today’s Thursday’s impending announcement of the result in the Affordable Care Act cases, I thought it appropriate to revisit this piece from a few months ago. No matter the outcome in the case (and the tea leaves seem to suggest that the law will be ruled unconstitutional), the reaction and coverage of same is likely to be oversimplified, overstated, and generally insufferable.
Whichever way the case comes out, we’ll hear screams that this case marks the “end of freedom” or some such thing. Just keep in mind that the law being struck down doesn’t represent any real obstacle to a system that will ultimately produce universal healthcare, and that the law being upheld doesn’t represent any real obstacle to its being repealed a year from now. I can guarantee you that one of those two arguments (depending on the outcome of the decision) will be making the rounds on cable news all week.
One final thought: Remember that, if the Court rules against the law, the ACA must be struck down in its entirety due to a lack of a severability clause. In other words, whereas a provision of the USA PATRIOT Act may be ruled unconstitutional without killing the entire bill, the individual mandate being ruled unconstitutional here would serve as a judicial repeal of the entire ACA because of its lack of such a clause.
I’ve often wondered whether the decision to exclude a severability provision were a strategic one. Whether it were or not, just remember that the other provisions of the ACA would still be left standing in the face of a ruling on the individual mandate had the law been drafted with such a provision. I suspect that a ruling against the ACA will be met with subtle (or not-so-subtle) implications that striking down the entire law was an overreach by the Court, when, in fact, there was no discretion available on the point.
No matter what happens, partisans on one side or the other will insist that the sky is falling and the world as we know it has ended. This is not the case. More to the point, a ruling against the ACA will undoubtedly spawn a deluge of anti-judicial-activism retorts from people who adore judicial activism when it’s used in ways that help their ideological causes. That, really, is the point of this piece: Hypocrites and equivocators are already a dime a dozen. This ruling will simply accelerate their mass production.
The only real question is: Which model will come flying off the assembly line in a few
Pingback: Tom Garrett for Supreme Court Justice | The Axis of Ego