District Judge Henry Hudson in Virginia has ruled that the individual mandate portion of the health care reform law, also known as “Obamacare,” is unconstitutional. Because of a quirk in the law, this could mean that Obamacare itself is null and void.
According to AP:
“Virginia Attorney General Ken Cuccinelli filed the lawsuit challenging the law’s requirement that citizens buy health insurance or pay a penalty starting in 2014.
“He argues the federal government doesn’t have the constitutional authority to impose the requirement.”
This is because the Commerce Clause of the US Constitution does not suggest that the federal government has the power to force Americans to buy anything simply for the privilege of being an American.
Two other judges, one in Virginia and another in Michigan, have upheld the health care reform law. Most analysts believe that the ultimate decision on Obamacare’s constitutionality will rest with the Supreme Court.
Ordinarily the striking down of one provision of a law would not affect the rest of the same law. This is because of a legal concept called “severability.” According to the American Spectator:
“If you are like most people, the term ‘severability’ probably doesn’t come up much in your water cooler conversations. But the concept does play a role in your life. As Ken Klukowski of the American Civil Rights Union puts it, ‘If you have a lease, or an employment contract, or service agreement, or even a product warranty, you’re likely to find some sort of severability clause toward the end of it.’ The object of such language is to ensure that, if some part of a legal instrument is declared invalid in court, the remaining provisions stay in force. For obvious reasons, severability clauses are routinely inserted in most important pieces of legislation. But in their headlong rush to ram ‘reform’ down America’s throat, the Democrats neglected to include one in ObamaCare.”
Legislate in haste, regret at leisure.
So far, Judge Hudson has not invoked the lack of severability to strike down the entire law. But if the striking down of the individual mandate is upheld by the Supreme Court, the health care reform law becomes even more unworkable than it already is, just as a practical matter. Congress, in which the House is controlled by the Republicans, and the Senate has a narrow Democratic majority, would be almost compelled to dismantle the rest, even if the Supreme Court follows Judge Hudson’s lead and assumes a defacto severability.
The ruling by Judge Hudson constitutes yet another political body blow against President Obama and the Democrats who are left who voted for the health care reform law. It was bad enough that the outgoing Congress, with President Obama’s urging, passed a piece of legislation that was so unpopular with the American people, helping to inspire the Tea Party movement. It is badness squared and cubed to do so incompetently, to produce so monstrous a law that it cannot work as written.
This in turn is very likely to come up as an issue in 2012. The signature piece of legislation of the Obama administration has turned out to be an unmitigated disaster. Any argument for the reelection of the architect of health care reform, not to mention anyone who was in favor of it and voted for it, is going to be unconvincing indeed.
Sources: Federal judge in Va. strikes down health care law, Larry O’Dell, AP, December 13th, 2010
Of Severability and Sins of Omission, David Catron, American Spectator, December 8th, 2010