One of the concerns with how the Supreme Court may decide the Obamacare case is that the high court could declare the individual mandate unconstitutional but then — although the Democrats in their hurry to pass the increasingly unpopular bill left out a severability clause — would set about inferring what Congress would have passed without the individual mandate.
Roll Call reports:
Senate Minority Leader Mitch McConnell (Ky.) and 35 other Senate Republicans today weighed in on the latest fight over President Barack Obama’s two-year-old health care reform law, filing a friend of the court brief urging the Supreme Court find it unconstitutional. … The Republicans’ brief argues that the entire law — formally known as the Patient Protection and Affordable Care Act — must fall if the court rules that the individual mandate is unconstitutional.
“In addition to determining the constitutionality of the mandate, that individuals purchase health insurance, the Supreme Court also will consider whether the mandate is severable from other provisions of the PPACA; in other words, whether the other provisions of the law are legally viable in the event the Court finds the mandate unconstitutional,” McConnell said in a release. “We believe the mandate is not severable from the PPACA because the law will not function as its Congressional proponents intended or achieve their objectives without the presence of the mandate.” …
McConnell’s brief comes as 117 House Republicans, including Minority Leader Eric Cantor (Va.), joined the American Center for Law and Justice in an amicus brief making the same case: that the individual mandate cannot be severed from the health care law and that the entire law is unconstitutional.
Both briefs contend that the mandate is critical to the law and it cannot operate without the mandate.
“Without the individual mandate, the [law’s] remaining provisions cannot function properly,” the ACLJ brief said. “Thus, the unconstitutional individual mandate is not severable from the [law], and the entire Act must be invalidated.”