This column by ACRU Senior Fellow Ken Blackwell and ACRU Senior Legal Analyst Ken Klukowski was published February 6, 2011 on the The Washington Examiner website.
Florida’s Obamacare court ruling presents President Obama with a risky proposition.
Because the federal court accepted our argument that the individual mandate cannot be severed from the rest of the law–and thus that the whole law must be struck down– Obama may try saving most of his signature legislation by sacrificing its heart.
In Lewis Carroll’s “Through the Looking-Glass,” Alice encounters the Bread-and-Butterfly. This creature’s wings are thin slices of bread, its body is made of crust, and its head is a lump of sugar.
The Bread-and-Butterfly has a dilemma. Its only food is hot tea.
With a head made of sugar, it has the unpleasant choice of starving, or of drinking its food, which will melt its head. Obama now faces the same dilemma as the Bread-and-Butterfly.
Judge Roger Vinson in Florida held that Obamacare’s individual mandate — requiring Americans to buy health insurance — exceeds constitutional limits on federal power. He then cited the brief filed for the Family Research Council by one of your authors (Klukowski) as providing the winning argument on why the individual mandate cannot be extracted from the remainder of Obamacare.
Since the mandate section is inextricably bound to the statute’s other 450 sections, striking down the mandate meant striking down this entire leviathan.
Republicans in Congress have wisely moved quickly to repeal Obamacare entirely. Every day imposes additional costs and burdens to American businesses, which are in turn being passed on to families through higher premiums.
Now that a full repeal proposal passed the House but failed in the Senate, lawmakers need Plan B. One proposal is to repeal the individual mandate, which gives the president his Bread-and-Butterfly moment.
The individual mandate is the linchpin of Obamacare, because forcing millions of healthy people into the national insurance risk pool is the only way to infuse the health care system with enough money to (temporarily) stave off insolvency. Signing a repeal of the individual mandate would decimate Obamacare.
But repealing the mandate section would probably save the statute’s other 450 sections. The court challenges to Obamacare target the unconstitutionality of the individual mandate. If the mandate is repealed, then those cases all become moot, and must be summarily dismissed.
This offers Obama an ironic opportunity. He might save 99 percent of Obamacare, if he’ll only forfeit its most important provision.
This could also help protect other parts of his agenda. Should the Supreme Court strike down the individual mandate, it would be a historic affirmation of the limits on federal power under the Constitution’s Commerce Clause and Necessary and Proper Clause.
Conservatives could use a favorable Supreme Court Obamacare decision to begin constitutional challenges against other parts of Obama’s agenda.
Democrats may also tinker with other sections of Obamacare, and try retroactively inserting a severability clause. Although there’s a compelling legal argument that you cannot make severability retroactive, there’s no clear Supreme Court precedent rendering it impossible.
Couple that fact with political reality. Many Democrats up for re-election are vulnerable, and would use voting to repeal the mandate to salvage their careers.
The last thing they want is for a constitutional challenge going to the Supreme Court in 2012 (as it will likely do on the current timeframe), where it will dominate the presidential contest.
Obamacare cannot grow into the nationalized single-payer system Obama envisions without the mandate. But if he sacrifices the mandate, he might incrementally condition a generation of Americans to rely on federal health care, since the rest of his law might be saved from legal challenges.
Obamacare might then still grow into socialized healthcare at some future point. It’s quite a dilemma.
Will the Bread-and-Butterfly drink the hot tea?