Which Justices Will Vote Down ObamaCare? & a Preview of the Arguments to Come.

[Greenbeard]

I am not so sure that's true. I can't recall (with certainty) if the ObamaCare Act contained the usual "severability" clause. But my recollection is that it does not. Thus, if the mandate violates the Constitution, then the entire Act could fall.

When the 11th Circuit struck down the mandate but severed it from the law (in the very case that's been appealed to the Supreme Court), they pretty much obliterated that line of argument:

VII. SEVERABILITY

We now turn to whether the individual mandate, found in 26 U.S.C. § 5000A, can be severed from the remainder of the 975-page Act.

A. Governing Principles

In analyzing this question, we start with the settled premise that severability is fundamentally rooted in a respect for separation of powers and notions of judicial restraint. See Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 329–30, 126 S. Ct. 961, 967–68 (2006). Courts must “strive to salvage” acts of Congress by severing any constitutionally infirm provisions “while leaving the remainder intact.” Id. at 329, 126 S. Ct. at 967–68. “[T]he presumption is in favor of severability.” Regan v. Time, Inc., 468 U.S. 641, 653, 104 S. Ct. 3262, 3269 (1984).

In the overwhelming majority of cases, the Supreme Court has opted to sever the constitutionally defective provision from the remainder of the statute. See, e.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. __, __, 130 S. Ct. 3138, 3161–62 (2010) (holding tenure provision severable from Sarbanes-Oxley Act); New York v. United States, 505 U.S. at 186–187, 112 S. Ct. at 2434 (holding take-title provision severable from Low-Level Radioactive Waste Policy Amendments Act of 1985); Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684–97, 107 S. Ct. 1476, 1479–86 (1987) (holding legislative veto provision severable from Airline Deregulation Act of 1978); Chadha, 462 U.S. at 931–35, 103 S. Ct. at 2774–76 (holding legislative veto provision severable from Immigration and Nationality Act); Buckley v. Valeo, 424 U.S. 1, 108–09, 96 S. Ct. 612, 677 (1976) (holding campaign expenditure limits severable from public financing provisions in Federal Election Campaign Act of 1971).136

Indeed, in the Commerce Clause context, the Supreme Court struck down an important provision of a statute and left the remainder of the statute intact. In Morrison, the Court invalidated only one provision—the civil remedies provision for victims of gender-based violence. Morrison, 529 U.S. at 605, 627, 120 S. Ct. at 1747, 1759. The Supreme Court did not invalidate the entire VAWA—or the omnibus Violent Crime Control and Law Enforcement Act of 1994, of which it was part—even though the text of the two bills did not contain a severability clause.

As these cases amply demonstrate, the Supreme Court has declined to invalidate more of a statute than is absolutely necessary. Rather, “when confronting a constitutional flaw in a statute, we try to limit the solution to the problem.” Ayotte, 546 U.S. at 328, 126 S. Ct. at 967. Because “[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people,” courts should “act cautiously” and “refrain from invalidating more of the statute than is necessary.” Regan, 468 U.S. at 652, 104 S. Ct. at 3269.

The Supreme Court’s test for severability is “well-established”: “Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.” Alaska Airlines, 480 U.S. at 684, 107 S. Ct. at 1480 (quotation marks omitted) (emphasis added). As the Supreme Court remarked in Chadha, divining legislative intent in the absence of a severability or non-severability clause can be an “elusive” enterprise. 462 U.S. at 932, 103 S. Ct. at 2774.

B. Wholesale Invalidation

Applying these principles, we conclude that the district court erred in its decision to invalidate the entire Act. Excising the individual mandate from the Act does not prevent the remaining provisions from being “fully operative as a law.” As our exhaustive review of the Act’s myriad provisions in Appendix A demonstrates, the lion’s share of the Act has nothing to do with private insurance, much less the mandate that individuals buy insurance. While such wholly unrelated provisions are too numerous to bear repeating, representative examples include provisions establishing reasonable break time for nursing mothers, 29 U.S.C. § 207(r); epidemiology-laboratory capacity grants, 42 U.S.C. § 300hh-31; an HHS study on urban Medicare-dependent hospitals, id. § 1395ww note; restoration of funding for abstinence education, id. § 710; and an excise tax on indoor tanning salons, 26 U.S.C. § 5000B.

In invalidating the entire Act, the district court placed undue emphasis on the Act’s lack of a severability clause. See Florida ex rel. Bondi v. HHS, No. 3:10-CV- 91-RV/EMT, __ F. Supp. 2d __, 2011 WL 285683, at *35–36 (N.D. Fla. Jan. 31, 2011). Supreme Court precedent confirms that the “ultimate determination of severability will rarely turn on the presence or absence of such a clause.” United States v. Jackson, 390 U.S. 570, 585 n.27, 88 S. Ct. 1209, 1218 n.27 (1968). Rather, “Congress’ silence is just that—silence—and does not raise a presumption against severability.” Alaska Airlines, 480 U.S. at 686, 107 S. Ct. at 1481.

Nevertheless, the district court emphasized that an early version of Congress’s health reform bill did contain a severability clause. Congress’s failure to include such a clause in the final bill, the district court reasoned, “can be viewed as strong evidence that Congress recognized the Act could not operate as intended without the individual mandate.” Florida v. HHS, 2011 WL 285683, at *36. The district court pushes this inference too far.

First, both the Senate and House legislative drafting manuals state that, in light of Supreme Court precedent in favor of severability, severability clauses are unnecessary unless they specifically state that all or some portions of a statute should not be severed. See Office of Legislative Counsel, U.S. Senate, Legislative Drafting Manual, § 131 (Feb. 1997) (providing that “a severability clause is unnecessary” but distinguishing a “nonseverability clause,” which “provides that if a specific portion of an Act is declared invalid, the whole Act or some portion of the Act shall be invalid”); Office of Legislative Counsel, U.S. House of Representatives, House Legislative Counsel’s Manual on Drafting Style, § 328 (Nov. 1995) (stating that “a severability clause is unnecessary unless it provides in detail which related provisions are to fall, and which are not to fall, if a specified key provision is held invalid”).

Second, the clause present in one early version of the Act was a general severability clause, not a non-severability clause. See H.R. Rep. No 111-299, pt. 3, at 17 § 155 (2009), reprinted in 2010 U.S.C.C.A.N. 474, 537 (“If any provision of this Act . . . is held to be unconstitutional, the remainder of the provisions of this Act . . . shall not be affected.”). Thus, according to Congress’s own drafting manuals, the severability clause was unnecessary, and its removal should not be read as any indicator of legislative intent against severability. Rather, the removal of the severability clause, in short, has no probative impact on the severability question before us.

In light of the stand-alone nature of hundreds of the Act’s provisions and their manifest lack of connection to the individual mandate, the plaintiffs have not met the heavy burden needed to rebut the presumption of severability. We therefore conclude that the district court erred in its wholesale invalidation of the Act.

 

[Liability]

I am not so sure that's true. I can't recall (with certainty) if the ObamaCare Act contained the usual "severability" clause. But my recollection is that it does not. Thus, if the mandate violates the Constitution, then the entire Act could fall.

When the 11th Circuit struck down the mandate but severed it from the law (in the very case that's been appealed to the Supreme Court), they pretty much obliterated that line of argument:

VII. SEVERABILITY

We now turn to whether the individual mandate, found in 26 U.S.C. § 5000A, can be severed from the remainder of the 975-page Act.

A. Governing Principles

In analyzing this question, we start with the settled premise that severability is fundamentally rooted in a respect for separation of powers and notions of judicial restraint. See Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 329–30, 126 S. Ct. 961, 967–68 (2006). Courts must “strive to salvage” acts of Congress by severing any constitutionally infirm provisions “while leaving the remainder intact.” Id. at 329, 126 S. Ct. at 967–68. “[T]he presumption is in favor of severability.” Regan v. Time, Inc., 468 U.S. 641, 653, 104 S. Ct. 3262, 3269 (1984).

In the overwhelming majority of cases, the Supreme Court has opted to sever the constitutionally defective provision from the remainder of the statute. See, e.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. __, __, 130 S. Ct. 3138, 3161–62 (2010) (holding tenure provision severable from Sarbanes-Oxley Act); New York v. United States, 505 U.S. at 186–187, 112 S. Ct. at 2434 (holding take-title provision severable from Low-Level Radioactive Waste Policy Amendments Act of 1985); Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684–97, 107 S. Ct. 1476, 1479–86 (1987) (holding legislative veto provision severable from Airline Deregulation Act of 1978); Chadha, 462 U.S. at 931–35, 103 S. Ct. at 2774–76 (holding legislative veto provision severable from Immigration and Nationality Act); Buckley v. Valeo, 424 U.S. 1, 108–09, 96 S. Ct. 612, 677 (1976) (holding campaign expenditure limits severable from public financing provisions in Federal Election Campaign Act of 1971).136

Indeed, in the Commerce Clause context, the Supreme Court struck down an important provision of a statute and left the remainder of the statute intact. In Morrison, the Court invalidated only one provision—the civil remedies provision for victims of gender-based violence. Morrison, 529 U.S. at 605, 627, 120 S. Ct. at 1747, 1759. The Supreme Court did not invalidate the entire VAWA—or the omnibus Violent Crime Control and Law Enforcement Act of 1994, of which it was part—even though the text of the two bills did not contain a severability clause.

As these cases amply demonstrate, the Supreme Court has declined to invalidate more of a statute than is absolutely necessary. Rather, “when confronting a constitutional flaw in a statute, we try to limit the solution to the problem.” Ayotte, 546 U.S. at 328, 126 S. Ct. at 967. Because “[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people,” courts should “act cautiously” and “refrain from invalidating more of the statute than is necessary.” Regan, 468 U.S. at 652, 104 S. Ct. at 3269.

The Supreme Court’s test for severability is “well-established”: “Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.” Alaska Airlines, 480 U.S. at 684, 107 S. Ct. at 1480 (quotation marks omitted) (emphasis added). As the Supreme Court remarked in Chadha, divining legislative intent in the absence of a severability or non-severability clause can be an “elusive” enterprise. 462 U.S. at 932, 103 S. Ct. at 2774.

B. Wholesale Invalidation

Applying these principles, we conclude that the district court erred in its decision to invalidate the entire Act. Excising the individual mandate from the Act does not prevent the remaining provisions from being “fully operative as a law.” As our exhaustive review of the Act’s myriad provisions in Appendix A demonstrates, the lion’s share of the Act has nothing to do with private insurance, much less the mandate that individuals buy insurance. While such wholly unrelated provisions are too numerous to bear repeating, representative examples include provisions establishing reasonable break time for nursing mothers, 29 U.S.C. § 207(r); epidemiology-laboratory capacity grants, 42 U.S.C. § 300hh-31; an HHS study on urban Medicare-dependent hospitals, id. § 1395ww note; restoration of funding for abstinence education, id. § 710; and an excise tax on indoor tanning salons, 26 U.S.C. § 5000B.

In invalidating the entire Act, the district court placed undue emphasis on the Act’s lack of a severability clause. See Florida ex rel. Bondi v. HHS, No. 3:10-CV- 91-RV/EMT, __ F. Supp. 2d __, 2011 WL 285683, at *35–36 (N.D. Fla. Jan. 31, 2011). Supreme Court precedent confirms that the “ultimate determination of severability will rarely turn on the presence or absence of such a clause.” United States v. Jackson, 390 U.S. 570, 585 n.27, 88 S. Ct. 1209, 1218 n.27 (1968). Rather, “Congress’ silence is just that—silence—and does not raise a presumption against severability.” Alaska Airlines, 480 U.S. at 686, 107 S. Ct. at 1481.

Nevertheless, the district court emphasized that an early version of Congress’s health reform bill did contain a severability clause. Congress’s failure to include such a clause in the final bill, the district court reasoned, “can be viewed as strong evidence that Congress recognized the Act could not operate as intended without the individual mandate.” Florida v. HHS, 2011 WL 285683, at *36. The district court pushes this inference too far.

First, both the Senate and House legislative drafting manuals state that, in light of Supreme Court precedent in favor of severability, severability clauses are unnecessary unless they specifically state that all or some portions of a statute should not be severed. See Office of Legislative Counsel, U.S. Senate, Legislative Drafting Manual, § 131 (Feb. 1997) (providing that “a severability clause is unnecessary” but distinguishing a “nonseverability clause,” which “provides that if a specific portion of an Act is declared invalid, the whole Act or some portion of the Act shall be invalid” Office of Legislative Counsel, U.S. House of Representatives, House Legislative Counsel’s Manual on Drafting Style, § 328 (Nov. 1995) (stating that “a severability clause is unnecessary unless it provides in detail which related provisions are to fall, and which are not to fall, if a specified key provision is held invalid&#8221.

Second, the clause present in one early version of the Act was a general severability clause, not a non-severability clause. See H.R. Rep. No 111-299, pt. 3, at 17 § 155 (2009), reprinted in 2010 U.S.C.C.A.N. 474, 537 (“If any provision of this Act . . . is held to be unconstitutional, the remainder of the provisions of this Act . . . shall not be affected.&#8221. Thus, according to Congress’s own drafting manuals, the severability clause was unnecessary, and its removal should not be read as any indicator of legislative intent against severability. Rather, the removal of the severability clause, in short, has no probative impact on the severability question before us.

In light of the stand-alone nature of hundreds of the Act’s provisions and their manifest lack of connection to the individual mandate, the plaintiffs have not met the heavy burden needed to rebut the presumption of severability. We therefore conclude that the district court erred in its wholesale invalidation of the Act.

No. They didn't "obliterate" anything. As I correctly noted before, while it IS true that the lack of a severablity clause does not mandate the nullification of the entire law (on the basis of the mandate, for instance) it DOES open that prospect up.

For example, if the Court concludes that AS WRITTEN the Act is effectively inoperable without a mandate, then striking the mandate (given the lack of a severability clause) could lead them to strike the entire law. And this is so because they would not be obligated to strain themselves to try to give effect to the rest of the Act in order to pay due deference to a severability clause.

The SCOTUS is not bound by the logic, wisdom or musings of the 11th Circuit.

 

[Greenbeard]

For example, if the Court concludes that AS WRITTEN the Act is effectively inoperable without a mandate, then striking the mandate (given the lack of a severability clause) could lead them to strike the entire law.

Presumably they'll do what the lower courts have done and actually read the legislation. At which point, they'll discover that the individual mandate has virtually nothing to do with 90%+ of the legislation. Or, as the 11 Circuit put it, "As our exhaustive review of the Act’s myriad provisions in Appendix A demonstrates, the lion’s share of the Act has nothing to do with private insurance, much less the mandate that individuals buy insurance."

There really isn't any valid argument for throwing out the rest of the legislation (beyond perhaps the guaranteed issue/community rating rules in the exchanges) if the individual mandate is overturned.

 

[Liability]

For example, if the Court concludes that AS WRITTEN the Act is effectively inoperable without a mandate, then striking the mandate (given the lack of a severability clause) could lead them to strike the entire law.

Presumably they'll do what the lower courts have done and actually read the legislation. At which point, they'll discover that the individual mandate has virtually nothing to do with 90%+ of the legislation. Or, as the 11 Circuit put it, "As our exhaustive review of the Act’s myriad provisions in Appendix A demonstrates, the lion’s share of the Act has nothing to do with private insurance, much less the mandate that individuals buy insurance."

There really isn't any valid argument for throwing out the rest of the legislation (beyond perhaps the guaranteed issue/community rating rules in the exchanges) if the individual mandate is overturned.

Or, they might disagree with your premise and discover that without the mandate, the impositions of the law (together with other questionably Constitutional aspects of the Act) cannot effectively operate.

There are indeed valid arguments for throwing out the rest of the law, too. Just not arguments YOU happen to agree with. That there ARE such valid arguments doesn't resolve the matter, however. For a valid ARGUMENT doesn't always yield the conclusion you might expect.

 

[Greenbeard]

Or, they might disagree with your premise and discover that without the mandate, the impositions of the law (together with other questionably Constitutional aspects of the Act) cannot effectively operate.

They may well "discover" (as both sides of this case are arguing) that the related policy pieces of the law--the guaranteed issue and community rating bits--can't operate without the mandate. That's a page or so of it gone. Maybe they'd even have an unjustifiably broad interpretation of the mandate's reach and throw out the exchanges altogether. That's a few more pages.

But that's it. The individual mandate is undeniably and unquestionably about private insurance. And private insurance is only the subject of the first of the ACA's ten titles. The mandate's economic and policy function isn't an open question, everyone knows it serves to deter adverse selection once medical underwriting is largely outlawed in the private insurance industry.

Imagining that one can somehow "discover" that it's necessary for unrelated parts of the law is merely wishful thinking.

There are indeed valid arguments for throwing out the rest of the law, too.

I'm all ears. The only one I've heard is the existence of a general severability clause in earlier iterations of the legislation. But, as I said, the 11th Circuit dispatched that one very nicely by pointing out that Congressional drafting manuals made such a clause superfluous, as drafters write with the presumption of severability. That's why they only have to specify when they don't want a piece of the law to be severable, which was never the case in any iteration of the ACA.

 

[Liability]

Or, they might disagree with your premise and discover that without the mandate, the impositions of the law (together with other questionably Constitutional aspects of the Act) cannot effectively operate.

They may well "discover" (as both sides of this case are arguing) that the related policy pieces of the law--the guaranteed issue and community rating bits--can't operate without the mandate. That's a page or so of it gone. Maybe they'd even have an unjustifiably broad interpretation of the mandate's reach and throw out the exchanges altogether. That's a few more pages.

But that's it. The individual mandate is undeniably and unquestionably about private insurance. And private insurance is only the subject of the first of the ACA's ten titles. The mandate's economic and policy function isn't an open question, everyone knows it serves to deter adverse selection once medical underwriting is largely outlawed in the private insurance industry.

Imagining that one can somehow "discover" that it's necessary for unrelated parts of the law is merely wishful thinking.

There are indeed valid arguments for throwing out the rest of the law, too.

I'm all ears. The only one I've heard is the existence of a general severability clause in earlier iterations of the legislation. But, as I said, the 11th Circuit dispatched that one very nicely by pointing out that Congressional drafting manuals made such a clause superfluous, as drafters write with the presumption of severability. That's why they only have to specify when they don't want a piece of the law to be severable, which was never the case in any iteration of the ACA.

You aren't making a very coherent argument.

When we speak of ObamaCare, for the most part, we are talking about the imposition of mandates and we are talking about insurance coverage and burdensome regulatory requirements etc.

The mandates alone do not tell the whole story. The fact that it is a very-much TAX-related issue also does not tell the full story. That it involves a claim of "interstate commerce" that is of dubious validity also does not tell the full story. Combinations of those things or all of them together do not tell the full story.

But it starts to reveal the faults of the Act on Constitutional grounds. And it might very well be that none of it can operate without the other components.

The Act is a monstrosity. But we aren't talking about the fact that it took a couple of thousand pages to cobble the crap together, either. It serves as a clue though.

Did the Federal Government enact legislation outside the scope of a Constitutionally-bound government of limited and enumerated powers?

It is the contention of some very serious and well-informed people that the ObamaCare Act did exactly that. I agree with that analysis.

Now, when the TAXATION basis of the Act is considered together with the MANDATE provision -- in light of what the Constitution says -- there is a very good chance that the Act will get struck down. And if that happens on that basis, there will be precious little left of the ACT worth mentioning.


Seriously, if you take out the mandates and you remove the "penalty" provisions, exactly what part(s) of ObamaCare survive(s) in your opinion?

 

[Greenbeard]

When we speak of ObamaCare, for the most part, we are talking about the imposition of mandates and we are talking about insurance coverage and burdensome regulatory requirements etc.

In other words, you're talking about a few pages of the first title of the law. That's the problem with the language being used here. "The Act" (a phrase you used later in this post) refers to the Affordable Care Act, a 900 page piece of legislation officially known as Public Law 111-148 (and P.L. 111-151). That's not what you're referring to with the definition of "ObamaCare" you just provided.

If you're referring only to select pieces of private insurance regulation (and, of course, the related individual mandate), that's a very small piece of the Act. If throwing those out is what you mean when you talk about overturning "ObamaCare," I've already conceded that the Court could throw those out. But that isn't the same as throwing out the entirety of the Act, which is mostly unrelated to the individual mandate.

The confusion is that you're using the same colloquialism--ObamaCare--to refer to two very different things: 1) a few tens of pages of the Affordable Care Act and 2) the entire Affordable Care Act.

Seriously, if you take out the mandates and you remove the "penalty" provisions, exactly what part(s) of ObamaCare survive(s) in your opinion?

Virtually all of it. Certainly anything outside of Title I (and quite a bit within Title I). In all seriousness, have you ever even so much as looked through the table of contents of this legislation?

 

[Liability]

When we speak of ObamaCare, for the most part, we are talking about the imposition of mandates and we are talking about insurance coverage and burdensome regulatory requirements etc.

In other words, you're talking about a few pages of the first title of the law. That's the problem with the language being used here. "The Act" (a phrase you used later in this post) refers to the Affordable Care Act, a 900 page piece of legislation officially known as Public Law 111-148 (and P.L. 111-151). That's not what you're referring to with the definition of "ObamaCare" you just provided.

Yes. It is what I'm talking about and it's what I had just finished saying, in fact.

When WE TALK of ObamaCare the parts we are interested in debating are the part that are now under scrutiny.

In that mess of an Act, over 2000 fucking pages of gibberish, there are parts in which we are not all that terribly interested.

Maybe they deserve scrutiny, too. But that's a separate issue.

The parts that have gotten the attention -- which is the reason it is such an alarming law -- are primarily the parts I have addressed. And you know it.

The balance of your quibbling response is utterly beside that point -- as you also know.

 

[Greenbeard]

Yes. It is what I'm talking about and it's what I had just finished saying, in fact.

When WE TALK of ObamaCare the parts we are interested in debating are the part that are now under scrutiny.

Then we don't disagree. A few parts of the ACA are under scrutiny, they're separate from the rest (and vast majority) of the law, and they're very likely going to stand or fall on their own. The vast bulk of the legislation--the rest of the law--will be fine. I don't expect severability to be a problem.

 

[Liability]

Yes. It is what I'm talking about and it's what I had just finished saying, in fact.

When WE TALK of ObamaCare the parts we are interested in debating are the part that are now under scrutiny.

Then we don't disagree. A few parts of the ACA are under scrutiny, they're separate from the rest (and vast majority) of the law, and they're very likely going to stand or fall on their own. The vast bulk of the legislation--the rest of the law--will be fine. I don't expect severability to be a problem.

If (hypothetically) the mandate gets stricken and the penalties (tax) provision get stricken, and assuming further that some of the other parts of the law are not at all dependent upon the mandates or the penalties, then I wouldn't normally expect the entire law to HAVE to fall, either.

All I'm saying is that since the Act didn't include a severability clause, there is nothing requiring the Justices not to simply strike the entire law on the basis of the parts tht are UnConstitutional. They don't HAVE to. I agree. But they sure as hell could.

And if the law is gutted to the degree we have been discussing, the balance of it may not be worth the effort of preserving. Toss the shit out and let them try again. Fuck. They might even be willing to do so on the up and up someday.

 

[Publius1787]

I think removing the mandate would have bad results, but there is no constitutional requirement Congress pass policies that will have good results. I feel odd saying that, but it's true.

I won't dive in to the cost issue, because I feel like that's been well-hashed in other threads and I don't want to drag this one down that rabbit hole.

As for those other cases:

Lopez dealt with a statute banning guns in school zones. Congress said that school violence was a harm to interstate commerce, so they had this authority under the commerce clause. SCOTUS disagreed.
Morrison dealt the creation of a civil cause of action from the Violence Against Women Act. The court struck this down as also being too removed from interstate commerce.

Both of these involve Congress trying to pass general regulation, while using the Commerce Clause as a loincloth.

Raich and Wickard both show that laws that have a very narrow impact under the circumstances are still constitutional if Congress can show it is reasonably related to the exercise of their power. The idea that not buying health insurance doesn't count as an activity is pretty weak. If you're critically ill, you are still able to go to the ER and receive stabilizing treatment. That alone shows the "inactivity" of not buying insurance has a very real impact on the health care market.

No, a truly weak argument would be to BEG the Supreme Court to take EXCEPTION to the health care market. We all enter in to the food market, the job market, the transportation market &c. Ergo, by your reasoning, so as long as it is a market that most everyone participates in, the government may force you to buy anything within that market. We all are eventually going to eat, transport ourselves from one place to another, and get a job, so that means that the government can force us to buy a car as opposed to walk, or buy a green car as opposed to a normal one, or buy veggies as opposed to red meat, or apply for a job in construction as opposed to computer technology &c. It goes without saying that cost shifting is inherent in every market, whether the government regulates it or not.

Note that the government has failed to include a limiting principle to the commerce clause. In other words, in the government’s opinion, the only limiting principle to the commerce clause, aside from thoes inherent in the Bill of Rights, is for the people to elect other politicians to play with our commerce. In the government’s argument, the ability to regulate commerce is infinite and without limitation when taken with the necessary and proper clause. That they can force you, as a condition of living and breathing, to enter in to the market against your will so that you can pay to have someone else’s health care costs lowered. That’s not in keeping with limited enumerated government, that not in keeping with those who wrote the Constitution, and that’s not in keeping with any Supreme Court precedent.

 

[Publius1787]

It does not contain a severability clause, but such a clause is not strictly necessary.

For example, if the Court concludes that AS WRITTEN the Act is effectively inoperable without a mandate, then striking the mandate (given the lack of a severability clause) could lead them to strike the entire law.

Presumably they'll do what the lower courts have done and actually read the legislation. At which point, they'll discover that the individual mandate has virtually nothing to do with 90%+ of the legislation. Or, as the 11 Circuit put it, "As our exhaustive review of the Act’s myriad provisions in Appendix A demonstrates, the lion’s share of the Act has nothing to do with private insurance, much less the mandate that individuals buy insurance."

There really isn't any valid argument for throwing out the rest of the legislation (beyond perhaps the guaranteed issue/community rating rules in the exchanges) if the individual mandate is overturned.

The severability clause is not necessary if the point in question has no effect on the workings of the rest of the bill. However, if it is Congress’s intention that major essential parts of the bill that must be implemented for it to work can be severed; they must state so in the bill. That’s the whole point of severability.

In this case, it is argued and implied by Congress, the President, the wording and structure of the bill, and to anyone with common sense, that if the individual mandate is ruled unconstitutional, than the rest of the bill with few exceptions is a huge heap of junk. Sense the bill mandates that everyone must be accepted despite preexisting conditions, and the way to drive the cost down is to force everyone in to the market to shift the cost to those who are not paying for care, the absence of the individual mandate will conclude in people buying insurance ONLY when they get sick or injured. Therefore, if the individual mandate goes down with no severability clause, it is rightly justified that the whole act is null and void as it accomplishes nothing for all parties involved except those who want to game the system.

There may be a few, or many, things in the bill that operates outside the meat of the legislation. However, the courts aren’t going to go through this monster and pick and choose what can operate without the mandate and what cant. The major issue is whether the intentions of the ACA can be carried out without the individual mandate. They cannot.

One last possibility is they can simply state that whatever parts are subject to and dependent on the mandate is void and the rest is ok. However, Democrats in Congress would find absurd excuses to keep everything but the individual mandate, and like I said before, the SCOTUS isn’t going to tear this monster apart to decide what stays and what doesn’t. Such a ruling would guarantee that Democrats ignore the Supreme Court ruling and for future cases to arise. Yet another reason why if the mandate fails the entire bill goes with it.

 

[Liability]

Agreed. As a practical matter, there is nothing of note in the Act-- and not a single thing worth preserving -- if the mandate part of it gets tossed.

That's just as well, since the Act is a cluster-fuck of stupid governmental interference.

Gut it, scrap it. Rip it up. Throw it in the incinerator. IF it's deemed important enough, try to craft some sensible legislation to replace it with.

ObamaCare is not sensible.

 

[Greenbeard]

The severability clause is not necessary if the point in question has no effect on the workings of the rest of the bill. However, if it is Congress’s intention that major essential parts of the bill that must be implemented for it to work can be severed; they must state so in the bill. That’s the whole point of severability.

Well, no. That's actually the exact opposite of how it works. All pieces are assumed to be severable. Congress must explicitly state that a particular provision is not severable if it wishes to deviate from that presumption. That's why I quoted the 11th Circuit's explanation of why they were striking down the individual mandate but also severing it:

First, both the Senate and House legislative drafting manuals state that, in light of Supreme Court precedent in favor of severability, severability clauses are unnecessary unless they specifically state that all or some portions of a statute should not be severed. See Office of Legislative Counsel, U.S. Senate, Legislative Drafting Manual, § 131 (Feb. 1997) (providing that “a severability clause is unnecessary” but distinguishing a “nonseverability clause,” which “provides that if a specific portion of an Act is declared invalid, the whole Act or some portion of the Act shall be invalid” Office of Legislative Counsel, U.S. House of Representatives, House Legislative Counsel’s Manual on Drafting Style, § 328 (Nov. 1995) (stating that “a severability clause is unnecessary unless it provides in detail which related provisions are to fall, and which are not to fall, if a specified key provision is held invalid&#8221.​

Obviously the bolding and blue-ing are mine.

In this case, it is argued and implied by Congress, the President, the wording and structure of the bill, and to anyone with common sense, that if the individual mandate is ruled unconstitutional, than the rest of the bill with few exceptions is a huge heap of junk.

If by "few exceptions" you mean ~900 pages of it, okay. The vast majority of the law has nothing to do with the individual mandate.

Sense the bill mandates that everyone must be accepted despite preexisting conditions, and the way to drive the cost down is to force everyone in to the market to shift the cost to those who are not paying for care, the absence of the individual mandate will conclude in people buying insurance ONLY when they get sick or injured. Therefore, if the individual mandate goes down with no severability clause, it is rightly justified that the whole act is null and void as it accomplishes nothing for all parties involved except those who want to game the system.

What you're referring to--those particular pieces related to the mandate--are amendments the ACA makes to the Public Health Service Act: Sec. 2701 (Fair Health Insurance Premiums), Sec. 2702 (Guaranteed Availability of Coverage), and Sec. 2703 (Guaranteed Renewability of Coverage), and Section. 2705 (Prohibiting Discrimination Against Individual Participants and Beneficiaries Based on Health Status).

Collectively those comprise about 2 pages of the Affordable Care Act. I agree that if the mandate is found to be unconstitutional, those 2 pages will probably go down with it.

How you're getting from that to "the whole act is null and void" I have no idea.

 

[Publius1787]

The severability clause is not necessary if the point in question has no effect on the workings of the rest of the bill. However, if it is Congress’s intention that major essential parts of the bill that must be implemented for it to work can be severed; they must state so in the bill. That’s the whole point of severability.

Well, no. That's actually the exact opposite of how it works. All pieces are assumed to be severable. Congress must explicitly state that a particular provision is not severable if it wishes to deviate from that presumption. That's why I quoted the 11th Circuit's explanation of why they were striking down the individual mandate but also severing it:

First, both the Senate and House legislative drafting manuals state that, in light of Supreme Court precedent in favor of severability, severability clauses are unnecessary unless they specifically state that all or some portions of a statute should not be severed. See Office of Legislative Counsel, U.S. Senate, Legislative Drafting Manual, § 131 (Feb. 1997) (providing that “a severability clause is unnecessary” but distinguishing a “nonseverability clause,” which “provides that if a specific portion of an Act is declared invalid, the whole Act or some portion of the Act shall be invalid” Office of Legislative Counsel, U.S. House of Representatives, House Legislative Counsel’s Manual on Drafting Style, § 328 (Nov. 1995) (stating that “a severability clause is unnecessary unless it provides in detail which related provisions are to fall, and which are not to fall, if a specified key provision is held invalid&#8221.​

Obviously the bolding and blue-ing are mine.

In this case, it is argued and implied by Congress, the President, the wording and structure of the bill, and to anyone with common sense, that if the individual mandate is ruled unconstitutional, than the rest of the bill with few exceptions is a huge heap of junk.

If by "few exceptions" you mean ~900 pages of it, okay. The vast majority of the law has nothing to do with the individual mandate.

Sense the bill mandates that everyone must be accepted despite preexisting conditions, and the way to drive the cost down is to force everyone in to the market to shift the cost to those who are not paying for care, the absence of the individual mandate will conclude in people buying insurance ONLY when they get sick or injured. Therefore, if the individual mandate goes down with no severability clause, it is rightly justified that the whole act is null and void as it accomplishes nothing for all parties involved except those who want to game the system.

What you're referring to--those particular pieces related to the mandate--are amendments the ACA makes to the Public Health Service Act: Sec. 2701 (Fair Health Insurance Premiums), Sec. 2702 (Guaranteed Availability of Coverage), and Sec. 2703 (Guaranteed Renewability of Coverage), and Section. 2705 (Prohibiting Discrimination Against Individual Participants and Beneficiaries Based on Health Status).

Collectively those comprise about 2 pages of the Affordable Care Act. I agree that if the mandate is found to be unconstitutional, those 2 pages will probably go down with it.

How you're getting from that to "the whole act is null and void" I have no idea.

Perhaps your right, however, there is no way the Supreme Court is going to read the entire bill and pick and choose what stays and what doesn’t. There are more than a few pages throughout that cannot operate without the individual mandate in mind. There are many rules and regulations outside the pages you cited that, without the mandate, is absurd. The question comes down to how much of it and who decides. Will that question be delegated to the Democrats of Congress or the President who will no doubt make excuses to keep this law unworkable, or will the courts just say this law is junk? They probably won’t. Nevertheless, if the mandate is stricken there are many more implications than what you just cited. That is no less than a factual observation.

 

[Publius1787]

Agreed. As a practical matter, there is nothing of note in the Act-- and not a single thing worth preserving -- if the mandate part of it gets tossed.

That's just as well, since the Act is a cluster-fuck of stupid governmental interference.

Gut it, scrap it. Rip it up. Throw it in the incinerator. IF it's deemed important enough, try to craft some sensible legislation to replace it with.

ObamaCare is not sensible.

That’s more of a value judgment up to the discretion of Congress than how the mandate affects the rest of the bill. It’s more complicating than that.

 

[Greenbeard]

Perhaps your right, however, there is no way the Supreme Court is going to read the entire bill and pick and choose what stays and what doesn’t.

They should certainly have read the legislation by now. The 11th Circuit did so--indeed, their decision contains an appendix summarizing the contents of each of the ACA's titles.

That said, they don't need to pick and choose anything. If they find the individual mandate to be unconstitutional, they can simply strike it down and leave the rest. The guaranteed issue/community rating pieces are related and if I recall correctly, the government is asking them to strike those as well if the mandate goes, but they certainly don't have to. Those policies will be less effective without the mandate but I see no reason to think they won't be "fully operative as a law."

Striking the whole thing down would be an extremely activist step. They're going to cast out the current Indian Health Improvement Act , undo the extension of the CHIP reauthorization, defund CDC immunization initiatives, etc just because they couldn't be bothered with sticking to long-standing precedent and showing a modicum of restraint? I would assume they're not that irresponsible.

There are more than a few pages throughout that cannot operate without the individual mandate in mind. There are many rules and regulations outside the pages you cited that, without the mandate, is absurd.

I'm all ears. What pages are we talking about?

 

[Zander]

Besides that fact that we can't afford this clusterfuck....The best argument I have heard involves "Contract law". If I hold a gun to your head and force you to sign a contract - is that contract binding? Of course not! No court in the world would see that contract as valid (well, maybe in Cuba or North Korea they would). A contract is only binding if there is "mutual assent". There is no "mutual assent" in the Obamacare mandate. The government is forcing me to enter into a contract to purchase something regardless of whether I want to or not. I find that idea very troubling.

 

[Publius1787]

Besides that fact that we can't afford this clusterfuck....The best argument I have heard involves "Contract law". If I hold a gun to your head and force you to sign a contract - is that contract binding? Of course not! No court in the world would see that contract as valid (well, maybe in Cuba or North Korea they would). A contract is only binding if there is "mutual assent". There is no "mutual assent" in the Obamacare mandate. The government is forcing me to enter into a contract to purchase something regardless of whether I want to or not. I find that idea very troubling.

They will tell you that you aren’t forced to buy insurance; however, you will be "taxed," not penalized, if you don’t and the government will buy it for you. The gun to your head part doesn’t come until you refuse to pay taxes and that’s a different argument. If you really want to go back to the heart of most Constitutional arguments read the last 4 paragraphs federalist no 41 and then Hamilton’s Report on the Constitutionality of the National Bank.

 

[Publius1787]

Perhaps your right, however, there is no way the Supreme Court is going to read the entire bill and pick and choose what stays and what doesn’t.

They should certainly have read the legislation by now. The 11th Circuit did so--indeed, their decision contains an appendix summarizing the contents of each of the ACA's titles.

That said, they don't need to pick and choose anything. If they find the individual mandate to be unconstitutional, they can simply strike it down and leave the rest. The guaranteed issue/community rating pieces are related and if I recall correctly, the government is asking them to strike those as well if the mandate goes, but they certainly don't have to. Those policies will be less effective without the mandate but I see no reason to think they won't be "fully operative as a law."

Striking the whole thing down would be an extremely activist step. They're going to cast out the current Indian Health Improvement Act , undo the extension of the CHIP reauthorization, defund CDC immunization initiatives, etc just because they couldn't be bothered with sticking to long-standing precedent and showing a modicum of restraint? I would assume they're not that irresponsible.

There are more than a few pages throughout that cannot operate without the individual mandate in mind. There are many rules and regulations outside the pages you cited that, without the mandate, is absurd.

I'm all ears. What pages are we talking about?

The cost of ALL of those stated programs are affected by whether the individual mandate is present or not and are scored with these assumptions in mind. This is not arguable. If cost shifting is whats being prevented here via the individual mandate then the assumed cost and effect of all of those programs are affected well adversly beyond Congressional intention.