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  • Side Effects: What Obamacare and the Death Star have in Common

    So far, 21 states have filed lawsuits challenging the constitutionality of Obamacare.  As they move forward, it’s worth pondering what would happen to the health care overhaul if they succeed. Could one lawsuit be the proton torpedo that blows up the Obamacare Death Star?

    Typically, courts can deem a legislative provision unconstitutional without it spelling doom for the entire piece of legislation.  But Obamacare isn’t typical legislation.

    Ben Domenech explains: “Most laws of large size and scope have something called a “severability clause” attached to them. Essentially, this means that if one part of a piece of large legislation is ruled unconstitutional by a court, that unconstitutional portion is “severed” from the rest of the bill — the ruling doesn’t stop the rest of the law from being enforced.”

    Obamacare doesn’t have a severability clause, most likely due to the hurried manner it which it was rammed through Congress.  And that omission constitutes a thermal exhaust port which may allow Jedi—aka, those challenging Obamacare in the courts—to annihilate the Empire’s mothership with just one deftly targeted legal torpedo.

    That’s not a given, of course. For example, the Supreme Court could opt to vacate only the individual mandate and directly related provisions, leaving in place the bulk of the law.  That would still stick us with a bill that expands Medicaid to cover 16 million more Americans, cuts Medicare spending across-the-board, imposes a slew of new taxes on Americans from every income bracket, and adds billions to the federal deficit.

    It’s a scenario only an Emperor could love.  Removing only the individual mandate would be disastrous.  “The mandate is the only thing which made other anti-market regulatory demands (such as guaranteed issue and community rating) workable for the [insurance] industry,” Domenech notes.  “Removing it and leaving other requirements intact would bring the entire insurance industry to the point of collapse.”

    In the best case scenario, the absence of a severability clause would bring the entire Obamacare scheme crashing to the ground.  That’s not likely.  And if the courts remove the individual mandate while leaving all the legislation’s other provisions in place, if could spell doom—not for the Death Star, but for the health insurance industry.

    So what’s the best answer?  Congress could repeal the whole thing.  And they wouldn’t need The Force to do it.

    Posted in Obamacare [slideshow_deploy]

    16 Responses to Side Effects: What Obamacare and the Death Star have in Common

    1. M. Frank Wellington, says:

      Why is Congress able to make the laws but not live by them? This is a very serious charge. There is NO Severability Clause in the PPACA law, that is FACT. Then, if one section gets thrown out in the courts, the whole damn thing should go with it. Why does Congress get to keep moving the goalposts? Where is the accountability here? I am mad as hell………………..

    2. Casey Head, Des Moines says:

      Great analogy, shows both political savvy, and geek cred.

    3. John, Rhode Island says:

      Call me cynical, but I think there was a more nefarious reason the severability clause wasn’t included, and it’s not because of the rush to write and pass the legislation. I think there are some (many?) on the left in Congress who desire a single payer system, and if the courts strike just the mandate from the law (which wouldn’t surprise me), it would inevitably lead to the death of the health insurance industry far faster than if they were left to die a slow, painful death under the written bill.

      This is a win-win for power hungry Congressmen. If the mandate is held up as Constitutional (so help this country), then their legislative powers have just grown exponentially. If it’s struck from the bill, then they get a much faster road to a single payer system.

    4. Pingback: 21 State Lawsuit » Blog Archive » The quick death of insurance industry?

    5. Jennifer, Atlanta says:

      Love Obama = Evil Emperor

    6. Robbins Mitchell says:

      The Death Star had Darth Vader….the Deathcare Star has Darth Nigga

    7. R. Elliott, Oneonta, NY says:

      Despite Obama declaring in support of the ground zero mosque, that this is America and we treat all people and religions as equal, I’d like to know why some religous groups are exempt from Obamacare, but not others, if seperation of church and state means government is not supposed to make exceptions based on an individual’s religous beliefs, then this clearly violates Freedom of Religion. Why does it have to be a religion recognized before 1950, any religion founded since is not “real”? Who are the theologian chiefs who decide such things? Are they establishing a state religion or religions by such definitions as this? It’s just like forcing people to join a union if they want a job.

    8. james selby says:

      our legislators should be limited to two terms one term in office and one term in the gray bar hotel They are a bunch of crooks Send them all up the river, perhaps that will drain the swamp

    9. Steven Gross, Lynchburg VA says:

      This is just more evidence that the true goal of the Obamacare law is to destroy the health insurance industry and bring about single payer health care.

    10. Ken, Phx says:

      We must repeal the entire bill and start over again with a clean slate and do it slowly with a lot of debate and consensus one major issue at a time. We have a great health system but we should start over and first absolutely clean up Medicare and when we are all convinced we have the will to do that then and only then do we attack another issue.

    11. Dr. SaveUSAMD says:

      "If we don't like the rules, we simply change them!" Spoken by a true progressive in our tyrannical government as Obamacare was being forced upon the unwilling citizens of our great nation. The sooner we repeal this disaster the sooner we can address health care issues in this country in a legal manner, the way our founding fathers intended, by observing the rules of the Constitution of this great nation!

    12. D.Tocarchick Lansing says:

      The reconciliation bill does have a severability clause (section 155). It's not totally clear to me, but it appears to apply only to the 2nd division of the bill.

    13. Pingback: » Daily Dose – August 24, 2010

    14. Steve Briscombe, San says:

      I read quite a lot about ObamaCare and very often I'm puzzled with the specific reasons that prompted the original addition to the law. A recent newspaper article discussed the "burden of ObamaCare paperwork". It cited the requirement that businesses had to fill-out an IRS 1099 form for EVERY purchase over $600. You can imagine the headache this will create. The article explained in detail why it should be repealed. So my question is ….. What in the world promote this regulation in ObamaCare? What does the the IRS (the government) get out of a business filing this 1099 form ? Could someone explain this to me?



    15. John J. Bagnato, Esq says:

      I believe that if any part of the legislation is declared unconstitutional, the entire Act will fail based on the absence of the severability clause. By law, the Court is bound by legislative intent. Because the original approved House Bill sent to the Senate contained such a clause and the PPACA does not legislative intent was its removal.

    16. Alicia - Fallbrook, says:

      I think Obama should take a colonoscopy every day since it's free

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