Arizona, other states endanger fight against Obamacare

| December 3 2011
Christopher Cook

More than one conservative, libertarian, and opponent of Obamacare has complained about states’ implementing the law’s health insurance exchanges on the merits (or lack thereof) of the exchanges themselves. However, Goldwater’s Diane Cohen argues that there is another reason to oppose the exchanges: They put the case against Obamacare in jeopardy.

In some instances, a state suing against Obamacare is also implementing aspects of the law, such as these exchanges:

The severability issue is a critical consideration for states like Arizona, which are suing over the law’s constitutionality while at the same time moving forward with implementing other parts of the law, specifically the law’s health insurance exchanges. This undermines the idea that if the mandate is found unconstitutional the whole law must be thrown out.

[ . . . ]

Now that the Supreme Court has agreed to hear the severability issue, states like Arizona must return federal exchange money they have received and cease from establishing health insurance exchanges. Efforts to stop the federal takeover of healthcare must not be placed in jeopardy by the states voluntarily complying with a law that they are at the same time challenging as unconstitutional.

I am not a lawyer, nor have I ever played one on TV. But to my ear, that last line . . .

“Efforts to stop the federal takeover of healthcare must not be placed in jeopardy by the states voluntarily complying with a law that they are at the same time challenging as unconstitutional.”

 . . . makes perfect sense.

 

Exit question on severability:

If the Supreme Court rules that the lack of a severability clause is not a problem for the whole law, then what does that say about millions of contracts across the U.S.? If I write a contract without a severability clause, can I just claim that . . .

The “stand-alone nature of” the rest of my contracts clauses and their “lack of connection” to whatever clause failed legal muster mean that I didn’t need a severability clause in the first place?

Could I bring that to the Supreme Court and get a favorable judgment?

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