05-20-2010, 08:28 AM
There may be hope and change after all. It seems the Democrats left out an important(for them) provision in their Obamacare government takeover bill.
Read The Fine Print
Posted 05/18/2010 06:58 PM ET
Health Care Reform: One analyst says the Democrats were amateurish in writing their overhaul bill. This might be worth more than a snicker. It could mean the courts can strike down the entire law at once.
Various parts of the Democrats' health care reform law have been held up as pieces that might not stand up to a constitutional rigor.
The individual mandate that requires those who aren't previously covered by insurance to buy a plan is the most likely place for the legal objections to begin. Another provision that is being disputed at the constitutional level is the expansion of Medicaid that forces states to increase their spending on that program.
But those are only two pieces of a legislative leviathan. Even if one or both were stricken, the bulk of the law's burden would remain.
However, Greg Scandlen, a senior fellow at the Heartland Institute, says due to a little-known legal concept the entire law would unravel if a single part was found to be outside the Constitution.
"Apparently there was no 'severability' clause written into this law, which shows how amateurish the process was," he wrote. "Virtually every bill I've ever read includes a provision that if any part of the law is ruled unconstitutional the rest of the law will remain intact. Not this one. That will likely mean that the entire law will be thrown out if a part of it is found to violate the Constitution."
No argument from us. The bill writers and lawmakers who voted for it without reading it were unprofessional.
That was obvious in the haste in which the 2,400 pages of the Patient Protection and Affordable Care Act were passed and signed into law. The Democrats' rush to get the bill through was a clear act of desperation that looked like the work of novices â or despots.
As history will remember, it was hurried House Speaker Nancy Pelosi who said that "We have to pass the bill so that you can find out what is in it." Evidently it had to pass for her party to find out what wasn't in it, namely the shield of a severability clause.
Constitutional scholars aren't saying it's impossible, but many don't seem to have much confidence that the courts will overturn the law. Jonathan Turley, a George Washington University Law School professor, told the New York Times that if he had to make a bet, he'd put his money on the courts upholding the policy.
But for those still disillusioned by the reform and the authoritarian manner in which it was passed â polls show that's a majority in this country â Ronald Trowbridge, a senior fellow at the Texas Public Policy Foundation, offers hope.
"Consensus holds that it will take two years for the constitutional challenge to progress through the federal district court, then the appellate court, and finally the Supreme Court," he wrote recently on Andrew Breitbart's BigGovernment.com blog. "In the meantime, it is possible that an injunction from the district or appellate courts could put the entire bill on hold until the injunction is lifted or the case finally resolved."
The legal challenges to the health care overhaul were immediate, and they continue. As of now, attorneys general and governors from 20 states have filed suit against the law. They have been joined by the National Federation of Independent Business. Repeal bills have been introduced, and polls show more than half of the country want the repeal effort to succeed.
No other legislation in our memories has stirred as much hostility, both among the political class and in the public. The American people are rightly upset that the Democrats forced their will on them. The public is so incensed that the party of the left will lose seats this November â and maybe even its congressional majority â over it.
If any law deserves to be struck down by the judiciary or repealed by lawmakers, it is the Patient Protection and Affordable Care Act.
The spirit of the law is as unconstitutional as the provisions that will be challenged legally. Congress had neither the moral nor the constitutional authority to impose such a coercive measure.
Our republic would have a healthier prognosis if we were to get rid of this act of violence committed against our foundational law.
Read The Fine Print
Posted 05/18/2010 06:58 PM ET
Health Care Reform: One analyst says the Democrats were amateurish in writing their overhaul bill. This might be worth more than a snicker. It could mean the courts can strike down the entire law at once.
Various parts of the Democrats' health care reform law have been held up as pieces that might not stand up to a constitutional rigor.
The individual mandate that requires those who aren't previously covered by insurance to buy a plan is the most likely place for the legal objections to begin. Another provision that is being disputed at the constitutional level is the expansion of Medicaid that forces states to increase their spending on that program.
But those are only two pieces of a legislative leviathan. Even if one or both were stricken, the bulk of the law's burden would remain.
However, Greg Scandlen, a senior fellow at the Heartland Institute, says due to a little-known legal concept the entire law would unravel if a single part was found to be outside the Constitution.
"Apparently there was no 'severability' clause written into this law, which shows how amateurish the process was," he wrote. "Virtually every bill I've ever read includes a provision that if any part of the law is ruled unconstitutional the rest of the law will remain intact. Not this one. That will likely mean that the entire law will be thrown out if a part of it is found to violate the Constitution."
No argument from us. The bill writers and lawmakers who voted for it without reading it were unprofessional.
That was obvious in the haste in which the 2,400 pages of the Patient Protection and Affordable Care Act were passed and signed into law. The Democrats' rush to get the bill through was a clear act of desperation that looked like the work of novices â or despots.
As history will remember, it was hurried House Speaker Nancy Pelosi who said that "We have to pass the bill so that you can find out what is in it." Evidently it had to pass for her party to find out what wasn't in it, namely the shield of a severability clause.
Constitutional scholars aren't saying it's impossible, but many don't seem to have much confidence that the courts will overturn the law. Jonathan Turley, a George Washington University Law School professor, told the New York Times that if he had to make a bet, he'd put his money on the courts upholding the policy.
But for those still disillusioned by the reform and the authoritarian manner in which it was passed â polls show that's a majority in this country â Ronald Trowbridge, a senior fellow at the Texas Public Policy Foundation, offers hope.
"Consensus holds that it will take two years for the constitutional challenge to progress through the federal district court, then the appellate court, and finally the Supreme Court," he wrote recently on Andrew Breitbart's BigGovernment.com blog. "In the meantime, it is possible that an injunction from the district or appellate courts could put the entire bill on hold until the injunction is lifted or the case finally resolved."
The legal challenges to the health care overhaul were immediate, and they continue. As of now, attorneys general and governors from 20 states have filed suit against the law. They have been joined by the National Federation of Independent Business. Repeal bills have been introduced, and polls show more than half of the country want the repeal effort to succeed.
No other legislation in our memories has stirred as much hostility, both among the political class and in the public. The American people are rightly upset that the Democrats forced their will on them. The public is so incensed that the party of the left will lose seats this November â and maybe even its congressional majority â over it.
If any law deserves to be struck down by the judiciary or repealed by lawmakers, it is the Patient Protection and Affordable Care Act.
The spirit of the law is as unconstitutional as the provisions that will be challenged legally. Congress had neither the moral nor the constitutional authority to impose such a coercive measure.
Our republic would have a healthier prognosis if we were to get rid of this act of violence committed against our foundational law.