Dec
12
2010

More judicial Obamacare salvoes this week.

There are two cases in Florida and Virginia expected to be decided this week over the constitutionality of Obamacare.  The underlying issue is whether the US Constitution gives Congress the right to force its citizens to engage in commerce (specifically, whether Congress can mandate individuals to buy health insurance).  Which, the last time I checked, it does not; and while I understand that Obamacare’s remaining defenders are obligated to argue otherwise, I am not particularly obligated to treat either them or their argument more seriously than is merited.  In this case, that means: not at all.

The real issue here is not whether the individual mandate is thrown out – even the administration is tacitly admitting that it may not survive scrutiny – but whether the individual mandate can be declared unconstitutional without immediately invalidating the rest of the legislation.  There is an issue called ‘severability‘ that is germane here: the short version is that if one portion of a piece of legislation is declared unconstitutional, then the entire law is supposed to be thrown out unless there’s specific language indicating otherwise.  Said language never made it into Obamacare, thanks to the stellar parliamentary skills of Rep. Pelosi and Sen. Reid.  It’s not a slam dunk – I’ve had actual attorneys tell me that the Supreme Court has shown a reluctance to be that hard-nosed about severability – but it’s something to keep an eye on.

The Virginia court decision is expected for tomorrow: the results should be interesting.

Moe Lane (crosspost)

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