Obamacare struck down more completely

Once again, a federal judge has ruled that the Health Care Reform law is unconstitutional.  But this time the judge has struck down the whole bill.   From conservative attorney Ken Klukowski:

The federal court in the massive 26-state challenge to ObamaCare on Monday held that the health care law’s individual mandate is unconstitutional. And, even more importantly, the judge accepted the argument in my court brief that the mandate cannot be separated from the rest of this 2,700-page legislative monstrosity, and struck down the entire law.

Roger Vinson, of the U.S. District Court for the Northern District of Florida, the judge presiding over this case, did so because of a single word: Severability.

A single law usually contains many different provisions. Lawmakers know that if someone challenges the constitutionality of a statute, they often challenge only one or two provisions of it. So lawmakers usually try to make sure at least part of their law will survive.

The process of striking down only part of a law is called “severability.” Therefore Congress almost always inserts a severability clause, saying that if part of the law is struck down, the remaining provisions continue in full force and effect.

Congress did not insert a severability clause in ObamaCare. So even though only a couple provisions of the health care law are being challenged in the Florida case—those two provisions being the individual mandate aka the requirement that every American has to buy insurance and also the sweeping expansion of Medicaid—the issue arises that if a court strikes down either of those provisions, it might strike down the entire statute.

via FoxNews.com – ObamaCare Unconstitutional — Why Judge Vinson’s Ruling Is So Important.

It will take the Supreme Court to end the litigation and make a definitive ruling.   But isn’t this an example of the carelessness with which this law was written, leaving out a severability clause?.

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • Van Edwards

    Careless in how it was written and how it was reviewed. Regardless, IF the Supreme Court agrees with this Federal judge’s ruling (and that’s IF), I think Congress would be foolish to try again. But with the swing in seats, and the likely further swing in 2012, it probably wouldn’t come up again for some time.

  • Van Edwards

    Careless in how it was written and how it was reviewed. Regardless, IF the Supreme Court agrees with this Federal judge’s ruling (and that’s IF), I think Congress would be foolish to try again. But with the swing in seats, and the likely further swing in 2012, it probably wouldn’t come up again for some time.

  • http://www.bikebubba.blogspot.com Bike Bubba

    One would think that utter carelessness in writing a bill should have gotten it rejected in the first place……

  • http://www.bikebubba.blogspot.com Bike Bubba

    One would think that utter carelessness in writing a bill should have gotten it rejected in the first place……

  • helen

    Bike Bubba @ 2,
    You are assuming that Congress reads what it passes!

    They should be required to live under any law they make.
    I think bills would get a lot shorter and fewer if they did.

  • helen

    Bike Bubba @ 2,
    You are assuming that Congress reads what it passes!

    They should be required to live under any law they make.
    I think bills would get a lot shorter and fewer if they did.

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  • DonS

    This judge’s opinion is thorough and well reasoned. He even included a quote from President Obama himself, during his 2008 campaign, where he stated that the individual mandate was not a good idea and likely unconstitutional.

    On the face of things, it is hard to argue that the Commerce Clause permits the federal government to force someone to participate in commerce. If it does, then, realistically and logically, there is no limitation whatsoever on the federal government under this clause, so what is its point? This gives me some optimism that the Supreme Court will uphold this decision. But, over the years, the Court has been an enabler of unlimited federal government, in defiance of the enumerated powers of the constitution. So, it is a very cautionary optimism.

    In the real world, this would bring the Democrats back to the table, to negotiate a new health care bill that avoids these constitutional issues, rather than leaving the country in limbo for another two years or so. But, the Democrats stopped living in the real world a long time ago.

  • DonS

    This judge’s opinion is thorough and well reasoned. He even included a quote from President Obama himself, during his 2008 campaign, where he stated that the individual mandate was not a good idea and likely unconstitutional.

    On the face of things, it is hard to argue that the Commerce Clause permits the federal government to force someone to participate in commerce. If it does, then, realistically and logically, there is no limitation whatsoever on the federal government under this clause, so what is its point? This gives me some optimism that the Supreme Court will uphold this decision. But, over the years, the Court has been an enabler of unlimited federal government, in defiance of the enumerated powers of the constitution. So, it is a very cautionary optimism.

    In the real world, this would bring the Democrats back to the table, to negotiate a new health care bill that avoids these constitutional issues, rather than leaving the country in limbo for another two years or so. But, the Democrats stopped living in the real world a long time ago.

  • Mark Lehenbauer

    While there may be much about this law that was put together carelessly, I don’t believe the lack of severability was due to carelessness. Proponents of the individual mandate claimed the mandate was critical to the economic viability of the law so my guess is there were votes that would have been lost if this mandate could explicitly be severed from the bill, leaving it economically nonviable.

  • Mark Lehenbauer

    While there may be much about this law that was put together carelessly, I don’t believe the lack of severability was due to carelessness. Proponents of the individual mandate claimed the mandate was critical to the economic viability of the law so my guess is there were votes that would have been lost if this mandate could explicitly be severed from the bill, leaving it economically nonviable.

  • Porcell

    Mr. Lehenbauer, at 5, true, the votes might not have been there, though that begs the question of whether the insurance mandate is constitutional. The mandate is apparently critical to the economic viability of the bill, though the question remains whether the federal government has the power for such a mandate.

    My guess is the question will be decided by Justice Kennedy, though friends tell me that other conservative justices could well allow wide latitude to the mandate in relation to the necessary and Proper clause of the Constitution.

  • Porcell

    Mr. Lehenbauer, at 5, true, the votes might not have been there, though that begs the question of whether the insurance mandate is constitutional. The mandate is apparently critical to the economic viability of the bill, though the question remains whether the federal government has the power for such a mandate.

    My guess is the question will be decided by Justice Kennedy, though friends tell me that other conservative justices could well allow wide latitude to the mandate in relation to the necessary and Proper clause of the Constitution.

  • Richard

    It was funny hearing the critics of Judge Vinson’s decision scream about “judicial activism.” Boy, the irony is rich.

  • Richard

    It was funny hearing the critics of Judge Vinson’s decision scream about “judicial activism.” Boy, the irony is rich.

  • Ted Snedeker

    The main reason that there was no severability clause was Scotty Brown’s election. His vote killed the bill in the Senate if it had to be voted on again. As a result the house had to approve the Senate version of the Bill “without change.” The Senate version didn’t have the severability clause that normally would have been dropped in during conference. Any changes introduced would have required another vote, so our illustrious leaders were hung with the Senate monstrosity or nothing. . .

  • Ted Snedeker

    The main reason that there was no severability clause was Scotty Brown’s election. His vote killed the bill in the Senate if it had to be voted on again. As a result the house had to approve the Senate version of the Bill “without change.” The Senate version didn’t have the severability clause that normally would have been dropped in during conference. Any changes introduced would have required another vote, so our illustrious leaders were hung with the Senate monstrosity or nothing. . .

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