The
other two main entities of the ACA besides the individual mandate are “guaranteed-issue”
and “community-rating.” These two entities are extremely popular with the
majority of Americans; simply because these provisions give more people access
to health care and particularly to “fair” health care, or so it is said. I won’t
bother trying to decide if that is a true assertion, but I can say that there
are more than a few Americans that believe it is. The provisions’ popularity was
not over-looked by the government either; the government actually argued during
oral arguments before the Supreme Court that the bill was NOT severable if the individual mandate was
declared unconstitutional. (One has to wonder if this argument wasn't made in part as an effort to use public pressure to nudge
the court to accept the individual mandate.)
Which leads me to my next point: If I were a Supreme Court Justice (Lord help me), the first thing I would have to consider is the protection of the Court. What I mean by that is that the Court is an independent entity, and if they are swayed to either uphold the individual mandate or declare the rest of the Act (particularly the guaranteed-issue and community-rating) severable from it because they were bowing to public opinion, the Court would be entirely worthless. Worthless because it is charged with being objective and unbiased in applying the Constitution, (granted, not something easy to do). Yet if the Court allows the will of the masses move it, how can it protect the rights of the minority, protect the rights of the government, the rights of businesses, the rights of you and I, or the Court itself; how can it be considered anything other than a tool? Thus as a Supreme Court Justice I would probably have to exercise judicial restraint and say, “Since there is no severability language present in the bill, the entire Act must fall because a severability clause allows for provisions in the Act to survive without the ‘heart’ of the bill present and without one it cannot be assumed that those provisions can stand on their own. You can’t have it both ways.” Besides it would make sense that if the other provisions in the bill are so incredibly popular, they could surely be put in a new bill rather easily, right? After all, the Court's opinion could specifically delineate the provisions that are unconstitutional and clarify that the remainder of the bill falls due to the lack of a severability clause.
In conclusion, while I do think that the “guaranteed-issue, community-rating,” along with the majority of the rest of the Act (excluding the individual mandate) are certainly not unconstitutional and even positively progressive, the statute as a whole must fall. Judicial activism is not necessarily a bad thing mind you, but severability clauses exist for the purpose of laying out Congressional intent. The Court is separate and independent of Congress; the Constitution gave the power to make laws to Congress and the power to review those laws to the Court. They were not made to mix those together with one or the other. Checks and Balances. Declaring that part(s) of the bill can stand without clear legislative intent written in via a severability clause is, in essence, “writing” the law, which is entirely different from “reviewing” the law.
Which leads me to my next point: If I were a Supreme Court Justice (Lord help me), the first thing I would have to consider is the protection of the Court. What I mean by that is that the Court is an independent entity, and if they are swayed to either uphold the individual mandate or declare the rest of the Act (particularly the guaranteed-issue and community-rating) severable from it because they were bowing to public opinion, the Court would be entirely worthless. Worthless because it is charged with being objective and unbiased in applying the Constitution, (granted, not something easy to do). Yet if the Court allows the will of the masses move it, how can it protect the rights of the minority, protect the rights of the government, the rights of businesses, the rights of you and I, or the Court itself; how can it be considered anything other than a tool? Thus as a Supreme Court Justice I would probably have to exercise judicial restraint and say, “Since there is no severability language present in the bill, the entire Act must fall because a severability clause allows for provisions in the Act to survive without the ‘heart’ of the bill present and without one it cannot be assumed that those provisions can stand on their own. You can’t have it both ways.” Besides it would make sense that if the other provisions in the bill are so incredibly popular, they could surely be put in a new bill rather easily, right? After all, the Court's opinion could specifically delineate the provisions that are unconstitutional and clarify that the remainder of the bill falls due to the lack of a severability clause.
In conclusion, while I do think that the “guaranteed-issue, community-rating,” along with the majority of the rest of the Act (excluding the individual mandate) are certainly not unconstitutional and even positively progressive, the statute as a whole must fall. Judicial activism is not necessarily a bad thing mind you, but severability clauses exist for the purpose of laying out Congressional intent. The Court is separate and independent of Congress; the Constitution gave the power to make laws to Congress and the power to review those laws to the Court. They were not made to mix those together with one or the other. Checks and Balances. Declaring that part(s) of the bill can stand without clear legislative intent written in via a severability clause is, in essence, “writing” the law, which is entirely different from “reviewing” the law.
No comments:
Post a Comment