Posted on 09/14/2010 12:10:56 PM PDT by jessduntno
A federal judge in Pensacola, Fla., hints he will allow a Florida to challenge federal health care reform laws, a Pensacola News outlet reports!
Are we allowed to post a link to the article like this one?
http://www.pnj.com/article/20100914/NEWS01/9140307/Health-care-battle-hits-Pensacola-courtroom
The other ones are hosed, I guess.
Link and excerpt is allowed, yes.
The Obama administration had asked U.S. District Judge Roger Vinson to dismiss the entire lawsuit. The states and the administration disagree over whether people should be required to have health insurance, and whether states should pay additional Medicaid costs not covered by the federal government.
The judge said he will issue a ruling by Oct. 14. The lawsuit is likely to wind up before the U.S. Supreme Court.
If Vinson upholds the states’ challenge, he would overturn decades of law enforcing the federal government’s power to regulate interstate commerce, said Ian Heath Gershengorn, deputy assistant attorney general.
“This court is free to disagree with Congress’ policy judgments but it is not free to overturn 75 years of Constitutional law,” he said.
Administration attorneys also argued that the section requiring health insurance doesn’t take effect until 2015 and it’s up to an individual taxpayer — not the states — to challenge the law then.
But David Rifkin, an attorney representing the states, argued the law will destroy the state’s Constitutional sovereignty by burdening them with uncontrolled Medicaid costs. The federal government is over reaching its taxing authority by penalizing people for not taking an action — not purchasing health insurance, he said.
If Florida or any state wins on one point in the Supreme Court, because there is no severability clause in the bill the whole bill falls for all states. This judge is a Reagan appointee per Rush Limbaugh.
I’ve occasionally wondered, do Admin Mods outrank Sidebar Mods, or vice versa? Or, if all Mods are indeed created equal, is there a tie-breaker procedure? Thanks...
Actually, Mr. Gershithead, deciding what defines "Constitutional law" is precisely the job of a federal court.
Or if they lose, the Commerce Clause is expanded beyond hope. Again this should start at the Supreme Court due to their original jurisdiction. A loss will mean the government can make you do anything they want.
I bet they just flip a coin.
I also have not seen any authority for the proposition that if a part of a bill fails the whole bill fails, unless there is a severability clause. As I recall, the courts construe the law that avoids an interpretation that would require it to be struck down, and if any part must be struck down, that does not automatically make void the entire law. If there are parts of the law that can survive without the stricken part, those remain. If you have case law for your claim, I would be happy to read it and see if my recollection is accurate. If you don't, are you sure you are not talking out of your posterior orifice?
I have heard this argument made before, but I have not seen any confirmation that in the 1400 page bill there is not a severability clause.”
I’ve heard several lawyers say there is absolutely NO severability clause ...
IBD:
One analyst says the Democrats were amateurish in writing their overhaul bill. This might be worth more than a snicker. It could mean the courts can strike down the entire law at once.
Various parts of the Democrats’ health care reform law have been held up as pieces that might not stand up to a constitutional rigor.
The individual mandate that requires those who aren’t previously covered by insurance to buy a plan is the most likely place for the legal objections to begin. Another provision that is being disputed at the constitutional level is the expansion of Medicaid that forces states to increase their spending on that program.
But those are only two pieces of a legislative leviathan. Even if one or both were stricken, the bulk of the law’s burden would remain.
However, Greg Scandlen, a senior fellow at the Heartland Institute, says due to a little-known legal concept the entire law would unravel if a single part was found to be outside the Constitution.
“Apparently there was no ‘severability’ clause written into this law, which shows how amateurish the process was,” he wrote. “Virtually every bill I’ve ever read includes a provision that if any part of the law is ruled unconstitutional the rest of the law will remain intact. Not this one. That will likely mean that the entire law will be thrown out if a part of it is found to violate the Constitution.”
...
If true it is legislative malpractice. I routinely included severability clauses in contracts. Even if you are just coping one from a form book you would have one. It certainly raises the stakes in the cases brought against the act. But, the fact is if the individual mandate is struck down the rest of the act will crumble, because the economics do not work without it. To strike the whole thing down at that point would be a mercy killing.
Update: The Sarbanes-Oxley Act, currently being challenged before the Supreme court, does not have a severability clause. We should watch this case with interest.
“Virtually every bill I’ve ever read includes a provision that if any part of the law is ruled unconstitutional the rest of the law will remain intact. Not this one. That will likely mean that the entire law will be thrown out if a part of it is found to violate the Constitution.”
Too bad they didn’t have a legal genius aboard ... you know, like someone who DESERVED to be running the Harvard law review?
Admin Mods outrank the Sidebars, but we get the Yacht ;)
FYI..check out #15 &16
Thanks for the info. That does indicate that there is not a severability clause. It does not have a case cite regarding voiding the entire bill if one small part is unconstitutional. I believe that it is not automatic, and that if a part is stricken, the court looks at what is left to see if it can survive intact without the part that is stricken. A severability clause makes clear that the intent of congress (or a contract drafter) is that the law survive even if part of it later does not, but it is not, I believe, required.
“The individual mandate that requires those who aren’t previously covered by insurance to buy a plan is the most likely place for the legal objections to begin. Another provision that is being disputed at the constitutional level is the expansion of Medicaid that forces states to increase their spending on that program.”
My understanding that this is the most vulnerable oiece and without it, the entire plan is kaput.
See #15. Which one is you?
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