“Heath care Mandate
Heath care Severability
SOTUS will split the baby - throw a little something to each side.”
I thought that Reid removed the “severability clause” from the bill so that the mandate could not be detached from the rest of the bill. If the mandate goes the rest of bill implodes. Am I wrong about this? Does anyone know for sure?
Yes, and if the court 'splits the baby' it would be one more time in the shredder for the Constitution.
I don't think that is the case. Here is a link to a concise but understandable summary of the questions before the court
Legal Challenges to the Affordable Care ActThe Supreme Court has granted review of four issues from challenges to the Affordable Care Act:
Whether the Anti-Injunction Act prevents challenges to the Affordable Care Act at this time (90 minutes of argument on March 26)
The constitutionality of the individual mandate, requiring most Americans to purchase health insurance by 2014 (2 hours of argument on March 27)
Whether the individual mandate is severable if it is found to be unconstitutional, or whether the entire Act would have to fail (90 minutes of argument on March 28)
Whether the Affordable Care Act's expansion of the Medicaid program is constitutional (1 hour of argument on March 28)
Severability could not be added without sending it back to the other house at the end— which they couldn’t pass. It is a hair ribbon anyway.
The SC can reject a portion of a bill and let the rest stand based on their own analysis — it is no silver bullet, merely the opinion of the Congress at the time of passage.
I believe a severability clause is included when Congress wants to state their intent that the law can be severed in its parts without the entire law either being upheld or struck down.
Whereas your understanding was the opposite...that the clause says the law must stand as a whole. Incorrect, according to this and several other sources:
Supreme Court Obamacare Severability | TPMDC
To be clear, I’m not agreeing with any of the OPINIONS stated at the link...I’m using it to show the true understanding of severability.
Since there’s no severability in the final bill, that means Congress did not say that the law can be severed, which would have allowed it to stand or fall in parts, not confined to its merits as a whole.
This means the Court has no statement of legal intent from Congress on that issue, therefore the Court is free to decide...unincumbered...by that consideration.
The Court is free to ignore Congressional intent because none was stated in the bill, and can do with the whole or the parts as it chooses.
I believe without severability in the bill, the Court would be more likely to let it fall as a whole rather than uphold it as a whole or dismember it at its will.
Remember what was said at oral argument, and I think Scalia was speaking unofficially for the Court when he derided the very idea that the Court should try to read through the bill and decide what should stay and what should go.
“I thought that Reid removed the “severability clause” from the bill so that the mandate could not be detached from the rest of the bill. If the mandate goes the rest of bill implodes. Am I wrong about this? Does anyone know for sure?”
I thought so too! I hope some of our FRiends offer some good clarification.