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Axelrod: Judge's Invalidation Of Health Care Law Is 'Very Dubious'

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AXELROD

WASHINGTON -- The Obama administration pushed back forcefully on Monday afternoon against a Florida judge's ruling that its signature health care law is invalid, calling the judgment a legally "dubious" reading of the law.

In an interview with The Huffington Post, outgoing senior adviser David Axelrod accused Judge Roger Vinson of judicial overreach for concluding that the health care law's individual mandate was both unconstitutional and not severable from the rest of the legislation -- meaning the entire law had to be tossed.

"I'm not a lawyer," said Axelrod, from a makeshift office in the West Wing. "But I will tell you that I think that many lawyers are very dubious about that. The role of the courts is not to look for expansive opportunities to invalidate an act of Congress -- it is to rule narrowly as possible and leave intact the intent of the legislation. So I'm sure that will be a matter of intense discussion and debate as this case moves forward in the courts."

"Two courts have ruled in favor of the law, two now have ruled against," he added. "We feel very strongly that the law is constitutional, and we are going to continue to implement it and make the case in the courts, and we are very confident that at the end of the day it will be upheld."

The debate over severability is a bit muddled due to the fact that courts have, in the past, applied the clause to laws even if it wasn't included in the final draft. Conservative legal observers have suggested that the individual mandate can be severed from the law itself, even if authors failed to include the language when they were crafting reform. Vinson determined otherwise.

Easier to diagnose is how the administration will push back against unfavorable rulings. Axelrod's statement adopts, at its heart, a decidedly conservative critique of the judicial branch. But the framing does suit the administration's agenda. The health care reform act is an act of Congress. The argument can be made, as Stephanie Cutter, a deputy senior advisor to the president and top communications hand on health care matters, did in a blog post, that to overturn it would be a form of "judicial activism."

And yet, it's hard not to imagine that the White House is breathing a bit more heavily following Monday's ruling. For starters, an earlier ruling against the health care law, handed down by a Virginia federal judge, held that the individual mandate, while unconstitutional, could be considered severable from the rest of the legislation. The Affordable Care Act, in short, could go forward even if the provision requiring people buy insurance couldn't.

Vinson's decision is much further-reaching. And while the individual mandate won't be implemented until 2014, the mere fact that the decision invalidates the rest of the law has forced the administration's lawyers to scramble for the proper response.

On Monday afternoon, a senior administration official in a conference call organized by the White House said that implementation of the law would continue as planned. The New York Times reported, meanwhile, that "Vinson declined to enjoin the law and ruled that it could remain in place pending appeals."

But the Justice Department is weighing the need to file a formal stay of the decision, in part because of the ruling that the mandate was inseverable.

"As we look at next steps we are considering all options, which include [a stay]," said an administration official. "And it has to do with the fact that the severability finding of the ruling ... To the extent that there are already reforms taking place, [the Judge] is finding them unconstitutional. To the extent there could be confusion about that with states, with insurers, with small businesses and the like," there is a need for clarity. "You could have governors come out tomorrow and say my state will no longer enforce this law because this judge said the whole thing is unconstitutional."

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