November 26, 2010

If the individual mandate is unconstitutional, will the entire healthcare law be invalidated?

Judges Henry E. Hudson (in Virginia) and Judge Roger Vinson (in Florida) will rule on their case soon. Both of these judges were appointed by Republican Presidents. (The federal judge in Michigan who, in a case decided last month, found the mandate constitutional, was appointed by Bill Clinton.)

Assuming one of these judges says that Congress's power regulate commerce clause does not include a power to make private citizens buy insurance, what happens to the rest of the law? The law does not contain a severability clause. That is, it does not explicitly say what should happen to the rest of the law if part of it is stricken down.
An earlier version of the legislation, which passed the House last November, included severability language. But that clause did not make it into the Senate version, which ultimately became law. A Democratic aide who helped write the bill characterized the omission as an oversight.
Well, that's one hell of an oversight! I can certainly see why someone who wants the bill to survive would attempt to portray this as an oversight, but I don't think that's believable. The need for a severability clause is well-known and obvious.
Without such language, the Supreme Court, through its prior rulings, essentially requires judges to try to determine whether Congress would have enacted the rest of a law without the unconstitutional provisions.

The Justice Department, which represents the Obama administration, acknowledges that several of the law’s central provisions, like the requirement that insurers cover those with pre-existing conditions, cannot work unless both the healthy and the unhealthy are mandated to have insurance. Otherwise, consumers could simply buy coverage when they needed treatment, causing the insurance market to “implode,” the federal government asserts.
So the individual mandate is plainly not severable from at least some of the rest of the law.
In a hearing last month, Judge Hudson remarked on the difficulty of determining Congress’s intent regarding a law with hundreds of disparate provisions. “This bill has more moving parts than a Swiss watch,” he said.
The administration, in arguing for the constitutionality of the individual mandate, has stressed how crucial it is to the success of the entire reform, but that inherently works as an argument against severability.


SteveR said...

Seems obvious, they didn't know (Senate version) that it did not include the proper severability clauses, because they DIDN'T READ IT!

Anonymous said...

"... in arguing for the Constitutionality of the individual mandate, has stressed how crucial it is to the success of the entire reform."

What utter bullshit.

The individual mandate must be Constitutional, because without the individual mandate the law doesn't work? Is that the case they're making?

Are attorney's really making such asinine circular arguments? Are judges really buying such a stupid fucking legal theory?

This law is plainly un-Constitutional.

If the Democrat Party can, citing the Commerce Clause, force people to purchase products that their campaign donors produce, are we not merely Democrat Party slaves?

If Democrats can do that then we're all merely slaves forced to work to buy shit they say we have to buy from the companies that have purchased our government at wholesale.

The Judiciary had better remember something: It's part of the power structure that will be torn asunder.

If the judiciary won't reign in this horrid abuse of power then we have no further need for a Judiciary and we can get on with the next part.

The Dude said...

It would be nice if one ruling was all it took to make Obamacare go away. It won't happen that way, but it sure would be nice, and fitting.

WV: kidint - I am not.

coketown said...

I remember Reid making a fuss about assuring a severability clause was present, so it's surprising that it was not included in the Senate version. I have heard commentators from the left, right, and center explain, though, that without the individual mandate the rest of the bill falls part. The bill just doesn't raise enough revenue and the cost-cutting measures, even before it was found that they actually cost more than the status quo, didn't cover the difference considering all the goodies it hands out. You need a 300 million-customer exchange to finance this monstrosity.

X said...

Striking it down creates Obama's best chance for reelection. Otherwise people will have 2 more years of experiencing premium hikes for the mandated unicorns and fairy dust.

holdfast said...

"if part of it is stricken down."

And you, a law professor! : ))

David said...

If this were an election, the democrats would find the missing severability clause in a high school gym in Bridgeport.

The Crack Emcee said...

New "Hussein" Ham,

Are attorney's really making such asinine circular arguments? Are judges really buying such a stupid fucking legal theory?

Are you seriously asking this question?

I'm still waiting for the day when "no-fault" divorce is held up for review. That's a shit storm that's gonna spew on everybody. (It never has been put before the public and I feel sick saying that on a lawyer's blog: Shame on all of you.)

Anonymous said...


Divorce rulings don't bother me so much. Men who are in this day and age dumb enough to marry a woman deserve what they get.

Courts have completely undermined the value of a wife. Women shortsightedly think these rulings are helpful to them. They deserve what they're going to get (which is starvation - once Japanese robots are sufficiently advanced to safely suck a cock and then dutifully make a ham sandwich without bitching about it).

We cannot escape, however, Barack Obama and his corporate henchmen. The ObamaCare law (and RomneyCare in Massachusetts) says that if you are alive, you must purchase these products from the very same companies which put Democrats in power - without regard to the cost of said products.

That is fucking slavery.

The nation's first black president, a stone's throw from Lincoln's monument, has re-instituted the practice of slavery in the United States.

If this isn't un-Constitutional then we have no further use for this Constitution. It would no longer be protecting us. And we would need to provide new guards for our defense, by eliminating this government and forming a different kind of government.

I think that would probably come about violently, and so naturally, I hope the Supreme Court wises the fuck up before they vote themselves out of existence.

Unknown said...

Somewhat OT, but I note Ann's observation, "Both of these judges were appointed by Republican Presidents.". Judges appointed by Willie or Carter or LBJ would have reliably tossed the whole thing, regardless of merit.

The issue of what judge, appointed by which President, will sit on any given case is a compelling reason for term limits for Federal judges, as well as Congress.

The people who wrote the Constitution didn't see Judicial Review on the horizon and intended Federal judges to be disinterested arbiters. That's the exact opposite of what we have today.

Anonymous said...

I know I'm repeating myself, but always be aware that we are a nation of men, not laws.

At best, a set of general guidelines reduced to a form of writing rendered unintelligible. No, not rocket science, but a pretty easy way to make a damn good living.

Martin L. Shoemaker said...

Coketown said...

I remember Reid making a fuss about assuring a severability clause was present, so it's surprising that it was not included in the Senate version... You need a 300 million-customer exchange to finance this monstrosity.

Coketown, I cynically suspect your last sentence explains your first. I suspect that someone drafting the Senate version realized the thing was even more of a financial debacle without the mandate, and so they removed the severability clause so that there was no chance of getting the mandatory costs without the mandatory revenues.

Though as Ham argues, they're using it now as sort of a judicial deadman switch: "You kill the mandate, and you have to kill the whole thing, and you don't want to do that!" When I get really cynical, I wonder if that was by design.

Unknown said...

If neither judge strikes down the mandate and enjoins the entire law, then we must take down the system by refusing to recognize the mandate.

I assure you however that this government will be gone before the law's full effects are felt in 2014.

Anonymous said...

" ... then we must take down the system by ..."

No, we must take down the system by tarring and feathering. By running out of town on a fucking rail. By hook and by crook.

It just won't be any fun to be a fucking politician in the United States. We'll see to that.

Cedarford said...

America is being crippled by consenting to being ruled by 5,168 Federal judges passing anything new through a 220 year old piece of paper.
Better than Muslims trying to fit everything through a 1400 year old piece of paper as Haram or Halal, but still a big problem.

That mindset that all change must be by wise lawyers dressed in robes paralyzes America, turns off critical thinking. It disenfranchizes the American voter "It doesn't matter what I want or what I think on anything, or who I elect - it's all for wise lawyers to interpret the Sacred Parchment and its Holy Words - the best I can do is elect people who in turn select the High Priests."

eluc455 said...

@ shoemaker

I think you are spot on. By not including a severability clause, it acts as a type of deadman switch. While it should not necessarily be considered by the judiciary, I believe a reviewing court would be more likely to find the individual mandate unconstitutional if it didn't think it would be responsible for a total upheaval of major legislation and 1/6 of the national economy.

A severability clause provides some intellectual shelter for finding the legislation unconstitutional. That is, a court may say to itself "I have one really unconstitutional portion of the legislation; but if I find it unconstitutional I have to wreck the economy; if only I could just strike the offending portion and keep the rest, I would. And, the negative of the individual mandate may be outweighed by the positive of the remaining portions of the legislation."

I am very skeptical of the notion that it was an "oversight," rather I believe it was a calculated ploy in light of the pending judicial review. It may work, I hope not. But, it may just put fear in the Justices' hearts to have to find a monstrous piece of legislation constitutional.

Anonymous said...

"That mindset that all change must be by wise lawyers dressed in robes paralyzes America, turns off critical thinking."

And thus, we see a demonstration of what America would be like if Democrats get their way.

They want complete power to destroy the Constitution and to eliminate the power of the Judiciary branch of our government to reign in Legislative and Executive branch corruption and tyranny.

Cedarford mindlessly reveals precisely how Democrats think and what they intend to do if we let them.

The good thing about Democrats is that they have this kind of dumb fucking PR.

What a maroon.

Big Mike said...

If the individual mandate is unconstitutional, will the entire healthcare law be invalidated?

I sure hope so.

gk1 said...

I dunno the more I read stuff like this the shakier the whole obamcare enterprise looks. Once the inevitability is stripped away you see how shoddily it was constructed. But what can we expect from something that was passed so we could see what's in it?

KCFleming said...

If these judges permit it, the Constitution is dead, and anything is permissible.

Anonymous said...


bagoh20 said...

As Pelosi said, now that we passed it we 'll find out what's in it...or not in it. We are gonna miss her leadership.

How about this: Your health care is paid 100% minus 2% for every year after age 20 that you did not have coverage. Get sick at 40, but didn't buy coverage until 30, then you get 80% and pay 20%. No mandate, but an incentive.

Or, better yet, throw out the whole damned lame-ass, un-American, socialist piece of crap.

The blogprof said...

Obama is becoming the Black Knight of socialized medicine

DaveW said...

They could simply raise the revenue some other way. Like through a value added tax or a national sales tax. And I know of no reason why we should think they wouldn't do so, or try to do so, if that was needed.

I wonder if leaving out the severability clause was deliberate or an oversight. I find it hard to believe it was an oversight.

Perhaps they left it that way just to open the door to additional taxes to cover the thing. Ordering millions of lower income voters to pay thousands annually for health insurance they couldn't pay for always struck me as a bizarre move for democrats, as was slashing medicare.

Phil 314 said...

Late to the thread so likely a "dead thread" but anyway...

There's a lot in the law so its not invalidated if the mandate goes away. Practically (not constitutionally) the mandate is as only good as the penalty.

But let's not forget the law is based on an insurance model for universal healthcare coverage. If you eliminate "pre-existing conditions" and don't have some mechanism to bring "all in" you will see dramatic healthcare premium increases. Even with the mandate and stiff penalties, if you do nothing to mitigate demand you'll see continued high annual premium increases. (See Mass health)

Health care costs are increasing much faster than the growth of the economy

PatCA said...

Exactly, SteveR. Don't we have to know if anyone actually read it or wrote it to determine intention?

I would love to hear them tell us who actually did write it.