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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 Examiner.com

“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 Townhall.com.

Mike gamecock DeVine
A trial lawyer for two decades in South Carolina; owner of Ati Vista LLC since 2002 now associated with Lupa Law Firm; VP & Counsel for Buddy Allen Roofing & Construction Inc. since 2016 in Atlanta, Georgia; and a freelance writer, DeVine was the conservative voice of the Charlotte Observer from 2006-8 and has been the owner of HillbillyPolitics.com since 2009. www.devinelawvista.com

26 COMMENTS

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26 COMMENTS

  1. 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?

    • If laws require pure giveaways they probably would fail. But current law requires certain coverages “be included” in policies that the insurance company sells.

      Plus, this is not a case of court expansion of what is commerce.

      Rather, the fact is that regulation is a broad term and it is up to us to elect reps that will use that power prudently.

  2. 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?

    • The use of severability and non-severability clauses are random and Court precedent generally follows the wish of Congress when such clauses are included. But when they are not included, the general rule is to presume severability so as to not presume upon the wishes of Congress. Nothing the court does stops a future Congress from performing a belated severance on its own.

      • I thought during this fight, that the severability clause was deliberately excluded because they said the law could not function as designed if they weren’t allowed to compel Americans to purchase insurance.

        As a matter of fact, that was one of the primary arguments (if not THE primary argument) in front of the FL judge whose name I can’t recall – that he couldn’t rule that part unconstitutional without screwing up the whole thing, that in order for the law to work, the whole law had to be in place.

        So in this case, it’s more like they are presuming on the wishes of Congress by including a clause that they debated and deliberately excluded.

        • No, because after Congress debated they chose NOT to include a severability or non-severability clause knowing that court precedent would not require non-severability under that circumstance.

          To strike down any portion of the law that is, on its own, constitutional would be to replace the wisdom of judges with those we elect to govern us. They chose not to require the court to deem the law a whole.

        • Queen, it is true that much of the debate around the time of the district court case did not discuss the fact that Congress frequently includes “non-severability” clause. I did at the time and criticized the lower court ruling. I was in the minority! (And there are arguments in favor of non-severability in this case, but i don’t find them persuasive when one looks at the long court history on the matter and the games Congress plays with inclusion and silence on such matters.) Most commentators simply didn’t discuss the issue since the Florida judge didn’t discuss it. I was happy with the lower court ruling though, from a practical standpoint and called on States to stop implementing same and that Obama be found in contempt. more later

    • Thanks ‘Pen’ and Skreet and here is an excerpt from the opinion on severability that succinctly states the doctrine of judicial restraint that is the equivalent of conservatism in the role of a judge:

      “The individual mandate, however, can be severed from the remainder of the Act’s myriad reforms. The presumption of severability is rooted in notions of judicial restraint and respect for the separation of powers in our constitutional system. The Act’s other provisions remain legally operative after the mandate’s excision, and the high burden needed under Supreme Court precedent to rebut the presumption of severability has not been met.”

      https://www.ca11.uscourts.gov/opinions/ops/201111021.pdf

  3. 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.
    Cheers

  4. 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.

  5. 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 mandate, hoping the whole bill would sail through district and appellate courts with no judge ever calling it out on the mandate. They gambled wrong, now at least two federal courts have taken exception and called in unconstitutional. As Kenny Solomon invoked over on another UP post tonight, I am praying for the health of the “sane 4” left on the Court and praying mightily that Kennedy remembers Obama’s ‘gangsta spit’ at him in the 2009 SOTU. GC, where does this bill go now with a (hopefully) mortally wounded insurance purchase mandate? What might happen to it before SCOTUS?

    • I have always expected that SCOTUS would do what the Eleventh Circuit Court just did, which is why I was so disappointed when the FL District Court judge didn’t issue a Writ of Mandamus for the Feds to stop enforcing all of ObamaCare until it gets to SCOTUS after he struck down the whole law. It was the best chance to get rid of ObamaCare before it destroys the health ins industry. I have always expected that the only way we will get rid of it is to get enough Repubs in office to repeal but even then I suspect that they won’t have the guts to repeal all of it.

  6. 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 severability clauses, that one might assume the absence of such a clause means the whole law must be treated as if the legislature intended a simple pass-fail examination from the courts?

    In this particular legislation, it’s fairly widely held that the Democrats crafting this legislation deliberately left off the severability template, betting that courts would be more reluctant to strike down the whole if their issue was with a part.

    Along with that, this being some kind of 2500 page bill with a host of convoluted nooks, eddies, crannies, draws, and gulches, I see massive potential for folly and endless litigation if the courts are able to take that bill and shape individual portions to mean any and all things.

    I just say, a spread of photon torpedoes, blow the whole socialist thing up, and begin to craft real reform where needed, while preserving the rights of individuals and businesses as much as possible.

    And I agree upstream: Judge Vinson should have issued a writ invalidating BambiCare. Not only is that legal and right, considering what he ruled, but that’s also what left-wing judges did to PBA, to Arizona SB1070, to a veritable array of citizen-passed ballot initiatives in California (and look at that state now).

    My two not-a-lawyer cents. But thank you sir for writing, you are definitely on the ball.

    He needed to summon up the gumption to do the right thing, and he failed to.

    • Your analysis leaves out the fact of the inclusion of NON-severability clauses, as did the debate months ago. “Widely known” is not evidence in court and such intent based on debate is only resorted to after exhaustion of other more reliable precedents and principles. Congress could have included such a clause and the conservative, judicial restraint doctrine calls for treating all laws a severable so as not to emasculate the the right of the people to make laws.

      Most all of the debate on conservative blogs at the time of the Florida judge WRONGLY focused on the absence of a severability clause when the most significant fact, based on precedent was the absence of a NON-severability clause.

      I was in the minority and was also attacked and vilified on Redstate as being a buffoon by Thomas Crown as part of a house cleaning exercise that slandered my good name on several levels.

      I was right then and now and was a gentleman at the time.

      God bless.

  7. 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 judges busy declaring the output of 50 state legislatures as unconstitutional, and we have a Congress gearing up to campaign in those fifty states with the pledge “Send me to Washington to fight for how you good folks wish to live your lives in Wyoming.” Disconnect?

    • The previous commenter argued for non-severability based on the floor arguments and arguments made outside of Congress as to how integral was the funding from the mandate to the viability of the new law.

      My point is that the courts look first to the actual words of the law as written, and what did they find? They found no non-severability clause, which is all Congress had to do to make sure that the funding could not be struck down and the regulations on ins cos survive.

      It would be activist for the court to assume a non-severability clause and strike down the constitutional portions of the law.

      • The “constitutional portions of the law”? I like that, GC. We all want to be fair and everything, but, “the Constitutional portions”? Those would be which? Those things Kathleen Sebelius is hearing in her earpiece as she goes about fleshing this thing out?

        • Many constitutional interstate commerce regulations are very bad ideas. It is up to Congress, not the courts, to fix them. Drink deep they Tea-erian springs and vote accordingly – Mike Alexander Pope DeVine

  1. 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?

    • If laws require pure giveaways they probably would fail. But current law requires certain coverages “be included” in policies that the insurance company sells.

      Plus, this is not a case of court expansion of what is commerce.

      Rather, the fact is that regulation is a broad term and it is up to us to elect reps that will use that power prudently.

  2. 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?

    • The use of severability and non-severability clauses are random and Court precedent generally follows the wish of Congress when such clauses are included. But when they are not included, the general rule is to presume severability so as to not presume upon the wishes of Congress. Nothing the court does stops a future Congress from performing a belated severance on its own.

      • I thought during this fight, that the severability clause was deliberately excluded because they said the law could not function as designed if they weren’t allowed to compel Americans to purchase insurance.

        As a matter of fact, that was one of the primary arguments (if not THE primary argument) in front of the FL judge whose name I can’t recall – that he couldn’t rule that part unconstitutional without screwing up the whole thing, that in order for the law to work, the whole law had to be in place.

        So in this case, it’s more like they are presuming on the wishes of Congress by including a clause that they debated and deliberately excluded.

        • No, because after Congress debated they chose NOT to include a severability or non-severability clause knowing that court precedent would not require non-severability under that circumstance.

          To strike down any portion of the law that is, on its own, constitutional would be to replace the wisdom of judges with those we elect to govern us. They chose not to require the court to deem the law a whole.

        • Queen, it is true that much of the debate around the time of the district court case did not discuss the fact that Congress frequently includes “non-severability” clause. I did at the time and criticized the lower court ruling. I was in the minority! (And there are arguments in favor of non-severability in this case, but i don’t find them persuasive when one looks at the long court history on the matter and the games Congress plays with inclusion and silence on such matters.) Most commentators simply didn’t discuss the issue since the Florida judge didn’t discuss it. I was happy with the lower court ruling though, from a practical standpoint and called on States to stop implementing same and that Obama be found in contempt. more later

    • Thanks ‘Pen’ and Skreet and here is an excerpt from the opinion on severability that succinctly states the doctrine of judicial restraint that is the equivalent of conservatism in the role of a judge:

      “The individual mandate, however, can be severed from the remainder of the Act’s myriad reforms. The presumption of severability is rooted in notions of judicial restraint and respect for the separation of powers in our constitutional system. The Act’s other provisions remain legally operative after the mandate’s excision, and the high burden needed under Supreme Court precedent to rebut the presumption of severability has not been met.”

      https://www.ca11.uscourts.gov/opinions/ops/201111021.pdf

  3. 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.
    Cheers

  4. 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.

  5. 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 mandate, hoping the whole bill would sail through district and appellate courts with no judge ever calling it out on the mandate. They gambled wrong, now at least two federal courts have taken exception and called in unconstitutional. As Kenny Solomon invoked over on another UP post tonight, I am praying for the health of the “sane 4” left on the Court and praying mightily that Kennedy remembers Obama’s ‘gangsta spit’ at him in the 2009 SOTU. GC, where does this bill go now with a (hopefully) mortally wounded insurance purchase mandate? What might happen to it before SCOTUS?

    • I have always expected that SCOTUS would do what the Eleventh Circuit Court just did, which is why I was so disappointed when the FL District Court judge didn’t issue a Writ of Mandamus for the Feds to stop enforcing all of ObamaCare until it gets to SCOTUS after he struck down the whole law. It was the best chance to get rid of ObamaCare before it destroys the health ins industry. I have always expected that the only way we will get rid of it is to get enough Repubs in office to repeal but even then I suspect that they won’t have the guts to repeal all of it.

  6. 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 severability clauses, that one might assume the absence of such a clause means the whole law must be treated as if the legislature intended a simple pass-fail examination from the courts?

    In this particular legislation, it’s fairly widely held that the Democrats crafting this legislation deliberately left off the severability template, betting that courts would be more reluctant to strike down the whole if their issue was with a part.

    Along with that, this being some kind of 2500 page bill with a host of convoluted nooks, eddies, crannies, draws, and gulches, I see massive potential for folly and endless litigation if the courts are able to take that bill and shape individual portions to mean any and all things.

    I just say, a spread of photon torpedoes, blow the whole socialist thing up, and begin to craft real reform where needed, while preserving the rights of individuals and businesses as much as possible.

    And I agree upstream: Judge Vinson should have issued a writ invalidating BambiCare. Not only is that legal and right, considering what he ruled, but that’s also what left-wing judges did to PBA, to Arizona SB1070, to a veritable array of citizen-passed ballot initiatives in California (and look at that state now).

    My two not-a-lawyer cents. But thank you sir for writing, you are definitely on the ball.

    He needed to summon up the gumption to do the right thing, and he failed to.

    • Your analysis leaves out the fact of the inclusion of NON-severability clauses, as did the debate months ago. “Widely known” is not evidence in court and such intent based on debate is only resorted to after exhaustion of other more reliable precedents and principles. Congress could have included such a clause and the conservative, judicial restraint doctrine calls for treating all laws a severable so as not to emasculate the the right of the people to make laws.

      Most all of the debate on conservative blogs at the time of the Florida judge WRONGLY focused on the absence of a severability clause when the most significant fact, based on precedent was the absence of a NON-severability clause.

      I was in the minority and was also attacked and vilified on Redstate as being a buffoon by Thomas Crown as part of a house cleaning exercise that slandered my good name on several levels.

      I was right then and now and was a gentleman at the time.

      God bless.

  7. 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 judges busy declaring the output of 50 state legislatures as unconstitutional, and we have a Congress gearing up to campaign in those fifty states with the pledge “Send me to Washington to fight for how you good folks wish to live your lives in Wyoming.” Disconnect?

    • The previous commenter argued for non-severability based on the floor arguments and arguments made outside of Congress as to how integral was the funding from the mandate to the viability of the new law.

      My point is that the courts look first to the actual words of the law as written, and what did they find? They found no non-severability clause, which is all Congress had to do to make sure that the funding could not be struck down and the regulations on ins cos survive.

      It would be activist for the court to assume a non-severability clause and strike down the constitutional portions of the law.

      • The “constitutional portions of the law”? I like that, GC. We all want to be fair and everything, but, “the Constitutional portions”? Those would be which? Those things Kathleen Sebelius is hearing in her earpiece as she goes about fleshing this thing out?

        • Many constitutional interstate commerce regulations are very bad ideas. It is up to Congress, not the courts, to fix them. Drink deep they Tea-erian springs and vote accordingly – Mike Alexander Pope DeVine

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