Posted by: mutantpoodle | June 29, 2012

The thin line…

Yesterday was a good day.

But just to sober you up from a night of drinking, revelry, and pre-existing condition creating, keep in mind that four Justices of the Supreme Court of the United States were ready to throw out the ENTIRE affordable care act:

With both the mandate and the Medicaid expansion, they were prepared to strike down the law on the basis of constitutional rules invented for the occasion, and then to leverage that into wholesale destruction of the entire statute. This is the problem of “severability”: If part of a law is unconstitutional, how much of the rest of the statute has to be struck down as well? The answer depends on how much of it Congress would have passed had it known it could not enact the invalid part. The dissenters offer an elaborate argument that every last bit of the law is inextricably linked to the two parts that they would invalidate. I won’t follow them through every link of that chain – some of the logic is fairly stretched — but will only note that they were even willing to strike down provisions that they conceded had nothing whatsoever to do with the offensive parts, such as a requirement that chain restaurants display the nutritional content of their food. Here’s their argument in full:

The Court has not previously had occasion to consider severability in the context of an omnibus enactment like the ACA, which in­cludes not only many provisions that are ancillary to its central provisions but also many that are entirely unre­lated—hitched on because it was a quick way to get them passed despite opposition, or because their proponents could exact their enactment as the quid pro quo for their needed support. When we are confronted with such a so-­called “Christmas tree,” a law to which many nongermane ornaments have been attached, we think the proper rule must be that when the tree no longer exists the ornaments are superfluous.

In other words, if an unconstitutional provision gets tacked onto the Omnibus Budget Reconciliation Act, and that provision has nothing to do with the rest of the law, the Court must invalidate the whole thing. They’re not serious. I confidently predict that this blunderbuss severability analysis, where a chip in the door jamb brings down the whole structure, will never be heard from again.

I know one man’s activist court is another man’s strict constructionist, but wow.

I had thought that Kennedy’s comments during oral arguments on severability were leading him away from throwing out the whole act, even if the bulk of the regulatory structure was constitutional.  I guess not.

On the other hand, it seems a less strident dissent might have been the majority opinion, but for some last-minute wavering by the Chief Justice:

It is impossible for a lawyer to read even the first few pages of the dissent without coming away with the impression that this is a majority opinion that at the last moment lost its fifth vote. Its structure and tone are those of a winning coalition, not that of the losing side in the most controversial Supreme Court case in many years. But when we get to Page 13, far more conclusive evidence appears:  No less than 15 times in the space of the next few pages, the dissent refers to Ruth Bader Ginsburg’s concurring opinion as “Justice Ginsburg’s dissent.”

There is one likely explanation for this: The dissent was the majority opinion when those who voted to overturn the entire ACA signed off on sending their text to the printer.  In other words, Chief Justice Roberts changed his vote at the very last possible moment.

“There’s a thin line between tough and crazy,” says Will Patton to Denzel Washington in Remember the Titans, “and you’re flirting with it.”

We’ve known that Thomas, Scalia, and Alito crossed the line long ago.  Kennedy just leaped over it yesterday.


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