What comes after the ACA?

[jim555]

They can correct the ACA with a one page bill addressing the issue if it comes to that.  This is why getting control of the Senate and President is so important.

[Paul der Krake]

While they're at it, if they could end the abortion culture wars by actually passing some fucking laws, that'd be great.

Really tired of those proxy wars being waged in court rooms, dragging on for decades, over stupid shit that should just be regular legislation.

[Monkey Uncle]

Even if the dems retake the senate, passing a brand new ACA after the original has hypothetically been struck down by the supreme court will require either using reconciliation (which limits the types of things that can be included in an ACA 2.0 quite severely relative to ACA 1.0) or genuine 100% abolishment of the filibuster. <-- which could happen but so far no one has said they'd be willing to do so.

In '09 Obama came into office with a 59/41 majority and four months after that grew to a 60/40 filibuster proof supermajority when Spector switched parties. If Biden wins the election, he'll likely have a 50-51 seat majority. There are realistic scenarios that up that to 55 and super optimistic ones that get him to 58. But there's just nowhere for a 59th or 60th seat to come from this cycle.

I think death of the filibuster is highly likely.  Otherwise, nothing gets done (on anything, not just health care).  I would hope the Democrats learned that lesson from the 10 out of 12 6 out of 8 years of the Obama administration when McConnell single-handedly brought Congress to a standstill.

Edit: What the hell? I guess I shouldn't attempt second grade arithmetic before I finish my coffee.

[Leisured]

I live in Australia, and we voted in a Labor government in 1972, that among other things, intended to establish a national heath scheme in Australia. That got in about two years later.

One of my work colleagues was a Dutch migrant. and he said that if Australia gets a national health scheme, all we would do is if copy what European nations did 15 years earlier. He was obviously right.

New Zealand established a national health scheme about about the same time, and Canada followed suit in the mid eighties. At the time I thought: 'America will not be far behind.' Laugh.

Fat chance. My late father took the view that Americans have a 'thing' about gun laws, and that have a 'thing' about national health care. That is how it is.

[pecunia]

I live in Australia, and we voted in a Labor government in 1972, that among other things, intended to establish a national heath scheme in Australia. That got in about two years later.

One of my work colleagues was a Dutch migrant. and he said that if Australia gets a national health scheme, all we would do is if copy what European nations did 15 years earlier. He was obviously right.

New Zealand established a national health scheme about about the same time, and Canada followed suit in the mid eighties. At the time I thought: 'America will not be far behind.' Laugh.

Fat chance. My late father took the view that Americans have a 'thing' about gun laws, and that have a 'thing' about national health care. That is how it is.

There needs to be a more honest discussion of this in the media.  When you have folks like Rupert Murdock influencing the information that is disseminated, good changes are far less likely.  Most people are already for health care for all.  It needs the sell.  People have been barraged with right wing propaganda for too may decades.

[sherr]

I'm not a lawyer, but I thought what was at issue Nov 10th will be if the penalty (for not having insurance) is a tax and if that one condition of the law can be 'struck separately' with the rest of the law remaining.

The penalty was already decided to be a constitutional tax in the 2012 Supreme Court case. The issue at stake now is whether it's still a tax now that the Republicans have set it to $0, and if it's not a tax whether the individual mandate is still constitutional, and if it's not constitutional then whether or not it can be "struck separately" from the rest of the law.

It's such a strained argument that if the SC strikes down the entire ACA this time (which I don't expect) then it's not an exaggeration to have literally no faith in the Rule of Law anymore. "Well we sabotaged one bit of the law, so now the whole thing is unconstitutional and must be thrown out". Okaaaay....

[bacchi]

I'm not a lawyer, but I thought what was at issue Nov 10th will be if the penalty (for not having insurance) is a tax and if that one condition of the law can be 'struck separately' with the rest of the law remaining.

The penalty was already decided to be a constitutional tax in the 2012 Supreme Court case. The issue at stake now is whether it's still a tax now that the Republicans have set it to $0, and if it's not a tax whether the individual mandate is still constitutional, and if it's not constitutional then whether or not it can be "struck separately" from the rest of the law.

It's such a strained argument that if the SC strikes down the entire ACA this time (which I don't expect) then it's not an exaggeration to have literally no faith in the Rule of Law anymore. "Well we sabotaged one bit of the law, so now the whole thing is unconstitutional and must be thrown out". Okaaaay....

It's an absurd case and the fact that it's made it this far is telling.

Of course, maybe 5 Justices wanted to review the case to solidify the ACA. If so, that may backfire on them.

That's wrong. ^^ It's in front of the SC because a lower court agreed with the strained argument. In other words, in some federal courtrooms (5th?), the Rule of Law is already failing.

[sherr]

It's in front of the SC because a lower court agreed with the strained argument. In other words, in some federal courtrooms (5th?), the Rule of Law is already failing.

By a GWB appointee in the Northern District of Texas, and then by GWB and Trump appointees in the 5th Circuit Court of Appeals, yep. Cases like this are why the Republican party has been so intent on stacking the courts with extremist loyalist activist judges for the past X decades.

[sherr]

While they're at it, if they could end the abortion culture wars by actually passing some fucking laws, that'd be great.

Really tired of those proxy wars being waged in court rooms, dragging on for decades, over stupid shit that should just be regular legislation.

There is absolutely no reason to believe that actually passing some fucking laws would end the abortion culture wars. In fact we have a counter example right here: the ACA is an actual fucking law and that has not prevented these stupid proxy wars in the court rooms from dragging on for decades. Republicans had the ability to change or repeal or replace the ACA when they had complete control of congress and the presidency. They couldn't figure out anything better, so here we are with them waging more stupid proxy wars in the courts instead.

[Exflyboy]

While they're at it, if they could end the abortion culture wars by actually passing some fucking laws, that'd be great.

Really tired of those proxy wars being waged in court rooms, dragging on for decades, over stupid shit that should just be regular legislation.

There is absolutely no reason to believe that actually passing some fucking laws would end the abortion culture wars. In fact we have a counter example right here: the ACA is an actual fucking law and that has not prevented these stupid proxy wars in the court rooms from dragging on for decades. Republicans had the ability to change or repeal or replace the ACA when they had complete control of congress and the presidency. They couldn't figure out anything better, so here we are with them waging more stupid proxy wars in the courts instead.

Considering their "Repeal and (not) replace" farce pretty much cost them the House in the 2018 mid terms.. you would have thought they got the message!

[maizefolk]

The ACA is only ten years old, and most of it has only been in force for six years, so I don't think it is fair to say that the fights in the courts over it have dragged out for decades.

[Paul der Krake]

One is an individual freedom issue that relies on a narrow precedent from 50 years ago that left the door wide open to states limiting things, practically begging them to do it. The other is one of the largest federal programs ever, both in complexity and in repercussions over Congress's taxing power.

The two situations are absolutely not comparable.

Pass unequivocal laws protecting the things you care about. Don't rely on shaky opinions and hope the third branch of government will come save you when your opponents outsmart you.

[sherr]

You said it yourself: abortion is a culture war. Mere regular ol' laws will never stop the fight, at either the state or the federal level. One side will have to lose the culture war so badly that we enact a constitutional amendment before we can hope to let that issue lie, and even then I doubt it.

Edit: which by the way may only be two or three decades away.

[toocold]

Given all that, whats to stop the Dems coming up with ACA 2.0, which is exactly the same minus the individual mandate and pushing it through prior to when the ACA is no longer available?

It's easier than that.  They just need to increase the individual mandate to $1, which makes the separability argument invalid and keeps it in place.

[MrGreen]

Given all that, whats to stop the Dems coming up with ACA 2.0, which is exactly the same minus the individual mandate and pushing it through prior to when the ACA is no longer available?

It's easier than that.  They just need to increase the individual mandate to $1, which makes the separability argument invalid and keeps it in place.

This is the thing that frustrates me to no end, that the individual mandate was not truly repealed. It's still there, just $0. Which means you could obviously just change it back to more than $0. Make them do it right and actually repeal the mandate, by removing the mandate from the law entirely. Anything short of that is just gamesmanship.

[toocold]

Given all that, whats to stop the Dems coming up with ACA 2.0, which is exactly the same minus the individual mandate and pushing it through prior to when the ACA is no longer available?

It's easier than that.  They just need to increase the individual mandate to $1, which makes the separability argument invalid and keeps it in place.

This is the thing that frustrates me to no end, that the individual mandate was not truly repealed. It's still there, just $0. Which means you could obviously just change it back to more than $0. Make them do it right and actually repeal the mandate, by removing the mandate from the law entirely. Anything short of that is just gamesmanship.

The SC already ruled that the individual mandate is constitutional.  The Republicans couldn't pass the repeal due to McCain's ultimate thumbdown vote, so the chance of just repealing the individual mandate is nil. 

If there is a blue wave, this issue goes away.

This is one of the reason why I crossed parties and voted blue.

[MrGreen]

Given all that, whats to stop the Dems coming up with ACA 2.0, which is exactly the same minus the individual mandate and pushing it through prior to when the ACA is no longer available?

It's easier than that.  They just need to increase the individual mandate to $1, which makes the separability argument invalid and keeps it in place.

This is the thing that frustrates me to no end, that the individual mandate was not truly repealed. It's still there, just $0. Which means you could obviously just change it back to more than $0. Make them do it right and actually repeal the mandate, by removing the mandate from the law entirely. Anything short of that is just gamesmanship.

The SC already ruled that the individual mandate is constitutional.  The Republicans couldn't pass the repeal due to McCain's ultimate thumbdown vote, so the chance of just repealing the individual mandate is nil. 

If there is a blue wave, this issue goes away.

This is one of the reason why I crossed parties and voted blue.

I used poor sentence structure in my reply. I'm frustrated that everyone considers the lowering of the penalty to $0 as repealing the mandate. Simply not true. The mandate is still there in law. The penalty is simply $0. That's the gamesmanship BS.

[American GenX]

Given all that, whats to stop the Dems coming up with ACA 2.0, which is exactly the same minus the individual mandate and pushing it through prior to when the ACA is no longer available?

It's easier than that.  They just need to increase the individual mandate to $1, which makes the separability argument invalid and keeps it in place.

This is the thing that frustrates me to no end, that the individual mandate was not truly repealed. It's still there, just $0. Which means you could obviously just change it back to more than $0. Make them do it right and actually repeal the mandate, by removing the mandate from the law entirely. Anything short of that is just gamesmanship.

The SC already ruled that the individual mandate is constitutional.  The Republicans couldn't pass the repeal due to McCain's ultimate thumbdown vote, so the chance of just repealing the individual mandate is nil. 

If there is a blue wave, this issue goes away.

This is one of the reason why I crossed parties and voted blue.

I used poor sentence structure in my reply. I'm frustrated that everyone considers the lowering of the penalty to $0 as repealing the mandate. Simply not true. The mandate is still there in law. The penalty is simply $0. That's the gamesmanship BS.

A mandate with no teeth isn't much of a mandate.  The ACA certainly shouldn't fall even if the mandate is now ruled unconstitutional.  The ACA clearly continues to function fine despite a no-penalty mandate.

[DavidAnnArbor]

Let's make Washington DC, and Puerto Rico into states with elected Senators that can be more representative of the US population and enable a more liberal leaning Senate to have power over judicial nominations. A less right wing judiciary will uphold the ACA or other health care law.

[dresden]

Given all that, whats to stop the Dems coming up with ACA 2.0, which is exactly the same minus the individual mandate and pushing it through prior to when the ACA is no longer available?

It's easier than that.  They just need to increase the individual mandate to $1, which makes the separability argument invalid and keeps it in place.

This is the thing that frustrates me to no end, that the individual mandate was not truly repealed. It's still there, just $0. Which means you could obviously just change it back to more than $0. Make them do it right and actually repeal the mandate, by removing the mandate from the law entirely. Anything short of that is just gamesmanship.

The republicans are in charge of the senate right now and have no interest in making changes to save ACA - they are working to actively destroy it.

[pecunia]

Let's make Washington DC, and Puerto Rico into states with elected Senators that can be more representative of the US population and enable a more liberal leaning Senate to have power over judicial nominations. A less right wing judiciary will uphold the ACA or other health care law.

It ain't gonna happen when the folks who control the media don't have interests that align with the common man.  The media can get people to vote against their own interests.

[talltexan]

What's truly astounding is that they made Alaska a state before oil was discovered on the North Slope.

[Monkey Uncle]

Before any territory can become a state, you have to get a bunch of white people to go in and "settle" it.

[Shane]

I've heard the Chinese are pretty good at that. Maybe we could ask them for some advice on the logistics of setting up the reeducation camps.

[American GenX]

The republicans are in charge of the senate right now and have no interest in making changes to save ACA - they are working to actively destroy it.

The ACA case is going to be heard by SCOTUS in November.  There likely won't be a ruling until June.  There's an election coming up with the dems favored to win back the Senate as well as the presidency.  If that happens, as is the most likely scenario, they can still save the ACA before SCOTUS potentially rules to overturn the whole thing.

[Exflyboy]

The republicans are in charge of the senate right now and have no interest in making changes to save ACA - they are working to actively destroy it.

The ACA case is going to be heard by SCOTUS in November.  There likely won't be a ruling until June.  There's an election coming up with the dems favored to win back the Senate as well as the presidency.  If that happens, as is the most likely scenario, they can still save the ACA before SCOTUS potentially rules to overturn the whole thing.

Sure hope so.. One poll the Trumpsters are getting all excited about today shows Trump winning... All a Deep State conspiracy don't ya know?

[pecunia]

Even if the Democrats win the presidency, the House and the Senate, they won't do anything unless there is a big public push.  The power of the health care industry is immense and many faceted.  They can contribute to candidates and their employees hold jobs in the candidate's districts.  The holders of those jobs will vote in their best interests which are not necessarily in the interest of the public at large.  I'm sure the industry has many other weapons to convince any candidate to veer to their side of any issue.

Small reforms should be possible.

[bacchi]

https://thehill.com/policy/healthcare/521840-key-obamacare-premiums-drop-for-third-straight-year

tl;dr Lower premiums (barely, and depending on area) and more providers (likewise) from the exchange

More insurers are also participating in the law’s marketplaces, the administration said. Just 9 percent of counties will have only one insurer offering ObamaCare coverage, down from 50 percent of counties in 2018.

[Exflyboy]

Yeah I noted that our unsubsidised premiums have gone up by $100/m.. (Now over $1500/month for a Bronze plan....*&$#@!!).

But, then of course we have both gone up in age by 1 year.

Still only another 6 years and I'll be on Medicare.. which is free right?... hahahaha....

[John Galt incarnate!]

ACA-will-be-overturned angst is palpable throughout this  thread.
 
  Cheer up!

The Supreme Court's long-standing presumption in favor of severability aids  its observance of the bedrock principle of  statutory construction which is to save and not to destroy.

Note that   stare decisis restrains the posture of  dissenters who vote against a precedent's  initial establishment as well as  the posture  of newly seated justices who would have voted against it.

If the mere composition of the Court determines the applicability of stare decisis, the rule of law, and its stability, predictability, and reliability  cease, precisely the opposite of  stare decisis' purpose.

[bacchi]

ACA-will-be-overturned angst is palpable throughout this  thread.
 
  Cheer up!

The Supreme Court's long-standing presumption in favor of severability aids  its observance of the bedrock principle of  statutory construction which is to save and not to destroy.

Note that   stare decisis restrains the posture of  dissenters who vote against a precedent's  initial establishment as well as  the posture  of newly seated justices who would have voted against it

I know you truly believe in the Court and in stare decisis but there is at least 1 Justice who has already declared they will ignore it in certain cases and Barrett has similarly expressed the same thoughts.

[stare decisis] is not a hard-and-fast rule in the Court’s constitutional cases, and the Court has not been afraid to exercise its prerogative to overrule precedent

The ACA was 5-4 last time and that was about Congress' taxing power. There's absolutely no reason to assume that Barrett would join the Roberts side and vote for it this time. The 5th ruled 2-1 for the unconstitutionality of the ACA, along party-appointed lines.

If you were a bettor, the odds would be against you.

[John Galt incarnate!]

ACA-will-be-overturned angst is palpable throughout this  thread.
 
  Cheer up!

The Supreme Court's long-standing presumption in favor of severability aids  its observance of the bedrock principle of  statutory construction which is to save and not to destroy.

Note that   stare decisis restrains the posture of  dissenters who vote against a precedent's  initial establishment as well as  the posture  of newly seated justices who would have voted against it

I know you truly believe in the Court and in stare decisis but there is at least 1 Justice who has already declared they will ignore it in certain cases and Barrett has similarly expressed the same thoughts.

[stare decisis] is not a hard-and-fast rule in the Court’s constitutional cases, and the Court has not been afraid to exercise its prerogative to overrule precedent

The ACA was 5-4 last time and that was about Congress' taxing power. There's absolutely no reason to assume that Barrett would join the Roberts side and vote for it this time. The 5th ruled 2-1 for the unconstitutionality of the ACA, along party-appointed lines.

If you were a bettor, the odds would be against you.

C.J. Roberts + the liberal bloc of 3 + Kavanaugh = 5.

ACB  said  that Roberts “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”

Saving statutes is the Court's long-standing, standard practice.

ACB's criticism  is nowhere near  the view that the undergirding of Robert's opinion  upholding the  ACA  is "egregiously" or "grievously" wrong which among other weighty considerations, Kavanaugh would have to find to strike down the ACA.

Is ACB  of the opinion  that pushing "the Affordable care Act beyond its plausible meaning  to save the statute" is "plainly and palpably, beyond all question, in violation of the fundamental law of the Constitution"?

I repeat: Saving statutes is the Court's long-standing, standard practice.

I do not think she does for the reason that judicial restraint, deference to Congress' legislative power is one of the  reasons the Court "rewrites" or construes acts of Congress such that they pass constitutional muster.


We'll (you, me, and all the other interested Mu$tachian$) have some insight about how the Court will decide  after oral argument in just a few weeks.

I am not a betting man but if I were I'd bet that the Court won't strike down the ACA .

Good night!

[maizefolk]

J.G.I. has Kavanaugh said something to make you think he's more likely to vote for retaining the ACA (and/or for severability) than Gorsuch?

Kavanaugh, Gorsuch and Barett will all be new since the last time the court ruled on the ACA. Barett is clearly willing to ignore stare decisis to strike down the ACA. I don't know anything about Kavanaugh or Gorsuch's views on this specific topic, beyond them being appointed by a conservative president and the other conservative justices not supporting the mandate-as-a-tax argument last time around.

[John Galt incarnate!]

J.G.I. has Kavanaugh said something to make you think he's more likely to vote for retaining the ACA (and/or for severability) than Gorsuch?

Kavanaugh, Gorsuch and Barett will all be new since the last time the court ruled on the ACA. Barett is clearly willing to ignore stare decisis to strike down the ACA. I don't know anything about Kavanaugh or Gorsuch's views on this specific topic, beyond them being appointed by a conservative president and the other conservative justices not supporting the mandate-as-a-tax argument last time around.

Yes.


I don't know enough about Gorsuch's record or judicial philosophy  to form an opinion as to how he will vote.


Is Justice Kavanaugh Grievously Wrong on Stare Decisis?lawliberty.org › is-justice-kavanaugh-grievously-wrong...
Dec 7, 2018 — Unfortunately, Justice Kavanaugh seemed to suggest that a venerable rule in case law should be overruled only if it were “grievously wrong.

Justice Kavanaugh would set a bad precedent on precedentswww.washingtonexaminer.com › opinion › justice-kav...
Apr 23, 2020 — Supreme Court Justice Brett Kavanaugh wasn't quite successful when he ... is a decision so erroneous that the court should jettison stare decisis? ... is if “the prior decision is not just wrong, but grievously or egregiously wrong.

Kavanaugh Signals How He'll Approach Abortion Rights Casesnymag.com › intelligencer › 2020/04 › kavanaugh-signal...
Apr 23, 2020 — Most importantly, Justice Kavanaugh set out a test for overturinng ... to questions about the weight he accorded to stare decisis, the principle by which ... of precedents dating back to Roe as “grievously and egregiously wrong,” ...

Justice Kavanaugh affirms SCOTUS should overturn ...www.texasrighttolife.com › News
May 7, 2020 — Stare decisis is the concept that justices should respect prior ... Is the prior decision not just wrong, but grievously or egregiously wrong?

[seattlecyclone]

The Supreme Court and their clerks are some of the best legal minds. They have the ability to write reasonable-sounding justifications for pretty much any position, including that a previous decision was grievously wrong. This is exactly what happens in so many 5-4 decisions. The justices in the minority aren't idiots, and their opinion isn't poorly-reasoned, it just didn't get the ideological support from the majority. I therefore don't share your optimism that the court couldn't possibly rule against the ACA once it has ruled in favor of it. I do think that the reasoning you would need to use to invalidate the ACA in this particular case would have to be especially strained, but if anyone can do it our justices can.

[Exflyboy]

I think if you are FIRED (and <65) you had better make sure you have $1500/month extra in your budget to cover unsubsidised HC. And thats for 2 people on a Bronze plan at our great age.

I personally wouldn't be retiring now based on needing a HC subsidy... Only in America.

[bacchi]

The Supreme Court and their clerks are some of the best legal minds. They have the ability to write reasonable-sounding justifications for pretty much any position, including that a previous decision was grievously wrong. This is exactly what happens in so many 5-4 decisions. The justices in the minority aren't idiots, and their opinion isn't poorly-reasoned, it just didn't get the ideological support from the majority. I therefore don't share your optimism that the court couldn't possibly rule against the ACA once it has ruled in favor of it. I do think that the reasoning you would need to use to invalidate the ACA in this particular case would have to be especially strained, but if anyone can do it our justices can.

Well written.

To believe in the non-partisanship of the SC Justices is highly optimistic.

[John Galt incarnate!]

The Supreme Court and their clerks are some of the best legal minds. They have the ability to write reasonable-sounding justifications for pretty much any position, including that a previous decision was grievously wrong. This is exactly what happens in so many 5-4 decisions. The justices in the minority aren't idiots, and their opinion isn't poorly-reasoned, it just didn't get the ideological support from the majority. I therefore don't share your optimism that the court couldn't possibly rule against the ACA once it has ruled in favor of it. I do think that the reasoning you would need to use to invalidate the ACA in this particular case would have to be especially strained, but if anyone can do it our justices can.

I have  never argued that the Court "couldn't possibly" overturn the ACA.

It is possible.

In general, some of the Court's most seasoned observers  have said predicting how it will rule is risky guesswork, a dubiousness not to be dismissed.

Nevertheless, I think it's highly unlikely that the ACA will be overturned.

The analytical criteria that weigh in favor of applying stare decisis are overwhelming.

I'll post them here next week.

[JGS1980]

The Supreme Court and their clerks are some of the best legal minds. They have the ability to write reasonable-sounding justifications for pretty much any position, including that a previous decision was grievously wrong. This is exactly what happens in so many 5-4 decisions. The justices in the minority aren't idiots, and their opinion isn't poorly-reasoned, it just didn't get the ideological support from the majority. I therefore don't share your optimism that the court couldn't possibly rule against the ACA once it has ruled in favor of it. I do think that the reasoning you would need to use to invalidate the ACA in this particular case would have to be especially strained, but if anyone can do it our justices can.

+1

[John Galt incarnate!]

J.G.I. has Kavanaugh said something to make you think he's more likely to vote for retaining the ACA (and/or for severability)?

Yes.

Here is more of Justice Kavanaugh on severability  and "The Court’s...decisive preference for surgical severance rather than wholesale destruction, even in the absence of a severability clause."


In Barr, Justice Kavanaugh cites cases going all the way back to Marbury v. Madison (1803) in support of his argument for the "presumption of severability" and notes the "Court’s remedial preference after finding a provision of a federal law unconstitutional...to salvage  rather than destroy the rest of the law passed by Congress and signed by the President." 




BARR v. AMERICAN ASSN. OF POLITICAL CONSULTANTS, INC.(2020)


Kavanaugh, J., announced the judgment of the Court.



The Court’s cases have...developed a strong presumption of severability. The Court presumes that an unconstitutional provision in a law is severable from the remainder of the law or statute.


For example, in Free Enterprise Fund v. Public Company Accounting Oversight Bd., the Court set forth the “normal rule”: “Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact.”

The plurality opinion likewise described a “presumption” in “favor of severability” and stated that the Court should “refrain from invalidating more of the statute than is necessary.”

 The Court’s power and preference to partially invalidate a statute in that fashion has been firmly established since Marbury v. Madison. There, the Court invalidated part of §13 of the Judiciary Act of 1789.

 The Judiciary Act did not contain a severability clause. But the Court did not proceed to invalidate the entire Judiciary Act.

As Chief Justice Marshall later explained, if any part of an Act is “unconstitutional, the provisions of that part may be disregarded while full effect will be given to such as are not repugnant to the constitution of the United States.”


Below, Kavanaugh cites Dorchy and Loeb in furtherance of his argument for severability.

Dorchy v. Kansas (1924)

“A statute bad in part is not necessarily void in its entirety. Provisions within the legislative power may stand if separable from the bad."

Loeb v. Columbia Township Trustees (1900)

"One section of a statute may be repugnant to the Constitution without rendering the whole act void."



 From Marbury v. Madison to the present, apart from some isolated detours mostly in the late 1800s and early 1900s, the Court’s remedial preference after finding a provision of a federal law unconstitutional has been to salvage  rather than destroy the rest of the law passed by Congress and signed by the President.

The Court’s precedents reflect a decisive preference for surgical severance rather than wholesale destruction, even in the absence of a severability clause.

[John Galt incarnate!]

When great difficulty, such as resort to a constitutional amendment  attends overturning a baldly erroneous precedent,  arguments for application of stare decisis are much  less persuasive  than when   the political branches can exercise their  power to  alter the precedent-setting legislation or  enact new legislation instead as is the case regarding the latest challenge to the ACA the Court will hear in November.

 Note that at its inception and long after the Supreme Court  gave  equal weight to  the statutory aspect or constitutional aspect of a precedent. It wasn't until well into the 20th century that  the Court gravitated to greater deference  to statutory precedents.


In his dissent  in Burnet, Justice Brandeis explains that the Court's overturn of an erroneous precedent will hinge upon  whether  "correction can be had by legislation" or "correction through legislative action is practically impossible."




BURNET, Commissioner of Internal Revenue, v.CORONADO OIL & GAS CO. (1932)

Mr. Justice Brandeis (dissenting).


Stare decisis is not, like the rule of res judicata, universal inexorable command.
 
The rule of stare decisis, though one tending to consistency and uniformity of decision, is not inflexible. Whether it shall be followed or departed from is a question entirely within the discretion of the court, which is again called upon to consider a question once decided.

  Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.

This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation.

But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this court has often overruled its earlier decisions.

The court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.

[former player]

Yes.  The only way to reduce the power of the Supreme Court is for Congress to assert its legislative power, something which has been in decline for decades.  I hope that if Biden takes the White House and Democrats take the Senate they will use their majority to pass meaningful legislation on health care, anti-trusts and doctor's rights to provide abortion care.  That would take back a lot of the political power that the courts currently have and would be good for the exercise of justice in the USA.

[John Galt incarnate!]

Yes.  The only way to reduce the power of the Supreme Court is for Congress to assert its legislative power, something which has been in decline for decades.  I hope that if Biden takes the White House and Democrats take the Senate they will use their majority to pass meaningful legislation on health care, anti-trusts and doctor's rights to provide abortion care.  That would take back a lot of the political power that the courts currently have and would be good for the exercise of justice in the USA.

The justices of the Supreme Court do not live cloistered lives.The Supreme Court's courthouse is not a hermitage.

All the justices are keenly aware that   generally speaking, the Democrat's  platform inclines more toward remedial  action on issues of healthcare than the Republican's platform.

If Biden wins, and Democrats win control of the Senate, and maintain their majority in the House, the resulting one-party control of the political branches  by Democrats augurs  a high probability of legislative action to change the ACA. In this scenario of one-party control the  Democrats have power to repeal and replace the ACA  which I think is unlikely.

The Court's cognizance of any reasonable  probability of legislative action  is just one among  other factors that decisively  support  applying  stare decisis  to the challenge to the  ACA the Court will hear just weeks from today.

[dresden]

I think if you are FIRED (and <65) you had better make sure you have $1500/month extra in your budget to cover unsubsidised HC. And thats for 2 people on a Bronze plan at our great age.

I personally wouldn't be retiring now based on needing a HC subsidy... Only in America.

The irony is that for all the talk against ACA, according to the CBO ACA accounts for 5% of healthcare subsidies for those under 65 while employment healthcare based subsidies by the federal government account for 35% of the total.

https://www.cbo.gov/publication/56571

[Exflyboy]

I think if you are FIRED (and <65) you had better make sure you have $1500/month extra in your budget to cover unsubsidised HC. And thats for 2 people on a Bronze plan at our great age.

I personally wouldn't be retiring now based on needing a HC subsidy... Only in America.

The irony is that for all the talk against ACA, according to the CBO ACA accounts for 5% of healthcare subsidies for those under 65 while employment healthcare based subsidies by the federal government account for 35% of the total.

https://www.cbo.gov/publication/56571

Notice anyone who hates the ACA is strangely silent when you suggest that we TAX their employer based HC provision. I mean if you want fair, well you people who get a subsidised HC from the corporation.. Thats is currently a tax free handout!

[bacchi]

I think if you are FIRED (and <65) you had better make sure you have $1500/month extra in your budget to cover unsubsidised HC. And thats for 2 people on a Bronze plan at our great age.

I personally wouldn't be retiring now based on needing a HC subsidy... Only in America.

The irony is that for all the talk against ACA, according to the CBO ACA accounts for 5% of healthcare subsidies for those under 65 while employment healthcare based subsidies by the federal government account for 35% of the total.

https://www.cbo.gov/publication/56571

Notice anyone who hates the ACA is strangely silent when you suggest that we TAX their employer based HC provision. I mean if you want fair, well you people who get a subsidised HC from the corporation.. Thats is currently a tax free handout!

Moochers, moochers, everywhere. ;)

[maizefolk]

Notice anyone who hates the ACA is strangely silent when you suggest that we TAX their employer based HC provision. I mean if you want fair, well you people who get a subsidised HC from the corporation.. Thats is currently a tax free handout!

It's one of those irregular verb constructions in english.

I earned a subsidy.
You got a handout.
They mooched off the system.

[tipster350]

Notice anyone who hates the ACA is strangely silent when you suggest that we TAX their employer based HC provision. I mean if you want fair, well you people who get a subsidised HC from the corporation.. Thats is currently a tax free handout!

It's one of those irregular verb constructions in english.

I earned a subsidy.
You got a handout.
They mooched off the system.

You earned your salary, too but that is taxed. Taxing your subsidy doesn't need to be off the table just because you claim you earned it and others are mooching.

[maizefolk]

It's one of those irregular verb constructions in english.

I earned a subsidy.
You got a handout.
They mooched off the system.

You earned your salary, too but that is taxed. Taxing your subsidy doesn't need to be off the table just because you claim you earned it and others are mooching.

Ugh. I really thought that post was clear enough it didn't need an explicit sarcasm tag. But communicating sarcasm is hard over text. Sorry about that.

Specifically this was an example of an emotive conjugation or Russell's conjugation.

I am firm, you are obstinate, he is a pig-headed fool.

I am righteously indignant, you are annoyed, he is making a fuss over nothing.

I have reconsidered the matter, you have changed your mind, he has gone back on his word.

[stoaX]

It's one of those irregular verb constructions in english.

I earned a subsidy.
You got a handout.
They mooched off the system.

I am firm, you are obstinate, he is a pig-headed fool.

I am righteously indignant, you are annoyed, he is making a fuss over nothing.

I have reconsidered the matter, you have changed your mind, he has gone back on his word.

When it comes to the coronavirus, everyone who is more careful than I am are "OCD'ing". Everyone who is less careful than me is reckless!