Seems a pretty lame excuse to me. The severability of this particular law was pretty straightforward. It either holds completely or falls completely. There’s no middle ground to rationalize a partial judicial overturning of this law.
It’s worth remembering that almost all laws have severability clauses. The purpose is the same as served in the severability clause of a contract; so that if one part is held invalid, the whole thing does not fall.
Obamacare does not have a severability clause. (The dems were in such a rush that they forgot to put one in).
So, I really don’t see why severability would be a concern; just cite the lack of a severability clause.
Regardless, severing Obamacare would be less drastic than inventing some new taxing power ex nihilo.
I’m convinced now that Roberts just f’d up. To the extent I agree with his decision on the Commerce Clause; the rest of it, and really the commerce clause part as well, is just wrong. First, his commerce clause decision is non-binding to any other legel entity or lower court. Then the notion that SCOTUS is not there to protect us from our political decisions… it kinda of sounds good, and yeah, I don’t like an activist court. However, if our politicians act beyond their legal right; then yeah, since Marbury, it is the role of SCOTUS to protect us via judicial review with respect to our constitution. And regardless of which way the decision went, it was going to affect voters decisions this fall.
Then there is the whole, “it’s a tax” thing. Politically, this is an embarrassment to Democrats. But that’s about it. After hearing from various conservative sided legal scholars, the penalty is a penalty and not a tax. Until this decision, it was recognized that you don’t tax services at the federal level. Now, apparently Congress can per Roberts’ opinion. This goes beyond some of the fears about taxing people to encourage certain behaviour. The federal government already taxes alcohol, tabacco, and firearms (ATF anybody?). Now, the federal government can tax services.
I think the 4 dissenting judges did the right thing. It’s good for them to leave Roberts out in the cold, and retain the original wording of the majority dissent opinion. The question for Roberts is will he make the same mistake in the future. For those on the conservative side, it should be assumed he will.
Seems a pretty lame excuse to me. The severability of this particular law was pretty straightforward. It either holds completely or falls completely. There’s no middle ground to rationalize a partial judicial overturning of this law.
It’s worth remembering that almost all laws have severability clauses. The purpose is the same as served in the severability clause of a contract; so that if one part is held invalid, the whole thing does not fall.
Obamacare does not have a severability clause. (The dems were in such a rush that they forgot to put one in).
So, I really don’t see why severability would be a concern; just cite the lack of a severability clause.
If they wanted to sever it, they could. It wouldn’t be the first time.
Regardless, severing Obamacare would be less drastic than inventing some new taxing power ex nihilo.
I’m convinced now that Roberts just f’d up. To the extent I agree with his decision on the Commerce Clause; the rest of it, and really the commerce clause part as well, is just wrong. First, his commerce clause decision is non-binding to any other legel entity or lower court. Then the notion that SCOTUS is not there to protect us from our political decisions… it kinda of sounds good, and yeah, I don’t like an activist court. However, if our politicians act beyond their legal right; then yeah, since Marbury, it is the role of SCOTUS to protect us via judicial review with respect to our constitution. And regardless of which way the decision went, it was going to affect voters decisions this fall.
Then there is the whole, “it’s a tax” thing. Politically, this is an embarrassment to Democrats. But that’s about it. After hearing from various conservative sided legal scholars, the penalty is a penalty and not a tax. Until this decision, it was recognized that you don’t tax services at the federal level. Now, apparently Congress can per Roberts’ opinion. This goes beyond some of the fears about taxing people to encourage certain behaviour. The federal government already taxes alcohol, tabacco, and firearms (ATF anybody?). Now, the federal government can tax services.
I think the 4 dissenting judges did the right thing. It’s good for them to leave Roberts out in the cold, and retain the original wording of the
majoritydissent opinion. The question for Roberts is will he make the same mistake in the future. For those on the conservative side, it should be assumed he will.