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Conservative legal case against the Affordable Care Act suffers a setback

One of the things that has confused me about the attack on the Affordable Care Act's constitutionality is that it's so limited. The Affordable Care Act isn't under attack, actually. Only the individual mandate is. And though the individual mandate is important to have, it could be replaced with some sort of automatic enrollment scheme, or some sort of modified penalty in which failure to purchase insurance locked you out of the bill's protections for a certain number of years. The strategy seemed like trying to destroy a car by convincing a mechanic that the carburetor doesn't fit and needs to be modified and replaced.

Avik Roy's post on today's Sarbanes-Oxley ruling helps the story make more sense: Conservatives were hoping that the absence of a specific "severability clause" -- language stating the law could stand even if a part was removed -- meant that if a part of the law was struck down, all of the law would be struck down. That doesn't make much sense to me, and it turns out that the Supreme Court agrees: As Roy notes, a part of Sarbanes-Oxley was struck down today, and there was no severability clause, and the court kept the rest of the law standing.

By Ezra Klein  |  June 28, 2010; 4:31 PM ET
 
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Comments

The mandate is probably the least popular part of the bill, so I have to figure that to a large extent it's petty grandstanding. Rather than seriously try to kill the bill, just aim for the lowest fruit and hope that you can get some good PR out of it.

Posted by: usergoogol | June 28, 2010 4:50 PM | Report abuse

From a policy perspective, the individual mandate penalty is already grossly inadequate to deter a healthy, 27-year-old bachelor from paying the penalty, and waiting until he gets sick to purchase health insurance. And a 27-year-old bachelor living in a high cost-of-living area (NYC, San Francisco, DC) probably already earns too much ($45K/yr.+) to qualify for the subsidies (which are also grossly inadequate). So saying a 27-year-old is inelligible from the subsidies won't do anything to deter that 27-year-old from waiting until he gets sick to purchase health insurance. And one-year pre-exclusion period -- that's nothing to a 27-year-old bachelor!

So a stronger individual mandate penalty that exempts fewer people remains the optimal policy. And better subsidies. And much, much higher minimum standards for health insurance. ...

Posted by: moronjim | June 28, 2010 4:53 PM | Report abuse

Here's my question: If the individual mandate isn't constitutional (which I believe it is), how is the employer mandate constitutional?

Posted by: moronjim | June 28, 2010 4:55 PM | Report abuse

Carburetor?

Posted by: thehersch | June 28, 2010 5:10 PM | Report abuse

The Robert's court is acting ideologically rather than trying to be legally consistent.

Therefore, don't think they will not dare to act inconsistently when their ideological goals are being threatened.

Just because SO and the ACA are both similar in that they have no severability clause, it doesn't mean Roberts, et al, won't find a way to kill the entire ACA if they wish it so.

There are any number of conservative decisions since Bush V Gore that prove my point.

Posted by: Lomillialor | June 28, 2010 5:13 PM | Report abuse

What law passed in the last, oh, 30,000 years _hasn't_ included a severability clause? Did the ACA really not include such a clause, and if so why not?

sPh

Posted by: sphealey | June 28, 2010 5:47 PM | Report abuse

The idiots on the far right don't get that the end of the individual mandate is the quickest way to the single payer they dread.

As far as the mandate goes, if it gets to mass. Level of 96 to 97 percent then that aspect will be an amazing success

Posted by: visionbrkr | June 28, 2010 6:12 PM | Report abuse

The idiots on the far right don't get that the end of the individual mandate is the quickest way to the single payer they dread.

As far as the mandate goes, if it gets to mass. Level of 96 to 97 percent then that aspect will be an amazing success

Posted by: visionbrkr | June 28, 2010 6:12 PM | Report abuse

The twelve different conclusions now being litigated are in no way impacted by the Sarbanes-Oxley decision.

But hey, the discussion is great cover for the sweeping Second Amendment decision!

Posted by: rmgregory | June 28, 2010 7:37 PM | Report abuse

If one were to say "HaHaHaHaHaHaHa" deep breath "HaHaHaHaHaHaHa", it might minimize the argument... or perhaps would draw support.

Posted by: rmgregory | June 28, 2010 7:39 PM | Report abuse

They see the Individual mandate as the key to reform, which is why they are going after it. Ezra had many a post on how many of the policies were linked together. Using a car analogy, it is more akin to poking holes in the gas tank to run the car out of gas( needed revenue from cheap to insure young adults who will put in far more than they receive). That is the problem you get when you pass a bill along party lines, no incentive to make it work for the party in power. As far as ushering in single payer, unless the Democrats suspend the elections and enact Martial Law, not a chance. Killing the mandate cuts the head off of the serpent.

Posted by: Jenga918 | June 28, 2010 10:24 PM | Report abuse

Look, here's the issue I have with the mandate...the fines are NOT high enough....not for employers and not for the folks...but especially not for the employers.

When a corporation pays 12,000 per year per employee to provide group coverage and the federal fine for NOT providing that coverage is only 2000 per employee...what do you think is going to happen?

The mandate is the cog for the whole plan....get the employers to drop group coverage and force EVERYONE into the government's plan and hallelujah....the United States has Universal Health Care....European style.........

And next.....the VAT tax at 21% just like Britain....cuz you gotta pay for that free health care somehow right?

Posted by: LMW6 | June 29, 2010 8:48 AM | Report abuse

Ezra Klein wrote:

"The Affordable Care Act isn't under attack, actually. Only the individual mandate is. And though the individual mandate is important to have, it could be replaced with some sort of automatic enrollment scheme, or some sort of modified penalty in which failure to purchase insurance locked you out of the bill's protections for a certain number of years."

Important to have ? Ezra the Individual Mandate is the Center Piece of Obama's ACA. The other measures like increasing the amount insurers must spend in actuary, the Preexisting Condition Pool or the paltry amounts added to Medicaid amount to little more than "Piece Meal Tinkering" to use the words of Marcia Angell MD the first woman editor of the New England Journal of Medicine. Ezra your modified penalty amounts to a distinction without a difference. It is still using the coersive power of the state to compel people into the Private Insurance Market against their will. And there are serious questions that lie at the root of this proposal. It is an entirely different matter to compel people to pay taxes, specifically FICA Taxes. The people have at least some access to government when it comes to setting tax rates. When it comes to Insurance Premimiums they have NO ACCESS. Insurance Companies are private entities answerable to no one except stock holders or company owners. This is why Obama chided Insurance Companies not to gouge those newly seeking health insurance last week. Do you think they are going to play nice because Obama told them so ?

Visionbrkr put his finger right on the heart of the matter when he stated :

"The idiots on the far right don't get that the end of the individual mandate is the quickest way to the single payer they dread."

You either tax people or you drive them into Private Health Insurance. This is one of the reasons why Single Payer Advocates were so frustrated at the Obama Administration's refusal to consider Single Payer in the previous healthcare debate. Had that come to pass Single Payer Advocates could have pointed out that the 400 Billion Dollars saved under a such a system would have more than paid to cover the uninsured and even lead to some reductions in payments. So yes people would be paying more in taxes but would net a savings over what they pay Private Health Insurance Companies.

This is what the healthcare debate boils down to.

Posted by: bobmarston | June 29, 2010 6:20 PM | Report abuse

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