Apr
11
2011
2

Missouri AG Chris Koster’s (D) cynical fight against Obamacare.

He’s not fully joining the fight against Obamacare – Koster has issued an amicus curiae brief in modified support of the Florida Obamacare lawsuit, instead of joining it – but he’s easily the most prominent Democrat on the state level to break with his party on Obamacare.  This is partially probably due to Missouri’s emphatic rejection of Obamacare last year (in the form of Proposition C), and partially probably due to Koster’s own desire to survive politically; Koster switched parties in 2007, when it looked like the promised forty-year dominance of the Democratic party in America might actually last, well, forty years.  As it stands, Koster is up for re-election next year, and as it’s promising to be a bad year for Missouri Democrats who like Obamacare… well.

Do read the brief, as it represents the Democratic party’s somewhat frantic desire to resolve the problem that they’re having with Obamacare right now.  To wit: the individual mandate is clearly unconstitutional, given that it requires people to engage in commerce, whether they want to or not.  Unfortunately, the same Geniuses From Beyond Space And Time that put that provision into Obamacare also neglected – willfully – a provision that explicitly stated that the various parts of Obamacare are severable from each other; so if the individual mandate goes it’s well within the court’s purview to declare the whole thing unconstitutional as well.  That would be… problematical for Democrats, given that they wasted a year on Obamacare in the first place.

 

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Feb
04
2011
--

ABC News: Hey, about that severability clause thing…

oddly enough, they’re now noting in an update to their original post that, contra Senator Bill Nelson of Florida*, the lack of a severability clause in Obamacare is both: conspicuous; and a major factor in Judge Vinson’s decision.  Which you already knew, because you read about it first either at MoeLane, or at RedState.  And apparently, so does somebody over at ABC News**.

Still, let me not be unkind about this, given that they actually fixed the mistake and didn’t also try to memory-hole it.  So, let me be among the first to congratulate ABC News for its timely correction to the record; we at Redstate are always happy to help another media outlet correct, and learn from, their mistakes.

Moe Lane (crosspost)

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Feb
03
2011
6

Bill Nelson’s Magical Obamacare Severability Clause.

The one that only he can see, apparently.

At first I thought that the outrageous thing that Bill Nelson had said in this interview with Rick Klein of ABC News was that the Senator wasn’t sure whether or not Obamacare was unconstitutional (good safety tip for legislators: if you don’t know whether or not a law violates the Constitution, don’t vote for it).  But what Nelson was actually saying was that he considers Obamacare Constitutional, but that the courts might disagree.  That’s fine.  He’s wrong for thinking that it’s Constitutional, but it is consistent with his vote.

But then Senator Nelson said this:

“But there is at the end of it what is called a severability clause, that says if parts are stuck down, that doesn’t strike down the whole law.”

Wait.  What?

How do I put this: NO, THERE IS NO SEVERABILITY CLAUSE AT THE END.  There was one in the first draft; it was later removed; the version that you voted for, Senator Nelson, had no severability clause; and the government used as part of its argument for keeping the individual mandate that the mandate could not be separated out from the rest of Obamacare.  All of which is immediately obvious to anybody who took the time to read  Judge Vinson’s decision in the first place… which apparently does not include Senator Bill Nelson.

Although, to be fair: Bill Nelson obviously didn’t read the original bill, either.  In that, at least, this indicates a certain consistency.

Moe Lane

Feb
01
2011
1

#rsrh “What do you think, Just-ice Ken-ned-y?”

“…The pundits turn their bleary eyes to you:”

“Woo. Woo. Woo.”

I’m going to agree with Jen Rubin, here: the Left was not prepared to have a judge rule that Obamacare as a whole was unconstitutional.  That courts were starting to conclude that the individual mandate was unconstitutional was something that people on the Other Side were beginning to get their heads around; that the whole thing thus had to be thrown out is still Here Be Dragons territory for that crowd.  And that it was because the administration misplayed its hand by arguing too forcefully that the individual mandate was the keystone to the whole thing?  Priceless.

Meanwhile, let me join the rest of the blogosphere by admitting that from this point on it all comes down to what Justice Kennedy has for breakfast the morning the Supreme Court decides this one, and whether he liked it or not.  Ach, well: it still beats, say, Egypt’s current method of resolving domestic political disputes.

Moe Lane

Dec
12
2010
3

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)

Nov
09
2010
5

#rsrh Keyword for the 112th Congress:

severability*.

:pause:

I need to know these things, people.  Contrary to persistent rumor and all available evidence, I am not in point of fact an expert on everything.

Moe Lane (more…)

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