Patterico's Pontifications

3/29/2012

ObamaCare: Judicial Restraint Requires the Court to Strike Down the Whole Law

Filed under: General — Patterico @ 7:24 am

This post explains why principles of judicial restraint and separation of powers dictate that, if the Supreme Court rejects the ObamaCare mandate, the judicially modest thing to do is to strike down the whole law.

No, really.

Aaron Worthing has been analyzing the ObamaCare arguments over the past three days, and his entry on the severability issue is here. The severability issue is simple: if the Court finds unconstitutional the mandate that citizens buy health insurance, what happens to the rest of the law? Does the Court keep it, scrap it, or keep some parts and scrap others? And how should this decision be made?

It’s called “severability” because if the Court keeps part of the law, it thereby deems that that portion is “severable” from the rest of the law, which can then be preserved.

Rather than give you a summary and analysis of yesterday’s arguments, I am going to propose what I think the proper analysis should be when a court strikes down part of an unconstitutional law. My argument proceeds from textualist principles and from the separation of powers inherent in our governmental structure.

Although this post is not an analysis of yesterday’s arguments, I will sprinkle the post with quotes where appropriate — and I will use a particularly amusing quote from Justice Scalia as a springboard:

JUSTICE SCALIA: All right. The consequence of your proposition, would Congress have enacted it without this provision, okay, that’s the consequence. That would mean that if we struck down nothing in this legislation but the — what’s it called, the Cornhusker kickback, okay, we find that to violate the constitutional proscription of venality, okay? (Laughter.)

When we strike that down, it’s clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can’t be right.

I think it absolutely can be right — but my analysis would not depend on whether I think Congress subjectively would have passed the statute without a constitutionally flawed provision. My analysis would be: any statute without a severability provision that is struck down in part must be struck down in its entirety.

Here’s my reasoning: first, Congress knows how to put in a severability clause, and as Aaron has noted here on past occasions, these clauses generally appear in most legislation. And it very pointedly did not in the ObamaCare legislation.

And here is the problem: absent a severability provision, when you cut out part of a law, the part that remains is not the law that Congress voted for.

Lawmaking consists of all kinds of logrolling, deals, and compromises. The Constitution provides a way for a bill to be voted into law, and when a court cuts out part of a bill, you’re left with a piece of legislation that does not represent the same piece of legislation Congress voted for.

The original piece of legislation, like all legislation, represented a legislative compromise. The new, rewritten piece of legislation does not.

Let’s take a simple hypothetical to make the point clear. Congress finally decides to get serious about our debt and deficit. (I said it’s a hypothetical.) Republicans agree to hike taxes on the wealthy, in return for deep, immediate spending cuts in entitlements. Democrats agree to those deep cuts in return for the tax increase.

Let’s say the Supreme Court decides one half of that bargain is unconstitutional. Is it possible that the other part should be left to stand?

Assume the Court invalidated the spending cuts. If you’re a Republican, would you accept the tax hike staying as law?

Or assume the Court struck down the tax hike. If you’re a Democrat, is it fair to keep the spending cuts in place?

Now, not every portion of legislation is central to the ultimate bill. It’s a matter of degree. But the question is: who decides?

I submit to you, dear reader, that the decision which parts of the law are really so important that they are critical to the bill is not an appropriate decision for the courts. It’s a legislative decision and it’s one that Congress should be making. And that is why, absent a severability clause, striking down the whole law is actually the most “conservative” action for a court to take.

The funny thing is that, of all the Justices, guess who actually seemed to get this point yesterday? I believe the answer is: Justice Kennedy. Here’s a quote:

JUSTICE KENNEDY: When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was — one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike -­ than striking the whole. . . . I just don’t accept the premise.

I don’t say this often, but Justice Kennedy is dead on.

And that is why the example of the Cornhusker Kickback is relevant. Justice Scalia is wrong to say that it “can’t be right” that you would strike down a whole law just because one non-central piece of bribery is found unconstitutional. But that is not the court’s role to decide. Congress decided, as a body, that the Cornhusker Kickback was going to be part of the legislation. Absent a severability clause, it’s not a judicial function to determine what in a law is central.

That appears to be what the Court is going to do, if the mandate is struck down: decide whether it was central. This is because their precedents appear to require it. And apparently, the Justices will conclude that the mandate is the heart of the law and kick it all. To do otherwise would force them to read all 2700 pages of the law and go provision by provision:

JUSTICE SCALIA: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?

But this procedure would be not only cruel and unusual punishment, as Justice Scalia amusingly suggested. It is quite simply not the job of nine men and women in black robes. And that is the case whether the mandate is the “heart of the law” or not. Indeed, it’s not their job to decide what the heart of the law is.

Now, I know that people are going to respond (as Justice Breyer did yesterday) that there are pieces of legislation that are obviously not connected to ObamaCare, that many assume would have been passed anyway. Let’s run with that hypothetical, and assume that there is a law that seemingly everyone in Congress would agree to. We’ll call it the Obvious, Costless, and Long Overdue Solution to the Problem of Innocent Babies Being Murdered Act of 2010. And somehow, that wonderful piece of legislation is going to get torpedoed if we go with Patterico’s theory that you always kill the whole law if there is no severability provision. What do you say to that hypo, Patterico? Is Patterico saying he wants innocent babies murdered?!

My response is simple. If that’s a law everybody in Congress wants passed, they can pass that sucker on its own. But when the law’s supporters instead chose to attach it as a rider to an act of dubious constitutionality without a severance clause, they took the risk that the murdered babies would be tossed out with the bathwater of a totalitarian mandate. It’s really just that simple. In our democracy, it’s very hard to get a unanimous vote on anything — except, of course, rejecting Obama’s budget.

Chief Justice Roberts observed yesterday that what might seem like nonobjectionable legislation might have actually been less popular legislation that was included to win legislative approval:

CHIEF JUSTICE ROBERTS: The reality of the passage — I mean, this was a piece of legislation which, there was — had to be a concerted effort to gather enough votes so that it could be passed. And I suspect with a lot of these miscellaneous provisions that Justice Breyer was talking about, that was the price of the vote. Put in the Indian health care provision and I will vote for the other 2700 pages. Put in the Black Lung provision, and I’ll go along with it. That’s why all — many of these provisions, I think, were put in, not because they were unobjectionable. So presumably what Congress would have done is they wouldn’t have been able to put together, cobble together the votes to get it through.

Exactly.

So don’t give me a parade of horribles in which you posit hypotheticals where self-evidently wonderful legislation having nothing to do with health care got attached to unconstitutional legislation. The people who stuck those bills onto the ObamaCare monstrosity knew what they were doing. They could have done it a different way and they still can.

To do anything but strike down the whole law would be a violation of the separation of powers, and would be a power grab by the judiciary.

P.S. I should add that the lack of a severability clause, based on what I have read (I can’t immediately find the link) was not an accident or an oversight. Apparently Democrats removed it because they believed that if the law contained a severability clause, that would allow Republicans to argue that the Democrats were dubious about the constitutionality of the mandate.

Of course, as a textualist, I don’t care why they didn’t include the clause. I just care that it isn’t there. And since it isn’t there, as a judge, I would have to presume that if I cut out part of the law as unconstitutional, the remaining parts are not what Congress voted for, and I would strike it all down.

45 Responses to “ObamaCare: Judicial Restraint Requires the Court to Strike Down the Whole Law”

  1. I know your distrust of Kennedy, Patterico, but if there ever was a believer in substantive Due Process, recently, it’s him.

    nk (dec503)

  2. I agree with you whether baby rapists should get the death penalty. I don’t know whether we agree on private sexual conduct between consenting adults.

    The problem is, if we make substantive Due Process plenary, we might as well dissolve Congress.

    nk (dec503)

  3. This why I read Rico’s blog, the salient issues are presented in language, examples and heuristics that I can, with effort, grasp.

    Vololkh, as far as I’m able to tell, has a wide range of legal vantages, but I’m left a bit muddled by the jargon. Maybe I’m bright enough to learn it eventually, I just don’t find the effort justifiable or practicable.

    gary gulrud (1de2db)

  4. It’s not heuristic, Gary, it’s euristic. No indrawn-breath symbol. Like Eureka, “I found it”.
    😉

    Yes, I am a pendant.

    nk (dec503)

  5. I appreciate that, Gary. If posts like this are reaching non-lawyers and making sense, that makes me very happy.

    Patterico (2b3a71)

  6. from what i can understand, the lack of a severability clause does seem to mean if the mandate or whatever is held unconstitutional, the whole statute is struck. There was no approval among the other branches who enacted the law that if part was thrown out, the rest should stay. but is there no precedent on this? what i don’t know, and have no expertise to figure out, is whether the Supreme Court has faced this situation before and what they did about it. though if they have faced it, considering scalia’s apparent openness to slice-and-dice, the law must be muddled.

    milowent (be890a)

  7. Severability provision? We don’t need no severability provision.

    You keep making the mistake of thinking that the Justices are bound in some way and thus unable – and unwilling – to do whatever the heck they want to do and for whatever reason they want to do it (decide first, rationalize later).

    I see it potentially playing out like this: Kennedy strikes down the mandate yet votes to uphold the rest of the bill. This allows him to – once again – play it somewhat down the middle. The conservatives get a bit of what they want – the elimination of the mandate, and he inoculates himself against the liberal charge that he killed health care reform.

    A win-win… for Kennedy… who is the only one that really matters.

    steve (369bc6)

  8. Movement Conservatism will kill more innocent Americans than Al-Qaida ever will. That is the greatest argument in favor of a more partisan and confrontational Democratic Party. It’s a matter of life and death to a lot of innocent people that somebody stop the Right’s madness and roll it back.

    Does that shock you? It shouldn’t. It’s the truth. It’s just that we live in a time where it is a bigger outrage to call a bold-faed liar a bold-faced liar than to actually be one.

    That’s how serious the threat we face from the Right is. They are a national security threat. No other force on Earth can cause America to collapse into chaos more successfully over time.

    I have often argued with Barack Obama’s most caustic critics that we don’t have an “Obama” problem, we have a “Democratic Party problem”. Time to be Democrats again. If the Movement Conservative Rightwing successfully gets its way on ObamaCare, then it should mean Medicare for All and blaming the entire status of our fucked-up healthcare system on them. It will be theirs, because they proudly stripped millions of people of the hope of affordable healthcare to earn it.

    Folks like by LeftHandedMan at Daily Kos and James Caville are trying to paint a possible striking down the whole law as the Republicans “owning” the resulting dysfuncional healthcare regime, but it is nothing of the sort. This is plainly the Democrats fumbling the ball on the 1 yard line. It was the Democrat Senate that removed a severability clause put in by the House. The Democrats had 60 Senators and a huge majority in the House that, even if it was for a short period, was able to pass any plan allowed by the Constitution. It was the Democrats who passed a constitutionally flawed bill.

    Neo (29dc8d)

  9. Milo, you still Weinergate was a hoax, they had no severability clause, because of the Scott Brown election

    narciso (83bb81)

  10. I am certainly not an attorney! But I did understand your post. Thankyou, Patrick. I won’t cast aspersions on the legal profession, since I read financial statements for fun.

    BarSinister (99d480)

  11. I won’t cast aspersions on the legal profession, since I read financial statements for fun.

    Now, that IS scary. 8-)Most people I know would put that up there with analyzing the entire 2700 pages of ACA. Cruel and Unusual Punishment!

    Jay H Curtis (804124)

  12. Total agreement here. The mandate — love it or hate it — is the “heart” of the ACA. What’s more, even if some part of the ACA is unrelated to the mandate, you still don’t know if it would have passed Congress standing on its own.

    The right thing to do, therefore, is to (sadly) throw out all of Obamacare if the mandate is deedmed unconstitutional.

    [Found in filter.]

    Kman (5576bf)

  13. “To do otherwise would force them to read all 2700 pages of the law…”

    So they’re going to strike it down, because the federal government has no enumerated power to force SCOTUS judges to read?

    Well, it’s a novel approach.

    😉

    Dave Surls (46b08c)

  14. I think the first day’s discussion on ripeness actually carried some telltale signs regarding severability. On day one, the consensus of Kennedy, Scalia et al was “Congress knows how to put the word ‘tax’ into a bill” when determining whether or not the penalty is exactly that. I think that was meant to carry through to day three’s discussion, albeit silently: as you suggest, Congress knows how to write a severability clause and chose not to do so.

    Kevin in ABQ (104b65)

  15. It’s post like this that keep me coming back (and hitting up the Amazon search every once in a while [when I remember it]). Legalese makes my head hurt, so it’s nice to read and understand the issue – which is also what the Founder intended, but I digress.

    I put it this way: Obamacare must be struck entirely because if it is unconstitutional for the President to have a line item veto, then it must be unconstitutional for the 9 men and women of the Supreme Court to exercise a line item veto.

    Darin H (bac63b)

  16. If posts like this are reaching non-lawyers and making sense, that makes me very happy.

    Ditto Gary Gurland and Bar Sinister. You should be very happy, indeed. It’s an excellent post. Thank you.

    Dana (c6aa60)

  17. I agree – absent severability, the whole thing must go. Congress can then re-visit the issue if it cares to, and maybe even do a proper job of it the second time around.

    Probably not, though. Congress these days is more about “visuals” than proper legislation.

    mojo (8096f2)

  18. You make the legal jargon make sense to lawyers, too, Patterico. Great job.

    DRJ (a83b8b)

  19. I know the esteemed Mr. Scalia can’t be bothered to read the danged bill before deciding whether or not it is constitutional – after all, he’s roughly the Pope of the Constitution, right?

    But for us lesser mortals, it might well be prudential to review the actual text of the bill, and learn that the Cornhusker Kickback is not, in fact, in it.

    Jamie (ee4a20)

  20. As the 11th Court opinion noted, severability of an instrument is not dependent on the existence of a sev. clause, and the Court must start from the presumption of severability:

    ‘In analyzing this question, we start the settled premise that severability is fundamentally rooted in a respect for separation of powers and notions of judicial restraint. See Ayotte v. Planned Parenthood of N. New Eng. …. Courts must “strive to salvage” acts of Congress by severing any constitutionally infirm provisions “while leaving the remainder intact.” “[T]he presumption is in favor of severability.” Regan v. Time, Inc’

    (Still, as a small businessman, I put one in all my contracts, just in case.)

    That Congress has a pro forma sev. clause, routinely puts it into bills, had originally included it in the ACA, until Pelosi was instructed by the WH to remove it, could well inform the SC that Congress did intend the entire ACA to be non-severable.

    I’d personally prefer everything but the mandate be retained, but feel it’d also be proper (though not required) for the Court to negate the entire law.

    tamerlane (59c3ab)

  21. The problem is not only with the Mandate, the dEath Panels, (IPAB) et al, but with all the discretion giving Sebelius in this bill, which adds up to thousands of pages of regulations

    narciso (83bb81)

  22. I heart how leftists are trying to spin this as judicial activism. It is surreal. If Congress wanted a severability clause, they would have put one in. If they wanted to call it a tax, they would not have called it a fine. Sotomayors nonsense about them looking at the legislative process was laughable. At least Kagan had the decency to not make a complete arse of herself, after her schoolgirl cheerleader antics after passage.

    Determining if something is constitutional is now activism to the left.

    JD (e5c06b)

  23. I’d personally prefer everything but the mandate be retained, but feel it’d also be proper (though not required) for the Court to negate the entire law.

    So you are an advocate for crashing the system and moving to single payer.

    JD (e5c06b)

  24. Jamie – there is nothing about funerals, broccoli, or cars contained in the legislation, yet they were also discussed.

    JD (e5c06b)

  25. Obamacare must be struck entirely because if it is unconstitutional for the President to have a line item veto, then it must be unconstitutional for the 9 men and women of the Supreme Court to exercise a line item veto.

    Comment by Darin H — 3/29/2012 @ 8:39 am

    Winner! I don’t think I have seen a more concise, logical argument than this one. That must mean it is inconsistent with out current legal precedents.

    Jay H Curtis (804124)

  26. darn it!
    out = our

    Jay H Curtis (804124)

  27. JD,

    Democrats want the courts to defer to Congress now, but they will change their tune (again) when we have a Republican Congress.

    DRJ (a83b8b)

  28. DRJ – roe v wade was not activism either 😉

    JD (318f81)

  29. Not only did a severability clause conspicuously not appear. The Senate took the clause out.

    They intentionally removed it.

    Obviously it was congress’s intent that this bill not be severable.

    Dustin (330eed)

  30. First, thanks for the links.

    I was going to write out a long comment, but… instead i turned it into a post. so click on my name and read if you are inclined to.

    Or click here.

    Aaron Worthing (73a7ea)

  31. To put tamerlane’s point at 18 into a simpler form:

    The first thing Sotomayor got Clement to admit is that laws without severability clauses had been severed in the past. That means they can be severed now and in the future.

    That there’s no severability clause in it now is nice, but doesn’t finish the job. That it was specifically taken out is helpful, but it doesn’t finish the job because the Court doesn’t necessarily look into legislative history (the sausage-making) of a bill.

    luagha (5cbe06)

  32. There will be no single-payer, not as long as Davif Geffen and his boyfriend want the best possible treatment for HIV and continue to contribute millions to Democrats.

    nk (dec503)

  33. Wrong laugha.

    Clement points out that The Supreme Court has to consider the intent of Congress.

    In the text of the Bill itself Congress states that the individual mandate is essential to the operation of the exchanges.

    If the individual mandate is unconstitutional the heart of the bill-the exchanges cannot exist.

    Congress itself state in the text of the bill that the individual mandate is essential.

    It starts here at this point in yesterday’s argument;

    MR. CLEMENT: — what I was going to say,Justice Scalia, which is I think the question for this Court is — we all recognize there’s legislative inertia. And then the question is what’s the best result in light of that reality?

    JUSTICE SOTOMAYOR: Are you suggesting that we should take on more power to the Court?

    MR. CLEMENT: No, I -­square that reality with the proposition that what we’re looking for here is what would this Congress have intended.

    JUSTICE SOTOMAYOR: Because Congress would choose to take one path rather than another. That’s sort of taking onto the Court more power than one, I think, would want.

    MR. CLEMENT: And I agree. We’re simply asking this Court to take on, straight on, the idea of the basic remedial inquiry into severability which looks to the intent of the Congress -­

    JUSTICE SCALIA: Yes, I wanted to ask you about that. Why do we look to the — are you sure we look to the intent of the Congress? I thought that, you know, sometimes Congress says that these provisions will — all the provisions of this Act will be severable. We ignore that when the Act really won’t work, when the remaining provisions just won’t work. Now, how can you–

    MR. CLEMENT: Well, two responses, Justice Scalia: We can look at this Court’s cases on severability, and they all formulate the test a little bit differently.

    JUSTICE SCALIA: Yes, they sure do.

    MR. CLEMENT: But every one of them talks about congressional intent. But here’s the other answer–

    JUSTICE SCALIA: That’s true, but is it right?

    MR. CLEMENT: It is right. And here’s how I would answer your question, which is, when Congress includes a severability clause, it’s addressing the issue in the abstract. It doesn’t say, no matter which provisions you strike down, we absolutely, positively want what’s left.

    JUSTICE SCALIA: All right. The consequence of your proposition, would Congress have enacted it without this provision, okay, that’s the consequence. That would mean that if we struck down nothing in this legislation but the — what’s it called, the Cornhusker kickback, okay, we find that to violate the constitutional proscription of venality, okay?

    (Laughter.)

    JUSTICE SCALIA: When we strike that down, it’s clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can’t be right.

    MR. CLEMENT: Well, Justice Scalia, I think it can be, which is the basic proposition, that it’s congressional intent that governs. Now everybody on this Court has a slightly different way of divining legislative intent. And I would suggest the one common ground among every member of this Court, as I understand it, is you start with the text. Everybody can agree with that.

    JUSTICE KAGAN: So Mr. Clement, let’s start with the text. And you suggest, and I think that there is — this is right, that there is a textual basis for saying that the guarantee issue and the community rating provisions are tied to the mandate. And you said — you pointed to where that was in the findings.
    Is there a textual basis for anything else, because I’ve been unable to find one. It seems to me that if you look at the text, the sharp dividing line is between guarantee issue, community ratings, on the one hand, everything else on the other.

    MR. CLEMENT: Well, Justice Kagan I would be delighted to take you through my view of the text and why there are other things that have to fall.

    The first place I would ask you to look is finding J, which is on the same page 43A. And as I read that, that’s a finding that the individual mandate is essential to the operation of the exchanges. But there are other links between guaranteed issue and community rating and the exchanges. And there I think it’s just the way that the exchanges are supposed to work, and the text makes this clear, is they are supposed to provide a market where people can compare community rated insurance. That’s what makes the exchanges function.

    madawaskan (89a442)

  34. Boom! I think Clement won the case right there.

    madawaskan (89a442)

  35. Sweet! Thanks for the education. :)

    luagha (5cbe06)

  36. We’ll…I guess you could debate the meaning of “essential”.

    madawaskan (89a442)

  37. If the mandate is struck it will be very difficult for the 4 court liberals to argue that only portions of the remaining should also be struck … they would need one of the 5 others to agree to their list of additional cuts … not gonna happen that 5 justices will agree on the exact same list … that leaves them with just trying to strike the mandate alone which every justice agree’s is unworkable …
    they’ll have to kill the whole thing …

    JeffC (488234)

  38. Aaron, one important (to me at least) point I would make about your rebuttal. It isn’t just that there is no severability clause in the bill, but they ACTUALLY REMOVED THE ONE THAT WAS THERE. so even Congress implied that they wanted it to stand or fall en masse.

    Rorschach (c5574d)

  39. Not that I want to see it go this way, but it IS possible to uphold the mandate and the statute, but strike down the Medicaid expansion. Justice Kennedy (there’s that guy again) seemed to have real problems with the expansion being “coercive.”

    Kevin M (bf8ad7)

  40. The court commands no armies, it has no money; it depends for its power on its credibility.

    The left knows they are going to lose, and are already trying to delegitimize the Supreme Court.

    Sen Kerry told the SC dont worry about it, my Committee already fully vetted the Constitutionality.

    /spit

    JD (e5c06b)

  41. @8 “Milo, you still Weinergate was a hoax”

    what?

    milowent (0f8248)

  42. So the chances are better than 50:50 Amerikkka has dodged one bullet.

    Who does it help in this context:

    http://www.zerohedge.com/news/presenting-americas-political-apathy-voter-turnout-rate-50

    Ogabe is running on fear and hate but his ‘accomplishments’ are now a vacant lot, with traces of accelerant.

    The big drawback to Willard, that he wouldn’t lead, is now partially mitigated. Do-nothing-and-look-good-while-not is his raison de etre but this just diminishes turnout further.

    I’m up for gridlock, shut down and public trial, who’s with me? YYEAaaarrrgghhh!!

    gary gulrud (d88477)

  43. “Every normal man must be tempted, at times, to spit upon his hands, hoist the black flag, and begin slitting throats.”–H.L. Mencken

    Bet he said that right after listening to a bunch of SCOTUS judges holding forth. Good thing he never heard Ginsburg, there’s no telling what he might have been tempted to do.

    Dave Surls (46b08c)

  44. Even Breyer witnessed to the futility of trying to fix ACA sans mandate.

    Prolly hoping to weaken sentiment for doing anything.

    Actually, Sotomayor is looking like almost adult compared to her cohort. Fauntleroy dropkicked the pick?

    gary gulrud (d88477)

  45. JUSTICE KENNEDY: When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was — one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike -­ than striking the whole. . . . I just don’t accept the premise.

    Patterico: I don’t say this often, but Justice Kennedy is dead on.

    It sounds like Justice Kennedy is more worried about the possibility of insurance companies going broke, than about many individuals goinbg broke. If he just gets rid of the individual mandate, which let us say, is the only thing in the law that is unconstitutuional, insurance companies may go broke becausse they have to sell insurance to everyone and to everyone at the samwe rate. If he gets rid of other things too, then individuals may go broke who otherwise wouldn’t go broke, because they won’t be able to get insurance.

    In the contest betwen the two possibilities he wants to choose corporations and prevent them from goping bankrupt. But ordinary people can go bankrupt.

    And that almost sounds like a caricature of Republican beliefs.

    Sammy Finkelman (d22d64)


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