Several state legislators have reached out to me recently with questions about the nature of severability and Obamacare. Since some Redstaters seem to have questions as well, I thought I’d explain a bit about what this means.

Most laws of large size and scope have something called a “severability clause” attached to them. Essentially, this means that if one part of a piece of large legislation is ruled unconstitutional by a court, that unconstitutional portion is “severed” from the rest of the bill — the ruling doesn’t stop the rest of the law from being enforced.

The trouble for Obamacare is that it doesn’t have a severability clause. If you’re an opponent of Obamacare, this all sounds pretty good — it indicates that if Attorney General Ken Cuccinelli is successful in his Virginia case against the individual mandate, the entire legislation could collapse. But the answer isn’t that simple.

As I discuss with Maureen Martin in our latest podcast, what’s more likely is that the Supreme Court would just eliminate the portions of the bill which are tied directly to the individual mandate.

Some people have claimed the severability clause is absent from Obamacare because the writing process of the bill was such a cluster, the clause was just forgotten. But the reality, I’m told, is that a severability clause would’ve been added in conference between the House and Senate. Except that as you know, no such conference happened — everything had to be done via reconciliation after the House passed the Senate bill. Hence, no severability clause.

But the lack of a severability clause wouldn’t necessarily result in the overrule the rest of the legislation, which mostly have to do with spending and rationing — the expansion of Medicaid, Medicare cuts, and sweeping regulatory authority — and isn’t wrapped up in the mandate. This has been the Court’s approach to other issues, such as the recent Sarbanes-Oxley ruling, another law which lacked a severability clause, where they invalidated a portion of the law and allowed the rest to stand.

Some things that the Court would likely leave unaffected would include the expansion of Medicaid, reporting obligations for businesses and hospitals, expansion of the Children’s Health Insurance Program, funds for “family planning,” expansion of state aging and disability resource centers, expanded funding for prevention programs and workplace education, reforms to inpatient rehabilitation and hospices, the addition of value-based payments for physicians and hospitals, and many provisions relating to Medicare services in rural areas… And that’s just for starters. The point is that the overwhelming portion of this legislation is not tied directly to the individual mandate.

Yet even if the Court behaved in the same way when deciding the constitutionality of the individual mandate, in practical terms, judging the mandate unconstitutional would set off a domino effect throughout the insurance industry. The mandate is the only thing which made other anti-market regulatory demands (such as guaranteed issue and community rating) workable for the industry. Despite Howard Dean’s argument that the individual mandate is unimportant (the reality is that Dean agrees with me — people will simply game the mandate) in the larger scheme of things, removing it and leaving other requirements intact would bring the entire insurance industry to the point of collapse.

So even if the lack of a severability clause doesn’t turn out to matter, elimination of the individual mandate as unconstitutional will create an untenable situation for insurers and eliminate many of the aspects of the legislation President Obama has touted. The push for further reform, at that point, would be inevitable.

Benjamin Domenech is managing editor of Health Care News and a research fellow at the Heartland Institute. Follow him on Twitter.

If you don’t believe that, then you are simply ignoring reality and you are part of the problem.

Elena Kagan is an avowed leftist who, while Dean of the Harvard Law School, refused to extend to the U.S. Military the kind of recruiting facilities offered to others in direct contradiction of the federal law - all because she disagreed with the military’s “Don’t Ask, Don’t Tell” policy. She couldn’t tell Dr. Coburn during her Senate Judiciary hearing that there is any appreciable limit to the Commerce clause and she all but admitted she thinks the Constitution is whatever the judges believe it to be.

The Constitution has been abused for years by activist judges and the politicians who either appoint them or vote to confirm them, and as a result it is barely recognizable today. The courts have decided policy on matters of life and death (abortion and the death penalty), on the definition of marriage, on the rules of golf, on prayer in school and countless other issues on which the Constitution actually is silent and thus, should be left to the people.

Kagan will absolutely, unequivocally follow the mold of her mentor Thurgood Marshall who believed that “you do what you think is right and let the law catch up.” We know that. Therefore - if you vote for her, you do not believe in the U.S. Constitution. Period.

Republicans for too long have hidden behind the misguided idea that so long as a nominee has a fancy diploma and an impressive resume, he is “qualified” to be a judge. The idea that the nominee must demonstrate fidelity to the Constitution was perceived as a luxury, not a requirement. Fortunately since the days of Republicans only mustering 3 “no” votes against ACLU leftist Ruth Bader Ginsburg, the vast majority of Republicans will oppose Kagan as they did Sotomayor.

But not Judd Gregg. Not Lindsey Graham. Not Dick Lugar. Not the Bobbsey twins from Maine. No sir - they are perfectly content watching the Constitution get shredded right in front of their eyes while they go home and talk about how fair and objective they are.

Well rest easy good Senators… Today, you violate your oath to defend the Constitution of the United States.

Clearly, the Democrats think they have something here tying together the Republican Party and the Tea Party. However, it seems to me that this political miscalculation is exactly why Congress’ approval rating is at 11%.

What the Democratic Leadership doesn’t seem to understand is that the Tea Party isn’t a political party; it’s a set of ideas shared by the overwhelming majority of Americans.

The Tea Party is made up of Democrats, Republicans, Independents, Libertarians, Constitution Party members, and apolitical Americans.

They are mainstream folks who love our nation and who wish to see America return to policies of limited government, fiscal responsibility, and strictly adhere to our Constitution. After all, these are the fundamental principles of our founding and represent the character of America.

For the Democrats to portray these fundamental principles as radical and a hindrance to public policy shows just how far out of touch they are from the political pulse of this country.

I hope the Democrats’ latest messaging campaign reaches far and wide because it will do nothing but distance them further from Main Street America.

On Wednesday night, PBS aired a special in which Bob Bennett gave us all a glimpse into 1) why he’s been given an early retirement by the people of Utah, 2) why Republicans fell on their collective faces in the last two elections, and 3) what Republicans can do to get power back and hold it.

Now, keep in mind that this is the same Bob Bennett who has a seat at the Senate Republican leadership table and has had enormous influence on Republican policy and decision-making from the inside. He is the establishment’s establishmentarian. His family is nothing short of a Utah political dynasty.

Yet he was roundly defeated in the Utah Republican primary, failing even to make the run-off. If you have ever wondered why, check out his statement during the PBS special:

SEN. ROBERT BENNETT: I found that a good many of the delegates simply wouldn’t talk to me. They were so angry, so determined to — quote — “send Washington a message” — close quote — that coming to one of my events to hear what I had to say on any of these things was — simply, they wouldn’t do.

And many of them who did come, they would hold up their copy of the Constitution, and they would say, if it’s not in the Constitution, you shouldn’t do it.

Well, I’m not quite ready to go that far in my conservative views.

Really? The fact you said that out loud automatically disqualifies you from being a Senator and begs the question why you continue to call yourself conservative. You are not - I don’t care what voting record you tout. Who cares? Because we know that behind the scenes, you are on your best days nothing more than an establishment Republican - and on your bad ones, a Ron Wyden-loving promoter of government-run health care.

Indeed, those of us who actually hold conservative views are QUITE ready for you to go… back to Utah. Because in that one line, you just revealed in a nutshell what has been dragging Republicans down for too long - and that is electing unprincipled moderates like you who fancy themselves conservative yet refuse to actually defend the Constitution.

The good news is that you also make clear that the path back to success is electing Senators and Congressman who recognize that it is their job to preserve, protect and bring back a limited government based on the Constitution.

On Wednesday night, PBS aired a special in which Bob Bennett gave us all a glimpse into 1) why he’s been given an early retirement by the people of Utah, 2) why Republicans fell on their collective faces in the last two elections, and 3) what Republicans can do to get power back and hold it.

Now, keep in mind that this is the same Bob Bennett who has a seat at the Senate Republican leadership table and has had enormous influence on Republican policy and decision-making from the inside. He is the establishment’s establishmentarian. His family is nothing short of a Utah political dynasty.

Yet he was roundly defeated in the Utah Republican primary, failing even to make the run-off. If you have ever wondered why, check out his statement during the PBS special:

SEN. ROBERT BENNETT: I found that a good many of the delegates simply wouldn’t talk to me. They were so angry, so determined to — quote — “send Washington a message” — close quote — that coming to one of my events to hear what I had to say on any of these things was — simply, they wouldn’t do.

And many of them who did come, they would hold up their copy of the Constitution, and they would say, if it’s not in the Constitution, you shouldn’t do it.

Well, I’m not quite ready to go that far in my conservative views.

Really? The fact you said that out loud automatically disqualifies you from being a Senator and begs the question why you continue to call yourself conservative. You are not - I don’t care what voting record you tout. Who cares? Because we know that behind the scenes, you are on your best days nothing more than an establishment Republican - and on your bad ones, a Ron Wyden-loving promoter of government-run health care.

Indeed, those of us who actually hold conservative views are QUITE ready for you to go… back to Utah. Because in that one line, you just revealed in a nutshell what has been dragging Republicans down for too long - and that is electing unprincipled moderates like you who fancy themselves conservative yet refuse to actually defend the Constitution.

The good news is that you also make clear that the path back to success is electing Senators and Congressman who recognize that it is their job to preserve, protect and bring back a limited government based on the Constitution.

I’ve been studying the Progressives the last few months, and I think this post will be the beginning of a series, or at least a conversation starter for another post or two. It’s struck me in my studies that the Progressives and America’s Founding Fathers are on the polar extremes of two very important issues: the nature of man and the role of government. And if you’re coming from two diametrically opposite worldviews, it of course leads to opposite conclusions. The problems we face today are a direct result of the fact that Progressive beliefs and the Founders’ beliefs, as found in the Declaration and Constitution, are like oil and water: they will never mix.

Progressives view man as perfectable, essentially good, and see centralizing power in national government as necessary for the advancement of society. You might even say the Progressives thought the state in the hands of an educated elite was, and is, a benevolent force for good. Because of their views on man, and government, the Progressives were, and are, utopian statists. By that I mean they believe in the goodness of the state for the advancement of society; but such beliefs, and the belief that man is essentially good, are utopian: such beliefs are not rooted in reality. For empirical evidence, look no further than the 20th century, which is full of evidence as to why virtually every form of statism attempted not only did not work, but also eventually resulted in the deaths of hundreds of millions. The word “utopia” literally means “nowhere,” and utopian statism has never worked anywhere. It never will because those who hold to such ideas fail each time to understand the actual nature of man and the proper role of government.

The Founders’ views on man and government were diametrically opposed to the Progressives: they knew man is not essentially good, nor should a government made by man, and ruled by men, have great centralized powers. Why? Alexander Hamilton wrote in the Federalist Number 6 that: “Men are ambitious, vindictive and rapacious,” with James Madison writing in Federalist 51, “But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” Nor did the Founders view centralized power, even government, in the most positive of lights: Washington would write, “Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.”

This is not to say the Founders were cynics. Instead, they were optimistic realists. While they believed that man is capable of great good, they also felt that he is not capable of sustained good; in their view, man is an imperfect creature in an imperfect world. So how could one realistically provide for the greatest amount of freedom and prosperity in this imperfect world? That was the challenge of the Founders when writing our founding documents. They were ultra-realistic about the nature of man and the nature of man’s governments–and yet created a form of government that was able to give America the most freedom and prosperity any nation has ever seen by limiting the role of government and providing for, and protecting, individual freedom.

One of the great tensions we are seeing today in America is that of the worldview of Progressives coming up against the worldview of the Founders. The American people are awakening, via tea party protests and the growth of 9.12 groups, because I believe that deeply engrained in the American people are the beliefs of the Founders with regard to human nature and government. The protests we’ve seen over the last two years are a natural reaction to the false god of statism being foisted upon them, and not just by the current administration and unpopular Congress. While the Bush administration was not as egregious as the current White House (nor was the attendant Republican Congress) both those entities were statists with a small ‘s,’ preferring to not make the truly difficult choices, and instead, growing the size and role of government in our lives. That’s why I virtually ignore party affiliations, and even find the terms “conservative” or “liberal” to be almost meaningless. I choose to evaluate candidates in light of whether they are statist or non-statist: do they believe in expanding the role, scope, and size of the state in the lives of the individual, or in limiting the power of the state (government) so as to provide for the greatest freedom within the bounds of ordered liberty? Government has a role in our society: national defense to provide for protected space within which a free people can flourish, the enforcement of the rule of law and the right of contract to provide for a just society, the protection of private property, etc. But the list of where government should be is a very short one, and the rest of society should be left to the private sphere.

Americans are seeking non-statists to govern this country, and though I think this fall’s elections will be “progress in the right direction,” but let me say that simply electing Republicans is not the solution because there are plenty of Republican statists parading about. The way toward ensuring liberty is in electing men and women who have deeply held views on the role of government, individual freedom, and the free enterprise system. Some will happen to run as Republicans, but dare I say, even as Democrats in some locations—but it is only this originalist worldview (shared by the Founders) that will turn our country around and put us back on the path of prosperity and freedom.