The LA Times recently reported on the findings of researchers who have determined the number one predictive fact when reviewing oral arguments before the U.S. Supreme Court: if the Supreme Court Justices interrupt your lawyer, then your side is in big trouble.
Here is something you did not hear the mainstream media report during their coverage of the ObamaCare oral arguments before the Supreme Court: there is no severability clause in the ObamaCare law. A severability clause in the law would have allowed the court to surgically strike only the unconstitutional part of the law, and leave the rest in place.
Congress included the severability clause in the version that passed the U.S. House, but it was stripped from the version that passed the U.S. Senate — and was not put back into the bill.
Then, because Senator McConnell objected to the appointment of the House and Senate Conferees — there was no House-Senate conference committee, so the severability clause was not added. This is how the ObamaCare law ended up with no severability clause.
First Congress included the severability clause. Then, Congress took out the severability clause. Then, Congress did not put the severability clause back in. This is a very clear expression of Congressional intent, so why should the U.S. Supreme Court act as if there is a severability clause, when Congress took it out and did not put it back?
Justice Kennedy is the key vote in the U.S. Supreme Court. His vote carries tremendous weight with the other Justices — if Justice Kennedy comes down on one side of an issue, then it is highly unlikely that a majority of other Justices will not agree with Kennedy. This includes, for example, Chief Justice Roberts.
On the second day of the oral arguments it was clear that Justice Kennedy signaled his strong belief the individual mandate was unconstitutional. He said that the government had a strong burden of proof to show why it was constitutional to so significantly change the relationship between the citizen and the State by allowing the State to force citizens to purchase something.
Therefore, the key quote from the key Justice is not about the well known fate of the individual mandate, it is about the decision the U.S. Supreme Court makes with regard to the rest of the law.
I should note that the HSA Coalition’s Amicus brief to the Supreme Court centered its argument on two points:
1) the burden of the mandate was high in terms of cost of the health insurance premiums, and because the various regulations associated with ObamaCare, in particular the Medical Loss Ratio regulation, would not only drive up the cost of health insurance plans but would eliminate bronze level options in ObamaCare (the lowest cost, most affordable plans.) In particular, the most popular bronze plans, HSA qualified health plans will be eliminated. In short, the burden of the mandate is high, because the cost of health insurance is made high by the law, but more importantly, by the regulations; and,
2) as attack on liberty, specifically that the lack of bronze plans because of the Medical Loss Ratio regulation and the law’s attack on the mere existence of insurance companies; with a corresponding system to replace insurers being described in positive terms by former Obama health care advisers, as one that will restrict choices for Americans because people make bad health care choices.
You be the judge, did our brief’s argument impact the view of the swing justice? (It would be best to make this judgement if you actually read the HSA Coalition and Freedom Works Amicus, in particular, pages 19 thru to the end, or beginning at page 14 to the end. Due to printing and formatting requirements of the court, there are not that many words per page. As briefs go, it’s highly readable for a lay person.)
Justice Kennedy’s quote in the WSJ:
Overturning the mandate alone, he continued, “can be argued at least to be a more extreme exercise of judicial power than to strike the whole.”
Because, the WSJ notes: “by taking out only the individual mandate the Court would in effect be creating a new law that Congress ‘did not provide for, did not consider.’ To wit, costs would soar without any mechanism to offset them.”
Justice Kennedy’s quote in the New York Post:
Imposing high costs on insurance companies without the individual mandate would be a “more extreme exercise of judicial power than striking the whole [law],” said Justice Anthony Kennedy, often the swing vote on the court.
And the NY Post continues:
If Kennedy sticks with Scalia and the three other conservative justices, they would nix the entire ObamaCare statute, officially known as the Affordable Care Act.
Meanwhile, reporting for the LA Times, David Savage writes:
“One way or another, Congress will have to revisit it in toto,” said Justice Antonin Scalia.
Agreeing, Justice Anthony Kennedy said it would be an “extreme proposition” to allow the various insurance regulations to stand after the mandate was struck down.
Meanwhile, the court’s liberal justices argued for restraint. Justice Ruth Bader Ginsburg said the court should do a “salvage job,” not undertake a “wrecking operation.” But she looked to be out-voted.
Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. said they shared the view of Scalia and Kennedy that the law should stand or fall in total. Along with Justice Clarence Thomas, they would have a majority to strike down the entire statute as unconstitutional.
Justice is on its way, and it seems very clear that the individual mandate will be declared unconstitutional and, among other reasons, the lack of a severability clause will contribute to the Court concluding that the entire law be declared null and void.
Oh yeah, I promised you the key quote, did you find it?
If not, here it is, from the LA Times:
“Justice Anthony Kennedy said it would be an “extreme proposition” to allow the various insurance regulations to stand after the mandate was struck down.”