Liberal commentators didn’t waste much time attacking U.S. District Court Judge Roger Vinson’s ruling as “activist,” particularly for deciding to void the entire national health care law after declaring the mandate unconstitutional.
Ezra Klein writes:
The full ruling has a very Bush v. Gore feeling, as Vinson concedes that his position is activist in the extreme and a break from the court’s usual preference for limited rulings, but says, in effect, that he’s going to do it just this once. “This conclusion is reached with full appreciation for the ‘normal rule’ that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute,” Vinson writes, “but non-severability is required based on the unique facts of this case and the particular aspects of the Act. This is not a situation that is likely to be repeated.” Italics mine.
Meanwhile, Brian Beutler decries the “extreme activism of Judge Vinson,” citing an opinion by Chief Justice John Roberts in a case in which he wrote, “We agree with the Government that the unconstitutional tenure provisions are severable from the remainder of the statute.”
Case closed, right? Roberts rejects inseverability. Well, not exactly.
The reason why Vinson departed from tradition is that removing the mandate has a much more dramatic effect on the feasibility of the rest of national health care law than is typically the case with most laws.
The case that Beutler cited involved a Supreme Court ruling from last year that a provision of the Sarbanes-Oxley law was unconstitutional. At dispute was a part of the law that insulated members of the Public Company Accounting Oversight Board from presidential authority, by making them only removable for “good cause” when they were appointed by the Securities and Exchange Commission, whose members were also merely removable for “good cause.” As SCOTUSblog recounted, “The petitioners had hoped to persuade the Court that because the Board was unconstitutionally insulated from presidential authority, all of its exercise of authority (including its investigation of the petitioner accounting firm) was unconstitutional. The Court disagreed, holding instead that it was appropriate to simply sever as unconstitutional the second layer of ‘good cause’ protection, leaving Board members subject to removal by the SEC without cause.”
How Roberts would ultimately rule in anti-ObamaCare lawsuits is unknown, but it simply isn’t appropriate to lift Roberts’ quote from the Sarbanes-Oxley case. The individual mandate plays a much more intractable role in the health care law.
Liberals make it seem as if Vinson’s exception in this case was totally arbitrary, but if you read through the discussion of the severability issue on pages 63 to 74 of the decision, it becomes clear why the judge ruled that this instance was unique.
Citing relevant case law, Vinson goes through several tests for whether making an exception is appropriate. Among them are whether the rest of the law would be operational without the individual mandate and whether Congress would have passed the rest of the law without the mandate.
It’s important to remember that Democrats could have avoided all of this, but as enacted, the law did not include what’s known as a “severability clause,” which specifies that if one part of the law is struck down, the rest of the law stands. Vinson saw this as significant: “Congress’ failure to include a severability clause in the Act (or, more accurately, its decision to not include one that had been included earlier) can be viewed as strong evidence that Congress recognized the Act could not operate as intended without the individual mandate.”
He goes on to say that, “the defendants have conceded that the Act’s health insurance reforms cannot survive without the individual mandate, which is extremely significant because the various insurance provisions, in turn, are the very heart of the Act itself.”
So in other words, without the mandate, you wouldn’t have reforms such as the ban on denying insurance to those with pre-existing conditions, which were the purpose of “health insurance reform” in the first place.
This isn’t particularly controversial stuff. As Randy Barnett noted, the White House itself has said:
“If the constitutional challenge to the Affordable Care Act’s individual responsibility requirement ultimately prevails, it would mean that provisions preventing health insurance companies from discriminating against people with pre-existing conditions would also be invalidated by the court because the two are inseparably linked. If insurance companies are required to cover those with pre-existing conditions, who are potentially more expensive to cover, without requiring everyone—both sick and healthy people—to have insurance, premiums will increase rapidly. Similarly, other provisions – including banning insurers from discriminating based on health status, age and gender – would also fall.”
Once you accept that the mandate and insurance reforms are “inseparably linked,” one might ask, why not merely eliminate the parts of the law that were directly related to the mandate? While even Vinson concedes that there are elements of the law that could still survive without the existence of the mandate, he explains that:
“Going through the 2,700-page Act line-by-line, invalidating dozens (or hundreds) of some sections while retaining dozens (or hundreds) of others, would not only take considerable time and extensive briefing, but it would, in the end, be tantamount to rewriting a statute in an attempt to salvage it, which is foreclosed by Ayotte, supra. Courts should not even attempt to do that. It would be impossible to ascertain on a section-by-section basis if a particular statutory provision could stand (and was intended by Congress to stand) independently of the individual mandate. The interoperative effects of a partial deletion of legislative provisions are often unforseen and unpredictable. For me to try and “second guess” what Congress would want to keep is almost impossible….”
He hammered home that point again later in the decision, noting, “In the final analysis, this Act has been analogized to a finely crafted watch, and that seems to fit. It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. It cannot function as originally designed. There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions — which, as noted, were the chief engines that drove the entire legislative effort — for me to try and dissect out the proper from the improper, and the able-to-stand-alone from the unable-to-stand-alone.”
The bottom line is that at the minimum, the interconnectedness between the individual mandate and the rest of ObamaCare, coupled with the lack of a severability clause in the final law, makes this a unique case.
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