Will The Supreme Court Uphold Health Care?

The Plum Line

As you’ve heard, a Florida judge has ruled that the individual mandate is unconstitutional, meaning that two GOP-appointed judges have reached that conclusion, versus two Dem-appointed judges who have concluded the opposite. Only in this case, the judge, Roger Vinson, ruled that the individual mandate is not severable from the rest of the law, meaning the entire thing has to be tossed.

I just checked in with Louis Seidman, a professor of constitutional law at Georgetown University, to get his thoughts on the ruling.

* Seidman skewered one of the ruling’s core findings — that the individual mandate is unconstitutional because it constitutes regulating economic inactivity. He argued that the constitution’s “necessary and proper clause” explicitly provides for the regulation of anything that “has an effect” on interstate markets.

“If Congress wants to mandate that insurance companies not discriminate against people with preexisting conditions, then Congress could rationally think it’s necessary to make sure that people participate in the insurance market” to make the ban on discrimination function properly, he said.

* Seidman, interestingly, said he thought the judge’s most controversial decision — that the mandate is not severable from the overall law, suggesting it needs to be tossed out entirely — had something to it.

“My own sense about that is that he’s probably right,” Seidman said. “The various segments of the law are sufficiently intertwined that it’s very hard to cut out the mandate and leave the rest unaffected. If [the mandate] is unconstitutional then I tend to agree that you can’t just sort of surgically remove one part of it and leave the rest intact.”

When I pointed out that there are other legislative means to replicate the mandate, calling into question whether the whole law should be scrapped, he argued that this isn’t for the courts to do.

* And finally, Seidman said the decision doesn’t matter a whit in the end.

“There is one person in the United States who will decide on this law, and that’s Anthony Kennedy,” Seidman said. “He’s not going to be unduly influenced by what a district judge in Florida says. All of this is just scrimmaging.”        More…