Hey, Seriously, The Courts Might Strike Down ObamaCare

The interesting thing about the bill is that it apparently doesn't contain a severability clause, which usually states "notwithstanding any provision of this act being found unconstitutional, the rest of the act shall continue to be in force."

I didn't realize they still wrote laws without that clause. But apparently they did write ObamaCare without that, which means it operates by the old-fashioned default rule that if any part of a law is found to be unconstitutional, the entire law is unconstitutional. (If any one knows, please tell me why you figure they didn't include this provision.)

Of course, this means that if the mandate is found unconstitutional, it's not just that provision that is nullified, but the whole kit and kaboodle.

And Ilya Somin notes this is not some Hail Mary longshot, but a genuine question that just could go our way.

One hidden factor that militates in our direction: As a general matter, the Court is reluctant to strike legislation down (or they're supposed to pretend they are, at least), because legislation is presumed to contain the will of the people acting through their elected representatives.

In this case, though, the legislation was passed via very dubious maneuvers designed expressly to avoid the will of the people altogether. And the results of the 2010 election demonstrate precisely what the public thought of this bill (as if that wasn't clear before).

In this case, then, striking the law down for any reason whatsoever would in fact be comporting with the will of the people. The law itself represents an anti-democratic imposition upon them.

I say that's a hidden factor because that's a no-no as far as actual judicial reasoning. But I'd have to imagine that sort of thought is bubbling around in the heads of any justice who's on the fence about the matter.

Via Hot Air.

Posted by: Ace at 09:00 PM



Comments

1 Here's hoping.

Posted by: chemjeff at November 09, 2010 09:02 PM (PaSAU)

2 That would restore a bit of faith.

Posted by: Hussein the Plumber at November 09, 2010 09:02 PM (r1h5M)

3 I didn't realize they still wrote laws without that clause. But apparently they did write ObamaCare without that, which means it operates by the old-fashioned default rule that if any part of a law is found to be unconstitutional, the entire law is unconstitutional. (If any one knows, please tell me why you figure they didn't include this provision.)
I know. Its like the fact that they forgot that passing the bill would kill congress' special healthcare coverage. The idiots completely forgot about it.

Posted by: buzzion at November 09, 2010 09:03 PM (oVQFe)

4
Bonus: If ObamaCare is repealed, the economy will rebound... like crazy.


Posted by: Lemon Kitten at November 09, 2010 09:03 PM (0fzsA)

5 http://i660.photobucket.com/albums/uu328/zerosignal/1250094057061.jpg

Posted by: Dave@ at November 09, 2010 09:04 PM (SHHCw)

6 Hope is for the weak, but I'm ready to be converted.

As for why the severability clause wasn't included, I don't know. It could be that the Dems were just too damn busy stuffing the bill with the Cornhusker kickback and other crap that they forgot to include it during all the chaos. Sucks to be them, .

Posted by: Kratos (Ghost of Sparta) at November 09, 2010 09:05 PM (CzPCa)

7 Why don't we cut to the chase and ask Anthony Kennedy whether he likes Obamacare or not?

Posted by: 18-1 at November 09, 2010 09:05 PM (bgcml)

8 Why No Severability Clause?...Election of Scott Brown. The Senate Bill Was NEVER intended to be the finished product. They had to pass it in the House since any Reconcilled Bill or the House Bill did not have 60 votes to be brought to the floor in the Senate.

Regards,

Posted by: the Dragon at November 09, 2010 09:05 PM (gRSqy)

9 On second thought...

Of course I'd like ObamaCare to just vanish in a puff of smoke. But then there's that whole _precedent_ thing. Once SCOTUS opens the door to this kind of precedent, can you imagine what the subordinate federal courts will use it for?

Posted by: chemjeff at November 09, 2010 09:05 PM (PaSAU)

10 please tell me why you figure they didn't include this provision
Because I am awesome.

Posted by: Barack Hussein Obama at November 09, 2010 09:06 PM (CFqzD)

11 The will of the people? Since when has any judge cited that in any decision? The recent Oklahoma Sharia decision and a recent California proposition decision tells me that the will of the people never enter into a judge's mind.

Posted by: Pelayo at November 09, 2010 09:06 PM (V9Q+f)

12 Just remember, this is (mostly) the same court that looked at Heller and could only come to a 5-4 decision that the Second Amendment says what it actually says. I've got the same feeling about this health care mess as I did about Heller - I know how they should rule, but I don't know if they will.

Posted by: Bomber at November 09, 2010 09:06 PM (d88g9)

13 7
Why don't we cut to the chase and ask Anthony Kennedy whether he likes Obamacare or not?

It depends on what side of the bed he'll wake up on that morning.

Posted by: Kratos (Ghost of Sparta) at November 09, 2010 09:07 PM (CzPCa)

14 Lefty tears are delicious!

Posted by: The inexplicable Dr. Julius Strangepork at November 09, 2010 09:07 PM (w76KO)

15 Bonus: If ObamaCare is repealed, the economy will rebound... like crazy.Posted by: Lemon Kitten at November 09, 2010 09:03 PM (0fzsA) Damn, that would be nice because all I'm reading now is that the economy in teetering on the brink. Scares the shit right outta me.

Posted by: Hussein the Plumber at November 09, 2010 09:07 PM (r1h5M)

16 I envision George Soros mentally hitting Barry in the nuts.

Posted by: Jane D'oh at November 09, 2010 09:07 PM (UOM48)

17 ...they forgot to include it during all the chaos. Sucks to be them.

I love chaos.

Posted by: Bomber at November 09, 2010 09:08 PM (d88g9)

18 Maybe you should read your bills before you vote on them, huh, Nancy?

Posted by: Waterhouse at November 09, 2010 09:08 PM (W+tVk)

19 Are you really surprised there is no severability clause? I'm not at all;Congress has assumed no one would ever challenge their"wisdom" for years. Which has pretty much been true until lately.

Posted by: Allen at November 09, 2010 09:08 PM (DH/9W)

20 They had to pass it to find out what was in it. Now, they are finding out what wasn't in it, as well.

Posted by: huerfano at November 09, 2010 09:08 PM (QgmBR)

21 The interesting thing about the bill is that it apparently doesn't contain a severability clause
And also, anotherinteresting thing about the bill is that we're ARE still finding out what's in it! Eight months later!!1!1!!! Nancy was half right there.

Posted by: laceyunderalls at November 09, 2010 09:08 PM (oxpD0)

22 chemjeff @ 9: not sure what precedent you're concerned about.

Posted by: The inexplicable Dr. Julius Strangepork at November 09, 2010 09:08 PM (w76KO)

23 13 7 Why don't we cut to the chase and ask Anthony Kennedy whether he likes Obamacare or not?It depends on what side of the bed he'll wake up on that morning.
Posted by: Kratos (Ghost of Sparta) at November 09, 2010 09:07 PM (CzPCa)
Remember, apparently Kennedy really didn't like Obama's insulting of the SCOTUS during his last SOTU. My guess is that he's been waking up on the "Fuck Obama" side of the bed lately.

Posted by: buzzion at November 09, 2010 09:09 PM (oVQFe)

24 Let's not be hasty here.

Posted by: Switch McConnell at November 09, 2010 09:09 PM (5iw2v)

25 why you figure they didn't include this provision

Lobbyists and congressional aides can't write a perfect piece of legislation.
Rushed through. Amy was s'posed to put it in there but she was slutting around and forgot.

Posted by: Mr Wizard at November 09, 2010 09:09 PM (H+LJc)

26 Don't get your hopes up.

Posted by: USS Diversity at November 09, 2010 09:10 PM (RWtqz)

27 They usually don't write laws without severability clauses but ObamaCare was a half-assed piece of shit.

Posted by: Chris in Va at November 09, 2010 09:10 PM (uCjoj)

28 Plus, we all know Kennedy is still peeved at how Obama called him out on his Citizens United ruling at the State of the Union. I don't think he's in any mood too cooperate. But then again, considerations such as that are not "officially permitted."

Posted by: Mayhem at November 09, 2010 09:10 PM (4IlZG)

29 Addition to #8
Remember they had to do a Second fix Bill through reconcilliation, yet they couldn't add ONE word to the Senate Bill since it was already passed.
Regards,

Posted by: the Dragon at November 09, 2010 09:10 PM (gRSqy)

30 My guess is there were hundreds of underpaid intern winged monkeys that piece mealed the 2,400 page legislation and had no idea what the fuck the others were writing. After all you have to pass the shit to know what is or is not in the bill.

Posted by: Trish at November 09, 2010 09:10 PM (yqhkv)

31 Hey, brah, The Onion two weeks ago said that the only problem with the healthcare bill was that the Democrats weren't supporting it bravely enough. What are you, fuckin squares or something?

Posted by: Hipster O'Douche at November 09, 2010 09:10 PM (oKPnU)

32 2000 freakin' pages and nobody remembered the severability clause?!
The country is in the best of hands.

Posted by: country blumpkin at November 09, 2010 09:11 PM (ADeN1)

33 All I can say is, heh.

Coincidentally, an e-newsletter I subscribe to had a link to this excellent article (at the Business Insider web site) summarizing the costs, side effects, and unintended consequences of Obamacare this morning. Might be worth a sidebar link.

Posted by: Alex at November 09, 2010 09:11 PM (/yzYn)

34 Read the Bill?

Posted by: John Conyers at November 09, 2010 09:11 PM (CFqzD)

35 "(If any one knows, please tell me why you figure they didn't include this provision.)"
Because they pulledit out of their ass before proofing?

Posted by: Burn the Witch at November 09, 2010 09:11 PM (fLHQe)

36 Remember, apparently Kennedy really didn't like Obama's insulting of the SCOTUS during his last SOTU. My guess is that he's been waking up on the "Fuck Obama" side of the bed lately.
Also there's rumblings that Kennedy finds Sotomayer to be...well...seriously fucking annoying. Alot of people think that he is drifting to the conservative bloc because of her.

Posted by: Chris in Va at November 09, 2010 09:11 PM (uCjoj)

37 The folks over at RedState have been tossing this around for months. Apparently it was assumed that the severability clause would be added during the committee negotiation, but since that didn't ever happen, it never got added.
Also, since this bill was passed via reconciliation, I believe it expires in 10 years no matter what. I could be wrong about that part, though....

Posted by: Teresa in Fort Worth, TX at November 09, 2010 09:11 PM (5Bfym)

38 lol on the "We need to pass the bill to find out what's in it" references.

Reading is hard, isn't it Dems? Maybe if you'd taken some time to read your stupid piece of crap...

Posted by: Kratos (Ghost of Sparta) at November 09, 2010 09:11 PM (CzPCa)

39 Not gonna happen. The Court needs to pass it to find out if it's unconstitutional!

Posted by: San Fran Nan at November 09, 2010 09:11 PM (zgZzy)

40 When BHO greets Soros, does BHO give that little bow?

Posted by: Pelayo at November 09, 2010 09:11 PM (V9Q+f)

41 Let's hope that when this gets to SCOTUS, Anthony Kennedy gets seriously laid the night before and remembers the ass-rape Toonces gave him and his colleagues during the SOTU speech.


Here's hoping...

Posted by: J.J. Sefton at November 09, 2010 09:12 PM (9Cooa)

42 ...default rule that if any part of a law is found to be unconstitutional, the entire law is unconstitutional. (If any one knows, please tell me why you figure they didn't include this provision.)




Because the Democrats intend to overthrow the Constitution and rule as a one party dictatorship with us serving as their downtrodden helots?

Posted by: Laurie David's Cervix at November 09, 2010 09:12 PM (N1lEO)

43 Also, since this bill was passed via reconciliation, I believe it expires in 10 years no matter what. I could be wrong about that part, though....
It wasn't. It passed under regular order and then was tweaked via reconciliation. The original senate vote got 60 votes (on Christmas Eve).

Posted by: Chris in Va at November 09, 2010 09:13 PM (uCjoj)

44 It can't be that easy.

Posted by: toby928™ at November 09, 2010 09:13 PM (S5YRY)

45 Hey, look over there!
Israel is renovating those condominiums!

Posted by: Barack Hussein Obama at November 09, 2010 09:13 PM (CFqzD)

46 40
When BHO greets Soros, does BHO give that little bow?

BHO does more than bow IYKWIMAITYD.

Posted by: Kratos (Ghost of Sparta) at November 09, 2010 09:13 PM (CzPCa)

47 (If any one knows, please tell me why you figure they didn't include this provision.)
I don't know, but my guess would be that they probably understood that if the individual mandate gets ruled unconstitutional, but the rest of the law remains constitutional you end up getting a death spiral in health insurance because everybody has an incentive to justwait to get sick before they purchase insurance. Insurance companiesby law can't charge a higher rate for people who do this. Consequently,the result isno one is insured andeverybody just ends up paying for their own care when they get sick(that is if they can afford it).

Posted by: Aaron at November 09, 2010 09:13 PM (/Sutq)

48 I guess next time you should read the bill before you pass it to make sure everythings in it Nancy.

Posted by: Naan at November 09, 2010 09:14 PM (GARYj)

49 I tried to look it up, but can't find it. At Redstate, shortly after this was passed, I guess, a lawyer wrote a lengthy post on why it would not work in this case and cited examples of it as such. I can't remember the specifics, I really wish I could find that.

Posted by: SnowSoul at November 09, 2010 09:14 PM (7kgOh)

50 Maybe the absence of the severability clause was intentional. The most likely provision to be constitutionally challenged was the individual mandate. Without the mandate, the insurance companies are royally screwed, with all the mandates for providing for pre-existing conditions, for kids until they're 26, all the subsidies, etc. Costs would rocket up and the whole industry would reel into a tailspin (even more than it will already).
So, maybe it was designed for the whole thing to fail if the mandate was removed. But I also like the idea from the poster above who said maybe it was because the version of the bill that passed was never meant to be the final language.

Posted by: Mayday at November 09, 2010 09:14 PM (TRgli)

51 So Andy Sterns forgot a clause? Poor guy, it's hard pretending not to write something.

Posted by: dagny at November 09, 2010 09:15 PM (twd4c)

52 So speaking of Kennedy, has he ruled on anything like this before?

Oh, and if the SC did throw out Obamacare, anyone want to take a bet how much screaming we will hear about judicial activism?

Posted by: 18-1 at November 09, 2010 09:15 PM (bgcml)

53 Also there's rumblings that Kennedy finds Sotomayer to be...well...seriously fucking annoying. Alot of people think that he is drifting to the conservative bloc because of her.
Yes she ate his tuna sandwich out of the SCOTUS break room fridge. Apparently he hates that.

Posted by: USS Diversity at November 09, 2010 09:15 PM (RWtqz)

54 Also there's rumblings that Kennedy finds Sotomayer to be...well...seriously fucking annoying. Alot of people think that he is drifting to the conservative bloc because of her.
Posted by: Chris in Va at November 09, 2010 09:11 PM (uCjoj)
Well wasn't it also said before that a lot of times Kennedy's rulings were based on if Scalia had pissed him off? If now it can also be counted on to come from Sotomayer doing stuff to piss him off that influences his rulings, my bet is on the Wise Latina to say more stuff to piss him off over the intelligent Italian.

Posted by: buzzion at November 09, 2010 09:16 PM (oVQFe)

55 It isn't in there because the people who wrote the thing never wrote one before. (It was out-sourced)

Posted by: Amy at November 09, 2010 09:16 PM (D+Cui)

56 So, maybe it was designed for the whole thing to fail if the mandate was removed. But I also like the idea from the poster above who said maybe it was because the version of the bill that passed was never meant to be the final language.
It wasn't supposed to be but they never went to a conference committee because of a parliamentary maneuver by McConnell.

Posted by: Chris in Va at November 09, 2010 09:16 PM (uCjoj)

57 Would this be why Kagen hasn't recused herself?

Posted by: mpurinTexas (kicking Mexico's ass since 1836) at November 09, 2010 09:16 PM (xMKKV)

58 So Andy Sterns forgot a clause? Poor guy, it's hard pretending not to write something.
Suck my Jagon, wingnut!

Posted by: Andy Stern at November 09, 2010 09:16 PM (CFqzD)

59 Brewer needs to be able to put up threads for his commentary in the "Headlines," so he can be taken to the woodshed and soundly thrashed, like Ace when he's wrong.

DeMint had a totally valid point. Although I don't support many "social conservative" things, it's obvious to me that much of social conservatism is more "economical" than the more libertarian/libertine aspects of upper-case 'C' Conservatism. For example, I'm willing to put up with the high fiscal cost of a more liberal drug policy. Let me say that again: high.fiscal.cost.

But I'll tell you up front that the Drug War is also expensive, and costs more in lives, to boot, which makes it less tolerable in the long run.

But sure, ramp up the draconinanism, and you can save a lot of money.

Obviously.

That's why the lefties call conservative approaches to the budget "draconian." So DeMint knows what he's talking about, even if I wish he hadn't "gone there."

Posted by: K~Bob at November 09, 2010 09:17 PM (x62t1)

60 If any one knows, please tell me why you figure they didn't include this provision.

BigPharma got to one of the few with access to the master copy and got it deleted before revision control was established.

Posted by: Jean at November 09, 2010 09:17 PM (CPefM)

61 #50 So, maybe it was designed for the whole thing to fail if the mandate was
removed. But I also like the idea from the poster above who said maybe
it was because the version of the bill that passed was never meant to
be the final language.

It may be the latter, since Nancy Pelousi was shrieking that they'd try to get the Public Option through at a later date.

Posted by: Kratos (Ghost of Sparta) at November 09, 2010 09:17 PM (CzPCa)

62 Maybe they will try tofix it with some sort of brazen extralegal cram-down. Like, you know,somanyotherthings they didin the past two years.
If the whole kit and kaboodle is actually tossed on this basis, I'll feel ten feet tall with a hard-on. I'll be manic and joyous andunable to sleep.

Posted by: Wm T Sherman at November 09, 2010 09:17 PM (5YgO+)

63 I, for one, was much more worried about the bill tipping over.

Posted by: Congressman Hank Johnson at November 09, 2010 09:17 PM (DY8ct)

64 Dont get your hopes up.

Anthony Kennedy has a penchant for hearing the "Call of History" and without filibuster "reform" and another wave in 2012 we can't undo this.

Then there will be only chaos. And liberalism.

Posted by: Whatever at November 09, 2010 09:18 PM (Sq5iq)

65 Hmmm, I thought Obama told us he was a lawyer and a constitutional scholar?
Maybe his diploma is locked up with his birth certificate.
Yeah I said it.

Posted by: robtr at November 09, 2010 09:18 PM (hVDig)

66 The same courts that are down with Sharia law?

Please, let's get real, gentlemen.

Posted by: CoolCzech at November 09, 2010 09:18 PM (tJjm/)

67 Oh, and if the SC did throw out Obamacare, anyone want to take a bet how much screaming we will hear about judicial activism?Be a great time to run that clip of Howard Dean saying it would be thrown out. Or uberlib Jonathan Turley of GWU admitting howmassively the law departs from anything the SC has ever ruled OK under the commerce clause.

Posted by: Chris in Va at November 09, 2010 09:18 PM (uCjoj)

68 So, evidently we need to pass the bill to find out what's NOT in it as well. Beautiful.

Posted by: twiceblessedmom at November 09, 2010 09:19 PM (HjxoE)

69 I hate to be the wet blanket on the flame of fun here but......
This may not amount to much.
Sarbanes-Oxley (SOX) was reviewed by SCOTUS and it too didn't contain the severability clause. The Court went on its merry way and proceeded to strike down certain provisions w/out deeming the entire act void.

Posted by: laceyunderalls at November 09, 2010 09:19 PM (oxpD0)

70 So, evidently we need to pass the bill to find out what's NOT in it as well. Beautiful.Who cares what's in the law?? I've got a leadership position to keep...

Posted by: Minority Leader Nancy Pelosi, a bit paranoid these days at November 09, 2010 09:19 PM (uCjoj)

71 Blue Cross just raised my rates $173 per month. Will they repeal the increase? They blamed Obamacare mandates for the increase.

Posted by: torabora at November 09, 2010 09:20 PM (HJeAp)

72 How 'bout because they are a bunch of illiterate, moronic boobs? Just guessing here.

Posted by: tcn at November 09, 2010 09:20 PM (+dwY/)

73 I think post #8 hit the ball.

The People did manage to cripple this damn thing, but in a sort of delayed fashion.

Posted by: eman at November 09, 2010 09:21 PM (kwGgc)

74 Reedin' iz hardz.

BTW, did anyone watch the train wreck that is Keffums tonight?

Posted by: mpfs at November 09, 2010 09:21 PM (3TjSM)

75 and got it deleted before revision control was established.


Posted by: Jean
Revision control? If Congress has a document control procedure, I'll eat my keyboard.

Posted by: Pelayo at November 09, 2010 09:21 PM (V9Q+f)

76
In its current state, I wouldn't count on the judiciary for anything other than a continuance of social re-engineering.

Posted by: Soap MacTavish at November 09, 2010 09:21 PM (vbh31)

77 Would this be why Kagen hasn't recused herself?
If she recuses herself, she can't start in the season openerfor the SCOTUS Softball team.
It's a mixed league.The rules would force us to start Sotomayor at Third and she has a noodle for an arm...best to stick with one in the sensible shoes.

Posted by: Clarence Thomas at November 09, 2010 09:21 PM (CFqzD)

78 Sure am glad O' called out the SCOTUS at his STFU address, that may count more than we know...

...but the Stupid Party can still screw this up somehow so there's that, too

Posted by: cali grump at November 09, 2010 09:22 PM (hL0k8)

79 Sarbanes-Oxley (SOX) was reviewed by SCOTUS and it too didn't contain the severability clause. The Court went on its merry way and proceeded to strike down certain provisions w/out deeming the entire act void. Yeah courts have in recent years decided not to treat the absence as a strict "throw the baby out with the bathwater" line as they did in the past. They don't like to get into the business of messing with Congress or legislation more than necessary (don't laugh!). It's still hilarious that they forgot it. Because that's exactly what they did. There was talk of this at the time by Democratic staffers. They were that fuckinglazy and/or incompetant.

Posted by: Chris in Va at November 09, 2010 09:22 PM (uCjoj)

80 Also there's rumblings that Kennedy finds Sotomayer to be...well...seriously fucking annoying. Alot of people think that he is drifting to the conservative bloc because of her.
God works in mysterious ways...

Posted by: Mayday at November 09, 2010 09:22 PM (TRgli)

81 63 Threadwinner!

Posted by: Buck O. Phive at November 09, 2010 09:23 PM (HwIdb)

82 How much do you want to bet that the courts "find" a severability clause in the eminations and penumbras? I'm thinking some judge is already trying to find a way of saying that they "meant" to do it or it's implied or that they've changed their minds and every bill is now severable.
You don't seriously expect them to think about the law do you?

Posted by: AmishDude at November 09, 2010 09:23 PM (TGYDu)

83 Who do Obama and Nancy think they are trying to steal my thunder?

Posted by: Asclepius at November 09, 2010 09:23 PM (sWPjB)

84 Oh yeah and Sarbanes' son is a douche.

Posted by: Chris in Va at November 09, 2010 09:24 PM (uCjoj)

85 I hope we get some kind of Hail Mary tactic through. I was at a conservative legislative conference today for VA's 2011 session, and word is our AG, Ken Cuccinnelli, says this thing is going to take years to get to the SC, all the while the minions will be putting all the pieces in place -- unless it's defunded or the states do teh constitutional convention and torch ZeroCare.

Posted by: RushBabe at November 09, 2010 09:24 PM (a3Z62)

86 Seriously,

Obama was nominated by 'proclamation' of Pelosi, the bill was passed by 'reconciliation' of Reid and Pelosi and signed by Obama, they thought they had the Triumvirate and were going to do any damn thing they want.

And still do..

Posted by: Druid at November 09, 2010 09:25 PM (adCDx)

87 Making a law is like eating a delicious meal. You take wonderful ingredients from all over the world, prepare them in a fresh and creative way, present them artistically, and in 12 hours it's all a steaming pile of smelly turds.

Posted by: Nancy Pelosi at November 09, 2010 09:25 PM (HGV/y)

88 It isn't in there because the people who wrote the thing never wrote one before. (It was out-sourced)
It's rumored that the bill was written by a guy in jail. The husband of a Chicago politician, Jan Shadowsky or something like that.

Posted by: Mayday at November 09, 2010 09:25 PM (TRgli)

89 82 How much do you want to bet that the courts "find" a severability
clause in the eminations and penumbras? I'm thinking some judge is
already trying to find a way of saying that they "meant" to do it or
it's implied or that they've changed their minds and every bill is now
severable.

They pretty much already have.

In Free Enterprise Fund v. Public Company Accounting Oversight Board
(pdf), the Supreme Court invalidated a provision of the Sarbanes-Oxley
(SOX) Act without voiding the entire law, even though SOX lacks a
severability clause. The Court held that the unconstitutional
provisions could be severable from the remainder of the statute
because: “‘[t]he unconstitutionality of a part of an Act does not
necessarily defeat or affect the validity of its remaining provisions’
... the ‘normal rule’ is ‘that partial ... invalidation is the required
course.’”

Posted by: Kratos (Ghost of Sparta) at November 09, 2010 09:26 PM (CzPCa)

90 I'm actually grateful that they didn't read it before they passed it.

Posted by: Gran at November 09, 2010 09:26 PM (kmmbv)

91 2000 Pages.

All from Harry Reid's office.

Glenn Beck says Soros' minions wrote it.

I say Harry Reid has a cabin in Montana where he sits in a hoodie and sunglasses, and writes Heff Care Manifes-toes by kerroseen lite.

Kuh.Boom.

Posted by: K~Bob at November 09, 2010 09:26 PM (x62t1)

92 It isn't in there because the people who wrote the thing never wrote one before. (It was out-sourced)
Posted by: Amy at November 09, 2010 09:16 PM (D+Cui)
We didn't do bad for a first time, though.

Posted by: Van Jones at November 09, 2010 09:26 PM (a3Z62)

93 56"It wasn't supposed to be but they never went to a conference committee because of a parliamentary maneuver by McConnell.
Posted by: Chris in Va at November 09, 2010 09:16 PM (uCjoj) "
It wasn't McConnell, it was the Election of Scott Brown. He promised to be the 41st vote. So NO CHANGES could be made to the Senate Bill, otherwise it had to come back to the Senate for a vote, which would not have happened because the Dems DID NOT have 60 votes to get it to the floor.
The second (companion/fix)Bill had to be brought up through reconcilliation to avoid the need for 60 votes.
Regards,

Posted by: the Dragon at November 09, 2010 09:26 PM (gRSqy)

94 Making a law is like eating a delicious meal. You take wonderful ingredients from all over the world, prepare them in a fresh and creative way, present them artistically, and in 12 hours it's all a steaming pile of smelly turds.Nancy Pelosi is as much of a word smith as she is a Catholic theologian. Which is to say totally.

Posted by: New York Times Arts & Style at November 09, 2010 09:26 PM (uCjoj)

95 It wasn't McConnell, it was the Election of Scott Brown. He promised to be the 41st vote. So NO CHANGES could be made to the Senate Bill, otherwise it had to come back to the Senate for a vote, which would not have happened because the Dems DID NOT have 60 votes to get it to the floor.
The second (companion/fix)Bill had to be brought up through reconcilliation to avoid the need for 60 votes.
Regards,It was more than that. McConnell objected to the appointment of conferees in December.

Posted by: Chris in Va at November 09, 2010 09:27 PM (uCjoj)

96 The healthscare bullshit has been mostly written and hidden in some lefties desk drawer for the last 20 years just waiting for the time when the commies had a majority.

Posted by: Ronster at November 09, 2010 09:28 PM (9q4PA)

97 In Free Enterprise Fund v. Public Company Accounting Oversight Board (pdf), the Supreme Court invalidated a provision of the Sarbanes-Oxley (SOX) Act without voiding the entire law, even though SOX lacks a severability clause. The Court held that the unconstitutional provisions could be severable from the remainder of the statute because: “‘[t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions’ ... the ‘normal rule’ is ‘that partial ... invalidation is the required course.’”
Posted by: Kratos (Ghost of Sparta) at November 09, 2010 09:26 PM (CzPCa)
Big shock. Stare decisis is a one-way ratchet.

Posted by: AmishDude at November 09, 2010 09:30 PM (TGYDu)

98 Consequently,the result isno one is insured andeverybody just ends up
paying for their own care when they get sick(that is if they can
afford it).

Actually, that could wind up being cheaper. No supporting insurance companies, paying cash, competition, and no freeloaders inflating costs.

Posted by: nickless at November 09, 2010 09:30 PM (MMC8r)

99 I say that's a hidden factor because that's a no-no as far as actual
judicial reasoning. But I'd have to imagine that sort of thought is
bubbling around in the heads of any justice who's on the fence about the
matter.

I'm pretty sure Anthony Kennedy doesn't give a shit what the people think. He's smarter than they are after all and knows what's best for them.

Posted by: DrewM. at November 09, 2010 09:30 PM (HicGG)

100 The healthscare bullshit has been mostly written and hidden in some
lefties desk drawer for the last 20 years just waiting for the time when
the commies had a majority.

Uh, that would be me.

Posted by: Hillary Clinton at November 09, 2010 09:31 PM (vbh31)

101 If any one knows, please tell me why you figure they didn't include this provision


I don't know but I can guess 3 reasons:

1) Because a crowd of staffers wrote it and no one was keeping track of what anyone else was doing, and no one knew what it all said

2) Because they were certain they'd have total control of the government for the next generation so it wouldn't matter

3) Because they truly believed it was constitutional so it wouldn't need that clause.

Posted by: Christopher Taylor at November 09, 2010 09:31 PM (61b7k)

102 I still say the easiest way to kill Obamacare is to institute single-payer for lawyers. Let our elitist overlords have a taste and see how they like it.

Posted by: AmishDude at November 09, 2010 09:31 PM (TGYDu)

103 Sarbanes-Oxley (SOX) was reviewed by SCOTUS and it too didn't contain the severability clause. The Court went on its merry way and proceeded to strike down certain provisions w/out deeming the entire act void.
If that were to happen to Obamacare, we all need to buy popcorn and watch the lawsuits clog up the system for years to come. The insurance companies, pharmas, hospitals, doctors, individual patients, state governments, etc will all want to protest something.
Also, if the current lawsuits are going to take a long time to get to the SC, I wonder if somebody can file some sort of injunction to stop it from going into effect before it begins. Kind of like what happened recently when the judge decided to single-handedly tell the military to immediately repeal DADT.

Posted by: Mayday at November 09, 2010 09:33 PM (TRgli)

104 69 "I hate to be the wet blanket on the flame of fun here but......this may not amount to much.
Sarbanes-Oxley (SOX) was reviewed by SCOTUS and it too didn't contain the severability clause. The Court went on its merry way and proceeded to strike down certain provisions w/out deeming the entire act void.
Posted by: laceyunderalls at November 09, 2010 09:19 PM (oxpD0)"
The question is not automatic unconstitutionality of the whole bill. The SCOTUS must decide if the unconstitutional part, if taken out, would decimate the rest of the bill.
I suspect that SOX was a collection of rules, many of which could stand alone, and were not intertwined with the unconstitutional parts.
Regards,

Posted by: the Dragon at November 09, 2010 09:33 PM (gRSqy)

105 "I tried to look it up, but can't find it. At Redstate, shortly after this was passed, I guess, a lawyer wrote a lengthy post on why it would not work in this case and cited examples of it as such. I can't remember the specifics, I really wish I could find that."

SnowSoul, I think this is what you're looking for...

Posted by: Ulises Jorge Bido at November 09, 2010 09:39 PM (StjxX)

106 95 "It was more than that. McConnell objected to the appointment of conferees in December.
Posted by: Chris in Va at November 09, 2010 09:27 PM (uCjoj) "
It was a valuable delaying tactic, yet if Coakley had won, it ultimately wouldn't have mattered since the Dems would have had 60 votes to bring up a Bill, even aNew/Different House Bill.
Regards,

Posted by: the Dragon at November 09, 2010 09:39 PM (gRSqy)

107 Why no severability clause?:

1) The senate stripped it out as a trivial legislative maneuver to force the bill to go to conference (even if the House magically agreed with the Senate on all provisions).

2) The senate bill was only a provisional draft for conference negotiations - it was never supposed to be enacted, but the Dems were forced to take it as-is in order to ram the bill through using reconciliation.

3) The health insurance companies (arguably a force *supporting* the bill) decided that if the insurance mandate can't stand, the other reforms in the bill had to be tossed out. Dropping the severability clause accomplishes this (but only sorta, given the SARBOX precedent).

My guess is that 1 caused the clause to be stripped, but 2 forced this into being a problem they could not solve and still ram through healthcare reform.

Posted by: Stirner at November 09, 2010 09:42 PM (nTjSs)

108 (If any one knows, please tell me why you figure they didn't include this provision.)

Two reasons:

1) Because the left is fatally inept,

and

2) because they just didn't give a shit about anything other than shoving it through Congress. Don't forget, they had to vote on the throwaway Senate version, which was NEVER supposed to be voted on by the House.

Posted by: iknowtheleft at November 09, 2010 09:43 PM (G/MYk)

109 Keyrist! Abercrombie Fitch spam?

Posted by: mpfs at November 09, 2010 09:47 PM (3TjSM)

110 See what happens when you don't fucking read your own goddamn bill?

Morons.....

Posted by: Che Pizza at November 09, 2010 09:51 PM (gcBP7)

111 I'm for disallowing the whole kit. But to we really need to disallow the kaboodle? That seems excessive.

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Posted by: ugg boots sale at November 09, 2010 10:31 PM (SjmBa)

113 And as a second avenue of attack.... both seperation of church and state, AND equal protection, should be fought in court as well...
This bill has some Religions NOT being under the restrictions of this law... which CLEARLY helps one religion over another.... thus no equal protection either...
And since if ONE part of this is gone???? whole thing goes...
Different tactic... but needs to be fought in case the mandate lawsuit does not fly.

Posted by: Romeo13 at November 09, 2010 10:35 PM (AdK6a)

114 I know no one reads comments after the Ugg Boot spam, but I just want to say that I hate Demoncrats who passed this bill. Shitheads all.

Posted by: ParisParamus at November 09, 2010 10:36 PM (Y3R7N)

115 #114: That's a good point there... certain religions HAVE to be excluded, because forcing, say, Jehovah's Witnesses to buy health insurance would definitely hinder the free expression of their religion. But specifically exempting such faiths does sort of amount to favoring an establishment of religion.

Posted by: Genetic Tunder at November 09, 2010 10:55 PM (3Y3D/)

116 Especially given how much health insurance costs will drastically increase; religions that are exempted from Obamacare will see their ranks swell.

Posted by: Genetic Tunder at November 09, 2010 10:58 PM (3Y3D/)

117 And if it can be shown that a specific religion would suddenly experience a massive boom as a result of a single law, then that law could certainly be seen as establishing a "favored" religion.

Posted by: Genetic Tunder at November 09, 2010 11:02 PM (3Y3D/)

118 That particular clause could be the key to getting the whole mess bounced... without it, the law forces some religions to do something against their faith; with it, the law grants a special favored status to those faiths.

Posted by: Genetic Tunder at November 09, 2010 11:05 PM (3Y3D/)

119 116 #114: That's a good point there... certain religions HAVE to be excluded, because forcing, say, Jehovah's Witnesses to buy health insurance would definitely hinder the free expression of their religion. But specifically exempting such faiths does sort of amount to favoring an establishment of religion.
Posted by: Genetic Tunder at November 09, 2010 10:55 PM (3Y3D/)
Best part... Islam is not covered by Obamacare...
Talk about a shit sandwich...

Posted by: Romeo13 at November 09, 2010 11:08 PM (AdK6a)

120 "...default rule that if any part of a law is found to be unconstitutional, the entire law is unconstitutional."

Um, I'm afraid I don't think that's correct. I don't have the case law at hand here, but severability clauses are largely superfluous: my understanding of the canons of statutory construction is that because statutes come before a court with a presumption of constitutionality, and because the court must apply whatever reasonable interpretation of the statute it can so as to have it comport with the Constitution, that makes statutes severable without them having to have express language to that effect. Only if the process of enacting it itself were unconstitutional would the whole thing be a nullity (such as arguably if they'd used "deem-and-pass.")

Besides, what is one actually describing as non-severable? The chapter law, i.e., the complete enrolled bill as one act published in the Statutes at Large? Or each of the thousands of statutory sections created or amended by that act, scattered through a dozen different titles of the US Code?

Posted by: Dave J. at November 09, 2010 11:15 PM (DCQ0q)

121 I always thought that courts were ruling on the Constitutionality o f the law, not the popularity of the law.

Posted by: Mittens at November 09, 2010 11:21 PM (0YS61)

122 It was a valuable delaying tactic, yet if Coakley had won, it ultimately wouldn't have mattered since the Dems would have had 60 votes to bring up a Bill, even aNew/Different House Bill.
Regards,
Posted by: the Dragon Point taken.

Posted by: Chris in Va at November 09, 2010 11:25 PM (uCjoj)

123 Dave J., you suggest only if the process of enacting the law is judged unconstitutional that the whole kit and caboodle would be endagered.
Article One, Section 7 of the Constitution states:"All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills."
Obamacare does raise revenues in the form of new taxes and fees, and it originated in the Senate. Isn't that a serious flaw regarding its enactment?

Posted by: Cowboy at November 10, 2010 12:29 AM (g9AYc)

124 I love dead threads.

My brother just had his individual blue cross premium raised... wait for it...

$1,000.

per month. Yes, 12,000 per year. INCREASE.

If this ain't genocide of the middle class, I don't know what is. He's not even sick. But if he becomes sick before he can find a carrier.......

It appears that the local provider is opting out of offering individual plans, and this is how they price them out of the market.

Posted by: Derak at November 10, 2010 12:57 AM (CjpKH)

125 But if he becomes sick before he can find a carrier.......

Before 2014, of course, because there is no current catch all until then.

I feel they are hoping for a big die off in the interim.

Posted by: Derak at November 10, 2010 01:02 AM (CjpKH)

126
Obamacare does raise revenues in the form of new
taxes and fees, and it originated in the Senate. Isn't that a serious
flaw regarding its enactment?

Posted by: Cowboy at November 10, 2010 12:29 AM (g9AYc)

The healthcare provisions were added as amendments to a completely unrelated bill nationalizing the student loan industry (a revenue bill) that had previously been passed in the House. So technically the bill originated in the House and that satisfied that particular rule.

Posted by: Robert at November 10, 2010 01:31 AM (4ixH5)

127 He points out that "[t]he power that the individual mandate seeks to harness is simply without prior precedent," because no previous Supreme Court decision ever authorized Congress to force ordinary citizens to buy products they did not want.


Just playing devil's advocate here, what about car insurance? The state forces you to buy that? And you can say, well, that's a requirement of driving a car, but what's the difference? They could say it's a requirement of living in our jurisdiction, we don't want to have to pay indigent care for people who don't have insurance, so they force you to buy it?

Posted by: ms. docweasel at November 10, 2010 01:42 AM (pyFxp)

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Posted by: dell latitude d620 battery at November 10, 2010 04:09 AM (UunzN)

129 Hello, this is an anonymous post.

As a lawyer, I want everybody to know something. The "ObamaCare" bill is obviously unconstitutional because of mandate to individuals to buy health insurance. It goes against multiple constitutional amendments for multiple reasons. Liberals recognize this, and are blatantly trying to get this bill to create a precedent for the government to do anything. If that is the case, the Constitution itself becomes worthless, and they can do anything they want.

Our country's law and order has broken down as politics has seeped into the courts.

That said, the Supreme Court will decide. Ultimately, eight of the votes are automatic, four conservative, four liberal. That leaves Anthony Kennedy to decide the fate of the bill, the Constitution, and the future of the United States.

If Kennedy sides with the conservatives, he will save the Constitution. If he sides with the liberals, he will allow it to be destroyed.

Kennedy's history suggests that he does not have a strong system of legal beliefs. He decides on the basis of his heart.

Posted by: Lawyer Dude at November 10, 2010 07:12 AM (SYd3M)

130 It may have something to do with a bill passed thru Recon ... it may not be allowed to have a severability clause ???? just guessing ...

Posted by: Jeff at November 10, 2010 09:14 AM (A3tpD)

131 At this point I suspect that there are more than a few Democrats who also secretly hope Obamacare is declared unconstitutional. When you think about it, that takes them off the hook. They wouldn't have to support repeal to please the swing voters they need and they wouldn't be forced to anger their base by supporting repeal. They can just shrug their shoulders and say "We passed it but there is nothing we can do about the Court decision and we can't do anything now because the GOP controls the Congress." It is the perfect way out for them and their desire for the issue to go away before 2012. Itwould actually helpObama to worm his way out on the issue, but less so - If any liberals on the court vote with the conservatives to declare it unconstitutional it will be a purely political party butt saving action.

Posted by: D. at November 10, 2010 11:19 AM (plSrP)

132 why you figure they didn't include this provisionMy guess is that even many of the Dems knew that the bill was a POS, but they were backed into a corner and were being forced to vote for it to satisfy the far left wing of their party. It would not surprise me that a lot of Dems that voted for it want to see it found unconstitional by the courts. They can then at least say to the left wingersthat they tried.

Posted by: PaulC at November 10, 2010 11:39 AM (F26eZ)

133 Just guessing, but the architecture of "must issue," "community rating" and "mandatory coverage" cannot be broken apart and still make any sense.
Forcinginsurance companies to issue a policy to anyone who shows up, and premiums NOT based on expected loss experience, are major liberal goals. But in order to make that work, you have to mandate coverage, otherwise people will just show up the day after the heart attack or cancer diagnosis or bad fall, and insist on being covered at absurdly low rates--- and the insurance industry soon collapses.
Theway around that is to require everyone to have coverage at all times.
So,the insurance industry must insist that if the "mandatory coverage"is struck down, the "must issue" and "community rating" provisions have toend with it.

Posted by: Marty at November 10, 2010 11:51 AM (xWFCX)

134 And, of course, the other 2000 pages is just kludges trying to make 'must issue,' 'community rating,' and 'mandatrory coverage' work

Posted by: Marty at November 10, 2010 11:52 AM (xWFCX)

135 "If any one knows, please tell me why you figure they didn't include this provision."
Sheer incompetence. That bill was slapped together in such a hurry just to get something to ram through before 2010 (it's an election year, no one wanted to defend that crap sandwich in an election year) that I think they simply forgot to insert that provision.
Although PaulC's view seems equally plausible.

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Posted by: lisa at November 10, 2010 07:40 PM (Fy88P)

137 "The healthcare provisions were
added as amendments to a completely unrelated bill nationalizing the
student loan industry (a revenue bill) that had previously been passed
in the House. So technically the bill originated in the House and that
satisfied that particular rule."

That's correct: that's always how they get around that. It's unconstitutional in its substance, not in how it was enacted."Just playing devil's advocate here, what about car insurance? The state forces you to buy that?"First, the state doesn't force you to BUY A CAR.
Second, every state that I'm aware of actually does NOT require that you purchase insurance: it requires that you "prove financial responsibility," i.e., the ability to satisfy a judgment against you if you're at fault in an accident. Buying insurance is the overwhelmingly most common way to do that, but there are alternative ways to self-insure if you have enough assets. If you do the latter, the DMV will issue you a certificate of financial responsibility, a "self-insurance card" instead of the card you'd get from a car insurance company.Finally, it's the state, not the feds. Our constitutional system presumes there are all sorts of things the states can do that the feds can't. The federal government is a government of limited, strictly enumerated powers: if it isn't authorized to do something, it can't do it. The states aren't: they're essentially the post-independence successors to the unlimited sovereignty of the British Parliament, with the police power, plenary authority to do anything that they are not forbidden from doing.

Posted by: Dave J. at November 10, 2010 09:46 PM (DCQ0q)

138 There is still a major problem. About which most congressmen don't know. More than half of the regulations that impacts our healthcare and crushes the economy are not in the Obamacare bill. They are in the stimulus bill!

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