Testimony on the Constitutionality of Obamacare and a Correction
[Guest post by Aaron Worthing; if you have tips, please send them here.]
Yesterday the Senate Judiciary Committee held a hearing into the constitutionality of Obamacare. As Althouse snarks:
Oh, look! They’re finally paying attention to a little technical matter they ought to have taken account of a year or so ago.
Heh. You can watch, here:
Or you can read the prepared remarks of John Kroger (Oregon AG), Randy Barnett (a lawblogger I respect), Michael Carvin (a lawyer I never heard of), Walter Dellinger (Althouse says he is a law professor), and Charles Fried (Professor at Harvard). I haven’t read their remarks, but a quick glance-over indicates that the first three believe it is unconstitutional, and the last two believe it is constitutional [correction: Kroger believes it is constitutional. Thanks to those who emailed]. Althouse discusses some of his testimony here, and despite not having read it, I suspect all five are cogent and intelligent, even though later today I will probably read, analyze and disagree as appropriate.
But as the title promised, I do have a correction to make. I have said several times that Obama’s lawyers conceded the severability issue, and based that assessment on this line in the opinion:
I note that the defendants have acknowledged that the individual mandate and the Act’s health insurance reforms, including the guaranteed issue and community rating, will rise or fall together as these reforms “cannot be severed from the [individual mandate].”
With some reflection, it is clear that I misread this section. What Obama’s lawyers were saying was slightly different. In order to understand what they were saying, we have to remember what the rule is on severability. As I wrote before:
So it’s a two part test: does the rest of the law even work without the invalid portion? And if it does, is it still the case it is evident that but for this provision, Congress would not have passed this law?
That was a summary of the standards stated in Buckley v. Valeo, and it is useful to go to the “horse’s mouth” on the subject:
Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.
So there are a few parts that are specifically reference the mandate, and thus can’t operate in a basic way if the mandate is removed. Those parts would have to be removed and indeed were in the Virginia case striking down the mandate. There is no discretion on this point. Then the judge is supposed to determine if “it is evident that the Legislature would not have enacted those provisions which are within its power” if it couldn’t enact the mandate. If not, then the entire law is struck down.
But the Obama administration wanted a halfway solution. They agreed you had to take out the sections that were no longer operative. But they also wanted to take out the sections that were economically dependent on the mandate, such as the rule regarding pre-existing conditions. So they were asking the judge to go through it, section by section, and try to figure out if congress would have enacted this part if the mandate was not there or not, which when you think about it, is actually a pretty radical step. In my humble opinion, he did the right thing but not accepting that invitation. People have called the opinion radical and activist for doing so, but I think it would have been more intrusive into the legislative process to essentially rewrite the law.
Which means I was wrong in my previous analysis, and for that I apologize. But you can see that this adds an interesting wrinkle, too.
Finally, via Hot Air, we have this discussion between Lawrence O’Donnell and Jonathan Turley. You know, I disagree with both men on a lot of things, but to the extent that I have paid attention them, they seem like honest people. This seems like a good example where they put some of the blame on congress for what happened here. If there was a severability clause, it would have been almost impossible for the whole law to be struck down in toto, so they did make this possible:
But like I said above, I respect them but I disagree with them on many things, and this is one of them. First, Turley argues that the lack of severability might have been almost like a dare. “We dare you to strike it all down.” (That is a paraphrase.) It’s an interesting theory, but I am not convinced. First, as I have told you, while it is safe to say that Judge Vinson would not have struck down the entire law if there was a severability clause, the lack of a severability clause didn’t mean he automatically had to strike it all down or none of it. Second, in some ways it would have been harder, politically, to strike down the mandate if you knew that the rest would remain. The government’s lawyers have repeatedly said that if you leave in the rule regarding pre-existing conditions but took out the mandate, the health care insurance industry would implode. What judge would want the health care industry to implode?
And again, neither man seems to think it is possible that the severability clause was excluded specifically so that if the mandate was struck down, the courts would not have to pass a death sentence on the health care insurance industry, especially not in the middle of a recession. But that seems to be the simplest explanation, in an Occam’s razor sort of way.
Or maybe O’Donnell is right, and it is an oversight. Which is delicious irony if that is the case.
[Posted and authored by Aaron Worthing.]
There is at least one way, and probably more, for the ban on exclusion for pre-existing conditions to survive and work. There could be a 60 day (for example) period each year in which people with pre-existing conditions could enroll. The more important provision would concern premiums. How do you determine premiums ? Still, as long as the decision to enroll was not completely open, there could be ways to deal with this issue. The Republicans will have to deal with it as it is a big issue with many people.
Of course, a 60 day period for enrollment would require some foresight on the part of the enrollee and that might be too much for the left to ask.
Mike K (8f3f19) — 2/3/2011 @ 9:01 amI think it is possible that it was a conscious omission. Legislation of lesser import contains severability clauses, so why not this one? Severability is not a rare occurrence in the legislative process. It kind of makes you think that Obama, Reid and Pelosi knew what an “obamanation” this ugly beast was and secretly hoped that it would die an early death…a “safety valve of sorts”.
That way, they can:
* Blame Republicans for killing it.
* Say to their base, “Well, we got closer to socialized medicine than anyone evah!”
* Avoid responsibility for the crippling impact on the economy and personal freedom that this monstrosity would cause.
For them, it is a political win-win-win. A cynical win, sure – but a win nonetheless. My health, safety and environmental folks call incidents like this a “near hit”.
Michael Smith (c4595a) — 2/3/2011 @ 9:20 amI think you exaggerate O’Donnell’s good faith and Turley’s competence frankly.
SPQR (26be8b) — 2/3/2011 @ 9:20 amAny judge who supported the Cloward-Piven Strategy so clearly beholden to the current admin.
Smock Puppet (c9dcd8) — 2/3/2011 @ 9:30 amI think the 1099 issue is strong evidence they screwed up. Perhaps they combined a few different drafts, leaving out the severability section. This bill was passed in an aggressive manner, with leaders boasting we’d have to read it later.
I admit, Michael Smith has a very good point. Obama’s presidency could be saved if the albatross of health care ‘reform’ were lifted off the economy. And he could still claim credit for fighting the good fight, while blaming Republicans for denying some utopia BS version of Obamacare to a bunch of suckers.
And I bet they do think this way, but didn’t mean to craft the bill this poorly. One thing is clear: we will not be getting single payer. Obama’s promises on that regard seem to have been more BS for suckers.
Dustin (b54cdc) — 2/3/2011 @ 9:32 amI don’t think they left out the severability option on purpose. Remember that the Senate bill had passed after the House bill. Normally the two bills would go together for reconciliation and the reconciled version would then be voted on by the House and Senate. There was a small problem though. Scott Brown had been elected to the Senate in Massachusetts and he said that he would vote against Obamacare. This left the Democrats without a filibuster proof Senate which meant that Obamacare would probably never have come up for a vote. The house then accepted the Senate bill as is. I’m sure that if the bill had gone through reconciliation that it would have contained a severability option.
Tanny O'Haley (12193c) — 2/3/2011 @ 9:51 amI won’t get on you for your reading skills, since you admit to a quick glance-over, but I’m pretty sure the first one on your list (John Kroger) thinks “Obamacare” is constitutional.
Kman (d30fc3) — 2/3/2011 @ 10:01 am
IgotBupkis, President, United Anarchist Society (c9dcd8) — 2/3/2011 @ 10:42 amWell, in all fairness, they DID say they had to pass it so we/they could see what was in it later… Right?
Mike K, “The more important provision would concern premiums. How do you determine premiums ?”
That is an understatement if ever there was one, and it is the chief problem with Obamacare. Insurance, by it’s very nature, relies on spreading and minimizing risk in the population being insured. In essence, it is a bet between you and the company that you won’t make a claim during the period you are covered by the insurance.
If you demand that insurance companies cover those with pre-existing condition, what you end up with is no longer insurance. It is a program to take money from those who hopefully won’t submit claims, and give it to people who are guaranteed to make numerous claims.
That is what makes Obamacare so very terribly expensive for everyone who will be forced to pay for it. THAT consists of the people who object the most to the program in the first place, because by design, the people who support the program are the ones currently being granted waivers so they don’t have to pay for implementing it at their organizations.
Nice arrangement. I’m not entirely sure what you should call it, but it sure isn’t insurance.
Bugz (9187ae) — 2/3/2011 @ 10:47 amOn whether the lack of a severability clause was deliberate or unconscious, I think it was most likely unconscious, for two reasons:
1. The two or three people in the US who managed to read the entire bill – multiple times – in order to be able to notice this irregularity are too small a number to be responsible for catching every error.
and 2. Anyone who read through that entire bill was likely to be unconscious by the time they got to those details at the end.
Gesundheit (cfa313) — 2/3/2011 @ 10:48 amgesundheit
lol on point 2.
Aaron Worthing (e7d72e) — 2/3/2011 @ 11:00 amAaron, Kroger’s linked remarks say that it is constitutional.
Jim (87e69d) — 2/3/2011 @ 11:15 am“Nice arrangement. I’m not entirely sure what you should call it, but it sure isn’t insurance.”
Bugz – The healthy are subsidizing the rates of the unhealthy.
It’s not rocket science. It’s the same effect as in any group or community rated insurance product. Those with desirable characteristics help lower the rates for those with undesirable characteristics.
daleyrocks (479a30) — 2/3/2011 @ 11:21 amI note that the defendants have acknowledged that the individual mandate and the Act’s health insurance reforms, including the guaranteed issue and community rating, will rise or fall together as these reforms “cannot be severed from the [individual mandate].”
–So you’re saying that the Judge lied about the government’s position. Time to impeach him.
Jim (87e69d) — 2/3/2011 @ 11:28 amGo back to the original premise of ObamaCare, that we have uninsured people who need coverage. After starting with 48 million people, knocking out illegal immigrants got the administration down to the low 30 million range. Of the 30 million or so total, it turned out more than half were eligible for COBRA coverage or Medicare or Medicaid but had just not signed up. The original selling point had been inflated 2/3 by the administration.
Pre-existing conditions are a legitimate issue, but I think cost is the unspoken driver which ObamaCare really does nothing to address.
Of the people not on a government health insurance plan, my recollection is that more than two-thirds have it provided by an employer, with or without some form of cost sharing. People just don’t want to pay full freight for health insurance if they don’t have to, which explains people not signing up for COBRA and only 8,000 people signing up for the high risk pools which ObamaCare made available last September.
In focusing on availability, ObamaCare was looking at the wrong target and actually raised the cost of insurance. It should have been focused on affordability and targeted a smaller subset of the population. Instead it burned down the village in pursuit of a questionable policy goal which has failed everywhere it has been implemented.
daleyrocks (479a30) — 2/3/2011 @ 11:38 amNo, daleyrocks, Obamacare burns down an entire major metropolitan area to be able to claim it provided housing for a hundred homeless.
SPQR (26be8b) — 2/3/2011 @ 11:41 amdaley, tell us it isn’t true that The Government has lied to us.
AD-RtR/OS! (b8ab92) — 2/3/2011 @ 11:49 amInsurance is mitigation of risk by sharing that risk potential over a given pool of entities with similar risk profiles.
Add pre-existing conditions and other mandated coverages, and it isn’t insurance anymore, it is a system of wealth transfer payments, only using health services as a basis instead of money.
The only way that this thing works is for Obama to get as close to a single payer (everyone contributes) as he can. Otherwise the legs get kicked out from under it. The 700+ exemptions that have been handed out would each increase the cost of the program by the future value of the stream of payments lost from the exemptees.
Rand wrote about it. Look up the “railroad Unification Plan” from Atlas Shrugged – Obamacare looks a lot like it.
Michael Smith (c4595a) — 2/3/2011 @ 12:35 pmDaleyrocks – you offer the bastardized theory of insurance the supporters of Obamacare have tried to foist off on the public. To be sure, it is a social works program, but it is not insurance.
The original theory behind insurance is that if you take a population of otherwise healthy people, statistically, there will be a percentage of them that in a period of time, say a year, will fall ill. So, to mitegate the risks of getting ill, for the sake of example, 100 healthy people get together, and each pitches $10 into a fund to pay the expenses of anyone who falls ill. If you have less than $1000 made in claims against the fund, the fund makes money. If you have more than $1000 in claims, the fund needs to charge higher premiums.
So what do you do if you have a person who, while not sick, isn’t particularly healthy? To offset the additional risk, the fund needs to charge that person more then they would charge a healthy member of the fund. How much extra depends on how unhealthy the person is. Risk can be expensive. If the person is so unhealthy that they will incur more expenses than the fund can possibly pay, it is economically unfeasible to insure that person.
That is basically how insurance works.
When the government gets involved, and starts mandating things that are economically unfeasible, that is when you stop providing insurance, and instead are running social programs.
If that is what people really want, then let’s be honest about it. Stop calling it providing insurance for the the poor, because that is not what Obamacare provides.
To err is human. To screw things up on a really cosmic scale, you need government.
Bugz (29eca2) — 2/3/2011 @ 12:40 pmI once read this profound statement, “Two wrongs are only the beginning.”
I thought I knew what that meant. But this administration has cast it in a whole new light.
Gesundheit (cfa313) — 2/3/2011 @ 1:26 pm“To be sure, it is a social works program, but it is not insurance.”
Bugz – Call it whatever you like. I described it accurately.
daleyrocks (479a30) — 2/3/2011 @ 1:29 pmDaleyrocks. You did indeed describe accurately what is being offered by Obamacare as it is currently structured. That, alas, is why it will fail.
Bugz (22f877) — 2/3/2011 @ 1:39 pm“Insurance is mitigation of risk by sharing that risk potential over a given pool of entities with similar risk profiles.”
Michael – It sounds as if you are trying to define insurance from the seller’s perspective rather than the buyer’s, which is fine.
Let’s say I’m an insurance company that writes truck insurance. I’ve got one customer with 20 rigs. He’s got good drivers and bad drivers. Overall, I’m probably going to quote him a policy based on his historical accident record. I don’t want just one customer though, otherwise my results would be dependent on just that accounts performance and I could be wiped out by one bad accident. I need to write more truckers. Some of them may be in risky trucking businesses than others or haul higher value cargo or have worse drivers and I will price my coverage accordingly. Overall, I hope to have a diversified book of risks within the industry and not be exposed to a single shock loss.
Now the government comes along and tells me I have to take any trucking company as a customer or any individual driver, no matter their driving record, what they haul, what their equipment maintenance is like and junk like that. They also tell me I can’t put limits on my policies, I have to pay out 85% premiums in losses, what bells and whistles I have to offer each customer and threaten me about not increasing prices. They tell me I basically have to charge each customer the same thing.
ObamaCare is FREAKING GREAT!!!!!!!
Insurance buyers want somebody there to absorb the risk of financial loss from a covered peril. Most people just want somebody else to pay for their health care.
daleyrocks (479a30) — 2/3/2011 @ 1:51 pmYou are correct daley – what I was trying to say is that insurance manages the risk within a given pool. With Obamacare, the “pool” is everybody and like you said, the payouts are established regardless of risk.
Michael Smith (c4595a) — 2/3/2011 @ 2:06 pmObamacare is to insurance what automatic transmissions are to rutabagas.
JD (d4bbf1) — 2/3/2011 @ 2:09 pmMy rutabaga has a 5-speed manual.
daleyrocks (479a30) — 2/3/2011 @ 2:19 pmDaley
its even worse than that. the pre-existing condition rule is like as if an auto-insurance company was also told that customers would be allowed to buy insurance after their car was in an accident and receive a full payout for the accident they just had.
Aaron Worthing (e7d72e) — 2/3/2011 @ 2:23 pmIt is even worse than that, AW, because under this kind of system, your auto insurance would cover gasoline, oil changes, tires, routine maintenance, and mechanical issues.
JD (d4bbf1) — 2/3/2011 @ 2:25 pmthey were asking the judge to go through it, section by section
Why would the judge do it when Congress wouldn’t?
malclave (4f3ec1) — 2/3/2011 @ 2:52 pm“its even worse than that”
A.W. – We have progressive visitors. I was trying to keep it simple.
daleyrocks (479a30) — 2/3/2011 @ 3:00 pmDellinger is a leading leftie of the law. Per Wikipedia,
Beldar (e2dd38) — 2/3/2011 @ 4:48 pmYou never heard of Dellinger, Aaron?
And I agree with SPQR. You think far too highly of Turdley and Scary Larry both.
Patterico (c218bd) — 2/3/2011 @ 5:02 pmTurley has no skill other than that most prized by left-wing political TV – the ability to parrot the most ludicrous talking points with a thick slathing of sincerity.
SPQR (26be8b) — 2/3/2011 @ 6:16 pmThere’s another aspect to this entire scheme that hasn’t been mentioned here.
Let’s go back to Bugz and his #19. You have your 100 people each pitching in $10 to cover the cost of their health insurance. Now Person No. 4 in that group is a hypochondriac who thinks: “Hey, I can go see the doctor three times a week. It’s only costing me 10 bucks!” Add three or four more with this mindset and see how long the $1,000 pool of coverage will last.
And if you don’t believe there will be abuse of the system, I have several hundred tons of carbon credits you might like to buy.
I believe it was P.J. O’Rourke who observed: “If you think health care is expensive now, wait until it’s free.” Truer words were never spoken.
navyvet (db5856) — 2/3/2011 @ 6:19 pmIt wasn’t an oversight because I do remember some commentators talking about the absence of a severability clause prior to final passage of this abominable legislation but Reid and Pelousy stood firm against modifying the legislation to include such language. Hoisted by their own petards, I’d say.
eaglewingz08 (74f660) — 2/3/2011 @ 7:15 pmeagle
pelosi couldn’t have changed it. if she did, it would have had to go back to the senate and scott brown would have killed it.
SPQR
Read this by turley. i think it is pretty even handed.
http://www.usatoday.com/news/opinion/forum/2011-02-03-turley03_ST_N.htm
Aaron Worthing (73a7ea) — 2/3/2011 @ 8:30 pmIs that a five-speed overdrive?
Because, you know, there are insurance laws that are affected if it comes with an overdrive. You may not actually be covered when operating your rutabaga.
Smock Puppet (c9dcd8) — 2/3/2011 @ 11:33 pmAre those carbon-credit paper certificates?
It’s cold out, I need something to burn in the fireplace… A few tons worth of certificates would do nicely. Soak a few hundred in a light adhesive, roll ’em up tight, and let ’em dry. One Carbon Credit Log will burn for an hour or more.
😀
IgotBupkis, President, United Anarchist Society (c9dcd8) — 2/3/2011 @ 11:39 pmUnfortunately, they are only virtual carbon credit certificates. They were manufactured by GoreCorp’s Smoke and Mirrors Division, and are only visible when placed near a Nobel Prize.
navyvet (db5856) — 2/4/2011 @ 5:01 amO’Donnell is not an honest man. He was once asked why he was so hard on Mormons and so soft on Muslims. He admitted it was because he was afraid of reprocussions from Muslims.
Intellectually dishonest and downright cowardly.
Smarty (b78ca5) — 2/4/2011 @ 6:38 amHello,
I was going to comment on here then I read the comment right before me and num 40 said what I was going to say!!
O’Donnell is not an honest man. He was once asked why he was so hard on Mormons and so soft on Muslims. He admitted it was because he was afraid of reprocussions from Muslims.
Intellectually dishonest and downright cowardly.
sue brown (876d93) — 3/7/2011 @ 3:59 pm