This day decides what to do if the Justices find that the individual mandate is unconstitutional. The bill itself, and all 2700 pages therein, contains no severability clause. This is very uncommon as just about any contract that you will enter as a business or an individual always contains a statement that says simply because an item is determined to be wrong does not void the rest of the contract. Without this clause, it could technically be argued that no individual mandate = no more ObamaCare. But, it is never that simple.
The court doesn't like to blatantly dictate law from the bench. Since this bill is massive, and contains so much more than what is covered by what we all call ObamaCare, there is an argument to be made that striking down the whole bill is really overextending the power of the court. So, this makes the whole bill an interesting gamble. Why not have the very common severability clause? If the clause was there, the court could easily invalidate that portion without having to address the far reaching effects, but without this clause the court is facing a much more demanding decision. Do they go line by line and determine which aspects are governed by the individual mandate? Do they strike down the whole bill? Or do they leave the bill intact because it is too massive and beyond the courts ability to try to determine what may have happened if the individual mandate was not included?
It is possible that the Obama administration will get their way simply because of the monstrous size of the bill they enacted. Then again, leaving out the severability clause may completely wipe out the only significant piece of legislation the Obama team can claim to have accomplished.
There is a great writeup on the entire case at The New American.
But the reason, the reason this is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him, absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule. And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the Federal Government to the individual in a very fundamental way.
Audio can be found here.
Transcript is here.
JUSTICE ALITO: Well, let me give you a factual context. Let's say Congress says this to the States: We have got great news for you. We know that your expenditures on education are a huge financial burden, so we are going to take that completely off your shoulders. We are going to impose a special Federal education tax which will raise exactly the same amount of money as all of the States now spend on education, and then we are going to give you a grant that is equal to what you spent on education last year.
Now, this is a great offer and we think you will take it, but, of course, if you take it, it's going to have some conditions because we're going to set rules on teacher tenure, on collective bargaining, on curriculum, on textbooks, class size, school calendar, and many other things. So, take it or leave it.
If you take it, you have to follow our rules on all of these things. If you leave it, well, then you're going to have to fine -- you are going to have to tax your citizens, they're going to have to pay the Federal education tax; but on top of that, you're going to have to tax them for all of the money that you're now spending on education, plus all of the Federal funds that you were previously given.
Would that be -- would that reach the point -- would that be the point where financial inducement turns into coercion?
CHIEF JUSTICE ROBERTS: Well, but that's just saying that when, you know, the analogy that has been used, the gun to your head, "your money or your life," you say, well, there's no evidence that anyone has ever been shot.
CHIEF JUSTICE ROBERTS: You have another 15 minutes.
GENERAL VERRILLI: Lucky me. Lucky me.