Happily Sever After?

Tony Perkins, FRC Washington Update: Less than a mile separates the Supreme Court from America's founding documents at the National Archives. But when the ObamaCare case is decided, the country will see how far the Justices really are from the U.S. Constitution. From what people inside the courtroom have observed, the two may be closer than liberals originally thought. Yesterday's arguments--the last before June's historic ruling--focused on severability. The Justices must decide that if one part of the law is found unconstitutional, should they save the rest? Unlike other cases, this one is decidedly messy. If the Court voids the individual mandate, then the burden of paying for the law would fall to the states--many of which cannot afford it.

Even the bench's liberal newcomers, Elena Kagan and Sonia Sotomayor, talked about how unworkable that solution would be. "So they leave the market," Kagan said, "the rates go up further, more people leave the market, and the whole system crashes and burns." Sotomayor agreed. Hollowing out the law would be, in her words, "a death spiral." The President and his party designed the mandate as the engine that drives the bill. Without it, the law is almost unsustainable. If the Justices tear down the order to buy insurance without hitching the entire policy to it, then Americans would be left with a massive Medicaid expansion, taxpayer-funded abortion, a conscience-violating mandate, and the $1.76 trillion tab.

The results would still be catastrophic--though not, as the Wall Street Journal describes the whole law, a "bunker buster into the original idea of America." It would also put the burden on the Court, a non-legislative body, to decide which parts of the policy stay and which go. That, insisted Justice Anthony Kennedy, is a more activist solution than taking a wrecking ball to the entire law. If the Court strikes down the individual mandate but leaves the rest of the law untouched, "We would have [created] a new [law] that Congress did not provide for, did not consider. That, it seems to be can be argued at least to be a more extreme exercise of judicial power than... striking the whole." Almost on cue, Justice Antonin Scalia joked, "What happened to the Eighth Amendment? You really want us to go through these 2,700 pages?" (The Eighth Amendment, as FRC's Ken Klukowski points out, is the Constitution's ban on cruel and unusual punishment.) Essentially, both men were arguing that it's Congress's place--not the judiciary's--to rework the law.

In the end, this case is--and always was--about the fundamental principle of freedom. And while the Solicitor General did his best to argue that the law was nothing short of patriotic, attorney Paul Clement views it differently. "I certainly appreciate what the solicitor general says, that when you support a policy, you think that the policy spreads the blessings of liberty. But I would respectfully suggest that it's a very funny concept of liberty that forces somebody to purchase an insurance policy whether they want to or not." Ultimately, the Court will have to decide who enjoys the vastest expanse of power: the people or the President? We'll have to wait until June to find out.
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Also note previous article Shall We Be Citizens or Subjects?

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Tags: SCOTUS, Supreme Court, Justices, ObamaCare, Federal health care, mandate, Tony Perkins, Family Research Council, Washington Update To share or post to your site, click on "Post Link". Please mention / link to the ARRA News Service. Thanks!