• (Potentially) bad news for those who think health care reform is unconstitutional

    I’m not a lawyer, but this is interesting:

    Today, in Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court invalidated a provision of the Sarbanes-Oxley Act without voiding the entire law.

    This matters for the legal fight against Obamacare, as Sarbox did not have a “severability clause”—standard language that would ensure that, if one part of Sarbox was ruled unconstitutional, that part could be “severed” from the rest of the law, which would remain standing.

    The Patient Protection and Affordable Care Act also lacks a severability clause. Some have therefore hoped that, if PPACA’s individual mandate is eventually ruled unconstitutional, the entire law would necessarily be voided along with it.

    Today’s ruling by the Court, however, suggests that a severability clause is not needed in order to strike down one provision of a larger law…

    Most of the effort to claim the ACA is unconstitutional focuses on the individual mandate.  Regulation isn’t unconstitutional.  Tax subsidies (and taxes) aren’t unconstitutional.  The exchanges aren’t unconstitutional.  It’s the (unpopular) mandate.

    The thinking is that if the mandate is ruled unconstitutional, then the whole law must be scrapped; that seems to be because there is no “severability clause” in the ACA.  But today’s ruling appears to say that individual parts of laws can be struck down leaving the rest of the law standing.  That’s bad news to those attacking the individual mandate.

    I still don’t think the mandate will be found unconstitutional.  But even if it is, it won’t destroy the ACA.  Sure, it will make it ridiculously more expensive and allow for free riders, but I’m not convinced that will stop people from taking the ACA to court anyway.

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