You know by now that the Affordable Care Act has been found unconstitutional by a right-wing, Reagan-appointed judge who the plaintiffs forum-shopped to get as the magistrate for the case. What you may not understand is why the entire law was ruled null and void, if the ruling really only discussed the unconstitutionality of the individual mandate.
As District Judge Roger Vinson explains in his ruling, the bill did not pass with a standard severability clause, which typically bills like this would have. That allows a judge to split off unconstitutional pieces from a bill in litigation while leaving the rest of the bill, having passed Constitutional muster, intact. The severability clause is a feature of almost all major legislation in Congress, and it was in the ACA at one point, but through the different versions, somewhere down the line, it was excised. This gave Judge Vinson the power to decide on his own whether or not to sever the individual mandate from the bill. A previous district judge, Henry Hudson in Virginia, declined, ruling only that the mandate itself was unconstitutional. But Vinson went further, as he explains:
Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void. This has been a difficult decision to reach, and I am aware that it will have indeterminable implications. At a time when there is virtually unanimous agreement that health care reform is needed in this country, it is hard to invalidate and strike down a statute titled “The Patient Protection and Affordable Care Act.” [...]
In closing, I will simply observe, once again, that my conclusion in this case is based on an application of the Commerce Clause law as it exists pursuant to the Supreme Court’s current interpretation and definition. Only the Supreme Court (or a Constitutional amendment) can expand that.
Vinson restates that over and over again in his decision, that he only looked at the case on the basis of the application of the Commerce Clause. Seeing that a dozen other federal judges have looked at exactly that same clause and found no reason to strike down ACA, Vinson seems to be protesting a bit too much about his lack of activism here. Because his interpretation at least has the potential of rewriting multiple statutes that implement safety net relief to the less fortunate.
But on the point that the individual mandate is not severable, that is completely due to a grievous error of Congress in drafting the final version of the law. With the proper clause, it seems like Vinson would have just severed the mandate and left things like Medicaid expansion and insurance regulations and community health center funding and all the rest intact. So if the Supreme Court upholds this ruling – and that’s not out of the realm of possibility – Democrats in Congress will have nobody to blame but themselves.
The case will go to the Supreme Court, so ultimately they will decide. Andrew Cohen has more on how that might play out.
…as Brian Beutler points out, Vinson did not enjoin the law, which means implementation will continue as scheduled. The Obama Administration will appeal, and this will almost certainly land in the lap of the Supreme Court.
…Vinson, by the way, was not bound because of the lack of a severability clause to throw out the entire bill. The Roberts Court just struck a single provision from the Sarbanes-Oxley law even though it lacked a severability clause. So he’s not being entirely honest here, either.




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some guy named Dayen :D
link
“But on the point that the individual mandate is not severable, that is completely due to a grievous error of Congress in drafting the final version of the law”
The whole thing was written to fail. This is your dem party now. Who fought healthcare – dems, who gave billions bailout to bankers – dems, so on and on. Hard to tell difference. As we saw in healthcare they only are for their party principles when they know it will make no difference. Quite a game.
I wonder if I have a dog in this fight. I concluded last year that anything without a public option wasn’t “reform” and would be worse than no bill at all. Single-payer is inevitable at some point, because the for-profit private insurance model is unsustainable.
I read Vinson’s original opinion and didn’t find it to be “right wing” at all. It was extremely well reasoned, and the judge had really researched whether or not the mandate could be considered a “tax” (he struck down the idea of the tax based on the language of the bill, the intent of Congress, as well as Obama stating publicly that the law was not supposed to be a tax). Once the mandate could no longer be considered a tax, that left the only argument for the government as the mandate being applicable under the commerce clause. The judge, like many of us, felt that requiring someone to buy a product–who would otherwise not choose to buy the product–was an unconscionable overreach.
It seems to me that the mandatory purchase of private health insurance really is an overreach by the government. I find it interesting that Washington State joined in the case. In the ’70′s, auto insurance was not mandatory in Washington, but it is now. Perhaps it is okay to require insurance in one area but not in another.
Really, if the U.S. government wants us all to have health care, they should just provide it. I’m sure that is constitutional. It is good enough for our congress critters, our elderly, our veterans… how about all of us?
He’s being honest; you just don’t understand the law or didn’t read the decision (in which he cited that decision by the Roberts court). Severability is presumed unless the stricken provision is central to the whole law. This is a fact-intensive inquiry; Vinson seems to get the law right, although you can certainly criticize him for getting the factual analysis wrong.
“that is completely due to a grievous error of Congress in drafting the final version of the law.”
these statutes must be drafted by staff lawyers.
They do not draft statutes, intending them to be illegal, and ineffective. not if they want a career as a lawyer anyway.
I submit that it was no mistake to leave out the severability clause. It was another part of the not so secret deal with the insurance industry. If the courts throw out the individual mandate, the prohibition on preexisting conditions and limits on premiums go too. In the end, it was the poison pill that the insurance industry got as part of the individual mandate.
Nancy Pelosi, at a Jan 4 press conference:
“If everyone in America was very, very pleased with his or her health insurance and had no complaints and had access to quality, affordable health care in our country, it still would have been necessary for us to pass the health care reform care (sic) bill.”
Kafkaesque, or something like that. . .
There will be a lot of ruminating about why the severability clause was proactively not included. It wasn’t forgotten.
Perhaps it was a herding-the-cats maneuver in Congress. That doesn’t seem the likely reason to me (although the herding certainly happened under other guises). Also the lack of severability was broad based, not just aimed at the individual mandate.
It might have been a pothole strategy so placed for the courts, assuming they would be more reluctant to strike down anything if such caused the wheels to come off the entire bill. This would be the cynical analysis.
There were also intriguing statements (late summer/autumn ’09 I think) by some Dem boosters that the bill would be structured so that it could not be repealed later. Wondering how that could be possible, I decided it must be apocryphal, i.e., not that repeal would be “impossible,” but rather just exceedingly difficult politically.
I am noticing a lot of coverage of this ruling in foreign press and Fox here in US, but domestic MSM seems to be navigating around it. . .as bad news?
I think the entire bill was crafted in bad faith and this is the predictable result. Candidate Obama said of mandates, “why not solve homelessness by forcing people to buy homes?” And then turned around and traded away the public option, we still do not know for what exactly – presumably a promise by the hospital industry to not run any “Harry and Louise” ads.
Then after passage, Rahm crowed about “preserving private delivery” of the healthcare system, apparently an unstated and unknown goal of the administration, proving that any talk of a “public option” was insincere and empty rhetoric from a corporate tool and an adminstration and a party also almost entirely comprised of corporate tools.
The only mystery to me is how this plays out in the Supreme Court. The insurance industry and Pharma love this bill as being the gigantic handout to them that it is. How will the Republican Conservatives on the Court take away this prize from them? How do the liberal judges justify forcing people to subsidize private parasites that add no value but rather siphon off a huge percentage of the gross domestic product as unearned swag to be divvied up amongst themselves?
Meanwhile, the American public continues to quietly die or go bankrupt from lack of care or unaffordable medical bills.