Should SCOTUS Hear The Thomas More Case?

In the 7/30/2011 Washington Examiner, Ken Klukowski of Liberty University argues that anti-ObamaCare activists should not want the US Supreme Court to hear the lawsuit by Thomas More Law Center challenging the individual mandate because it fails to properly address the severability issue.

Here's an excerpt from "Supreme Court should not take this Obamacare case":

The Thomas More Law Center filed one of the Obamacare cases, raising the sole issue of whether the individual mandate is unconstitutional. The case lost in the district court and again before the 6th Circuit federal appeals court. This week the TMLC petitioned the Supreme Court to take the case.

All the major lawsuits challenging Obamacare rightly argue that the individual mandate is unconstitutional. But the brass ring -- the ultimate prize -- is for the Supreme Court not only to strike down the mandate, but to also hold it non-severable from PPACA's other 2,700 pages.

Severability doctrine is how a court determines how much of a law to nullify. It's very rare for a court to strike down any part of a statute aside from the unconstitutional provision...

That's why the three most important lawsuits against Obamacare all raise severability. It's also why the federal judge in the biggest lawsuit (the multistate case from Florida) struck down the entire statute.

Striking down the individual mandate would be a great victory. Such a Supreme Court decision would delineate boundaries on federal power under the Constitution's Commerce Clause and the Necessary and Proper Clause.

The implications would be profound. It would be a shot of adrenaline for the cases challenging the Environmental Protection Agency's cap-and-trade rules, National Labor Relations Board's authoritarian rampage, the Federal Communications Commission's Internet power grab, among other lawsuits.

But, while TMLC's challenge is laudable, a lawsuit attacking Section 1501 but not raising severability doesn't go far enough. If only the individual mandate is struck down, it would immunize 99 percent of Obamacare from further legal challenges.

(Read the full text of "Supreme Court should not take this Obamacare case".)

If Klukowski is right, we should hope that the Supreme Court hears a case that maximizes the chance of striking down the entire ObamaCare law. (In theory, the SCOTUS could also choose to wait until other ObamaCare lower court cases reach them as well, then decide multiple issues at once.)

(Thanks to @Lucidicus for the pointer.)