So far, 21 states have filed lawsuits challenging the constitutionality of Obamacare. As they move forward, it’s worth
pondering what would happen to the health care overhaul if they succeed.
Could one lawsuit be the proton torpedo that blows up the Obamacare
Typically, courts can deem a legislative provision unconstitutional without it spelling doom for the entire piece of legislation. But Obamacare isn’t typical legislation.
Ben Domenech explains: “Most laws of large size and scope have something called a
“severability clause” attached to them. Essentially, this means that if
one part of a piece of large legislation is ruled unconstitutional by a
court, that unconstitutional portion is “severed” from the rest of the
bill — the ruling doesn’t stop the rest of the law from being enforced.”
Obamacare doesn’t have a severability clause, most likely due to the hurried
manner it which it was rammed through Congress. And that omission
constitutes a thermal exhaust port which may allow Jedi—aka, those
challenging Obamacare in the courts—to annihilate the Empire’s
mothership with just one deftly targeted legal torpedo.
That’s not a given, of course. For example, the Supreme Court could opt to vacate
only the individual mandate and directly related provisions, leaving in
place the bulk of the law. That would still stick us with a bill that
expands Medicaid to cover 16 million more Americans, cuts Medicare
spending across-the-board, imposes a slew of new taxes on Americans from
every income bracket, and adds billions to the federal deficit.
It’s a scenario only an Emperor could love. Removing only the individual
mandate would be disastrous. “The mandate is the only thing which made
other anti-market regulatory demands (such as guaranteed issue and
community rating) workable for the [insurance] industry,” Domenech notes. “Removing it and leaving other requirements intact would bring the entire insurance industry to the point of collapse.”
In the best case scenario, the absence of a severability clause would
bring the entire Obamacare scheme crashing to the ground. That’s not
likely. And if the courts remove the individual mandate while leaving
all the legislation’s other provisions in place, if could spell doom—not
for the Death Star, but for the health insurance industry.
So what’s the best answer? Congress could repeal the whole thing. And they wouldn’t need The Force to do it.