Today SCOTUS handed down its decision on the "Patient Protection & Affordable Care" act in a 5 to 4 decision in favor of the act. I will not get into all the In's and out's of the legal argument, except to look at the severability clause that was not included in the act.

Wikipedea states “Severability clauses are also commonly found in legislation, where they state that if some provisions of the law, or certain applications of those provisions, are found to be unconstitutional, the remaining provisions, or the remaining applications of those provisions, will, nonetheless, continue in force as law. While this merely restates what is generally the law of most jurisdictions, it is nevertheless wise to include such language to make clear the parties' intent that only unimportant non-material provisions may be severed.” It is well documented that "Patient Protection & Affordable Care" act does not include a severability clause. (1)

“In the SCOTUS decision Seven Members of the Court agree that the Medicaid Expansion, as enacted by Congress, is unconstitutional. See Part IV–A to IV–E, supra; Part IV–A, ante, at 45–55 (opinion of ROBERTS, C. J., joined by BREYER and KAGAN, JJ.). (2) Because the Medicaid Expansion is unconstitutional and cannot be severed, then the whole act is null and void.

“The question of the severability of the minimum coverage provision first arose after Judge Vinson sitting in the United States District Court for the Northern District of Florida, struck down the entire Health Care Act holding that the minimum coverage provision was unconstitutional but necessary for the intended operation of the law. Judge Vinson stated that an unconstitutional provision is only severable if a court determines that the other provisions would function in the way Congress intended despite the severed provision. Judge Vinson found that Congress would not have passed the other provisions of the Health Care Act without the minimum coverage provision. Judge Vinson based this decision on the fact that, before passing the Health Care Act, Congress removed a severability provision from an earlier draft of the law. Further, Judge Vinson reasoned that, by removing the severability clause, Congress showed that the Health Care Act needed the minimum coverage provision to function properly. Additionally, Judge Vinson found that the defendants, the Department of Health and Human Services, conceded that the minimum coverage provision was necessary for implementing the regulatory core of the Act to reform the health insurance industry. Against this legislative and litigation background, Judge Vinson held that the minimum coverage provision could not be severed.

The Eleventh Circuit affirmed the district court’s holding that the minimum coverage provision was unconstitutional; however, the Eleventh Circuit reversed on the issue of severability. The Eleventh Circuit found that the minimum coverage provision was severable, and the remainder of the Health Care Act was still valid and functional. The Eleventh Circuit held that the absence of a severability clause was insufficient to rebut the strong presumption in favor of severability.” (3)

Congress removed the the severability clause and a judge does not have the authority to put it back in. A judges responsibility it to determine the constitutionality of a law, not rewrite or insert clauses that were purposely left out.

This American has drown a line in the sand, and this outlaw, unconstitutional administration has crossed it and will pay a political price for it's lawlessness.

(1) http://en.wikipedia.org/wiki/Severability

(2) http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&ved=0CFkQFjAD&url=http%3A%2F%2Fwww.supremecourt.gov%2Fopinions%2F11pdf%2F11-393c3a2.pdf&ei=AOrsT9TjD4rx0gHjppD3DQ&usg=AFQjCNEbnk45Ud-Rl4lBKT4wsz0RRAn_CQ&sig2=b_wUzc1LRhRP2byf_rW_FA page 173

(3) National Federation of Independent Business v. Sebelius (11-393) and Florida v. Department of Health and Human Services (11-400) Oral argument: Wed., Mar. 28, 2012

Last update: 29-06-2012 04:07