Wednesday, June 27, 2012

SCOTUS and Obamacare

This piece lays out the constitutional case asserted by the individual
mandate suit in a way that I think is very interesting to those of us
who are not legal scholars.

In the narrow scope of focusing on Obamacare, pulling out the
individual mandate is like pulling the catalytic converter out of a
truck because you don't like trucks - the individual mandate is
central to the system as constructed, and if you're not pulling apart
the whole system (which, based on severability, actually could
happen), you don't wanna pull out a critical piece. Thus, I'm strongly
hoping it's "all or nothing" - overturn the whole PPACA or don't
overturn any of it, but overturning the individual mandate without the
rest of it is dangerous.

That said, this particular article makes a very convincing case about
the dangers of the precedent set by the individual mandate. The talk
of "limiting principles" is important. I absolutely acknowledge the
problems the PPACA is trying to address, even if I don't particularly
like the PPACA's way of dealing with these problems, and the law is
Congress' effort to address a major problem in society... so if you
don't believe severability should sink the whole law*, do you overturn
an important piece of Congressional legislation on a major issue to
preserve an important precedent for all future legislation, or do you
allow the law in its better form to stand as-is, and then cross the
constitutional bridge when you get to it?

I understand that for people who don't see Federal government power as
an issue, that answer is obvious, but for those of us who do... I
honestly don't know. My dislike for the PPACA's method of doing things
means that I won't be too upset if the whole thing gets overturned
(this would be especially the case if I gave either side any credit
for willingness to come together and create a legitimately bipartisan
healthcare bill, which, as I've detailed in this blog, I don't believe
was ever attempted with PPACA**). But if the bill is ruled to be
severable without a severability clause... it's going to be an
interesting ride.

* Which I can see both sides for - on the one hand, one clause
overturning a contract can be ridiculous in a contract comprised of
lots of separate pieces. However, on the other hand, the whole point
of a lack of severability is this type of case - if you have a complex
system that needs all its pieces to function properly, you don't wanna
leave an incomplete and broken system in place.

** Supporters of the law often claim "The Democrats would have acceded
to almost any Republican demand to get that bill passed, but they
didn't make any constructive suggestions!" To which my analogy is "If
a bunch of religious wingnut conservatives said that any doctor who
performs an abortion is sent to jail, but they're very open to working
with Democrats on figuring out the sentencing guidelines, would the
Democrats have been stepping up with suggestions and demands?"

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