Today’s arguments at the Supreme Court focused on the concept of “severability” – in other words, whether ObamaCare can survive in some form, after the Court rules the “individual mandate” to be unconstitutional. There was originally a standard severability clause in the ObamaCare legislation, but it was deliberately removed, raising the stakes for legal challenges. Nevertheless, if the Court strikes down the individual mandate, that “severability clause” will suddenly reappear in the imaginations of the Administration and its apologists, as thought it had been written upon the document with lemon juice, and awaited only passage over a government-approved $50 light bulb to reveal its presence.
The Administration claims that blowing out ObamaCare’s heart would only raise the monster’s blood pressure a little. The end of the individual mandate would spell the end of mandated coverage for pre-existing conditions, but that’s no reason to throw out the rest of this marvelous legislative achievement, right? Nancy Pelosi famously said we had to pass ObamaCare to find out what was in it. Now we’ll be told we have to disembowel it to find out how tough it really is.
Earlier today, I praised NFIB lawyer Michael Carvin for his skill. Paul Clement, who represents the 26 states suing over ObamaCare, is no slouch either. Here is the beginning of his argument against severability:
If the individual mandate is unconstitutional, then the rest of the Act cannot stand. As Congress found and the Federal Government concedes, the community rating and guaranteed-issue provisions of the Act cannot stand without the individual mandate. Congress found that the individual mandate was essential to their operation. And not only can guaranteed-issue and community-rating not stand, not operate in the manner that Congress intended, they would actually counteract Congress's basic goal of providing patient protection but also affordable care.
If you do not have the individual mandate to force people into the market then community rating and guaranteed-issue will cause the cost of premiums to skyrocket. We can debate the order of magnitude of that but we can't debate that the direction will be upward.
The idea ObamaCare should be allowed to stand without the mandate is a laughable farce. The entire point of this disastrous bill, as we were incessantly told during the hurried rush to pump it through Congress, was to provide health care coverage to the uncovered. We were lectured that one of the big reasons all those people were uninsured was that cruel and heartless insurance companies turned them away, due to pre-existing conditions.
Once all the horsefeathers were beaten out of Obama’s arguments and prevarications – discounting illegal aliens, rich people who prefer not to purchase insurance plans, and so forth – the actual number of “hard-core uninsured” was a fraction of the number we were bludgeoned with. It’s closer to 10 million than the 40 or 50 million ObamaCare advocates liked to throw around.
The individual mandate was introduced specifically to enable mandated coverage for these uninsurable people. As Justice Scalia pointed out today, without the requirement for all citizens to carry health insurance at all times, ObamaCare’s mandates would “bankrupt the insurance companies, if not the States.”
Take all that away, and you’re left with a pile of incoherent garbage, much of it only tangentially connected to the business of health care. The Administration’s representative – thankfully not the sputtering Solicitor General but Associate Solicitor General Edwin Kneedler, implicitly conceded as much when he boasted of the “many, many provisions of this Act already in effect without a minimum coverage provision.”
The only one that leaped into his mind was re-classifying 26-year-olds as “children” so they could be covered by their parents’ insurance… and Justice Sotomayor, trying to help the Administration’s cause but kneecapping it instead, scoffed at the idea those elderly children are going to bankrupt the system, because they “were saying that they were healthy and didn’t need insurance yesterday.”
Kneedler and Sotomayor thereby offered a powerful argument against severability: ObamaCare collapses into meaningless incoherence without the individual mandate. It’s just a pile of random notions, burying a health care system that already suffers from too much government garbage beneath a fresh pile of gum wrappers and pocket lint. True, meaningful reform becomes increasingly difficult, and Americans are moved further away from their doctors.
Look at it this way: would even the Congress that passed ObamaCare have been willing to do so without the mandates and minimum coverage requirements, upon which virtually all of the Administration’s arguments depended? Would even the mediocre levels of public support for the bill in 2009 have existed? Of course not. Justice Scalia made this very point to Kneedler:
But many people might not - many of the people in Congress might not have voted for those provisions if - if the central part of this statute was not adopted.
[…] I mean, you know, you're - to say that we're effectuating the intent of Congress is just unrealistic. Once you've cut the guts out of it, who knows, who knows which of them were really desired by Congress on their own and which ones weren't.
The “consent of the governed” is under more than enough assault already in this country. We don’t need to be told that we must live beneath the wreckage of a badly designed bill, passed under false premises, which detonated upon contact with the Constitution. The idea that ObamaCare was passed at all, with such a glaring Constitutional offense at its heart, indicts every single member of Congress who voted for it, and the President who signed it. The rest of us should not be punished for their dereliction of duty.
