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Brown’s election reverberates in court fight

Could affect whether overhaul is overturned

Joanne Rathe/Globe Staff

Senator Olympia Snowe was on hand when the Women for Brown Committee launched Monday at Brown’s Boston headquarters.

Senator Scott Brown was elected in 2010 with a promise to be the 41st vote against President Obama’s health care overhaul. But Democrats in the Senate found a way to deny the Republican senator that opportunity, using parliamentary maneuvers to push the bill through without him.

Now, as the law is under review in the Supreme Court, Brown’s opposition could prove to have an indirect, but significant, effect on whether it is overturned in its entirety.

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Following Brown’s election, Democrats faced a probable filibuster on the bill, making them reluctant to bring it up for a second vote and therefore unable to insert language that could have made the law more difficult to overturn.

Brown’s election to the Senate was certainly not the only factor in the law’s potential demise. And it remains to be seen what effect the missing language — known as a severability clause — will have in the Supreme Court’s deliberations. But officials involved in the negotiations around the bill’s passage agreed Wednesday that Brown’s opposition was a factor in the Senate’s inability to insert the severability clause.

A severability clause protects an entire law from being overturned in the event that a court find specific portions unconstitutional. The clauses are often included in laws passed by Congress, a kind of legislative fine print specifying Congress’s intent that the majority of a law go forward even if some pieces have to be thrown out.

In this case, the severability clause would have protected the entire health care law from being overturned, even if justices strike down its most controversial requirement, a mandate that all Americans obtain health insurance.

Charles Fried, a Harvard Law School professor and former solicitor general for President Reagan, said the court can presume Congress wants to preserve a law, regardless of whether a severability clause is included. But without such a clause, there is less certainty of Congress’s specific intent.

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“When there’s an explicit severability clause, that’s explicit and therefore, the issue is resolved,’’ said Fried. “Where there isn’t one . . . they’ve got to figure it out.’’

That question - what if any portion of the law could be preserved if the mandate to purchase health insurance is removed - was central to Wednesday’s Supreme Court hearing.

The Senate narrowly approved its first version of the health bill, which did not include the clause, in December 2009, before Brown was elected. There is disagreement over why. One official who was close to the 2009 process said it was an oversight. Another said it was a deliberate political strategy, intended to defang Republican claims that there was concern about the law’s constitutionality.

The House version, which passed separately, included the clause. The sides initially intended to bring a new bill before the Senate, with a severability clause included, according to two former Senate aides involved in the process and a House official with knowledge of the process.

But after Brown’s election, Democratic leaders switched strategies, deciding to employ a process known as “reconciliation’’ that required them to use the Senate’s initial bill, with only limited changes. That process avoided a filibuster, which would have killed the bill.

“After Jan. 19, it became clear there was only one strategy to move forward on health reform,’’ John McDonough, a professor at the Harvard School of Public Health who worked on the Senate health committee from 2008 through 2010. “The Democrats, because of Scott Brown, lost 60 votes.’’

The House official with knowledge of process, who requested anonymity to discuss strategy, agreed Brown’s election was decisive in persuading Democratic leaders to shift strategies.

Jim Manley, a former senior communications adviser for majority leader Harry Reid and now a Democratic strategist, agreed that Brown’s election was a factor in that decision, but not the sole factor.

There was also concern before Brown’s election that other senators who had initially supported the bill would defect, leaving the Senate short of the 60 votes necessary to introduce a new bill, he said.

“We had overwhelming opposition,’’ Manley said. “He was just the icing on the cake.’’

Noah Bierman can be reached at nbierman@globe.com. Follow him on Twitter @noahbierman.

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