Anticipating a decision on the motion for summary judgment in the Virginia AGs challenge to the Affordable Care Act soon, the White House issued a fact sheet conceding that, should the individual mandate be held unconstitutional, the regulations being imposed on insurance companies would also fall.
#3
I had the pleasure of hearing Ken Cuccinelli (the Virginia Attorney General) at a Tea Party meeting a few months ago. He explained the rationale for the suit, and some of the legal history. After his talk, I told him that I was concerned that even if he won the suit, all it would accomplish would be to eliminate that clause from the 1800 pages of the bill. He replied that there was no severability clause in the bill, so if the individual mandate was thrown out, the whole bill would be thrown out. Since the White House now acknowledges that as well, he was definitely right.
Personally, this looks like a rookie mistake on the part of the Democrats. I mean, even apartment leases have severability clauses. You can be sure that if they are paying attention, they won't repeat it.
Posted by: Rambler in Virginia ||
12/12/2010 15:06 Comments ||
Top||
#4
Note that the position of the White House is untenable in a legal sense: Oh wait, we forgot to include a serability clause in the bill but some portions are actually severable while others really aren't and if the court does X they must therefore do Y (because we say so) but under no circumstances will they do Z. The judge will thus be required to not only invent a severability clause but to determine the intent of Congress in applying it very selectively to some provisions but not others.
In point of fact the odds are good that all of the bill will be upheld (I'd say 90%), are much better that should the individual mandate fall nothing else will fall with it (99%) and overwhelming that the vast majority of the bill will stand (99.9999%). Hoping that a legislative oversight will induce the courts to vitiate such a massive piece of legislation in its entirety is something of a fool's errand.
#6
Yes but what about the exemptions; just how legal is it for the executive branch to pick and choose which parts of a Congressional law will or will not be applied to whom?
#9
TW - Legislation is, by definition, "legally viable" if Congress chooses to pass it and the President chooses to sign it. At that point the odds are quite long against it being overturned even in part as the courts allow Congress broad deference in what may be legislated. Should any portion of the legislation be overturned the courts will attempt to preserve as much of the remainder as possible. Thats been federal court doctrine for decades and new rules aren't about to spring into being now.
Should the individual mandate fall, would a District Court judge really invalidate the other 1800 pages of legislation along with it on the grounds that no severability clause was included? Moving up the food chain, would a Circuit Court judge allow that much legislative effort to be tossed out on what they will surely deem a technicality? Again, the odds are very long against it. Ditto the inevitable en banc rehearing and eventual Supreme Court review. The courts have, sadly, become the guardians of government authority rather than our rights and will find a way to preserve as much of what was passed as possible. The decision will include the idea that Congress will of course fix whatever problems arise with the remaining portion.
One might even question whether the omission of a severability clause was intentional. Without the individual mandate as cover it might have been difficult to justify the subsidies to be extended to those earning up to 400% of the poverty level as it would then be blatantly obvious to everyone that such were merely a new welfare program that would encompass at least 2/3 of the American people. But the individual mandate is clearly an unprecedented expansion of federal power and therefore at risk for being overturned. And the individual mandate was the shiny object held forth before the insurance companies to purchase their cooperation in the whole sordid affair. What to do?
Why not toss the whole mess into the courts with no severability clause on the assumption that this would place extreme political pressure on upwardly mobile judges to uphold the whole package? No judge with ambitions of holding a higher (or another for that matter) federal office would touch with the proverbial ten foot pole the idea of gutting legislation the Democrats have coveted for at least three quarters of a century. It would take a rather extraordinary string of judges willing to flush their future ambitions down the toilet in order for that to happen.
The White House position on severability is interesting. For them removal of the individual mandate might be a very good thing if the courts buy their reasoning and toss out the insurance company regulation as well. That would remove a huge burden from their buddies in the insurance industry and placate some on the right while leaving in place the new welfare program for most of the population of the US which was the core of their ambition. This is the least likely outcome I think, much more likely any changes will be very narrow and targeted only to the individual mandate with the remainder left in place and essentially kicked back to Congress for repair.
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Anticipating a decision on the motion for summary judgment in the Virginia AGs challenge to the Affordable Care Act soon, the White House issued a fact sheet conceding that, should the individual mandate be held unconstitutional, the regulations being imposed on insurance companies would also fall.
