Illustration by Art Lien/Reuters
A sketch of attorney H. Bartow Farr III speaking in front of Justice Elena Kagan at the U.S. Supreme Court on Wednesday.
Day three of the epic SCOTUS showdown over President Obama’s health care law focused on severability — the question of whether the entire law is unconstitutional if a part of the law (in this case, the individual mandate) is found to be unconstitutional.
Paul Clement, the attorney for the states challenging the law, argued that if one part of the law is found unconstitutional, then the entire law is unconstitutional.
Moderate, Republican-appointed and often-key-swing-voting Justice Anthony Kennedy seemed to agree with the law's challengers on this point during an exchange with the government's lawyer, Deputy Solicitor General Edwin Kneedler:
MR. KNEEDLER: We think as a matter of judicial restraint, limits on equitable remedial power limit this Court to addressing the provision that has been challenged as unconstitutional and anything else that the plaintiff seeks as relief...
JUSTICE KENNEDY: When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was -- one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me can be argued at least to be a more extreme exercise of judicial power than to strike -than striking the whole.
MR. KNEEDLER: I -- I -- I think not –
JUSTICE KENNEDY: I just don't accept the premise.
So it looks like we're shaping up for an all-or-nothing decision. Does that make SCOTUS more likely to uphold the law or declare it unconstitutional? Stay tuned for June.
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The Supreme Court gave itself the power to strike down laws. This power is not in the US Constitution.
America's greatest chief justice was John Marshall, who served from 1801 to 1835. Two years after his appointment, in the landmark case Marbury v. Madison, Marshall treated the Court's power to strike down laws as if it were obvious, even though it does not appear explicitly anywhere in the text of the US Constitution.
But although Marshall asserted the Court's power to strike down laws in theory, he declined to press it very far in practice. Marbury involved a politically fraught confrontation with Marshall's archrival and distant cousin, President Thomas Jefferson. At issue in the case was whether Jefferson's Secretary of State, James Madison, had acted illegally by refusing to deliver the commission of William Marbury, a justice of the peace appointed by President John Adams in the last days of his administration.
Marshall defused the confrontation by holding that Marbury did indeed have a right to the commission, but that the Supreme Court had no power to order Madison to deliver it because the relevant federal law authorizing the courts to issue orders of this kind was unconstitutional.
This court is not going to pick and chose what segments of the law will go down and what will survive. They are aware that if the Mandate, a naked grab for power by the Federal Government over state and individual rights is unconstitutional and must fall, then the whole law must fall as it is then totally unmanageable, and does more harm than good.
Somehow, the Congress of the United States and the next Administration must find a way to craft a bill that will save what was good about the Affordable Care Act, while preserving state and individual liberties. There was nothing in the law that was going to relieve the situation of unemployed, unmonied, and legal citizen documented residents without health insurance from burdening the health care systems in our states from the costs of their care. There should be a way of dealing with catastrophic insurance provisions and routine health care cost of unemployed and employed legal residents under public health programs such as federally financed urban public and rural health clinics and federally financed assistance to states Medicaid programs without having a one size fits all federally mandated insurance program with all the bells and whistles, including political interest groups targeted for co-pay free medical care such as the contraceptive prescription coverage for women that this Administration was so anxious to achieve in order to achieve a higher percentage of their votes in the election ahead!
And we will all be better off for it, with our individual liberties intact, and with the State laws on Health Insurance the place where we might have our best impact, as being closer to our influence.
Wake up Lawrence. Ask where the blood is on the guy's shirt. I have never seen a broken nose without a lot of blood involved. Where are the wounds to the back of his head? Where is the blood? Do you see any grass stains on the guy's jacket?
tom:
Go find another hue and cry circus for your rants.
This one is for the learned grown ups.
police report says zimmerman was treated at the scene for injuries. i imagine that would be wiping away blood. broken nose doesnt mean you gush blood. many boxers get nose broken in the ring with little blood flow. i boxed in my youth and had my nose broken twice with little blood flow. one time my nose hurt a little for 2 days i went to a doctor who imformed me my nose was broken. zimmerman went to the hospital the next day with nose pain and was told it was broken. lets all try to let the investigation go its coursebefore we judge anyone
Is there a specific paragraph in the US Constitution that proves that the Affordable Care Act is unconstitutional?
Would this case be a 'innocent until proven guilty' case, where the Republican's must prove that the Act is unconstitutional? Did they provide any specific proof?
I believe the provision of the constitution that reads in effect: Those rights not enumerated that fall to the purview of the federal government remain with the states.
The Congress of the United States have routinely written laws through the years that have hinged their constitutionality on the right of the federal government to regulate trade between the states. However, Insurance, whether it be home, auto property and casualty, life, health, etc. have always been an INTRA-state product regulated internally by each state; there is no interstate trade of these products.
Hence, by attempting to wrap up control over the health insurance industry and the health care industry the Congress and Obama Administration attemted to grab a power not specifically enumerated to them. to add insult to injury, to make their plan feasible in its financial structure, they wanted to mandate individuals living in the separate states to purchase a federal government Department of Health ane Human Services specified one size fits all insurance package, whether they required all the service areas, or wanted the product. Never before has there been such a naked grab for power over the individual and an intrusion into the regulation of internal industry of the states as this law wrought. Therefore, it is seen by the majority of the Supreme Court as well as the states that have separately successfully brought the cases combined before the Court as being unconstitutional.
Whether the federal government can also have employers and individual citizens pay penalty taxes for not participating in the federal governments controlled insurance product is another can or worms all together.
It just looks like a partisan issue, but it is more a conservative (state and individual rights) vs liberal (nationalist socialist) issue overall. Just ask the Blue Dog democrats who lost their seats in the House of Representatives for going along with this ill bill how it is seen in their districts now.
Hi Keith, Thank you for your reply. Another question, If the court decides the Affordable Care Act is unconstitutional, will this also make Social Security and Medicade unconstitutional? Every US citizen is required to 'buy' these services.
Why are the Republican's so scared of Universal Health Care? It has been in use in Europe for 129 years, and they love it. It has also been in use in Canada for many years, and every Canadian I talk to loves Universal Health Care.
Universal Health Care is not a 'power grab', it is a time-tested, proven, and successful program.
Canada and Europe were the guinea pigs / pioneers, and they have proven that it is an excellent program that the citizens love!
Mike:
Social Security and Medicare (not Medicade, or Medicaid) are government established programs of income and health care security for the aged and disbled that have nothing to do with a product.
Employed individuals over the age of 16 yrs and under the age of 70 years are required by the Federal Government under their power to tax to contribute from their earnings to these two programs, and employers are also required to make matching contributions. The unemployed and/or family members of adult age of employed individuals who do not themselves work for earnings do not pay into Social Security or Medicare. When first established in the Depression years of the 1930s, Social Security had the real goal of providing a mandatory fund in each worker's name to provide income for their widows and minor children, the actual retirement income was mostly something few could expect to collect on, as the average longevity for adult males barely equaled the retirement age at which monthly returns of their funds could be applied for. Medicare was added to this conceptually flawed program some 30 years later, and, as we know today, both programs are living on borrowed time facing eventual bankruptcy unless drastic changes are made soon.
The Affordable Care Act is not Universal Health Care. I have been in the camp for years arguing in favor of Universal Health Care which would be established similar to medical care provided by the Veteran's Administration model or, worse perhaps, the beleagured, underfunded Indian Health Services. The major reason we are not even close to that accomplishment is because after World War II, the federal government decided to pursue health insurance for employed individuals and their family members thru their employment and by private free market corportations; hence the rise of the Insurance Industry as an INTRA-state regulated provider of product.
I'm here to help, Mike. Call on me at any time.
Thank you for the explanation, Keith!
It's unfortunate that we can't just use the Canadian Universal Health Care with Single Payer as the model for the US system. This system seems to work the best, and most Canadians are happy with it.
It seems that with this Supreme Court case, it is up to the Republican's to prove that the Affordable Care Act is unconstitutional. From what I've read, I don't think they were able to supply adequate proof.
The government 'forces' their citizens to pay into Social Security, Medicare, and automobile insurance, so there shouldn't be a problem with making citizens buy insurance.
I am self employed and I do not have health insurance. I am terrified of getting injured, or getting sick with something like appendicitis. I fear that I will go bankrupt over a simple appendicitis surgery!
At present, Mike, and seeing that the rise in premium costs are coming either under or after repeal of the Affordable Care Act for any comprehensive health insurance policy you could purchase in the future (will certainly be prohibitively expensive), your best bet is to have a limited "catostrophic" health insurance policy and a tax sheltered health savings account to forestall economic hardship during your earning years. Be aware that if the Supreme Court strikes down the Mandate provision of the Affordable Care Act, the insurance industry will be financially compelled to return to denying coverage selectively due to serious pre existing conditions, and/or really jack up the premiums to cover their increased costs. But its a ganble to go with the minor plan approach, as you're just a discovered partial blocked coronary artery or small malignant tumor or a growing glucose intollerance condition away from becoming permanently uninsurable comprehensively in the future, until you reach age 55 at present under Medicare, and that will undoubtedly have to be revised upward, probably to full Social Security retirement age (which will also have to be revised upward) if Medicare (and Social Security)as we know it is to survive.
The Canadian model isn't perfect. There is rationing of care, delays in obtaining elective health procedures, and lack of choice in practioners and health institutional providers; often the need is still there to maintain additional supplemental commercial health insurance by our Canadian cousins as a way around those problems. They do have a sane aproach to prescription drug coverage, however, where in the US of A. we are at the mercy of increasingly higher costs for this aspect of profit driven health care, which the Affordable Health Care Act failed to address! But also being a government controlled program there are some onerous provisions libertarians would recoil from, such as penalyizing by some levels of denial of care for smokers, alcohol abusers and drug abusers, and even food abusers in their nationalist system.
What it comes down to is what trade off do we as individuals or collectively wish to make in balancing individual choice and liberty from government control of important aspects of our lives and economy vs. perceived security. As a self employed individual I suspect you would lean more toward a preserving individual choice and economy instead of government enforced security?