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But that's the point - the remainder of the ACA is not unconstitutional.
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Originally Posted by Mircea
Actually, it is.
Congress only has authority under the Constitution to regulate or insert itself into Interstate Commerce.
The US Supreme Court has repeatedly ruled for over a century that medical care and health insurance are intra-State commerce, over which Congress has no power or authority.
That was the whole purpose of the tax.
Any competent unbiased judge would see that as an end-run around the Constitution and strike it down.
It is inherently unconstitutional.
I did not say that the remainder of the ACA was constitutional, but not unconstitutional. Civics 101 was many years but are not statutes presumed to be constitutional (or, more accurately, not unconstitutional) until there is judicial ruling they are not? O'Connor was specific: he did not address the portions of the ACA other than the mandate and only struck down the entire law when he did not invoke severability.
Quote:
Originally Posted by Mircea
There's no legal requirement or obligation to sever.
Obviously, you're not familiar with Red Pencil States.
When you have a non-competition agreement, covenant not to compete, non-compete clause or whatever you want to call it, and the judge finds the time limitation or geographical limitation or other aspect of the agreement to be overburdening for the employee, the judge will throw out the entire contract, even though the contract specifically states that all provisions in the agreement are severable, blah, blah, blah.
There's no legal requirement or obligation to sever anything at any time ever, even if the law or contract says it's severable.
I won't even try to sort out possible distinctions between contract law and statute (not to imply that I could). No one is saying there is a legal "requirement" to sever. Rather, that appears to be a matter of judicial discretion. NYT: "The Supreme Court has long affirmed a 'presumption in favor of severability,' meaning that when it rules that a statutory provision is unconstitutional, the decision should affect as little of the law as possible." Roberts, in particular, has affirmed this approach.
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Originally Posted by EveryLady
For example, the requirement that insurance companies continue to cover children up to age 26 is not inherently unconstitutional, or no one's found it to be so.
Quote:
Originally Posted by Mircea
It is inherently unconstitutional.
Congress has no power or authority over insurance companies, because insurance companies are intra-State commerce, not interstate commerce, as the Supreme Court has continually ruled. Only the States have the power to regulate insurance companies.
Only the States have the power to set capitalization requirements (to prevent you from buying worthless insurance) and bar or compel insurance companies to engage in certain activities or provide coverage.
If you don't understand that, then you will never understand one of the reasons why your healthcare systems is screwed.
When hospitals started offering pre-paid hospitalization plans in the 1930s --because insurance companies wouldn't issue such plans -- the States wanted to regulate them.
Since there was no possible way a hospital, or even a group of hospitals could ever meet the capitalization requirements set by State laws, the American Hospital Association began lobbying the States for "enabling laws."
Those "enabling laws" enabled hospitals to offer insurance without being subject to State insurance regulators, and it created the "Out-of-Network" system you hate, and it allowed hospitals to operate as monopolies and monopolistic cartels to illegally collude to illegally fix prices above market rates for medical services (under the guise that the free medical care hospitals would provide to low-income patients would offset the negative effects of monopolies).
You've been paying the price ever since.
I knew including the word "inherently" was an error, for that makes the point theoretical. Per the above, the issue (at least for me) isn't what's "inherently" or "theoretically" constitutional based upon our understanding of the Constitution. Rather, it's what the judiciary ends up ruling as unconstitutional.
The fate of the ACA (not including the mandate, although I suppose that along with severability will be among the separate issues appealed) is in the hands of appeals courts.
If this gets overturned on appeal, as most legal experts expect, I doubt the SC would take this up again. They'll probably let the appeal stand. My guess is they won't want to touch this again.
This is a Texas district court judge, which means that the ruling will get appealed to the very conservative 5th Circuit. The fact that legal "experts" are predicting that the 5th will overturn this on appeal shows how out of whack with reality most of these leftist (and most have been leftist) "experts" have been.
This is a Texas district court judge, which means that the ruling will get appealed to the very conservative 5th Circuit. The fact that legal "experts" are predicting that the 5th will overturn this on appeal shows how out of whack with reality most of these leftist (and most have been leftist) "experts" have been.
Guess again. Legal experts from across the political spectrum are calling this ruling insanity. Let me repeat that--both liberal and conservative legal experts say this ruling was crap.
The left thought Kavanaugh would be a thorn in their sides about abortion, but I believe he will in fact be the deciding vote to overturn Obamacare - something which they never dreamed.
Guess again. Legal experts from across the political spectrum are calling this ruling insanity. Let me repeat that--both liberal and conservative legal experts say this ruling was crap.
It's going to be overturned on appeal. And the SC will most likely leave it there.
Nope. Not even close. The article you mention references one conservative legal expert; all the others are leftists. This fits in with the commentary I've seen, with mostly leftist legal experts attacking the ruling. Most conservative legal experts I've seen sound similar to Judge Napalitano, who stated that:
Quote:
“I think it was absolutely the right decision,” Judge Napolitano said on FOX Business’ “Mornings with Maria” Opens a New Window. on Monday. “I think it’ll be upheld by the Supreme Court if John Roberts is intellectually honest."
To be clear: there is bipartisan opposition/criticism of this ruling. But there was also bipartisan support for upholding Obamacare on legal grounds. Most of the opposition/criticism, however, has been from the left in my observation.
And, as I mentioned before, the argument being used by these individuals is easily rebutted. Indeed, whether the Congress repealed only one page of a thousand plus page law is irrelevant to whether the law is severable from the individual mandate. After all, the Supreme Court stated in the first Obamacare case that it was only upholding the law because of the tax provision, something that Congress knew when it took the tax out. Again, that Congress lacked the political will to outright eliminate the entire act via legislation doesn't change this point.
It'll be a cold day in hell before the 5th Circuit overturns this ruling.
The 5th Circuit and Supreme Court will ultimately grapple with the question of whether the individual mandate can be severed from the rest of the act. In other words, they will ask whether the rest of the act (the individual mandate was only a couple of pages out of an over 2,000 page law) can survive even without the tax. The district court argued (correctly, in my view) that the answer is no. And this is because, without the individual mandate, there is not a large enough pool of money to pay for the requirement that insurance companies cover pre-existing conditions, etc., which isn't something Congress intended. And, so, the act collapses under its own weight.
Last edited by prospectheightsresident; 12-18-2018 at 03:39 PM..
People tried the same attacks on Medicare and Medicaid....
Medicare is expensive for seniors. As I've already said, once seniors enroll in Medicare, there's a monthly premium for Medicare which is deducted from their SS check. There's also deductibles, a 20% co-pay, and limitations on certain benefits like the amount of hospitalization days they're allowed. If seniors want prescription and/or medical device, dental, and vision coverage, they have to pay even more to buy supplemental policies for that, themselves, out of their own pocket. Hearing aids, as well, aren't covered.
Medicaid, however, is completely free. No requirement of paying Medicaid taxes for at least 10 years of a full time job to qualify for benefits, no monthly premiums, no 20% co-pay, no deductibles, no limits on hospitalization days, and prescriptions, dental and vision are covered 100%. The cost to the Medicaid recipient for all that? $0
When slackers are prioritized over seniors who've contributed to society for a lifetime (usually 30-40 years) and even then STILL have to pay more, there's a serious problem.
Nope. Not even close. The article you mention references one conservative legal expert; all the others are leftists. This fits in with the commentary I've seen, with mostly leftist legal experts attacking the ruling. Most conservative legal experts I've seen sound similar to Judge Napalitano, who stated that:
And, as I mentioned before, the argument being used by these individuals is easily rebutted. Indeed, whether the Congress repealed only one page of a thousand plus page law is irrelevant to whether the law is severable from the individual mandate. After all, the Supreme Court stated in the first Obamacare case that it was only upholding the law because of the tax provision, something that Congress knew when it took the tax out. Again, that Congress lacked the political will to outright eliminate the entire act via legislation doesn't change this point.
It'll be a cold day in hell before the 5th Circuit overturns this ruling.
The 5th Circuit and Supreme Court will ultimately grapple with the question of whether the individual mandate can be severed from the rest of the act. In other words, they will ask whether the rest of the act (the individual mandate was only a couple of pages out of an over 2,000 page law) can survive even without the tax. The district court argued (correctly, in my view) that the answer is no. And this is because, without the individual mandate, there is not a large enough pool of money to pay for the requirement that insurance companies cover pre-existing conditions, etc. And, so, the act collapses under its own weight.
Could not this rationale (the bold) be a reason to overturn O'Connor? No argument that the ACA might well "collapse under its own weight" from insurance company non-participation in the marketplace without the mandate. But is lack of revenue not an issue for Congress to address instead of the judiciary? For example, Congress has provided for risk corridor payments to insurance companies to offset lack of enrollment. Plus, no doubt there are multiple sections of the ACA that are independent of revenue.
And then there is legislative intent, which appears relevant for whether or not severability is applied. Congress may well have wanted to gut the ACA last year and not merely defund the mandate. Here you write that:
"After all, the Supreme Court stated in the first Obamacare case that it was only upholding the law because of the tax provision, something that Congress knew when it took the tax out. Again, that Congress lacked the political will to outright eliminate the entire act via legislation doesn't change this point." But none of that changes the point that they did not do it. That Congress couldn't find the votes should not be addressed (or fixed or altered) by the judiciary - even for determining "intent." Not at all familiar with current case law, but are not assessments of "intent" based on analyses of "plain meaning" - not a hypothetical of what Congress would like to do if it had a few more votes.
Talking about judicial activism and separation of powers ...
Last edited by EveryLady; 12-18-2018 at 04:41 PM..
And then there is legislative intent, which appears relevant for whether or not severability is applied. Congress may well have wanted to gut the ACA last year and not merely defund the mandate. Here you write that:
Legislative intent becomes irrelevant if the court determines the act is outside congressional jurisdiction.
Legislative intent becomes irrelevant if the court determines the act is outside congressional jurisdiction.
I don't understand. Isn't it Congressional intent that the Court is to evaluate when determining whether or not to apply the severability doctrine? Not sure where "jurisdiction" comes into play?
I don't understand. Isn't it Congressional intent that the Court is to evaluate when determining whether or not to apply the severability doctrine? Not sure where "jurisdiction" comes into play?
Jurisdiction. Authority. Powers not delegated to congress belong to states. Who cares what Congress intended if they had no authority either way. Didn't Roberts say in 2012 that the only thing making ACA constitutional was the mandate establishing it under powers to tax?
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