February 02, 2011
A word on severability clauses: in general, the little-c conservative, humble, judicially restrained thing for a court to do is to throw out an entire law when ONE part of that law is thrown out.
That may seem backward to some people, but it's not. Imagine a law that says all income from Washihngton State residents is subject to a five percent tax. Then later in the law, it exempts the first $200,000 of income. There's no severability clause in the bill. Now, in Washington, our precedents say that income is property, and all property of a certain type must be taxed uniformly; therefore, the exemption is illegal (even if you disagree, just go with it for the sake of argument). Now, if we follow the idea that you should leave laws intact except for the illegal parts then the exemption would be removed, and suddenly, everyone in the state is hit with an income tax.
So now in effect, by removing that one part of the law and leaving the rest, the law has been changed substantially from its intent, and the court has, in effect, created a brand new law.
(This is precisely why, in the case of I-1098, the income tax initiative had a severability clause, but exempted the exemptions portion of the initiative: because if the exemptions were thrown out, its authors wanted the rest to be thrown out, too, but if any other part was thrown out, they wanted the rest to stand.)
Of course, a judge's judgment comes into play here, and absent a severability clause, he needs to try to figure out whether he is creating new law or just striking down a part of the law that won't substantially change the rest. So he looks for clues, in the text of the law, in the intent of the lawmakers, and in testimony.
In this case, all three point to the idea that -- in the case of the mandate -- severing it would create a new law that is far different from the intent of the lawmakers who voted for it: the whole point of the law, supposedly, was to create a financially sustainable system for providing health insurance, and everyone has told us that without the mandate, that system as designed in the law won't be financially sustainable.
And maybe you could strike down the "free" health insurance for poor people, and keep many of the regulations, but now you're trying to implement only half a system that maybe the lawmakers wouldn't have approved of.
In other words, it is activist to not strike down the entire law, because you're literally creating a new law and assuming that the lawmakers would have wanted it that way. Picking and choosing from the law is legislating, which is precisely why our President doesn't have, and never will have, a true line-item veto. It would be hypocritical and bizarre for the Supreme Court to strike down only part of the health insurance law after saying a decade ago: If the Line Item Veto Act were valid, it would authorize the President to create a different law, one whose text was not voted on by either House of Congress or presented to the President for signature. Something that might be known as "Public Law 105-33 as modified by the President" may or may not be desirable, but it is surely not a document that may "become a law" pursuant to the procedures designed by the Framers of Article I, 7, of the Constitution.
Cross-posted on <pudge/*>.
Posted by pudge at February 02, 2011
08:14 AM | Email This
1. This is an excellent post.
2. Great post. Too bad it will be lost on many due to the above referenced activism.
I will have to go back and read the law again, but I remember it having a clause specifically stating that if one part was found unconstitutional, the rest of the law was fine. The mandate is defined in one USC change section. The ruling of the mandate unconsitutional would make this USC change invalid, but per the clause at the beginning of the bill it doesn't invalidate the whole bill. Again, I will have to go back and check, but I remember reading this in the law.
tc: everyone I've read agrees there is no severability clause (but there WAS one: that it was removed is a signal from the legislature that the legislature did not WANT severability, and a point against the people who are in favor of it now). Now, some on the left are pointing out
that lack of such a clause is not a death knell, and this is true; however, as I said, it's about judgment: is the removal of something in the bill going to substantially change the bill, in effect creating something no one voted for? The answer in this case is essentially, Yes.
As I said, they could try to just remove the parts of guaranteed health insurance, since that is most directly tied to the mandates, but then so are most of the regulations -- like preexisting conditions, etc. -- which also rely on this larger pool of insured customers. The example of Sarbanes-Oxley is not a good one here, because most of those regulations weren't intertwined into a single interdependent system like "ObamaCare" is.
Page 145 (Section 255)
3 SEC. 255. SEVERABILITY.
4 If any provision of this Act, or any application of such
5 provision to any person or circumstance, is held to be un
6 constitutional, the remainder of the provisions of this Act
7 and the application of the provision to any other person
8 or circumstance shall not be affected.
6. tc: sure you got the right version of the right bill? That is dated in October 2009, well before the Senate passed its substantially different version of the bill.
7. I did a Google search for "Final Health Care Bill." I will check some more.
tc - the bill you linked to is an earlier one. The law is Public Law 111-148.
Not one instance of Severability.
So, what's a judge to decide? The earlier version had several sections related to severabiity and the law that was signed by the President contains none. Obvioulsy, severability was intentionally excluded.
You are right the final bill was HR 3590 (http://www.opencongress.org/bill/111-h3590/show) and the Severability clause is not present. Hmm?? Makes one wonder why??
In that case, Vinson's ruling is correct and the VA judge's ruling is incorrect. The decision for the Supreme Court (when it gets there) is whether the individual mandate is constitutional or not.
Could this be a way the extreme left gets its way on single payer (i.e., expanded Medical Aid and Medicare), by having the original Republican Idea of Mandate shot down?
10. having the original Republican Idea of Mandate shot down?
I've read this in several places. Perhaps I wasn't following it closely back then. But what Republican proposed this, and when?
As for severability, they obviously removed it because the whole house of cards comes falling down without the mandate. There's millions of healthy people not participating who would otherwise be subsidizing the smokers and cheeseburger-a-day crowd.
It reaches back to Nixon, who supported the individual mandate. In the 1990's, Republicans arguing against Clinton's healthcare efforts also argued for the individual mandate. Former senator Bennett (R-UT) many health care proposals through the years included the mandate in some form or another. Finally, there is RomneyCare, plus Romney (and I believe McCain)supported the mandate before they were against it. In fact, Romney still supports its for state citizens, just not on a national level.
tc: Nixon was, of course, a liberal Republican, whose views are not representative of today's Republican party.
And actually, it is only marginally true that Republicans arguing against Clinton wanted a mandate: what actually happened is that the Republicans felt pressured to come up with an alternative, and a bunch of people signed onto a proposal that was never really read, let alone vetted with hearings etc. Perhaps some Republicans at the time wanted a mandate, but very few of them.
And Romney, yes, he supports it at the state level only -- and even then, he is on the outside of the GOP on that issue. (And I have never heard McCain say he supports it. Again, I've been following the mandate stuff for some time, and if I had heard him say it in the last several years, I'd have remembered.)
To call it a "Republican Idea" when it's never been in the mainstream of the GOP, and is fundamentally opposed to the principles of the conservatives who mostly control the GOP, is misleading at best.
Reid pulled the severability clause to protect the kick backs and bribes. He didn't want to lose selective portions like the Louisiana Purchase, and Corn Husker Kickback.
Also look at page 75 of the ruling, unlike the media and Administration are spinning it. The ruling does in fact contain and injunction against the whole of the Health Care Bill.
14. That makes sense pudge. Hillarycare was essentially a single-payer government expansion of Medicare, so I guess they had to come up with something to defeat that. Obamacare would eventually lead to it by bankrupting all the insurance companies, but that's the only way he could sell it (by saying it's not single payer), albeit still not well.
I've generally only heard of the line item veto as it related to spending. Have there been proposals to allow the President to veto particular lines of bills other than spending? I think you may be mixing up two ideas here, although I could be wrong.
16. Calvin: I see a distinction without a difference. The Supreme Court decision striking down the line item veto was not about spending power, but about making new laws without Congress passing them, whether the changes were about spending or anything else.
17. It's good to know that some still understand the brilliance in setting up the "Separation of Power's" within the US Constitution. Hopefully, the rest of the sheep in this country will wake up and better familiarize themselves with the document that our founder's were trying to provide us as a blue print for sustaining this Republic nearly 240 years ago.
I'll take my chances on the wisdom of those in the age of enlightenment rather than the wisdom exhibited currently in the age of "Generation Y" anyday.
18. Pudge @12
I would quibble over your "mainstream GOP" theology. What was mainstream three decades, even a couple decades ago is not what "mainstream" for the GOP now. This is why so many independents feel that the GOP left them and not that they left the GOP. To go further back, prior to Goldwater's Western Libertarian brand of GOP, the GOP of Eisenhower's day was a lot more in the middle. Further back, it was the GOP that started the Progressive movement (Fighting Bob LaFallotte of WI, Teddy Roosevelt, etc). Finally, the GOP roots are from the abolitionists and left over Whigs, plus a third group (don't remember their name). The abolitionists would be called liberals by today's GOP, which is really moving more and more to two branches. One branch is the Goldwater/Reagan Western Libertarian branch, the other is the recast Yellow-Dog Democrats of the past, where were actually a lot more conservative (by today's GOP terms) than the GOP of their day.
tc: I would quibble over your "mainstream GOP" theology.
What was mainstream three decades, even a couple decades ago is not what "mainstream" for the GOP now.
True. So what is your quibble? In your comment, you never provided a complaint with my terminology; you merely announced you had a complaint.
Further back, it was the GOP that started the Progressive movement (Fighting Bob LaFallotte of WI, Teddy Roosevelt, etc).
No, the Progressive movement, as we think of it around the turn of the 20th century, was started on the Democratic side in American politics. It did influence the GOP, of course, but then again, the GOP also split because of it (allowing Wilson, one of the three Progressives in the race, to win the 1912 election over Taft and the other two progressives, Roosevelt and Debs).
The abolitionists would be called liberals by today's GOP
Absolutely, utterly, false. There is no truth in that whatsoever, at any level, and indeed, the abolitionists of today are the pro-lifers who are fully welcome in today's GOP, and called "conservatives" by most.
Frankly, it's a damned lie to say that abolitionists are anything but fully in line with mainstream GOP views of yesterday and today.
Perhaps you mean only in the sense of liberal == change, conservative == status quo, but those terms have never really meant those things (not broadly, anyway); indeed, Lincoln called himself "conservative" while working to change the status quo. The words have had more absolute than relative meaning, but in the sense that they are relative, it has more to do with the speed of change rather than whether there is change (for example, a conservative judge may be one that advocates for slow change to old precedents, but not a lack of change; Lincoln wanted slow change away from slavery).
But mostly, it is in reference to specific ideologies: conservatives generally believe in a lack of government intervention, and liberals generally believe in significant government intervention. But most conservatives also believe strongly in civil liberties, which ideally protect us from government intervention, and to the end that government intervention is necessary to protect rights, such as in abolishing slavery ... that's always been a conservative, and Republican, view, in following the words of Thomas Jefferson that the reason government exists is to secure individual liberties.
I defy you to provide any evidence of any kind that today's GOP would consider abolitionists (in general, of course, not merely a particular abolitionist) to be "liberal."
The Southern wing of the current GOP (Barber, et al) are very much state's rights, whose heritage dates back to the Jackson Democrats (IMHO). The fact that the abolitionists wanted Federal government to step in and overrule the states was abhorrent to the Jacksonian south, just as today where Barber (et al) do not like the government telling them about Medical Aid, Education, and whole sorts of programs.
It is also interesting that in the current GOP there is a dichotomy between the social conservatives and the (western) libertarian wings (although there is cross-over). The social conservatives want federal intervention (marriage law, nation-wide abortion law, etc). Where as the true (western) libertarian wing (think Goldwater) was more in line with the libertarian line about states control and actually liberal in social issues (live and let live). This is different than the Eastern (financial, big business) GOP who are more in line on the social issues with the democrats (Snowe, Collins, Brown). They may support the same argument, but for different reasons. The Eastern GOP crowd is closer in thought and action to that of the abolitionists and not the Dixie-GOP or western-libertarian GOP.
Finally, it is odd you raise Jefferson in discussion with conservative. Jefferson is the founder of the Democratic. The Democrats grew out of Jefferson and Jacksonian politics. Now, the confusion may be that for you conservatism is more in line with the Jacksonian Democratic heritage and that of the Yellow-Dog Democrats. This is perfectly understandable because historically the parties have switch poles (liberal conservative). This is why I state that the abolitionists while they may not be what you call liberals today, they would be what many here label as RINO's (IMHO). I state that because many here consider people like Snowe and Collins (and now Brown) as RINO's because they don't vote along with the rest. In our own state, Slade Gorton would be more in line with the traditional (abolitionist heritage) vice someone like John Carlson. Just because the abolitionists were involved on a social related issue, it doesn't make what they were asking for conservative. They were asking for government to step in, which is opposite of the tea-party and GOP-south controlled party of today's GOP.
Here is a link to party platforms throughout the years: http://www.presidency.ucsb.edu/platforms.php
Of interest, compare 1856. Notice the first few of the Democrat's platform. It reads like the tea-party wishes today. Notice how the Republican Platform of 1856 called for Federal Government's intervention due to what was happening in Kansas and other territories.
OBTW, in reading through some of the documents, Lincoln was a Whig prior to the forming of the Republican party.
tc: The Southern wing of the current GOP (Barber, et al) are very much state's rights, whose heritage dates back to the Jackson Democrats (IMHO).
On "states' rights," no. That is irrespective of slavery. States' rights is an issue that has been around since long before Jackson, and would exist, and does exist, without regard toward slavery at all. *I* am very much "states' rights."
The fact that the abolitionists wanted Federal government to step in and overrule the states was abhorrent to the Jacksonian south, just as today where Barber (et al) do not like the government telling them about Medical Aid, Education, and whole sorts of programs.
Total nonsense. In most cases, the federal government stepping in is abhorrent to ME, too. And to many abolitionists of the time, also! Ask Benjamin Rush, one of the Founding Fathers, a prominent abolitionist AND advocate for a strictly limited federal government.
Slavery is not most cases. Comparing federal intervention on slavery to intervention on health care and education is utter nonsense: in the latter, you have exercises of power that are well outside the constitutional authority of the federal government; whereas in the former, the federal government is upholding the explicitly guaranteed principles of the Declaration of Independence, that ALL men are created equal and have the unalienable right to liberty and that government exists to secure that right.
So yeah, states' rights doesn't back you up here at all.
It is also interesting that in the current GOP there is a dichotomy between the social conservatives and the (western) libertarian wings (although there is cross-over).
As there has been for more than a century. Nothing's changed except the relative balance.
The social conservatives want federal intervention (marriage law, nation-wide abortion law, etc).
A national abortion law is obviously different, as slavery is different, because it has to do with the fundamental rights guaranteed in the Declaration and the 14th Amendment: is this a person, and if so, does it have the same rights everyone else does?
actually liberal in social issues (live and let live)
... which means favoring a law against abortion, of course.
Finally, it is odd you raise Jefferson in discussion with conservative. Jefferson is the founder of the Democratic.
Actually, no. He was the first leader of the Democratic-Republicans, a party that ceased to exist within a couple of decades. The Democratic Party was a new party founded later, and the Whigs, then the Republicans, formed out of it.
The Democrats grew out of Jefferson and Jacksonian politics.
As did the GOP.
Now, the confusion may be that for you conservatism is more in line with the Jacksonian Democratic heritage and that of the Yellow-Dog Democrats.
"More in line" when compared to what? You don't say what you are comparing it to, so this statement has no meaning. If you mean the original GOP, the answer is obviously no.
This is perfectly understandable because historically the parties have switch poles (liberal conservative).
No, they have not, in fact. The Republicans have always been a primarily conservative party, with a bunch of moderates and some progressives mixed in.
This is why I state that the abolitionists while they may not be what you call liberals today, they would be what many here label as RINO's
That's nonsense. You've not done ANYTHING to back up this claim whatsoever.
You do this often. You make these claims and they sound good to you, but you don't back them up.
Just because the abolitionists were involved on a social related issue, it doesn't make what they were asking for conservative.
You've made NO case that they were progressive.
They were asking for government to step in
EXACTLY as pro-lifers are. So pro-lifers are liberals?
You are using words without understanding.
tc: Of interest, compare 1856. Notice the first few of the Democrat's platform. It reads like the tea-party wishes today.
No, it does not, because the object of their assertions of liberty were explicitly to deny other people of theirs.
You are falsely treating all issues as if they are the same. Slavery is not like other issues, except for abortion.
Notice how the Republican Platform of 1856 called for Federal Government's intervention due to what was happening in Kansas and other territories.
Just as recent GOP platforms call for federal intervention in abortion.
OBTW, in reading through some of the documents, Lincoln was a Whig prior to the forming of the Republican party.
Yes, of course he was.
In Washington, the governor can do a section veto or a line item veto -- and frequently does.
In Wisconsin, the Governor can even veto individual words -- even individual letters and numerals -- to completely change the meaning of a law.
25. Richard: true, and irrelevant to the discussion.
I am drifting off-topic with my line of discussion. Sorry for the digression. Have a good day.