"Having found a portion of the Act to be invalid, the Section 1501 requirement to maintain minimum essential health care coverage, the Court's next task is to determine whether this Section is severable from the balance of the enactment. Predictably, the Secretary counsels severability, and the Commonwealth urges wholesale invalidation. The Commonwealth's position flows in part form the Secretary's frequent contention that section 1501 is the linchpin of the entire health care regimen underlying the ACA." (Emphasis added)
However, in spite of this admission by the defendant, the judge went on to rule:
"this Court will hew closely to the time-honored rule to sever with circumspection, severing any 'problematic portions while leaving the remainder intact.' Ayotte, 546 U.S. at 329, 126 S. Ct. at 967. Accordingly, the Court will sever only Section 1501 and directly-dependent provisions which make specific reference to Section 1501." (Emphasis added)
So in spite of the Secretary plainly admitting that the Act was unsustainable without Section 1501, the Judge ruled for severability instead of declaring the whole thing un-Constitutional. :-(
I think had he ruled otherwise, he risked having his decision overturned. There are other laws that have been passed without a severability clause where the SCOTUS held only specific pieces were unconstitutional. (e.g. Sarbanes-Oxley)
I don’t like it either and believe as you do that if 1501 is key, then toss it all. But I’d rather see the key piece ruled unconstitutional than have Hudson’s entire decision overturned or sent back to him for reconsideration. Let the SCOTUS throw out the whole thing then there can be no arguments.
I think had he ruled otherwise, he risked having his decision overturned. There are other laws that have been passed without a severability clause where the SCOTUS held only specific pieces were unconstitutional. (e.g. Sarbanes-Oxley)
I don’t like it either and believe as you do that if 1501 is key, then toss it all. But I’d rather see the key piece ruled unconstitutional than have Hudson’s entire decision overturned or sent back to him for reconsideration. Let the SCOTUS throw out the whole thing then there can be no arguments.
Bwahahaha! Drudge reminds us of Nazi Pelosi’s response, “Are you serious? Are you serious?” to a reporter’s question about where in the Constitution Congress is authorized to mandate the purchase of health insurance.
I had forgotten. This is great!