Hey, Seriously, The Courts Might Strike Down ObamaCare

The interesting thing about the bill is that it apparently doesn't contain a severability clause, which usually states "notwithstanding any provision of this act being found unconstitutional, the rest of the act shall continue to be in force."

I didn't realize they still wrote laws without that clause. But apparently they did write ObamaCare without that, which means it operates by the old-fashioned default rule that if any part of a law is found to be unconstitutional, the entire law is unconstitutional. (If any one knows, please tell me why you figure they didn't include this provision.)

Of course, this means that if the mandate is found unconstitutional, it's not just that provision that is nullified, but the whole kit and kaboodle.

And Ilya Somin notes this is not some Hail Mary longshot, but a genuine question that just could go our way.

One hidden factor that militates in our direction: As a general matter, the Court is reluctant to strike legislation down (or they're supposed to pretend they are, at least), because legislation is presumed to contain the will of the people acting through their elected representatives.

In this case, though, the legislation was passed via very dubious maneuvers designed expressly to avoid the will of the people altogether. And the results of the 2010 election demonstrate precisely what the public thought of this bill (as if that wasn't clear before).

In this case, then, striking the law down for any reason whatsoever would in fact be comporting with the will of the people. The law itself represents an anti-democratic imposition upon them.

I say that's a hidden factor because that's a no-no as far as actual judicial reasoning. But I'd have to imagine that sort of thought is bubbling around in the heads of any justice who's on the fence about the matter.

Via Hot Air.

posted by Ace at 09:00 PM

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