An interesting article concerning "severability"

[zoechen]

The article contains backround of the severability question and then good analysis.

It's kinda long but due to being quite detailed.

http://www.scotusblog.com/?p=140999

[PoliticAverse]

1. Another opinion on the severability issue...

http://www.nytimes.com/2012/03/23/opinion/the-severability-doctrine.html?_r=1

[pinto]

2. Great, detailed, piece. So much conjecture from talking heads on the issue, always good to

get closer to the source. Found it interesting that Congress didn't include a severability clause from the get go, for whatever reason. Today's arguments ought to be interesting, if densely legal.

Thanks for the post.

[zoechen]

3. Actually

At one point the ACA had a severablity clause but it was removed prior to the final vote.

[pinto]

4. Yeah, saw that. Wonder why it was dropped.

I don't recall that discussion in the tortuous road to passage in Congress.

[PRETZEL]

5. I think it was dropped for this very reason

keeping the severability clause in the bill would only put issues presented to the Court. Now they can argue that by stiking one then they can strike the whole thing.

That seems to be my read of it anyway.

[pinto]

6. Yeah. And I think now the SCOTUS is being presented with the job of deciding

on the severability issue, in and of itself, along with the challenges of record.

[PRETZEL]

8. Which, in my opinion, seems to be dangerous

if, by ruling on the severability issue, which isn't in the law, does that mean that the SC is going beyond their reach in that they are ruling on something that is not in the law, but are in effect, ruling on Congressional intent as opposed to be within Constitutional limitations?

[zoechen]

7. Just conjecture on my part...

But the reading I get on the decision to pull the clause was an atempt to show intent in case the individual mandate was struck down.

Sort of an all or nothing kind of thing.

[Romulox]

9. It would have been trivial to insert a clause invalidating the entire bill if the mandate

(or any part) were to be struck down.

The removal of the severability clause actually demonstrates Congress' knowledge of the clauses, and how they work. If they omitted a provision such as I mentioned, then the Court should assume they did so purposefully.

In essence, government is asking the Court to decide an issue that Congress punted on. Really isn't the Court's job (or expertise) to make those sorts of decisions.

[zoechen]

11. I believe I agree with your post

If we assume that the purpose of a severability clause is to instruct the SCOTUS on how Congress wishes the law to look like after a portion of the law is struck down (I am assuming that the writers of the law thought they might be on untenable ground with the mandate). Then it would be up to the SCOTUS to decide what else needs to be struck.

I most decidedly agree that the Court is out of it's depth on this point and since the clause was in and then pulled, what choice do they really have?

[Romulox]

13. The omission may also be a result of the corporate background of the drafters

of the legislation--the concept of "commercial reasonability" is foundational in commercial contract law--as the drafters of the legislation were (quite literally!) employees of the insurance industry, this is the type of law the drafters were steeped in.

Unfortunately for them, "commercial reasonability" is not an implied concept in Constitutional Law interpretation.

[PRETZEL]

10. Recap of the morning arguments

from the same source as the OP.

http://www.scotusblog.com/2012/03/argument-recap-a-lift-for-the-mandate/

Very interesting read, mixed signals maybe, but it may foreshadow just how the SC sees this whole issue.

[zoechen]

12. That is a good read...

Of course, as stated elsewhere, it is a dangerous thing to "read the tea leafs" the court seems to relish remaining in the "no wake zone".


On edit: Typo