Wednesday, March 28, 2012

Obamacare Appeal Day 3

This morning the SCOTUS heard arguments on whether, if the individual mandate were to be struck down, the rest of the law should be declared invalid.  This afternoon the focus will turn to whether the unfunded mandates on State spending for Medicaid are permissible.  I haven't paid too much attention to the arguments yet, but have thought about both issues.  My (admittedly simple) thoughts are as follows: The whole law should be thrown out, but that may not happen.  The "savings" or "severability" clause was taken out of the House Bill when the Senate passed it, and the law eventually had no such provision.  Congress will typically put that language in a law when it is enacting legislation that has several parts, any one of which can stand on its own.  Absent such language, the Courts will generally take it as a sign that Congress intended the whole law to rise or fall as one piece because the parts were inseparably intertwined.  In this case, certain of the provisions clearly cannot go forward on their own.  Absent the individual mandate, how can you require an insurance company to insure everyone irrespective of existing medical condition?  They just couldn't pay for it.  However, other sections, such as requiring insurance companies to continue to ensure children past the age of majority could pass muster and be enacted on their own.  The reason I think they ought to be thrown out as a package is three fold.  First, Congress had severability language in the Bill, but took it out.  I take that as a clear indication that the lawmakers thought the legislation was a package deal.  Second, the Court does not have the expertise to parse the fine policy points of the legislation which is a function that is Constitutionally left to Congress.  Finally, most of the remaining provisions were bargained for compromises that never would have passed if they were not linked to the individual mandate.  The reason I think it will likely not be thrown out as a package is because it is in the genetic fabric of the Supreme Court to compromise--because it is important to avoid the appearance of being a political body and because a Justice must work with the other Justices on the country's most important issues in close quarters and for the rest of the their lives.  As to the Medicaid portion, apart from the precedent and policy reasons for the SCOTUS to strike down entire laws as opposed to parts of laws, I think it probably should not be struck down.  A State may always opt out of Medicaid and fund its own programs.  That may be expensive and therefore impractical, but I have a hard time siding with the States who claim that the Fed's coercive program is not Constitutional.  They do it all the time.  For example, a State can change the drinking age to whatever it wants, but if it does so, it will lose a LOT of money from the federal highway programs.

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