Supreme Court and the Individual Health Insurance Mandate

[CARLHAYDEN]

If it is upheld, it will have to be as an exercise of the taxing power. While I expect the Supreme Court would find that health insurance is Interstate Commerce (Indeed when it comes to how the Court views the Commerce Clause, the word Interstate has effectively been rendered irrelevant), I can't see any power under the Commerce Clause that could be used to compel people to engage in Commerce if they don't want to.

A pretty good analysis.

However, what is most interesting is that the bill does NOT include a 'severability' clause!

[CARLHAYDEN]

To clarify.

The original Senate bill was set up where there was a tax which was remitted if a person got acceptable health insurance.

The bill that was passed (enacted) provided for a penalty to those who failed to get acceptable health insurance (i.e. not a tax).

[CARLHAYDEN]

Update!

Judge strikes down healthcare reform law

By Tom Brown
MIAMI | Mon Jan 31, 2011

 (Reuters) - A federal judge in Florida struck down President Barack Obama's landmark healthcare overhaul as unconstitutional on Monday, in the biggest legal challenge yet to federal authority to enact the law.

http://www.reuters.com/article/2011/01/31/us-usa-healthcare-ruling-idUSTRE70U6RY20110131?feedType=RSS&feedName=healthNews

[CARLHAYDEN]

As I posted earlier in another thread, the government's commerce clause argument is stupid, and thus doomed to fail. 

I've read through the taxing clause argument too, and I think the weight of precedent is pretty strongly on the side of it not being a tax.  Doesn't mean that can't change.

Which leaves the necessary and proper clause.  Which I think stands a reasonable shot.  Arguing it, though, probably means you're saying health care law is void if you're wrong.

Anyway, this decision today (as opposed to the VA one) will push it up to the SC quite quickly.

"Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land."

McCulloch v. Maryland, 17 U.S. 316 (1819)

[CARLHAYDEN]

If it is upheld, it will have to be as an exercise of the taxing power. While I expect the Supreme Court would find that health insurance is Interstate Commerce (Indeed when it comes to how the Court views the Commerce Clause, the word Interstate has effectively been rendered irrelevant), I can't see any power under the Commerce Clause that could be used to compel people to engage in Commerce if they don't want to.

A pretty good analysis.

However, what is most interesting is that the bill does NOT include a 'severability' clause!

Update!

Lawrence O’Donnell asked constitutional lawyer Jonathan Turley Tuesday if the Democrats made a mistake not including a severability clause into the Obamacare law. Part of Turley’s response:

TURLEY: Well, first of all, it was a colossal mistake not to have a severability clause in this legislation. It’s a standard clause in bills.

Read more: http://newsbusters.org/blogs/noel-sheppard/2011/02/02/lawrence-odonnell-democrats-made-huge-mistake-not-writing-severabilit#ixzz1CsNjvS80

[CARLHAYDEN]

As I pointed out two years ago, the Democrats in Congress made two monumental (and obvious) errors in drafting Obamacare:

First, they made failure to participate a penalty when they could have (and in the original Senate version did make) it a tax with credits, and

Second, they not only omitted the boilerplate severability clause which is normally included in legislation, but when on to state that the measure could not stand without the individual mandate.

Here's what Justice Breyer had to say on the first issue:

Justice Stephen Breyer, said of Congress’s description of the fine for non-compliance with the mandate, “They called it a penalty and not a tax for a reason.”

http://polipundit.com/