This column by ACRU Senior Legal Analyst Ken Klukowski was published July 30, 2011 on The Washington Examiner website.
News outlets are announcing that Obamacare has reached the Supreme Court. But while the high court must soon consider whether President Obama’s signature legislation is constitutional, this case is not the one conservatives should want.
The worst provision of the Patient Protection and Affordable Care Act — aka Obamacare — is Section 1501, the individual mandate requiring virtually all Americans to buy and maintain federally approved insurance starting in 2014.
The Thomas More Law Center filed one of the Obamacare cases, raising the sole issue of whether the individual mandate is unconstitutional. The case lost in the district court and again before the 6th Circuit federal appeals court. This week the TMLC petitioned the Supreme Court to take the case.
All the major lawsuits challenging Obamacare rightly argue that the individual mandate is unconstitutional. But the brass ring — the ultimate prize — is for the Supreme Court not only to strike down the mandate, but to also hold it non-severable from PPACA’s other 2,700 pages.
Severability doctrine is how a court determines how much of a law to nullify. It’s very rare for a court to strike down any part of a statute aside from the unconstitutional provision.
Obamacare presents such an exceptional case. A court must first consider whether the law can still function without the provision. The PPACA’s other 450 sections do remain operable without Section 1501.
However, 135 years of Supreme Court precedent dictate that a court must then consider “whether the statute will function in a manner consistent with the intent of Congress.” The PPACA cannot function as intended without the individual mandate, and so cannot be severed.
Obamacare also lacks a severability clause. That’s a clause specifying that if any provision is invalid, the remaining statute continues in force.
Most statutes have a severability clause. While courts can still sever an invalid provision from a statute lacking a severability clause, courts have more latitude to strike down a law without one.
Moreover, PPACA contains contrary language. Section 1501 says the mandate is “essential to creating effective health insurance markets,” which is the manifest purpose of the law. Furthermore, the Justice Department conceded in court that the mandate is the “linchpin” of Obamacare.
As my co-author Ken Blackwell and I explain in our Resurgent: How Constitutional Conservatism Can Save America, Obamacare is a textbook case against severability.
The individual mandate cannot be separated from the statute without scuttling what the high court calls the “original legislative bargain” codified in the statute.
That’s why the three most important lawsuits against Obamacare all raise severability. It’s also why the federal judge in the biggest lawsuit (the multistate case from Florida) struck down the entire statute.
Striking down the individual mandate would be a great victory. Such a Supreme Court decision would delineate boundaries on federal power under the Constitution’s Commerce Clause and the Necessary and Proper Clause.
The implications would be profound. It would be a shot of adrenaline for the cases challenging the Environmental Protection Agency’s cap-and-trade rules, National Labor Relations Board’s authoritarian rampage, the Federal Communications Commission’s Internet power grab, among other lawsuits.
But, while TMLC’s challenge is laudable, a lawsuit attacking Section 1501 but not raising severability doesn’t go far enough. If only the individual mandate is struck down, it would immunize 99 percent of Obamacare from further legal challenges.
Although the financial fallout may collapse Obamacare, its crash could be years later. In the meantime, every other PPACA section would continue in full force, killing job creation, crushing small businesses, crippling insurers and shackling family decision making.
We need a case where the best-case scenario is total victory, not merely partial victory. Constitutional conservatives must wait for the cases that hold out the hope of this prize.