NCPA - National Center for Policy Analysis


May 19, 2010

Various parts of the Democrats' health care reform law have been held up as pieces that might not stand up to a constitutional rigor, says Investor's Business Daily (IBD). 

For example: 

  • The individual mandate that requires those who aren't previously covered by insurance to buy a plan is the most likely place for the legal objections to begin.
  • Another provision that is being disputed at the constitutional level is the expansion of Medicaid that forces states to increase their spending on that program. 

But those are only two pieces of a legislative leviathan.  Even if one or both were stricken, the bulk of the law's burden would remain, says IBD. 

However, Greg Scandlen, a senior fellow at the Heartland Institute, says due to a little-known legal concept the entire law would unravel if a single part was found to be outside the Constitution. 

"Apparently there was no 'severability' clause written into this law, which shows how amateurish the process was," he wrote.  "Virtually every bill I've ever read includes a provision that if any part of the law is ruled unconstitutional the rest of the law will remain intact.  Not this one.  That will likely mean that the entire law will be thrown out if a part of it is found to violate the Constitution." 

Constitutional scholars aren't saying it's impossible, but many don't seem to have much confidence that the courts will overturn the law.  But according to Ronald Trowbridge, a senior fellow at the Texas Public Policy Foundation, for those disillusioned with the hasty and desperate manner in which the Democrats passed the 2,700+ page legislation, there is still hope. 

"Consensus holds that it will take two years for the constitutional challenge to progress through the federal district court, then the appellate court, and finally the Supreme Court," he wrote recently on Andrew Breitbart's blog.  "In the meantime, it is possible that an injunction from the district or appellate courts could put the entire bill on hold until the injunction is lifted or the case finally resolved." 

Source: Editorial, "Read the Fine Print, Investor's Business Daily, May 19, 2010. 

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