If Obamacare mandate unconst, how do Supremes decide whether to strike the rest? (Congress, illegal aliens)

[Little-Acorn]

I hope they strike the whole thing down. But I have been wondering something. If the Supremes first decide that the mandate is unconstitutional, they then have to decide whether to let the rest of Obamacare stand, or to strike down all of Obamacare.

I've heard three different explanations so far, all different:

1.) If the bill contains language saying "If part of this law is struck down, the rest still stays in effect", then the Supremes might strike down only the mandate and let the rest stand. (Note: Obamacare does NOT contain that language. That's why Judge Roger Vinson of the District Court, struck down the entire thing after finding the mandate unconstitutional)

2.) The Supremes don't so much look for that language. Instead, they try to figure out the following: Would Congress have written the rest of the bill as is, without the mandate, if they had been told that the mandate was definitely not allowable? Or would the absence of a mandate have made Congress write it substantially differently, or possibly not write it at all?

3.) The Supremes would try to decide: Would this bill work without the mandate, about the same as it would work with the mandate?

I understand that when the bill was being written, the Obama lawyers wanted to include that language about leaving the rest in place if part of the law were struck down. But the insurance companies balked - they didn't want to be stuck with paying for millions of people who were sick a LOT, if healthy people didn't have to pay in too. So the language was eventually taken out.

Anybody know what line of inquiry the Supreme Court justices might follow, if at first they decide the mandate must go?

[pknopp]

They have to. I'll find a link. This is the way it was written.

{edit}

A key reason that Federal Judge Robert Vinson declared the entire health care reform law unconstitutional, rather than just the much-discussed individual mandate to buy health insurance, is because Congress — in its haste to pass the unpopular bill — decided ultimately not to include a “severability clause,” which protected the rest of the legislation if one portion failed court muster.

http://blogs.standard.net/the-politi...in-high-court/

[pghquest]

Normal bills contain whats called a severability clause, which is exactly what you said, that if the bill gets struck down, the rest of the bill stands. originally the healthcare bill did contain it, but it was removed in one of the rewrites, assumed due to the fact without the mandate there isnt money to fund the rest.

The fact that Congress normally includes the language, out of default, throws #2 out, because its standard, and it was specificially removed, and they are supposed to follow the letter of the law, so without it, the whole thing should be thrown out.

Now if they do that, no one knows.

[Little-Acorn]

My feeling is, that since they considered putting that language (severability clause) into the bill but later deicided not to, that TELLS the Supremes that they would not have written the bill this way if they cold not have the clause.

So this actually satisfies Condition #2 above: If the mandate is unconstitutional, then the Supremes would decide to throw out the entire thing along with it.

*IF* they agree with me. But since they haven't called me to ask for my advice, I guess we'll have to wait and see.

[noexcuseforignorance]

I'd tend to agree. With the law struck down and no mandate, the rest has to die. There's no other way to pay for it. I guess the free loaders will be back.

It should be interesting to see how both sides spin it. There's also not many other options for fixing the system. The freeloaders will keep free loading. It might actually give more push to letting people buy into social security as there aren't really any other options.

Republicans will probably say it's not their fault since the court made the ruling. It will be entertaining to see them trying to enact popular parts of the law that were shut down while being beholden to the insurance industry.

[monkeywrenching]

just strike down the whole bill. health care is not a right, never has been nor should it ever be.

[pknopp]

Originally Posted by noexcuseforignorance

I'd tend to agree. With the law struck down and no mandate, the rest has to die. There's no other way to pay for it. I guess the free loaders will be back.

It should be interesting to see how both sides spin it. There's also not many other options for fixing the system. The freeloaders will keep free loading. It might actually give more push to letting people buy into social security as there aren't really any other options.

Republicans will probably say it's not their fault since the court made the ruling. It will be entertaining to see them trying to enact popular parts of the law that were shut down while being beholden to the insurance industry.

Because this law wasn't written for the benefit of the insurance industry?

[rbohm]

there are three possibilities here;

1: the scotus decides that the mandate is unconstitutional, and since there is no severability clause, they strike down the entire law

2: the scotus decides the mandate is unconstitutional, but decides that there was intent to include a severability clause, and rules the rest of the bill can remain

3: the scotus decides that the mandate is constitutional and upholds the entire law.

[monkeywrenching]

Originally Posted by noexcuseforignorance

I'd tend to agree. With the law struck down and no mandate, the rest has to die. There's no other way to pay for it. I guess the free loaders will be back.

It should be interesting to see how both sides spin it. There's also not many other options for fixing the system. The freeloaders will keep free loading. It might actually give more push to letting people buy into social security as there aren't really any other options.

Republicans will probably say it's not their fault since the court made the ruling. It will be entertaining to see them trying to enact popular parts of the law that were shut down while being beholden to the insurance industry.

freeloaders? you mean illegal aliens? make it so illegal aliens cannot get emergency care at all. if they cannot prove citizenship or have a visa for being in the country, no emergency medical care.

that takes care of alot of the extra bills that we have to pay for.

[70Ford]

Not a problem any more.