Tuesday, November 30, 2010


What will Obama have left if health care reform is struck down by the courts?

by Larry Geller

While Americans struggled without jobs and the economy teetered deeper into recession, the Obama administration worked with singular zeal on health care reform. Whether Obama is a one-term or a two-term president, the Affordable Care Act would be the crown jewel in his legacy, flawed though it may be.

But what if the courts strike it down?

If Virginia district court judge Henry Hudson rules that Congress had no business compelling people to buy insurance, then he'll also have to determine which of the law's other provisions must also be stripped. That could easily include popular measures like the one banning discrimination against people with pre-existing medical conditions.    [Talking Points Memo, An Error By Dems May Allow The Lawsuit Against Health Care Reform To Succeed, 11/30/2010]

It seems that the law was passed without a “severability clause.” That would have protected the rest of the law even if part is struck down, as could happen in this or other legal challenges.

Talking Points Memo argues that the entire law would not likely be struck down. But some of its better parts, such as the ban on discrimination based on pre-existing conditions, could be axed. Of course, that would make the law even more of a windfall for insurance companies and leave more people without affordable health care.

Adverse rulings would be appealed. But whoa, we have a Supreme Court which could very well be salivating at the chance to take apart this “Socialist” bit of legislation.

The Obama administration has done nothing to forestall the foreclosure tsunami. Guantanamo is still open, Obama has not prosecuted torturers, we are fighting endless wars on at least three fronts (Iraq, Afghanistan, and thanks to Wikileaks, we know about Yemen). Without health care reform, what will Obama have to show for two years?

A current joke is that Democrats are promoting Palin for a run at the presidency in 2012 so Obama will be sure to win. If healthcare reform bites the dust, that joke may no longer be funny.


If a majority of Supreme Court justices ruled that Congress did not have the power to regulate insurance, it would be striking down 66 years of precedent starting with US v. South-Eastern Underwriters and the famous McCarran-Ferguson Act (just in the realm of regulating insurance). Even in their much more limited vision for Congress's powers, the conservative 5 I don't think would strike from Congress the constitutional enumerated power of regulating interstate commerce. Since the New Deal, the government has been permitted to penalize actors in the interstate economy for failing to comply with the national economic plan for that particular economic sector -- including wheat farmers attempting to grow wheat or other regulated crops for family consumption beyond said farmers DepAg's approved allotment.

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