Atlanta Court right to sever ObamaCare


Non-severed portions of health care law are destroying the private health insurance industry now and even if a President Romney could grant waivers to all businesses in America, that destruction would continue.

But DeVine Law is happy with the Eleventh Circuit Court of Appeals:

The Appeals Court for the 11th Circuit, based in Atlanta, found that Congress exceeded its authority by requiring Americans to buy coverage, but also ruled that the rest of the wide-ranging law could remain in effect.

The legality of the so-called individual mandate, a cornerstone of the 2010 health care law, is widely expected to be decided by the Supreme Court. The Obama administration has defended the provision as constitutional.

The case stems from a challenge by 26 U.S. states which had argued the individual mandate, set to go into effect in 2014, was unconstitutional because Congress could not force Americans to buy health insurance or face the prospect of a penalty.

DeVine Law is not happy with ObamaCare regulations that require private health insurers to cover more applicants and at lower prices than risk assessments deem prudent, but it is not the courts’ role to correct supposed Congressional mistakes, unless those mistakes are unconstitutional. Even a court filled with my fellow Federalist Society lawyers understand that Congress has the power under the Commerce Clause to regulate interstate commerce.

In fact, one of the great anomalies of the United (Regulatory States) of America, founded circa 1933, is that Congress has not used their power to break up state health insurance monopolies. One of the main reasons that the Founders scrapped the Articles of Confederation soon after winning our Independence was to draft a constitution that would unite the states economically.

Other than repealing ObamaCare, Congress could take better action that would lead to lower medical costs and insurance premiums than to allow the selling of health insurance policies across state lines. Neither tort reform, nor medical malpractice reform comes close to the positive effect of ending state monopolies, but I digress.

The better conservative position for a judge is to rule as narrowly as one can to resolve a case and to respect the acts of elected representatives in as broad a fashion as possible. In that regard, the fact that ObamaCare did not include a “severability” clause is irrelevant, and it was right for the federal appeals court not to impose one since the separate provisions are not interdependent in their operation.

Oh yes, I understand that the individual mandate was the supposed funding mechanism for ObamaCare, but it is not the duty of the courts to make such choices. The fact is that Congress has been regulating insurance companies for decades without funding mechanisms that require Americans to send money to Washington, D.C.

The “funding mechanism” for mandates that companies cover pre-existing conditions, adult children and birth control are the customers of private insurance companies, i.e. We the People, in the form of higher premium payments and increased medical costs.

Blanket waivers from ObamaCare for all 50 states and every private company in the United States, as promised by GOP presidential contender Mitt Romney, would not eliminate what ails the health care and insurance systems. No, to fix the problem a GOP majority and Congress would have to repeal the rest of ObamaCare that specifically applies to private insurers that cannot be waived.

Republicans will have to have the courage to vote against economically destructive but vastly popular pre-existing condition mandate if they want to save the private insurance industry. Moreover, the failure to fix medical cost inflation could doom even the most frugal long term conservative plans to balance the budget and reduce the debt, i.e. save America from destruction.

Will Republicans have the courage and competence to explain to voters that for insurance to be viable, the companies must be allowed to allocate and charge based on risk.

I hope so, otherwise Romney waivers and a Supreme Court ending of the individual mandate will be but a bandaid and not a cure for what ails America.

Mike DeVine

Legal Editor – The Minority Report

Atlanta Law & Politics columnist for

“One man with courage makes a majority.” – Andrew Jackson

More DeVine Gamecock rooster crowings at Modern ConservativeHillbilly PoliticsUnified Patriots,  Political Daily and Conservative Outlooks. All Charlotte Observer and Atlanta Journal-Constitution op-eds archived at

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August 12, 2011 3:19 pm

Well argued, Mike. Let’s see what the second appeals court says in the Vinson ruling, for some glimpse into the next round.

August 12, 2011 3:34 pm

GC: You’re a lawyer, I’m not. But I have hard this ‘regulate commerce’ all my life and to me, “regulate” does not mean Congress telling a business it must give something away. What part of “insurance” is it when a company is forced to pay for a specific malady? Pre-existing fender benders now going to be paid for? Is contract law moot?

August 12, 2011 3:39 pm

Pray for the continued health, safety and security of the 4 sane and 1 semi-sane SCOTUS Justices — If any retire or ‘has an accident’……

Kenny Solomon
Israel Survival Updates
The American Survival Guide

Queen Hotchibobo
August 12, 2011 3:47 pm

But Mike, don’t they typically include a severability clause because it is assumed that the court system cannot rule part of a law unconstitutional without ruling the entire thing unconstitutional?

Without that clause, how is it possible to rule a piece of a law unconstitutional?

Lady Penguin
August 12, 2011 4:21 pm

I really like the way you support your analysis, GC. Very helpful for a layperson.

August 12, 2011 4:27 pm

Preach it, brother! Good stuff!

August 12, 2011 4:35 pm

Hear, Hear, GC. Too many of us want the Courts to step in rectify bad-decisions by Congress. Your analysis lays out clearly what the prudent, original-intent court will do,i.e., declare constitutional excesses and then let Congress figure out to proceed from there. Messy, but yes, the best way.

August 12, 2011 4:44 pm

Thanks GC.

I do, myself, think the interstate commerce clause was only to facilitate commerce not restrict it.
Meaning a state couldn’t exclude or tax imports from another state. In other words to prevent states from enjoining free trade not as a tool to actually hinder trade or as a way for the congress to interfere in intrastate trade.

I also have to concede for now this is not how it is currently used and interpreted.

August 12, 2011 10:49 pm

I heard there was a financial/administrative angle on why the Dems *intentionally* didn’t include severability.Under this scenario, it was not a mistake (leaving it out). If they had put in severability, anticipating the mandate was unconstitutional, the bill would have no longer been scored”revenue neutral” by the CBO – because the insurance mandate was a money maker and offset all the staggering public costs in the later parts of the bill. Thus it would have been a budget buster and supposedly subject to “sunset” provisions extant from Gramm-Rudman. The Dems knew what they were doing and doubled down on the… Read more »

E Pluribus Unum
August 13, 2011 2:44 pm

Well argued as always, Sir Gamecock. In general I support where you are going with this, and in particular I am in favor of rulings as narrow as possible (because I actually reject the notion that there is legitimately such a thing as “case law”, setting me at odds with probably every lawyer in America 🙂 ). But I digress. I must disagree on the severing that happened here. I speak not to the moral good or bad, but to the point of law and to legal precedent. Is it not true that ever since legislatures began writing laws with… Read more »

August 13, 2011 5:20 pm

Timidly, and respectfully, what is the difference between “widely known” and “Congress has always done this, so we’ll just assume, or make believe, or substitute our judgement and say there is a severability intended here?” Judicial acttivism is judicial activism, is it not? Why don’t we quit arguing over ‘case law’, and ‘precedent’, which aren’t in the Constitution, and talk about the Constitutionality of the Legislative Branch allowing that the Secretary of Human Services, the executive branch, may assume the lawmaking function? Sometimes bad law is just bad, and sometimes it is downright unconstitutional. Right now we have 800 federal… Read more »