At a stroke, Medicare chief Donald Berwick has revived the “death panel” debate from two summers ago. Allow us to referee, because this topic has been badly distorted by the political process—and in a rational world, it wouldn’t be a political question at all.

On Sunday, Robert Pear reported in the New York Times that Medicare will now pay for voluntary end-of-life counseling as part of seniors’ annual physicals. A similar provision was originally included in ObamaCare, but Democrats stripped it out amid the death panel furor. Now Medicare will enact the same policy through regulation.

We hadn’t heard about this development until Mr. Pear’s story, but evidently Medicare tried to prevent the change from becoming public knowledge. The provision is buried in thousands of Federal Register pages setting Medicare’s hospital and physician price controls for 2011 and concludes that such consultations count as a form of preventative care.

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Only a few months ago, the White House and its allies on the legal left dismissed the constitutional challenges to ObamaCare as frivolous, futile and politically motivated. So much for that. Yesterday, a federal district court judge in Virginia ruled that the health law breaches the Constitution’s limits on government power.

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Health Care Reform: One analyst says the Democrats were amateurish in writing their overhaul bill. This might be worth more than a snicker. It could mean the courts can strike down the entire law at once.

Various parts of the Democrats’ health care reform law have been held up as pieces that might not stand up to a constitutional rigor.

The individual mandate that requires those who aren’t previously covered by insurance to buy a plan is the most likely place for the legal objections to begin. Another provision that is being disputed at the constitutional level is the expansion of Medicaid that forces states to increase their spending on that program.

But those are only two pieces of a legislative leviathan. Even if one or both were stricken, the bulk of the law’s burden would remain.

However, Greg Scandlen, a senior fellow at the Heartland Institute, says due to a little-known legal concept the entire law would unravel if a single part was found to be outside the Constitution.

“Apparently there was no ’severability’ clause written into this law, which shows how amateurish the process was,” he wrote. “Virtually every bill I’ve ever read includes a provision that if any part of the law is ruled unconstitutional the rest of the law will remain intact. Not this one. That will likely mean that the entire law will be thrown out if a part of it is found to violate the Constitution.”

No argument from us. The bill writers and lawmakers who voted for it without reading it were unprofessional.

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