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Side Effects: What Obamacare and the Death Star have in Common
Posted By Kathryn Nix On August 20, 2010 @ 11:00 am In Health Care | 16 Comments
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 .
Article printed from The Foundry: Conservative Policy News Blog from The Heritage Foundation: http://blog.heritage.org
URL to article: http://blog.heritage.org/2010/08/20/side-effects-what-obamacare-and-the-death-star-have-in-common/
URLs in this post:
 Image: http://www.foundry.org/wp-content/uploads/SideEffectsLogo3.jpg
 Ben Domenech explains: http://www.redstate.com/ben_domenech/2010/08/17/severability-and-obamacare
 And they wouldn’t need The Force to do it: http://www.heritage.org/Research/Reports/2010/08/Getting-Health-Care-Reform-Right
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