Wall Street Journal
October 25, 2011
The extremely big bet that the Justice Department—and presumably, the White House—is making on ObamaCare’s constitutionality.
Cert petitions asking the Supreme Court to hear the various constitutional challenges to the Affordable Care Act could be distributed to chambers for consideration as early as this week. If they are, we’ll know by mid-November if and when the justices will rule on the individual mandate. In the meantime, though, let’s note the extremely big bet that the Justice Department — and presumably, the White House — is making.
At issue is the legal principle known as severability: Laws usually contain clauses holding that if one provision is invalidated on constitutional grounds, the rest stands. But ObamaCare doesn’t contain such a provision, either because it was forgotten in the rush to pass the bill or perhaps in the liberal overconfidence that the constitutional critics were cranks.
For this reason, when a Florida court rejected the individual mandate in February, it also struck down the entire statute. Other courts have found legal arguments for invalidating the mandate while preserving the rest (while of course others have found the whole thing constitutional).
In a brief filed late last week, Justice argues that the individual mandate is not severable from the Affordable Care Act’s core insurance regulation and subsidy scheme. In other words, the mandate is so important that the rest of the law may need to be erased if it goes overboard.
The safer legal strategy would have been to hedge on severability in the event the court overturns the mandate, since ObamaCare could never pass again in anything like its current form. But Justice’s all-in gambit may be to raise the stakes — daring the court not merely to overturn one unpopular provision but to quash President Obama’s major policy achievement and open itself to political blowback a la Citizens United. The Justice Department may think that will encourage the justices to be more careful, but such a risk may turn out to be a huge legal error in retrospect.