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Tag: severability

Dissecting a Coffeehouse Combination

By Kevin Rex Heine, Section News
Posted on Thu Jul 05, 2012 at 06:45:55 PM EST
Tags: Patient Protection and Affordable Care Act, NFIB v. Sebelius (11-393), HHS v. Florida (11-398), Florida v. HHS (11-400), Individual Mandate, Medicaid Expansion, Commerce Clause, Necessary and Proper Clause, Taxing and Spending Powers, Tenth Amendment, separation of powers, checks and balances, elections have consequences, Anti-Injunction Act, shared responsibility payment, severability (all tags)

I think that, prior to last weekend, most everyone reasonable was expecting that the Supreme Court was going to rule both the Individual Mandate and the Medicaid Expansion of the Patient Protection and Affordable Care Act an unconstitutional overreach of Congress' enumerated powers, specifically with regard to the Commerce Clause, the Necessary and Proper Clause, and perhaps even the Tenth Amendment. The only question would then become whether or not severability (or lack thereof) would give SCOTUS the necessary leverage to send Barry Obama's "signature achievement" down in flames. (That latter result seems to have been clearly anticipated by Speaker Boehner's "don't spike the ball" memo from 21 June.) But then, at around 10:07 a.m., on 28 June 2012, . . . well, we'll get to that.

To say that in the immediate aftermath opinions have varied as to what, exactly, John G. Roberts, jr., 17th Chief Justice of the United States, was thinking when he sided with the four hardcore liberals on the court in upholding the individual mandate (albeit as a tax) is probably an understatement. Yes, I absolutely agree with those who hold that Chief Roberts should have sided with the other four conservative associates (Scalia, Kennedy, Thomas, and Alito) and eviscerated BHO's signature achievement, thus officially rendering his first year in office a complete waste of time. However, having taken the time to dissect the opinion as best as my non-legal expertise will provide, I'm rather inclined to believe that Chief Roberts is a masterful chess player, at least politically. As to why I think that way . . . well, let's go below the fold and discuss that.

In advance, I should probably warn you that this is going to get a bit lengthy, so you might find a fresh pot of coffee useful. This also may require more than one read-through, for the same reason.

(8 comments, 9076 words in story) Full Story

Understanding the Health Care Litigation, Part Three

By The Wizard of Laws, Section News
Posted on Tue Mar 27, 2012 at 11:02:41 PM EST
Tags: Clement, health care, medicaid, Obamacare, severability, states, Verrilli (all tags)

Cross-posted in the Wizard of Laws.

First, the gloating.

Yesterday, I wrote: "Commerce doesn't exist to be regulated until people engage in commerce. The ACA forces people to engage in commerce, then regulates them."

Today at the Supreme Court, Justice Kennedy asked the Solicitor General: "Can you create commerce order to regulate it?"

Now, I'm not saying that Justice Kennedy checks out the Wizard of Laws before important arguments, but is it more than a coincidence that his first question to the Solicitor General echoed the Wiz? Just sayin'.

Now, to business.

(7 comments, 1004 words in story) Full Story

A Message To Our Legislators - Beware False Choices

Understanding the Health Care Litigation, Part One

By The Wizard of Laws, Section News
Posted on Sat Feb 18, 2012 at 06:04:06 PM EST
Tags: Alaska Airlines, Board of Education, Brock, Brown, health care exchanges, Obamacare, Patient Protection and Affordable Care Act, severability, Supreme Court (all tags)

The big event of the U.S. Supreme Court's 2011-2012 term -- and perhaps the most important since Brown v Board of Education -- will be the decision on the various cases involving the Patient Protection and Affordable Care Act. commonly known as Obamacare.

The issues to be argued are known generally by the public, but few understand them in any detail. For example, during a recent forum, the Lieutenant Governor here in the Enchanted Mitten, arguing for a state-established health care exchange, said that even if the Court finds the individual mandate unconstitutional, it will have no effect on health care exchanges, since HCEs are not before the Court. This position is not exactly accurate. If the Court determines that the individual mandate is unconstitutional. it will then expressly decide whether the entire law must be struck down, including those provisions pertaining to health care exchanges.

(5 comments, 635 words in story) Full Story