Two months from now, the Supreme Court will hear a case that will affect every citizen of this country for centuries to come. The ruling will either push the boundaries of government power even further in on us all, or they will re-assert the constitution’s specific and enumerated limitations on the federal government’s power.
The biggest obstacle to the "Affordable Care Act" becoming permanent law is the individual mandate… that is the portion of the law that requires every citizen buy insurance policies or pay a fine to the federal government.
In our 250+ year history, the federal government has never before forced citizens to participate in commerce with a third party. Many people (including the administration) claim precedence for this includes drivers being required to buy automobile insurance and automobile manufacturers being required to install seat belts in every car sold in America. The seat belt thing is nonsense and I can’t believe they even posit that as precedence (people are not all automobile manufacturers, nor are we all trying to sell goods to other people). The automobile insurance argument is also a flimsy argument (and has already been ridiculed by lower courts) as insurance laws are passed by the states and are therefore not subject to constitutional limitations on the federal government. Furthermore, powers not granted to the federal government in the constitution are specifically passed on to the states.
It should also be pointed out that automobile insurance is not a total mandate on every citizen. As a condition of driving on state and federal highways, you must buy automobile insurance. The health care bill sets a new and unprecedented standard that states that as a condition of being an American citizen and living and breathing, you must buy health insurance.
In a remarkable turn of events that bodes well for the proponents of the repeal of the health care reform bill, the Department of Justice has filed a brief with the Supreme Court of the United States in regards to the mandate.
In the memo, the DOJ is essentially arguing that if the mandate is ruled unconstitutional, most of the bill could and should remain intact. The DOJ even goes so far as to claim it was the intention of congress that the bill should stand if any part was ruled unconstitutional. A dumbfounding and astounding claim that will likely be laughed out of the building if the mandate is indeed ruled unconstitutional. Why, you ask? The bill has no “severability” clause. That is, a clause that specifically states that if any part (or just specific parts) of the bill are ruled unconstitutional; the rest of the bill can still stand because the legislation is not dependant on any particular part (or it is dependant, as the case sometimes is). Congress has been including such clauses in legislation for 200 years. It is not the DOJ's place to determine congress's intent. Congress wrote a two thousand plus page document laying out their intent.
In fact, early versions of the health care reform bill itself did included “severability” clauses. Somewhere along the line, the clause was intentionally removed. More than likely, one of the architects of the bill or one of their many advisers pointed out how bad it would be for the medical business in this country (and therefore, patients) if insurance companies were forced to cover preexisting conditions and every other arbitrary procedure forced onto them without the increased pool of members to share the risk. They knew the bill would absolutely not work without the forced participation of as many people as possible. Regardless of why the “severability” language was removed, it WAS removed.
Imagine the DOJ lawyers trying to tell Supreme Court judges that congress intended the mandate to be severable after congress had specifically removed that clause. Add to that the many explicit statements of the bill’s architects that it will not work without the mandate, and you are left with the undeniable conclusion that the entire bill should (and almost certainly WILL) be struck down if the mandate is ruled unconstitutional. A proposition that seems more likely now that the DOJ appears to be hedging their bets in embarrassingly desperate legal memos.
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