Mandate Day 3: Perhaps Not Stricken Due To “Severability”?

An interesting point raised by SCOTUS blog

The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that.  A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress.  They could not come together, however, on just what task they would send across the street for the lawmakers to perform.  The net effect may well have shored up support for the individual insurance mandate itself.

If so, it would look to be that the Court would not be arguing the Constitutionality of the mandate, but whether it would be hard work afterwards if it did. Which would completely miss the point of having a Supreme Court, the members of which take an oath to uphold the Constitution.

Interestingly, the typically unhinged Shakesville (which previously blocked me from commenting because I ask uncomfortable questions, but, hey, privately owned) raises an interesting point

What will Kennedy do? Once again, I am thrilled that one person has such a ridiculous amount of power in an ostensible democracy.

Me too. If only all the justices would consider American constitutionality when making a decision. But, then, the liberals on the Court would no longer be liberals. Of course, we aren’t a democracy. Republic. Book. Pick up now and then.

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6 Responses to “Mandate Day 3: Perhaps Not Stricken Due To “Severability”?”

  1. Phineas says:

    Mmm… not so fast. The other possibility is that, due to the severability problem, they strike down the whole thing because of the “picking and choosing” problem, deciding that it’s Congress’ job to figure out which parts it wants to keep. This was argued by Phil Klein in a Washington Examiner article. His theory is that Kennedy’s strong leaning toward individual liberty and his willingness to strike down laws on constitutional grounds may lead him into the overturn camp, even with non-severability. See:

    http://campaign2012.washingtonexaminer.com/blogs/beltway-confidential/scotus-mulls-striking-down-all-obamacare/451016

  2. gitarcarver says:

    The comment that has bothered me the most is this from Justice Ruth Bader Ginsburg:

    She said the decision was between a “wrecking operation versus a salvage job.”

    This is judicial activism. Either the law (any law) is Constitutional, or it is not. It is not within the powers of the judicial branch to “fix” or “salvage” anything.

    Anything outside of that determination is wrong.

  3. Gumball_Brains says:

    You forget, Ginsburg for one, the liberal justices want nothing more than to salvage the Constitution and base it on some other form of paper.

    Many members of the judicial branch also legislate and some also regulate and impose taxes.

    I had an argument today with a co-worker who believed that it was better for us to turn to Socialism because every one else is and Socialism has the best health care and produces the lowest infant mortality rate.

    I argued that most of these nations are bankrupt, and he agreed, but that was the best thing about it.

  4. W. C. Taqiyya says:

    I certainly hope I’m wrong but I think the SCOTUS will uphold the Obamacare law in the main. However, to make it look like they are making it look good, they will leave some aspects of the law open to further litigation. Like what stuff the states can do a little different here and there or something.

  5. Dana says:

    The House bill had the standard severability clause, the one which states that part of the law being found unconstitutional did not invalidate the entire law. However, when the Senate took up the legislation, the severability clause was dropped, and is not part of the ObumbleCare law. And even the Administration is saying that if the insurance mandate is invalited, the provisions which require insurance companies to accept all applicants, regardless of their existing health conditions, and that such people cannot be charged a higher price, would make the law impossible to work: it would drive health insurance companies out of business.

    The Administration is arguing now that many portions of the law could and should stand even if the mandate is invalidated. But the obvious response ought to be to toss the whole thing, and let Congress do its job to either pass a law which is wholly constitutional, or to simply not do anything, and let the whole foolishness drop.

    The biggest problem is the notion that the federal government should somehow be responsible for your health care.

  6. Gumball_Brains says:

    That is the problem with passing a multi-faceted law. Bills should only be singular, thus people\legislators can know exactly what they are voting for.

    And I also support Dana’s assertions. However, we must all recognize that our judicial system of today doesn’t follow law nor the Constitution. Thus, they can rule however they like. Hell, they could rule that the mandate is illegal, and then impose their own version.

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