November 26, 2010

The continuing saga of liberals in denial

Latest in a series.

Federal lawyers are bracing themselves, it says here, for adverse rulings in several courts over the controversial individual insurance mandate provision contained in 2010's health care reform act.

It seems to me they are well advised to be so braced.
While many newly empowered Republican lawmakers have vowed to repeal the health care law in Congress, a more immediate threat may rest in the federal courts in cases brought by Republican officials in dozens of states.
Been saying that for more than a year now.
An earlier version of the legislation, which passed the House last November, included severability language. But that clause did not make it into the Senate version, which ultimately became law. A Democratic aide who helped write the bill characterized the omission as an oversight.
Ye gods.

Without that language — which leads ultimately to a determination of whether the entire Act might survive once a single provision as operationally crucial as the individual insurance mandate is found unconstitutional — it's left for the courts to decide. Although any judicial orders of the trial level court — which is where the legal challenges are now ensconced — barring the enforcement of the law will most likely be postponed pending a higher court's decision.

And that higher court will most probably be the U.S. Supreme Court, and that Court is not likely to rule until such time as smack dab in the middle of the 2012 presidential and Congressional campaigns.

Woe betide somebody (See, e.g., "Obamacare" vs. "Romneycare").

A worse oversight than the lack of that specific language obtains from Congress's failure to convincingly articulate that its authority to enact the insurance mandate derives from something other than its power to "regulate Commerce ... among the several States."

As noted at this space earlier, the federales sustained a body blow when a district court in Florida, decidedly unimpressed by arguments that the mandate was not a regulation of interstate commerce but rather a tax, criticized the administration for cobbling together an ex post facto defense of the law, one which the law itself doesn't appear to have contemplated. So long as the legal challenges remain focused on the Commerce Clause, which is where its critics prefer the focus to remain, the mandate is in much greater danger of invalidation.
A White House official said that in the meantime "the litigation is really not having an impact" on the pace of putting the law into effect: "I talk weekly to officials in States that have sued us, and in States that have not. I cannot tell the difference between them."
If one of them is Wisconsin's attorney general J.B. Van Hollen, it's no wonder you can't tell the difference, because both Van Hollen and the governor-elect have been chomping at the bit to join the litigation.

Doubtless there is skepticism even within those States which will not join the litigation. There has to be, given both the unprecedented interpretation of the Commerce Clause that will be required to sustain the mandate's viability and the current make-up of the Court.

Assuredly, Congress and the president would have been on firmer ground implementing wholesale a single-payer system. A nightmare Supreme Court ruling may be what "compromise" gets them instead.

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