An Error By Dems May Allow The Lawsuit Against Health Care Reform To Succeed

[Better Believe It]

An Error By Dems May Allow The Lawsuit Against Health Care Reform To Succeed
By Brian Beutler
November 30, 2010

Conservative foes of the Affordable Care Act want the federal courts to smother the new health care law in its crib. They've argued that Democrats failed to erect the proper safeguards to protect the legislation from being stricken down entirely by the courts. And when a Virginia district court judge rules in the coming days on the Constitutionality of the law's insurance mandate, he'll also have to decide whether none, some, or all of the law must go with it.

The obscure term of art here is "severability".

Quite often, legislators include what's known as a "severability clause" in their bills. These are meant to protect the bulk of a law in the event that a small portion of it is determined to be unconstitutional. That small portion must go, or be changed, but pretty much everything else is allowed to stand.

In a sin of omission, Democrats left such a clause out of the health care law, and now the plaintiffs in at least one of the cases against it want the court to take an axe to the whole thing if the judge decides that the individual mandate provision is unconstitutional.

Read the full article at:

http://tpmdc.talkingpointsmemo.com/2010/11/conservative-suit-against-the-mandate.php

[aquart]

1. Succeed or proceed?

[Better Believe It]

3. Succeed

[Poll_Blind]

2. Lack of severability clause is an act of sabotage, not omission. n/t

PB

[TexasObserver]

4. This is a screw up of major impact.

How in the hell could this happen?

It's not as if bills are written from scratch. You write them from a template. There are certain things that are standard, and a severability clause is mandatory.

Unbelievable!

[BzaDem]

7. Remember, everyone assumed there would be a conference committee, and that is always where they make

technical perfections. When the Senate bill passed, no one knew Scott Brown was going to win, or that the Senate bill would ever be passed word for word.

But as I said below, it won't matter much. If the mandate were struck down, that would certainly get rid of the pre-existing condition regulation, but that would be gone EVEN with a severability clause (since the mandate is required for that to operate). A severability clause only signals intent, but they go by intent anyways.

[Better Believe It]

8. And now on top of that the Food Safety Bill fuck-up!

Senate Dems' Unconstitutional Mishap Could Kill Food Safety Bill

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x9668425

[Poll_Blind]

9. I guarantee you that the lack of a severability clause was intentional.

The most important piece of health care legislation in our lifetime does not come with a severability clause which you will find in absolutely every EULA everywhere. With a piece of legislation such as this it basically means "all or nothing" and its crafters were of the belief that either it would all stand up or it would at least hold up till after the mid-term elections.

PB

[BzaDem]

10. Poll_Blind, no one EVER thought the Senate bill would have to pass word for word. They always stick

technical fixes in in at conference committee (but that couldn't happen after Scott Brown won). Passing a senate bill word for word because a newly elected senator prevented a conference committee was completely unprecedented.

[Poll_Blind]

18. C'mon, if I didn't see this on EVERY SINGLE contract I've ever read or agreed to I would be...

...ignorant enough to believe that this was some oversight based on circumstance.

That's just silly.

PB

[BzaDem]

21. I have seen it on every contract I've read, but not every internal draft of a contract never meant

to be signed.

Regardless of how well the analogy works, they were expecting to do a whole slew of technical corrections in conference, and none of them got done because Scott Brown prevented a conference.

[badtoworse]

23. Again, I'm not up to speed - what provisions are vulnerable?

Do you think the law could stand if those provisions are struck down? Earlier, you defined the standard the court would likely use. Can you (or some other knowledgeable person)give an analysis of the suit and how it might go?

I was under the impression that at least part of the suit claimed that Federal Government lacks the power to mandate the purchase of health insurance. Is that true?

On edit: I read the full article which answered my questions - My Bad

[TexasObserver]

25. It's preferable to have such a clause, which is why it's usually done.

The court can always carve out the offending language, even without such a clause, but it's better to have one than punt. The Supreme Court addressed the issue last year in a case whose name escapes me.

The cases in question are highly political in nature. They are advanced by Republican Attorneys General from various states. Those AGs are appearing in federal courts, where the judges are more than likely GOP appointees. The GOP appoints highly political district judges. They don't get appointed unless they're safely political.

With no severability clause, it's simply easier for the district judges to rule against the act, in whole or in part. It makes it easier for a judge to hold the act unconstitutional, and let the appellate courts sort it out. A district judge who wants to be appointed to the appellate bench the next time there is a GOP president will be sensitive to ruling in a manner pleasing to GOP powers.

[TorchTheWitch]

13. had to have been done on purpose

Not the sort of thing one just "forgets" about. Smells like they omitted it on purpose so that it would end up failing.

[TexasObserver]

24. Sure seems like it.

[BzaDem]

26. I really don't think it was done on purpose. They HAD the clause in the reconciliation bill.

The reason they didn't have it in the Senate bill was because NO ONE knew on December 24th, 2009 that there wasn't going to be a conference/ping pong. Conference/ping pong is where all these bills are perfected on a technical, legal level (unless there is a preconference agreement made in advance). No one knew even the remote possibility of Brown being elected until January (after the Senate bill was passed).

When Scott Brown was elected, that meant the only possibility was to pass the Senate bill word for word. It was essentially a draft, but they had to use it anyway.

[TexasObserver]

27. Yeah, you're probably right. They intended to fix it, but couldn't.

I'd forgotten that time line and how it had to be manufactured.

Still, how can you leave it out of the draft? Boilerplate is there for a reason. Do they leave out MERGER CLAUSE in contractual drafts? Oh, we'll get that in there later.

Years ago, I wrote bills in the Texas legislature, and you start with a template. You build around the template, but the template has to be right each time. The guts of it change, but adherence to time honored language and structure is essential. Making a law different than others in structure or language is an invitation to challenge. You want the terms to be sufficiently independent that it can survive having a part of it stricken.

This looks more like sloppy work on the front end that never got corrected in time, based upon your recollection, which appears right.

[BzaDem]

5. This came up in a previous Supreme Court case with similar circumstances, and they severed the

unconstitutional language anyway. The lack of a severability clause is not a big deal.

[badtoworse]

11. I'm not a lawyer

How much precedent is there? Have there been cases where the SCOTUS struck down an entire piece of legislation because part of it was unconstitutional? What was the makeup of the court. I do not believe the Roberts court will be particularly friendly.

[BzaDem]

12. The proper standard is that the court has to decide what would pass and what would be workable

without the offending provision.

A severability clause just shows intent. Courts often keep the rest of the law intact even WITHOUT a severability clause, and sometimes throw the whole law out even WITH a severability clause. It's not dispositive -- it's just a signal of intent.

[badtoworse]

14. Thanks - nt

[MannyGoldstein]

6. 'Error'?

Have the lobbyists write the thing and shit happens.

I guarantee that there are all kinds of land mines in that 2,500-page fucker. Like the recent realization that mandating the offering of health policies for all children without capping premiums is worth as much as a giant fart.

[Name removed]

15. Deleted message

Message removed by moderator. Click here to review the message board rules.

[BzaDem]

16. Of course, you would apparently be fine with telling the cancer patient who can afford 5% of her

income, but not 2000%, that it's just her time to die.

[GrantDem]

17. Enjoy your stay

[Better Believe It]

19. I think it will be a very short visit here.

:)

[ellie]

20. How will people

starve because of the Affordable Care Act?

[badtoworse]

22. I don't understand your post - nt