Something I don’t understand —- we’ve all heard the commentators say that Obamacare, The “Affordable Care Act,” [Joke!] failed to contain a severability clause, a clause that if any part of it were unconstitutional the remainder would remain in force. Without such a clause it has been said that if the individual mandate in found unconstitutional the whole things falls. That would certainly be possible but the Supreme Court doesn’t always rule that way even when there is not a severability clause in a piece of legislation in which a certain provision is found unconstitutional. But I think, based on what I’re read [not the Act itself, at my age I don’t have enough time remaining on this earth to read that monstrosity] the Act actually contains a clause saying that if any part of it is ruled unconstitutional then then entire law shall become inoperative. That’s the opposite of a severability clause; that’s a non-severabiltity clause.
Why would Obama and the Democrats have put such a clause in it? Simple, they were so arrogant they thought such a clause would give the Supreme Court pause in ruling any part of it unconstitutional because that would kill the whole thing. They thought this was going to be so popular with the people the Supreme Court would not dare to make any ruling that would killany part of it lest all of Obamacare fall. Remember Nancy Pelosi’s self-assured gloating after it was passed by political trickery, “We had to pass it so we could see what is in it.” Ha! Democrats were misled by their own arrogance. This thing was wildly unpopular from the day it was passed and has just gotten more unpopular since.
I could be wrong about Obamacare containing such a non-severability clause, and the fact that few commentators have mentioned it may indicate that I am. But some people who’ve actually read it claim that it does. Nobody has given told me what section or shown me the language, though. One thing is for sure, not a single Congress person who voted for it ever read it. So I guess we’ll find out in June when the Supremes announce their decision.
One thing more. Anthony Kennedy, a single human being, as flawed and imperfect as any of us, holds the future and the fate of 311 million people in his hands? Our freedom depends on what side of the bed Anthony Kennedy got up on this morning? Something wrong about that. That’s not what the founding fathers every thought would happen. They certainly tried to give us a country where that would not happen. I don’t believe they failed, I think the last several generations of people have failed.
UPDATE: I didn’t explain severability very well. If a piece of legislation does not contain a severability clause, the rule is that the court will strike the whole thing if any part of it is unconstitutional if,and only if, it appears from all the facts and circumstances that Congress would not have passed the law without the part that has been found to be unconstitutional. If legislation does contain a severability clause, and if that clause does not exclude the part that has been found to be unconstitutional, then the rest of the law stands. In the case of Obamacare, it originally did contain a severabilty clause, but the Democrats intentionally took it out. Therefore, it appears from this fact that they would not have passed it without the part that might be found unconstitutional, the individual mandate. Thus the rule of severability will dictate that if the individual mandate is struck down, Obamacare in its entirety should be struck down. OK, that’s the rule, but will they follow it? The answer is that they are the Supremes and they choose if and when to follow a rule, even a rule they have made for themselves, and they choose when not to follow it. Don’t you wish you could do that? Good work if you can get it.