Wednesday, March 28, 2012

Obamacare and the Supreme Court: any good options?

There was a reasonable argument from the very beginning that the Mandate in Obamacare made the whole Act unconstitutional.  And the line of questioning recently by the Supreme Court Justices suggest that they see the same problem.  But...that is only the beginning of the morass.  If they see the mandate as unconstitutional, what is the next step?...and why?  Whats the problem, you ask?  Well, there are two follow-up directions to determine if the mandate is ruled unconstitutional:  it that mandate severable from the rest of the act, or not.  If it is, then the rest of the Act could continue to stand.  If not, then the whole Act must also be ruled unconstitutional.

The Court in the past has bent over backwards to sever parts of bills, and they will undoubtedly look to do the same here.  But there are considerable problems with this, however.  And those problems go back to the clear language of Congressional deliberations prior to and construction of the final ACA.  Specifically, the original draft provided for a severability clause; it, as most bills do, indicated that if for any reason a portion of the bill were to be ruled unenforceable, the rest of the the bill could stand and be severed from the failed portion.  However, Congress removed that clause.  And, in addition, the Congressional Record shows that the Democrat majority which passed the final bill both understood and agreed that without the mandate the bill would be a financial disaster.

So, both logically and logistically, it would seem that Congress intended that the entire bill should and would fail if the mandate failed.  Ah, but enter the illogical and thoughtless process that so pervades our Capitol and its inhabitants:  as it passed, some desirable things were tacked on as a quick, expedient way to get them passed when it was suspected that they would not be enacted on their own merits...and then consider that some of the provisions in the Act are actually desirable, such as the elimination of limits on benefits and raises in premiums after purchase in response to developed claims.

The clear...and neat...way would seem to not severe the mandate and rule the entire bill unconstitutional as the Congress clearly intended.  That way, Congressional negotiations could begin immediately to formulate a way of re-establishing those particular insurance rules that most people would agree should be re-enacted and thus preserved.  And I earnestly hope that will come to pass...but in the meantime, the spectacle is absolutely riveting.

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