‘Twas the night before Christmas 2009, and all through the Senate, Democratic leaders were furiously twisting arms and adding special-interest goodies to the Obamacare bill. They pieced it together with much urgency but little caution in the mistaken belief that they would have the chance to come back and make key technical changes later. But the January 2010 election of Sen. Scott Brown, R-Mass., forced them to pass their slapdash first draft into law. Thanks to simple drafting errors, their bill as written did not immediately require coverage of children with pre-existing conditions. It unexpectedly killed off a discount program for children’s hospitals buying expensive drugs for rare illnesses. It imperiled workers’ health coverage at thousands of companies, forcing the Obama administration to waive the law’s provisions for 222 employers (so far). It also lacked a severability clause — the legal provision ensuring that if a court strikes down part of a law, the remainder is preserved.
Despite this last oversight, U.S. District Judge Henry Hudson preserved most of Obamacare on Monday, even as his ruling struck down its linchpin requirement that all Americans purchase health insurance under penalty of law. Ironically, Hudson preserved the law’s remainders precisely because of its multitude of unrelated riders and the opaque, hasty process by which it had been drafted and passed.
