Cooch: If We Win Lawsuit, Entire Health Care Bill Dies

Wash and Bleach Computer (0.00 / 0)

OK, that is the first time my computer has been to faux news, uck. Looks like they spent a mini-fortune cleaning up what's her face.

CH Cooch is blowing smoke up someone's whatevers.  The "mandate" clause is just that. A clause. It could have been a lot better, but considering the Senate and StupidStupak, Nelson et al. did not want to offend the big Pharma and the Big 3 Health care oligarchy with actual reform we have barnyard sausage for a law.  Will it be declared unconstitutional? The Roberts court may do that. But, I would not bet one way or another.

CH cooch is determined to waste a lot of Virginia money on his quest to return to the glory days of some era that never existed.  His campaign for governor is proceeding on schedule.


Mere parsimony is not economy. Expense, and great expense, may be an essential part in true economy.
Edmund Burke

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by: blue bronc @ Thu Sep 09, 2010 at 13:09:57 PM UTC

Severability Clause (0.00 / 0)

There is some yapping and hand wringing about the lack of a defined severability clause. It is not needed to be expressly stated in all acts. I need to dig up a cite late on this.  

Mere parsimony is not economy. Expense, and great expense, may be an essential part in true economy.
Edmund Burke

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by: blue bronc @ Thu Sep 09, 2010 at 13:14:59 PM UTC

[ Parent ]

Yes. (2.00 / 1)

He's right.  

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by: averageguy @ Thu Sep 09, 2010 at 13:50:26 PM UTC

Explanation? (0.00 / 0)

What's the legal reasoning, exactly? Just saying "he's right" isn't helpful.

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by: lowkell @ Thu Sep 09, 2010 at 13:53:52 PM UTC

[ Parent ]

Cuccinelli Encyclical (0.00 / 0)

Maybe channeled directly from a founding father through pope Cooch.

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by: Dan Sullivan @ Thu Sep 09, 2010 at 14:40:32 PM UTC

[ Parent ]

I'm no Constitutional law expert (0.00 / 0)

but I can find no instance where SCOTUS has ever found the lack of a severability clause to mean that there shouldn't be severability.  The most recent example of this was the challenge to Sarbanes-Oxley, another law with no severability clause, in which SCOTUS struck down a portion of the law and allowed the rest to stand.

In sum, if you believe that the entire law will be struck down because of the individual mandate, I have a bridge in Alaska to sell you. Cheap.

More here: http://www.avikroy.org/2010/06...  

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by: Cato the Elder @ Thu Sep 09, 2010 at 14:36:38 PM UTC

In other words, Cooch is wrong (0.00 / 0)

...as usual.  Thanks for the information.

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by: lowkell @ Thu Sep 09, 2010 at 14:58:00 PM UTC

[ Parent ]

Cuccinelli could be right (0.00 / 0)

In the Alaska Airlines case in 1989, the Supremes Declared:

that where Congress has not included a severability "'[u]nless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.'" Thus, under the current severability test, statutes are presumed to be severable unless "(1) Congress intended otherwise-that is . . . Congress would have preferred no legislation at all to the enacted legislation without its unconstitutional provision(s)-or (2) the remaining statutory structure cannot function independent of its unconstitutional parts."

There remains a question here of whether the statutory structure of the law can function without the health care mandate. Thus, Cuccinelli has at least a reasonable argument going forward.

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by: The Donkey @ Thu Sep 09, 2010 at 16:15:06 PM UTC

[ Parent ]

I really don't see how (0.00 / 0)

The vast majority of the provisions don't flow from the individual mandate. It's hard to believe that SCOTUS would strike down stuff like Medicaid expansion, value based payment, CHIP, reporting requirements, etc..  Not saying that it couldn't happen, just that it would require SCOTUS to reverse previous positions on the matter. Given the highly charged nature of the issue I wouldn't completely discount a "black swan" type of ruling, but I find it highly improbable.

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by: Cato the Elder @ Thu Sep 09, 2010 at 16:43:42 PM UTC

[ Parent ]

Agreed, plus why couldn't Congress just tweak (0.00 / 0)

the supposed "mandate" (which I don't believe is really a "mandate," since you don't go to jail or anything like that if you fail to "comply") if need be to comply with the Supremes? Oh yeah, the Republicans would block such a move. In theory, though, this is a huge mountain in a molehill...

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by: lowkell @ Thu Sep 09, 2010 at 16:55:33 PM UTC

[ Parent ]

The funding is the vulnerability (0.00 / 0)

My understanding is that the mandate supplies self-executing money directly to support the exchanges, in the form of the penalties that people pay for not buying insurance.  Then there is the much larger hole in the projected budget numbers that is created, when the absence of a mandate means that fewer healthy people buy insurance, which means that premiums are higher than the current projections allow.  This is turn means that more people need at least the encouragement of a subsidy, and/or a larger subsidy, to buy insurance, and the govt outlay for subsidies has to be larger than is currently budgeted for.

The Rs, and by that I mean not just their supposed nutcases, but the prospective next Speaker himself, are already talking about killing the ACA by way of denying it the annual authorization of funds it needs because much of its funding is not self-executing.  Cutting part of the self-executing money stream to this bill, and the other, larger increases in the amount of money that would need to be authorized every year, makes it that much easier for the Rs to justify the rather novel idea of effectively killing a law like the ACA when you only have the House, and not the assent of the Senate and president that you normally need to repeal a law according to the conventional wisdom.  The claim will be that without the mandate, the ACA is now a drain on the deficit, etc.

Out of such molehills are ideological mountains made.  And make no mistake, the constitutional confrontation that would result from a Republican House trying to kill a law just by de-funding it, would be some mountain.  Molehill or not, some court throwing out the mandate could well be just enough cover for them to get their "moderates" on board for a bit of constitutional hardball over authorizing the money for the ACA.

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by: Glen Tomkins @ Fri Sep 10, 2010 at 19:02:53 PM UTC

[ Parent ]

The issue isn't so much the existence of a severability clause... (0.00 / 0)

...as it is the practicability of implementing other parts of the law if the mandate is struck down.  

I am certainly no constitutional law expert, but my understanding is that such severability clauses are useful only as a declaration of legislative intent, which can be relevant if there would otherwise be some question of whether or not the legislature intended for all or some of its provisions to only come into force together.  If it would be a logical impossibility to enforce certain other provisions if another provision were found unconstitutional, then your severability clause would do no good.  If the provisions in question were clearly not at all related to the provision struck down, then you wouldn't need a severability clause.  Such a clause could only have any effect on how the court disposes of provisions where the logical connection was ambiguous, and the clause serves to give the courts insight into the legislative intent.

So the relevant question about the viability of any other provision of the ACA, should the mandate be struck down, would be whether or not they are logically, functionally separable from the mandate.  For parts of it, such as the prohibition on insurers cherry-picking and rescinding, you wouldn't think that there is a logical or functional inseparabilty, therefore they would probably not be touched.

The problem, if you want the ACA to go forward, is that there is, or at least seems to be to someone who does not understand every detail of the thing, a functional connection between the mandate and the heart of the thing, the exchanges.  My understanding is that the exchanges are partly funded by money flowing from the mandate penalties.  There is also, to my understanding, the problem that the projections for funding requirements for many parts of the ACA, which includes many subsidies, rely on the mandate being in place incentivizing people to buy insurance.  More people would have to be subsidized, and at higher rates, were there no mandate.

Now, these separability issues do not (obviously, to my untrained mind) involve whatever constitutional issues the mandate is supposedly going to be judged unconstitutional over, so the problem is not that the courts will find the mandate and the exchanges to be logically inseparable.  The problem is that the funding of the whole system depends partly on the mandate.  There is a functional inseparability that arises from the funding.

Of course this funding problem could be dealt with by Congress.  A Congress that supports the ACA would fill the gap in self-executing funds created by the death of the mandate, and any other need for more subsidy money, by simply appropriating more money every year to run the exchanges.

And that's the real problem.  The Congress that is seated in 2011 looks like it won't be supportive of the ACA.  It almost certainly will not have the veto-proof majorities in both chambers that would be necessary to simply repeal the ACA, but it clearly will be able to block any modifications of the ACA designed to replace, from any self-executing source, the penalty money from the mandate that would be lost if the mandate is struck down.  And it looks like a Republican House, if such there is to be in 2011, will even go further, and play constitutional hardball by asserting that the power of the purse means that the House gets to, in effect, repeal laws all by itself, by denying annual authorizations of money, even if the law and the obligations it creates are still on the books.  The administration would have to respond to that by trying to find other, non-appropriated, funding sources to meet govt obligations, which would trigger the season of constitutional conflict that is these people's real and overtly stated aim.

I have never approved of the idea that Cuccinelli is some lone gunman kook.  There is a much wider movement at work here, of people who, even if there ultimate aims can be judged insane, even criminally insane, are going about achieving those aims in a rational, coordinated, manner.  No, this is not some vast right-wing conspiracy.  Conspiracies are hatched and carried out in secret.  In contrast, you can't keep Cuccinelli away from any microphone within sight or smell.  Nothing about any of this is at all secret.  You just have to take these people at their word.  That's the barrier to clear perception here, that we call this person by all sorts of cute, dismissive nicknames, like Kookinelli, the Cooch, etc., when he and a small but determined set of fanatics are actually within striking distance of dragging us down the rabbit hole with them.      

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by: Glen Tomkins @ Fri Sep 10, 2010 at 13:42:07 PM UTC

Very Good Comment (0.00 / 0)

n/t

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by: The Donkey @ Fri Sep 10, 2010 at 15:02:41 PM UTC

[ Parent ]