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Obamacare: The Individual Mandate’s Severability

March 30, 2012

Corey Katzelnick ’14

Wednesday’s outcome at the Supreme Court will be the foundation of future arguments for and against Obamacare.  Only its 3rd day being reviewed, the Affordable Care Act has surprisingly lost its air of confidence that Obama’s Administration had been continually giving it with throughout his presidency.  Suddenly, as the grip of the next election tightens, Obama will have to cross his fingers and hope for a favorable verdict come June, the expected decision date.

“If I was in the Obama Administration, I would not be comfortable with how the last three days went,” says Damon Root of reason.tv.  After only 3 days, the core provision of Obama’s landmark health care legislation is in serious danger.  Questions of severability are overwhelming the extenuating provisions of what is really at the heart of this bill: should all citizens be required to buy health insurance?  Many Americans believe that there is something fundamentally wrong with the government telling us to buy a certain product, even if that product may save our lives.  As the constitution explicitly states, we are all free, and are not forced to do or say or purchase anything we decide not to.  How then does the individual mandate this bill is proposing have any justified integrity?  The answer lies in the strengths of the extenuating provisions.  But will the large rock of the individual mandate shatter them nonetheless?

This question was the dominating subject of discussion yesterday as justices asked questions and  spokespersons for Obamacare fumbled while debating ethics and law.  We now look to what the justices on the Supreme Court have to say about the issue.

The above article provides very powerful quotes by justices weighing in on the bill.  The major factor these justices need to keep in mind is the power and limitations of the judicial system.  The justices could look at the bill as a whole and strike it down entirely or they could pick and choose which parts of the bill they like and enact those, both can be seen as overstepping their judicial power.

So far Justice Anthony Kennedy, a key swing vote,  seems to hold the opinion that the more prudent thing to do would be to strike down the bill entirely.  His argument seems sound: you take out the core of the bill and the shell unravels, a mess that is not their job to clean — it’s Congress’s.

Maybe the Obama Administrations’ initial optimism was their undoing.  The Supreme Court justices may be started to poke  holes in the arguments made by Solicitor General Edwin Kneedler and the administration’s uneasiness has been palpable.  This is not to say Obamacare is doomed, its only been 3 days.  But this case is quickly changing, and Obama’s solicitors, as they rewind and retrace their steps, must find the ground they once stood so proudly on.

Keep an eye on this and don’t forget to keep an eye on the GOP as they have just begun attacking it.  Google Romneycare too, you may just find some interesting parallels to Obamacare.

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