Posted on 06/27/2012 7:42:06 AM PDT by ShadowAce
Disclaimer: IANAL in any way, shape or form, but I can think through arguments pretty well.
OK, I've seen this mentioned a couple of times back when it was first passed, but not so much these days.
With everyone saying that it is likely that the mandate will be struck down--a key part of it certainly--why is no one expecting the entire law to be struck down due to the lack of a severability clause? Wouldn't that lack mean (or even require) that the entire law be vacated if one part is declared unconstitutional?
If the reason you give is not supported in documentation anywhere in terms of law, please give an explanation of why people are disregarding law to get this unholy piece of crap passed.
Thank you in advance!!!
Simple.
Because they can. Now, back to work comrade!
I think they will be looking for middle ground to half way appease everybody. I hope they rule the whole thing unconstitutional but would be surprized if they do.
It is not necessary to rule the whole law unconstitutional to dispose of it. If the mandate falls, the structure built upon it — the means to fund the Act — MUST fall as the Congress failed to provide severability.
Scalia made the point by rejecting the notion the Court could be expected to wade through 3000 pages of text to cherry pick what could survive and what would fail. It is Congress’s job to write the Law; the SCOTUS will NOT do so for it.
Absent the severability component, the entire Act lives or dies on the failure of any one or more critical components.
One Man’s Opinion
21stCenturion
learn to love ObamaCare ,it’s already doing whatever it does and it’s not going anywhere ,wait until they find the part that says Obama can be president for life
That's my thought as well, but I'm not hearing anyone in the media talk about it like this. And it's been fading from FR as well too, which concerns me.
Sure hope you’re right. I guess we will see tomorrow.
How do we know that Roberts is writing the opinion?
Thank you for stating what I had originally thought was obvious! Seriously, if the Supremes smack down any portion of the law, the entire law is supposed to be toast based on the lack of a severability clause.
“Severability clauses are also commonly found in legislation, where they state that if some provisions of the law, or certain applications of those provisions, are found to be unconstitutional, the remaining provisions, or the remaining applications of those provisions, will, nonetheless, continue in force as law.”
This law had no severability clause, so if the individual mandate is struck down, the whole bill should die along with it.
When it was first passed, we were talking about what was and was not in the law. Now we are talking about what the SC might do. Since they have been so unpredictable, we’ve got to consider all the options, even the ones that don’t make legal sense.
Actually, the supreme court has been very predictable..
They have not voted for what is “popular” or “in vogue”..
They have voted for the constitution..
They got it 100% right in arizona...
They will get it 100% right here...
The law will get struck down in it’s entirety...
(as a side note, it would almost, almost, appear that kagan might not be the activist that fubo thought she was, I am going to keep an eye on her)
Pass the popcorn
Our Constitution guarantees Americans the right of life yet Affordable Healthcare Law takes that away. Law should be struck down on this one, undebateable, issue alone.
Wasn’t it Franklin R. who didn’t like the SC rulings so he single-handedly decided we needed more justices and proceeded to pack the court with 6 more of HIS judges?
I expect NO LESS from Barry.
WHERE ARE THE “OATHKEEPERS”? It’s time.
Good point.
What is desired is to lower everyone's costs to insure more people for less. Government meddling inevitably means higher costs for everyone with rationing to follow.
The only tried and true fix will include more competition, less money involved in lawsuits, and more individual control. When insurance companies have to compete for our business, they will have incentives for us to insure with them. Just as in the case of banks, when government gets out of banking, we have fees for everything and profits fall. When government gets out of banking, they advertise different benefits to attract you to their bank instead of somewhere else. If insurance had to compete for your business, then you would see more bennies for less money.
There are many options that could work, but why not pay an individual to buy insurance and allow him to keep whatever money he could save? The resulting wave of saving money would astound anyone paying attention. Just allowing people to shop around would save billions. Ask your doctor how much an upcoming procedure costs and see the turmoil that causes. They either don't know or don't care. When they quote a price, tell them you want to shop around and see the look on their face. The government doesn't care because the taxpayer pays and the insurance company doesn't care because you or your employer pays.
Why, after that abomination of a decision in the Arizona, anyone would expect Obamacare to be overturned is mystifying to me.
If you follow any of that...then you realize the upcoming ruling...whatever it may be...is empty and meaningless. Striking it down will trigger a whole set of curacies to begin ‘ruling’ what they want.
I hope that’s the case (and we’ll know by this time tomorrow), but for now it’s just speculation.
Perhaps a state function might be for their represitative to introduce impeachment procedings instead of trying to make state laws that could be struck down. Who could argue that the executive branch has the right to ignore passed laws?
The Arizona Ruling by THE NINE SUPREMES (actually 8) has proven that we no longer have a US Constitution.
Hence, it is pointless to talk about a Court Dictate on Obama”care” being anything but a dictate of the polarized Court.
We also have a Rogue Dictator, and a Rogue Obama-Rifles Attorney General Leader.
Preference is not the issue. What the Court has already Dictated on Obama”care” will be the issue.
The further destruction of the US Constitution is the most probable dictate that the Court will hand down on Thursday, as this will be the last dictate of this past year, and hence they cowardly will release their worst dictate on their last day in session.
Since Obama”care” of ANY sort will financially destroy America, our options are limited to Congressional ABOLISHMENT of all of Obama”care,” or for we, the people, to begin the tedious process of convening peaceful State Constitutional Conventions, and splitting the former USA into multi-State Regions.
For almost 80 years we have been saddled with the failed Keynesian Economic System. It has bankrupted the US Federal Government.
The derivatives of the WW2 Wage and Price Control Dictates are as follows: Medicare, Medicaid, Romney”care” and Obama”care.”
All of these vote-buying gimmicks are funded by debt created by the failed Keynesian Economic System.
Currently this Debt is charged to those who cannot vote: our Grandchildren’s future descendants.
This Debt is the Federal Grandchildrens Tax, or FGT, to distinguish it from the FIT, or Federal Income Tax, which only 51 % of us are required to pay.
The Silent Majority is silent no more.
There will be additional calls for State Constitutional Conventions if the Republicans try to preserve or retain ANY of Obama or Romney”care.”
Obama”care” is the Death Knell for America. It must be ABOLISHED FOREVER if America is to survive.
If Obama”care” does survive, then I favor Regional Areas/Republics of the former United States of America. I think the States that the XL Pipeline will run through makes excellent sense for one Region, called The Texas Region. The Mississippi Region would be those States that the Mississippi River runs through. Pacific and Atlantic Regions are obvious, as are the Rocky Mountain States.
In this way people could vote with their feet and move to a greater or lesser degree of personal Liberty.
The Great Experiment of forcing the United States of America back into the European Feudal System began with FDR’s Social Security System and will end in failure with Obama”care.”
There is no need for armed conflict, as we have already tried that horrific method with our bloody Civil War.
Just peacefully hold State Constitutional Conventions, split up the former USA into multi State Regions, and then hold Fourth of July “Remember When Days” once a year, as we thank our lucky Stars that we in NO WAY are like Europe.
If we were a Nation of Laws, we could survive.
We, instead, have become a Nation of Lawyers, and thus survival is not possible.
Lawyers do not obey the laws, they just change their interpretation of the laws to suit themselves. For example, “Remember the Arizona Law!” would make an appropiate State Constitutional Convention poster.
During the State Constitutional Conventions and split up of the former USA, we need to designate a multi-State Region just for Lawyers. They could then Keynesian themselves to their hearts content.
The Region that I will choose will be based on “The Invisible Hand” of Samuel Adams’ Free Market, with NO safety net.
Think it over, as it will take years to complete all of the State Constitutional Conventions.
Thus, we have time to plan to do it RIGHT, (pun intended), and throw the Liberal cartons of useless Tea millstones back into the Sea of European Feudalism/Socialism that they so richly deserve.
We must design our Multi-State Regions/Republics so that the disaster of RINO-morphing, and creeping Keyneism does not occur again.
Without an effective Check and Balance System each Multi-State Region/Republic will not survive, as has been proven in the present USA by the efforts of RINO-Democrat-Liberal Agenda Media “Triangle of Doom” that we have today.
There is still hope if we can DUMP Romney by having the Delegates vote to ABSTAIN on the first Ballot in Tampa.
If Romney becomes the Nominee, Obama wins big in November, just like he did against Lame-Brain McCain in 2008, and it will be GAME ON Time for us FReepers here in the former USA.
BTW, I’m dusting off my Tri-Cornered Hat, will dig out my copies of The Federalists Papers, and for Patriotic Flair, may even make a few quill pens!
Let us build a more perfect Union! Long live the Second Republic of TEXAS!
____________
BTW, BTW, to the BIG BROTHER Lurkers: save your expensive Obamadrones for the continuous, and now SCOTUS-approved, invasion of the Mexican Drug Lords into Southern Arizona.
We will be no bother to you as we will be more peaceful, and more patriotically joyful than a GSA Convention in Las Vegas when we hold our many State Constitutional Conventions.
Y’all come by now, hear?
He wanted to add justices to the court, but this was too much for even the democrat controlled congress at the time and no such court packing occurred.
That approach might work for boob jobs, but some disease states and medical conditions leave the patient with few options or room to negotiate.
I do agree with your comments on increased competition, however.
If SCOTUS kills the mandate but leaves the rest standing, the Health Insurance industry will gear up their SuperPACS and spring into full-on repeal mode.
They were only willing to put up with mandated free screenings, birth control and coverage for 26 year old slackers if 40 million new paying customers at gunpoint came along with it. If they aren’t getting those customers they are NOT gonna let Obama stick them with the rest of the crap sandwich.
This is why the Obama Administration went to the Court after oral arguments and filed a brief asking the Court to shut down the whole thing if they kill the mandate. Doing otherwise would turn their former allies in the health insurance industry into a very powerful and dangerous enemy.
You say “given that roberts is writing the opinion...”
I’ve read that speculation but did not think we definitely knew that roberts is writing the opinion
http://www.nationalreview.com/bench-memos/304121/my-prediction-tomorrow-s-obamacare-ruling-ed-whelan
Lack of severability should doom any document in its entirety.
However, we are talking about the government who uses convoluted reasoning to accomplish their ends no matter what.
If you can trust Roberts, and I am by no means convinced Roberts owes any loyalty to any Constitution much less our republican form of government.
From what I’ve seen of Roberts he is very much a man on the edge of supporting a despotic(boundless) government! No I do not see his “majority” opinion as necessarily a good thing, but rather the potential of an opening up his ultimate betrayer of every free American.
“Lack of severability should doom any document in its entirety.
However, we are talking about the government who uses convoluted reasoning to accomplish their ends no matter what.”
That is only on theses Federal employees good days. On their bad days they don’t seem to be concerned with any reasoning at all. We have reach the point of decay in our “Constitutional system” where they realized that their mere words are enough to rewrite the law. That they need not justify their actions in either written language, past practice, nor historic understanding.
We must come to accept that we live under a very much lawless Federal Government. A fact made perhaps all the more potent in that this Government so secure in that knowledge that it so often openly acts accordingly.
“Lack of severability should doom any document in its entirety.
However, we are talking about the government who uses convoluted reasoning to accomplish their ends no matter what.”
That is only on theses Federal employees good days. On their bad days they don’t seem to be concerned with any reasoning at all. We have reach the point of decay in our “Constitutional system” where they realized that their mere words are enough to rewrite the law. That they need not justify their actions in either written language, past practice, nor historic understanding.
We must come to accept that we live under a very much lawless Federal Government. A fact made perhaps all the more potent in that this Government so secure in that knowledge that it so often openly acts accordingly.
If you take the tinfoil off of your head long enough and do some reading here, you might be surprise as to why Roberts voted the way he did.
I disagree. The state of AZ did nothing more than mirror the Federal Law (not pre-empt it) in order to cooperate with and help the federal government carry out its Constitutional responsibility. AZ was not trying to overrride, augment or obviate federal law. This ruling stinks to me of two Justices wanting to be loved by the DC set and not having the courage to do what is right.
I see the coming healthcare decision as an exercise in the ole Sandra Day O’Connor “legitimacy” escuse for cowardice. In other words, Roberts and Kennedy may believe in doing X but because X would make the Court unpopular or seen in a negative light, they will do Y in the name of preserving the Court’s legitimacy.
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