Some Obamacare Stuff

Some of ya'll asked some questions in the comments to my Obamacare and Religion post.

Emile Antoon Khadaji asked:

Does ACA's purported lack of severability come into play with any of these challenges?

Short answer: no.

Long answer: no, of course not. For some reason, the question of severability has been batted around since the first Obamacare lawsuits. I'm not sure where the idea started that the statute needs a severability clause or it all fails if any single part of it is found unconstitutional, since that has never been the law. There are, quite simply, no consequences from the lack of a severability clause. The courts will still try to preserve as much of a duly passed law they can, if any one part of it is found unconstitutional.

For example, should the contraception mandate be held unconstitutional, that obviously doesn't affect the Medicaid mandate, the individual mandate, the subsidies, the exchanges, etc. etc. On the other hand, should the subsidies be knocked down in that litigation, it's possible (not probable, but possible) that the individual mandate itself as well as the exchanges will fall, since the Obama administration has argued that one can't survive without the other. Note, even if the individual mandate were to fall in this manner, many other parts of Obamacare would survive, including the Medicaid expansion, numerous taxes, etc.

Frumious Bandersnatch asks:

Excellent post, Gabe. Some of the comments provoke me to make a bleg.

There's a lot of hate in the horde for Roberts. (There are elements of the horde that have no forgiveness for apostasy. No matter how brilliant a Peggy Noonan column is there will be five comments saying the scrunt still has Obama's dribble on her chin from 0.

Roberts called OCare a tax, when O had insisted it wasn't a tax. That was a big fuck you to Obama. What is u pardonable around here is that Roberts didn't sieze an opportunity to get the right result (he coulda killed it dead!) by striking down the signature law of a (then) popular president. So he said, fuck you, it's a tax, have fun with it. And he let a structurally flawed monstrosity launch itself into the world where its flaws and failings can be exposed and attacked by other actors. And that's working.

So, here's my bleg. If you share this general sentiment can you make a post about it that's a lot smarter than I could do?

Sorry. I don't share that sentiment. Chief Justice Roberts wrote an outstanding decision in the Obamacare case and then lost his nerve. Justice Scalia signed his name to Roberts' first opinion, Justice Kennedy read it from the bench as their joint dissent -- an act signalling deep disapproval of Roberts' actions. Roberts wrote a new decision holding that the individual mandate passes constitutional muster as a tax, something that wasn't even in the realistic expectation of any of the parties and that decision is now the law of the land.

There's one thing to like about the Chief Justice's decision and that's the determination that the individual mandate was not authorized under the Commerce Clause. That's good. Conservatives have been trying to rein in Congress' Commerce Clause overreach for decades. So we got that. But justifying the individual mandate as a tax was so patently a dodge by the Chief Justice that it damaged the Court's legitimacy in all eyes -- which was exactly what the Chief was trying to avoid.

I don't think there's any reason to believe the Chief Justice was playing n-dimensional chess. It appears, particularly given the gibberish in the tax portion of his decision, that he simply lost his nerve. As I wrote shortly before the decision, ironically defending Roberts from the accusation that he was an activist judge, "The Roberts Court doesn't even come close to overturning the number of laws that its three predecessors did. . . . One could even creditably call the Roberts Court the most restrained, incrementalist Court of the modern era." Alas, Roberts turned out to be too incrementalist for my taste.

posted by Gabriel Malor at 10:22 AM

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