Anthony Kennedy, a nation turns its angry eyes to you
YESTERDAY Roger Vinson, adistrict court judge in Florida,ruled that Obamacare's controversial individual mandate is, as the federal government maintains, necessary for the law to function as intended, but that it is not proper, because it oversteps Congress' commerce-clause powers. Moreover, because the legislation failed to include a severability provision, which would permit the excise of unconstitutional elements while leaving the rest intact, Judge Vinson struck down not only the individual mandate, but the entire act.
Now, the inclusion of a severability clause is not strictly necessary for a judge to void only part of a bill on constitutional grounds, which is why liberal legal eagles were hoping that the Democrats' failure to do sowould not be a problem. However, as National Review's Arvik Roy arguesin an excellent post, Judge Vinson makes an independently compelling case for the inextricability of the individual mandate, but really drives it home simply by citing Obamacare's own advocates and the text of the bill itself. "In order to overturn Judge Vinsons ruling upon appeal," Mr Roy notes, "it will be necessary for the government to rebut itself: to disprove its own arguments that the individual mandate is essential to PPACA."
If the Supreme Court buys this, then a final decision against the constitutionality of the individual mandate on commerce-clause grounds would kill Obamacare entirely, leaving us at the status quo ante. A more humiliating reversal for the Democrats is hard to imagine.
Liberals basically have their fingers crossed that the Supreme Court will continue to rule that the commerce clause allows Congress to do more or less anything it wants since ! more or less anything anyone does or doesn't do has some effect or other on interstate commerce. AsSlate's David Weigel puts it, "the administration's lawyers are hoping that the next judges who take this case are more concerned with Supreme Court precedent than with, say, the Federalist Papers." But why say "the Federalist Papers"? Why not just say "the constitution"?
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