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Obamacare: Not Severable

Should the Supreme Court determine the Affordable Care Choices Act’s individual health insurance mandate is unconstitutional, the next logical question will be whether it is severable from the overall law.  The answer is no, the entire bill must be thrown out.  That is not to say the entire bill will be thrown out.  In fact, it is unlikely that the Court will have the willpower to declare the entire bill unconstitutional.  But legal principles dictate that it should be.

While there are parts of the law that the American people favor such as the provision regarding preexisting conditions and family healthcare plans, the law itself was not built to withstand a Constitutional attack.

Will the law still work if the heart is cut out?

The Court is concerned with leaving a bill that won’t work.  The Court’s job is to determine constitutionality but it would hate to leave a bill without a key provision that renders it a bill that never would have passed.  The Court has always been extremely vain in protecting its reputation and is not seeking to drop a fiscal nightmare on the American people.

The Court will be unlikely to take a scalpel to the language of the law, cutting out the unconstitutional and leaving the rest, if what is left is an unworkable disaster that cannot exist without the symbiotic relationship of the mandate.  Without a funding mechanism, the expanded care portion of the bill falls to pieces.

In oral arguments, the government failed to articulate how the mandate could be severed from the rest of the bill without upsetting the carefully crafted balance with expanded, universal care.  The conservative justices seemed to believe that the insurance companies would find themselves in a financially untenable position and they are right.  The entire foundation of expanded care was contingent upon bringing tens of millions of new healthy payers into the system.  Without these new customers, the insurance companies cannot fund the program.  The healthcare law doesn’t work without the mandate.

A house without a foundation might be propped up for awhile, but eventually it will fall and take it’s inhabitants with it.

Is it the Court’s duty to go line by line through thousands of pages?

Justice Scalia joked during the hearing about who would be in charge of going through the bill to cut out the unconstitutional provisions should the bill be deemed severable.  Would it be the justices?  The law clerks?  Should the Court dedicate itself to one bill for the entire term?  Should the Court be forced to correct the legislature’s sloppy bill writing?

Should the Court not strike the entire bill, how many questions will soon follow?  Should the Church be forced to purchase and provide abortion pills?  Should insurance companies be forced to accept people with expensive illnesses onto the rolls when they never paid into the system when they were healthy?  There could be hundreds of Constitutional questions in such a far reaching bill.  Democrats wanted a “comprehensive” bill.  They got it.  But it should be Congress who is forced to fix these problems, not the Court.

The Court may have to overturn the entire law and force Congress to go back to the drawing board.

No Severability Clause

The biggest argument in favor of severability comes down to the law itself.  Unlike virtually every other piece of legislation, this health care law, in thousands of pages, failed to include a severability clause.  A severability clause, which is present in most legislation, declares that should one provision be struck down, the rest of the bill remains standing.  This bill fails to include such a provision.

Some pundits have opined that democrats intentionally left out the mandate in order to pressure Courts to uphold the entire law upon challenge.  Others believe it was simple incompetence.

The reason most bills include such a clause is because the judiciary views a bill in light of the whole otherwise such a provision would not be necessary.  Democrats don’t seem to believe that the lack of such a clause is important or determinative.  It is.  Should one important provision go down, the entire bill must go down with it.

Would Congress have enacted the bill with the mandate?

Another central question of severability is whether the bill would have been passed without the clause.  Here, the bill likely would not have been passed in this instance because in order to bring the insurance companies and healthcare industry to the table, the government had to insure that there was a manner in which to pay for such a provision.

The pre-existing conditions clause and the expanded coverage principle would both fail if their was no funding measure in place.  The mandate was going to pay for the rest of the bill.  Adding tens of thousands of new and healthy customers is what would pay for the entire rest of the bill.  Without the mandate, the bill wouldn’t have obtained the support of centrist fiscally conservative democrats and it wouldn’t have received votes from the left on a bill that didn’t provide for “universal” healthcare coverage.

Here, the lack of a severability clause again becomes important as it becomes difficult to show Congress intended the law to stand without a severability clause.  Without a severability clause, Congress seems to have indicated that the law cannot stand without the mandate.

To save or protect?

Of course, Justice Ginsburg phrased the Court’s role in all of this as a “salvage job” rather than a “wrecking” crew.  Unfortunately, it is not the Court’s job to save legislation.  It is the Court’s job to save the Constitution, to protect it from legislation that falls out-of-bounds.  And it isn’t republicans or the Supreme Court that is acting as a wrecking crew.  Democrats in Congress passed a sloppy bill through reconciliation that they couldn’t find the votes to vote for again.  When a building collapses on its own, you don’t blame a wrecking crew.

The questions Justice Ginsburg should be asking is:

If the mandate is deemed unconstitutional, did Congress intend for it to be severable from the rest of the bill and even if it did, is it within the Court’s purview to go through the legislation line-by-line striking each provision that is deemed unconstitutional.  The answer to both is a resounding no.

The Court will not strike down the entire bill because it is an entity that is as partisan as the legislature.  It isn’t within the interest of the Court to overturn a law that the Congress spent a year passing.  The Court will certainly find a way out of this one.  But that doesn’t mean the law will be on their side.

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