The chattering class in Washington is waiting anxiously for the U.S. Supreme Court to hand down its verdict on the constitutionality of what is commonly called ObamaCare. Traditionally, the court builds suspense regarding its most notable cases until the last day of the session approaches. As such, speculation continues to boil as to how the court will decide the Obama administration's signature legislative accomplishment, the Affordable Care Act.
As is typical when Washington rushes, few are completely satisfied with the compromises that produced the bill; some lament the lack of the single-payer approach while others consider the whole thing an affront to the constitution and everything they hold dear. The polling suggests a deep partisan divide on the issue but with most Americans consistently opposing the law. Repealing ObamaCare remains one of the motivating rallying cries of the tea party.
Despite all the rhetoric and demagoguery on both sides, a few parts are overwhelmingly supported while others are overwhelmingly opposed. The most hated is probably the individual mandate, which I wrote about previously here. I expect the court to strike down the constitutionality of the individual mandate, given the administration's inability to articulate a limiting principle to sustain it. This begs the question: Will the law be struck down in its entirety?
The guide to answering this question is congressional intent. Different analysts -- as well as different Supreme Court justices -- have offered different views, but I think the clearest guide should be congressional action itself. The New York Times ran an op-ed from Columbia Law School professors Abbe Gluck and Michael Graetz that argued that the Obama administration was wrong to argue that the individual mandate is not "severable" from the entire law (meaning that if the individual mandate is struck down as unconstitutional, then the entire law is struck down, as well). Even though most complex bills include a severability clause, ObamaCare did not. As the bill was working its way through the congressional sausage factory, the U.S. House passed a version that included a severability clause. The U.S. Senate passed a version that did not include a severability clause. Then the House passed the Senate version, which President Obama signed into law.
One doesn't have to speculate on congressional intent; just look at how they voted. Congress and the Obama administration both think the constitutionality of the law is all or nothing. Responsible government means the administration needs a Plan B.
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