Scalia on severability: Making us read this entire bill would be cruel and unusual punishment
posted at 5:25 pm on March 28, 2012 by Allahpundit
Via the Washington Free Beacon, the oral argument laugh line du jour and further evidence that Scalia, whom the left once viewed as a potential vote to uphold the mandate, looks set to drop an atomic bomb on the whole scheme. The unspoken punchline is that Congress didn’t want to read the bill either (right, Nancy?), which is how this landmark boondoggle with a dubious constitutional novelty at its core somehow ended up … without a severability clause. That was today’s subject — if the mandate is struck down, does the rest of this thing have to die with it or can other provisions of the law be salvaged? Congress almost always adds a section about that when it drafts a bill. It forgot this time. Oops.
Two clips here, one of Scalia and the other a not very satisfying set of audio highlights from the AP. I think Sotomayor’s point is fair: If the Court creates an insurance “death spiral” by knocking down the mandate but leaving everything else intact, there’s nothing stopping Congress from eliminating that death spiral by simply repealing the rest of the statute and starting over. The argument for having the Court kill the whole thing is more pragmatic than legal, I think — no one wants to see insurers go out of business because Congress ends up gridlocked and paralyzed on yet another issue. But don’t forget (a) the insurance industry has a lot of political muscle and they’ll bring the full force of it to bear on incumbent congressmen to find a solution and (b) given that we’re all going to have to put on our big-boy pants soon to reform Medicare, maybe a crisis now will be a wake-up call in forcing Congress to start thinking big. Surely they wouldn’t sit idly by while America’s health insurance industry disintegrated around them. And before you say, “But that’s the left’s path to single payer!”, read Karl’s Greenroom post. The Republican House will never, ever, ever pass it, and The One really, really, really doesn’t want to preside over Americans losing their coverage as insurers go belly up. Especially in an election year.
Update: Speaking of single payer, Josh Marshall makes one of the left’s most effective arguments for ObamaCare: How can the mandate be unconstitutional when a far more aggressive power grab like single payer, i.e. “Medicare for all,” probably wouldn’t be? The latter would fall under Congress’s tax and spend powers, which dodges the Commerce Clause problem in forcing people to purchase things from third parties. But if liberty’s your bottom line, it’s cold comfort to know that the bigger of the two federal expansions is likely on safe ground constitutionally. For more on that, go read Jacob Sullum’s depressing take at Reason.