May 21, 2010

What happens if the individual mandate is struck down?

By What happens if the individual mandate is struck down?

Author: Luke Wake

Let us suppose that at the end of the day the Individual Mandate provision of the new health care legislation is struck down as unconstitutional. What have we accomplished?

For starters we will have won a Commerce Clause challenge, which would be noteworthy in itself. This would make clear that there are real limitations on the powers of the federal government, and would set a clear precedent against the federal government forcing individuals to become market-participants. All of that would represent a great win for liberty.

PPACA

Moreover, it appears that entire health care legislation may be struck down if the Individual Mandate provision is found unconstitutional. Normally legislation will include a "severability clause" which provides that – in the event a Court strikes a provision down – the rest of the law remains unaffected. But, in the absence of a severability clause, the entire law is usually struck down if a provision is found violative of the Constitution. Knowing this, legislators are usually very careful to include a severability clause when drafting bills. But somehow Congress forgot to include a severability clause in the health care legislation. That seems to speak to how sloppily the bill was put together. Maybe if the folks voting for the bill had bothered to read it they would have realized there was no severablity clause. Perhaps Ms. Pelosi was even more serious than we originally thought when she said, "We have to pass the bill to find out what is in it."  

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