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Bench Memos

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Obamacare: Night of the Living Dead



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Friday was a big day for those following the Obamacare litigation, as the first briefs arrived at the Supreme Court clerk’s office.  Most of the press covered the government’s opening brief on the constitutionality of the individual mandate, and that’s no surprise. The constitutionality of the mandate is the central issue in the case and the one the public knows most about. Plus, the DOJ has gone to extraordinary lengths to make sure they get to direct the spin on the press coverage of the case, even holding a secret by-invitation-only press conference before the briefs were filed. Perhaps they’re starting to get worried about unswerving public opinion against the law.

The briefs that got less notice, however, were those on the severability issue by the 26 state petitioners and the National Federation for Independent Business, as well as amici including 36 U.S. senators (in a brief I co-authored). The severability issue may seem more wonkish, but, at bottom, it touches on fundamental issues of constitutionality.

The Constitution envisions laws being written by Congress, not the courts. When courts encounter a law with an unconstitutional provision, their goal is to effect what Congress would have done if they had known that part of the law could not stand. Sometimes this is a relatively easy case, like when Congress includes a “severability clause” in the law explicitly requesting courts to sever unconstitutional provisions without affecting the rest of the law. 

But in this case Congress actually removed a severability clause that was in the original Senate bill before the final law was passed. Add that to the repeated statements by the law’s proponents that the individual mandate was the “heart” of the law and that its removal would “mortally wound” or even “kill” health-care reform, and it’s clear that Congress thought the survival of the whole law turned on the individual mandate.

The Eleventh Circuit second-guessed Congress’s own determination, and decided to excise the heart of the law, leaving the rest intact.  But, as even the federal government acknowledges, the remaining heartless monster of a law (a zombie? a vampire?) would actually destroy the health insurance system through spiraling costs to both insurance companies and the insured.

The federal government is arguing that it would be enough to remove the major private insurance reforms along with the mandate, and leave the rest intact — including everything from the Medicaid reforms that are also part of the Supreme Court challenge to taxes on tanning salons and funding for abstinence education. But the prospect of bodiless Things wandering loose in the U.S. Code is not much more reassuring than a 2,400-page zombie assaulting our health-insurance system.

Christmas in July is one thing, but Halloween in January is quite another. I hope the Supreme Court will not usurp Congress’s constitutionally-granted legislative role and will let Obamacare stand or fall along with its central provision, the individual mandate.



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