it's legal or unconstitutional, but just they'll do that because it would create a whole big mess.

RUSH: Let me tell you where I think he's getting that. And for those who don't know, Greg Sargent used to be -- I think this is the guy -- at a trade publication called Editor & Publisher. He now has blog called The Plumb Line.

CALLER: Right.

RUSH: At the Washington Post website.

CALLER: He's pretty deep in denial. (chuckling)

RUSH: Right. And he's pretty solid far left. This has been my point all week. I think all of liberalism is in denial, as a perpetual state of existence. But on this specific case, let's go back to what the judge told me. Let's go back to two things. My judge buddy defined severability for me. And yesterday we also had Scalia saying to the associate solicitor general (paraphrased), "Do you expect us to go through these 2,700 pages here and determine what's constitutional? You expect us to do that? You expect our clerks to do that? You're worried about judicial excess, judicial authority, judicial overreach and you're asking us to do this? This is the legislature's job," which takes us Sargent's point. Now, before I make that point, let's go to the severability business. What's different here in Obamacare is the individual mandate is the keystone of this bill. It's the funding mechanism. It is the transformational aspect. It is that mandate. The individual mandate is what will forever change the relationship of citizen to government, and vice-versa, as Justice Kennedy pointed out.

CALLER: Right.

RUSH: Are you with me so far here, Scott?

CALLER: I am. Thank you.

RUSH: Okay. The statute is so long (2,700 pages), so complicated, and it's all intertwined one section to the next. This thing is an intricately woven web. To take the keystone out of it does raise the question of, "Can the rest of it survive?" And it can't, because this is largely how it's paid for and for a host of other reasons. If you don't require -- if you cannot require -- people to buy insurance, everything else in this falls by the wayside.

CALLER: And I think Clement... I listened to the whole argument. He argued that very ably yesterday.

RUSH: Okay. So what I think Sargent is saying is that if the judges do that, if the justices do that, what they end up sending back to Congress is so complicated and so unwieldy that they couldn't put it back together. Is that basically his point?

CALLER: Yeah, and then he goes on. What he's saying, though, is: And that's why they won't strike down the mandate. So I think that's where the denial and unreality come in.

RUSH: I don't think that's gonna be the reason. Maybe for the lib judges, but I don't think so. No. That is wishful thinking. The effect on Congress will be the determining factor in whether or not a majority decides the mandate's constitutional? No, no, that's denial, wishful thinking, what have you.

CALLER: Okay.

RUSH: No, that's not gonna be the reason. That's patently absurd. Now, they might believe it. I'm sure people on the left got themselves in a situation where they believe that, because, look: They never would face reality. They just are incapable of it. They are in a state of shock! They can't believe that anybody could look at this and see that it's unconstitutional. I could even put it in a better way. They can't believe anybody would look at this and disagree with it. Have you ever wanted something so bad you can taste it? Have you ever wanted something that it just consumes you? In the Lord of the Rings, what was the bad guy that wanted the ring? What was his name?
Sauron. That's them. They are like addicts. They can't get their arms around the fact that reasonable people wouldn't want this. They can't get their arms around the fact that people aren't embracing it and falling in love with it. They do not understand the intellectual arguments, the judicial arguments opposing it. They've never stopped to consider them. They're beneath them. Their arrogance and conceit is such that the opposition is disqualified simply because it opposes, not for why. So I imagine a lot of them are clinging to some manufactured hope, like, "The judges will decide that the bill would be just too complicated for our poor Congress to have to deal with, and so they will not declare the mandate unconstitutional."

That's not gonna happen.

They're gonna declare this thing constitutional or not based on whether it's constitutional or not, and not on the impact it has on Congress. Now, there might be a couple of judges that reference this in order to have it on record, but it won't be the determining factor in their decision. In fact, the way the libs are looking at this, some of them -- if you listen to James Carville, and a lot of others now -- wanted this thing to fail from the get-go. (Carville impression) "Why, dis is the best political opportunity Obama eva had! Where my gumbo?" That's right. 'Cause they think the mandate being found unconstitutional (i.e., illegal) is gonna gin up their base. They're gonna come out just as enthusiastic as they were in 2008. Other libs are saying, "Hey, you know what? If you find unconstitutional, that's cool. We just go straight to everybody's under Medicare now. We'll just do single payer right now rather than tiptoe up to it in ten years!"

But they're all engaged in wishful thinking.

These are the people that are trying to tell us now that they win when they lose.

Okay, if that's true, let's make gasoline eight bucks and really send Obama racing back to reelection!

If that's how it works. 

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RUSH: So where are the Democrats today on this?  What are they doing today?  Well, in a couple of instances the left is demanding that the Supreme Court cede to Congress. Just don't do anything. Let Obamacare stand.  Don't do anything.  It's Congress' job, to which, well, whatever happened to judicial activism?  All of a sudden now the libs don't want the courts to do their dirty work.  They're scared to death that this mandate's gonna be tossed out.  See, the revenue from the mandate is the fuel of Obamacare.  There isn't any alternative fuel.  There's no algae in the rest of the bill.  There aren't any windmills and no solar farms in the health care bill.  The mandate is the only funding mechanism that there is. 

But you notice now how all of a sudden some on the left are demanding that the justices on the court butt out and cede to Congress and let it stand because it's too big a problem.  If you take something out and send it back to Congress, it's too unwieldy, it's too much work, and Congress can't do anything.  Just let it stand as it is.  It's the responsible thing to do.  The left is telling judges not to meddle now.  I search interminably for the perfect way to describe these people that will forever explain them to everybody.  I know it's there.  I'll spend the rest of my life trying to find it, as a means of educating, persuading, informing just who these people are. 

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RUSH:  Look, folks, what this shows is what an incompetent, power-hungry president and former Democrat majority Congress we had and have.  There were a hundred ways to deal with health care, but Obama and Pelosi and Reid, they chose the most preposterous, over-the-top way to do this, and they did it on purpose.

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Mark in Fort Worth.  Thank you for calling.  I appreciate your waiting as well.  Hi.

CALLER:  Hello, Rush.  Dittos from the Lone Star State.

RUSH:  Thank you.

CALLER:  I wanted to touch on the Obamacare, Supreme Court discussions of the last week, again on the severability issue.

RUSH:  Yeah.

CALLER:  I think it's very revealing that the Democrat-controlled Congress intentionally, I think, intentionally left out the severability clause because I think they are daring the court to throw out the entire law.  I think that they know that if they had put severability in the act they would have struck down the mandate but may have left the rest of it, but I think their arrogance --

RUSH:  Wait a minute.

CALLER:  -- I think they are daring the court --

RUSH:  Wait.  Wait, wait, wait.

CALLER:  -- to throw it all out.

RUSH:  I'm not sure I understand you.  Did you say you think that they want the court to throw out the whole thing?

CALLER:  No.  No.  I apologize for not making that clear.  Obviously I think they want it to pass.  I think they wanted to make it a complete up-or-down vote on the entire act in intimidating the court into --

RUSH:  Oh.

CALLER: -- not being willing to vote down the entire act.  I think they were arrogant enough to put that in front of the court and say, "Here, if you think you've got the intestinal fortitude to vote this down then you go right ahead, but we don't think you'll do it."

RUSH:  So that's why they took the severability clause out?

CALLER:  Exactly.

RUSH:  And so your thinking is that the court is gonna say, "We don't want to be the ones who throw out the first black president's signature legislation."

CALLER:  Because to me the interesting thing about it is the severability issue, the way it fell in the arguments was, we had all these other arguments about the mandate and is it constitutional or is it not.  The severability issue comes up and then all of a sudden they had to stand back and say, "Oh, wait, if we strike this down, it looks like we may have to strike down the entire law, and I don't know if we want to strike down the entire law," and I think that's all by design.

RUSH:  Okay.  Just so I understand you.  You think they left out severability to make it politically impossible for the judges to toss it out?

CALLER:  To make it politically much more difficult for them to strike down the entire law.  Because, as your judge friend in your correspondence yesterday said, the letter of the law says if they strike down the mandate, they strike down all of it.

RUSH:  Right.

CALLER:  But if they strike down just the mandate and leave the rest of it, then the Democrats in Congress can go back and say, "Well, here we've got a Supreme Court that's not even following the letter of the law.  They're doing what they want to to this act."  So they win politically in two of the three options that are in front of them.

RUSH:  Well, see, this is where I have trouble because you may have a point but I don't think they did this on purpose. I think they were stupid.  I think they were in a hurry and I think they forgot it.  They're not that smart.  They are politically devious, but I'm having trouble believing that they would take that risk. That after dreaming of this for 50 years, they would construct it in such a way that the only way it survives is by daring a court to throw it out?  I don't think that's what's going on here.  I think they were in a hurry. I think they barely had ways to get this thing passed, and I think they just forgot it, because it was in a previous version. 

In fact, let's go to audio sound bite number 24. This is Rahm Emanuel's brother, Ezekiel Emanuel who's part of the regime and he's one of the grandfathers of this whole thing. He's one of the authors. He's one of the grand pooh-bahs. Ezekiel Emanuel. He's a doctor. He's an M.D., he's a Ph.D., and he's the ballet dancer's brother. He was on NBC this afternoon, and they had a discussion about the oral arguments and the individual mandate being overturned, and he was asked this question: "Why wasn't severability built into this?" Why didn't you guys put the severability clause in it?

EMANUEL: That I believe was an oversight, not an intention. And I do know that most of us wanted severability and had certainly thought that there's severability in the bill.

ANCHOR: (clearing throat)

EMANUEL: And that's the way, again, all the lower courts have been understanding this issue, that it is severable. But I think whether it's severable or not, one has to take the tone that it really isn't the place of justices to decide, "Well, how is it best to structure the health insurance market?" Remember, Congress held, y'know, over 70 days of hearings just on the House side on health care reform.

RUSH: That's a crock.

EMANUEL: For the justices to come in and say, "Well, we've read a bunch of briefs," even if there's a record number of briefs, "We've held six hours of hearings. We're gonna decide how best to structure the health insurance market, what can be included, what can't," seems to be to be quite...

ANCHOR: (clearing throat)

EMANUEL: Y'know, usurping a lot of policymaking, which, in the past, has been something conservatives have decried.

RUSH: Wait a second, Zeke! That's not at all what the court said. Scalia said yesterday they don't want to do this! See what this guy is doing? Now he's coming out and saying the court wants to take over and run this thing when it's Congress' job, and Scalia specifically made fun of that! (paraphrased) "You expect us to do this? What about judicial overreach? We don't want any part of this." This is hilarious! This guy is also against judicial activism now. This is a guy who wants judges writing new law, except all of a sudden he doesn't. These people, I'm telling you: They're not as smart... Mark, they're not as smart as you're giving them credit for.

They're diabolical, and they're plenty deceitful. But they would gladly get the camel's notices under the tent on this bill. They'd take any aspect of it they could. In fact, one of the ways to look at this is to say they would love the mandate to be thrown out but the rest of the bill to survive so they can replace the mandate with single payer. Right now. Not ten years from now. Just Medicare for everybody and be done with it. Medicare for everybody! Medicare for everybody and be done with it, and get single payer tomorrow instead of ten years from now. A lot of pundits are analyzing it that way.

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