Obamacare goes to Supreme Court Monday

[Pressing-On]

This segment covers the severability argument, i.e., if the mandate is struck down, the remaining portions of Obamacare will be unable to function properly and should then be invalidated.


National Federation of Independent Business v. Sebelius

http://www.supremecourt.gov/oral_arg...rgument=11-393

Transcript:

http://www.supremecourt.gov/oral_arg...pts/11-393.pdf

[canam]

Obama will get a thorugh spanking on this !

[Pressing-On]

Originally Posted by canam

Obama will get a thorugh spanking on this !

I don't know. Hope so, but we will see. I believe they will have a ruling on Friday and their opinions will be available at the end of June.

I'm just getting around to listening to the severability argument. That should be interesting. I have really enjoyed listening to the oral arguments.

[Pressing-On]

Originally Posted by Pressing-On

This segment covers the severability argument, i.e., if the mandate is struck down, the remaining portions of Obamacare will be unable to function properly and should then be invalidated.

Transcript:

http://www.supremecourt.gov/oral_arg...pts/11-393.pdf

Great closing argument by Clement - Pgs. 82-83. He did a fine job.

Mr. Clement: Now, in getting back to the -- an inquiry that I think this Court actually can approach, is to look at what Congress was trying to do, you need look no further than look than the title of this statute: Patient Protection and Affordable Care. I agree with Mr. Farr that community rating and guaranteed-issue were the crown jewels of this Act. They were what was trying to provide patient protection. And what made it affordable? The individual mandate. If you strike down guaranteed-issue, community rating and the individual mandate, there is nothing left to the heart of the Act.

And that takes me to my last point, which is simply this Court in Buckley created a halfway house, and it took Congress 40 years to try to deal with the situation, when contrary to any time of their intent, they had to try to figure out what are we going to do when we are stuck with this ban on contributions, but we can't get at expenditures because the Court told us we couldn't. And for -- for 40 years they worked in that halfway house.

Why make them do that in health care? The choice is to give Congress the task of fixing this statute, the residuum of this statute after some of it is struck down, or giving them the task of simply fixing the problem on a clean slate. I don't think that is a close choice. If the individual mandate is unconstitutional, the rest of the Act should fall.

[Pressing-On]

Clements closing argument, on the severability, with the reference to Buckley is explained more fully on Page 22.


Mr. Clement: And if I could make the broader point, I mean, I think the reason it makes sense in the democracy with separation of powers to in some cases sever the whole thing is because sometimes a half a loaf is worse. And a great example, if I dare say so, is Buckley. In Buckley this Court looked at a statute that tried to, in a coherent way, strike down limits on contributions and closely related expenditures.

This Court struck down the ban on expenditures, left the contribution ban in place, and for 4 decades Congress has tried to fix what's left of the statute, largely unsuccessfully, whereas it would have I think worked much better from a democratic and separation of powers standpoint if the Court would have said: Look, expenditures are -- you can't limit expenditures under the Constitution; the contribution provision is joined at the hip. Give Congress a chance to actually fix the problem.