Gone4Good
Give me a museum and I'll fill it. (Picasso) Give me a forum ...
- Joined
- Sep 9, 2005
- Messages
- 5,381
In that light, if they decide it is unconstitutional, I think the whole thing should go. I don't think it is reasonable for those judges to decide what would should stay and what shouldn't. In some cases, issue X,Y or Z was added to get a State to go along with the mandate - but can the judges 'know' this - should they try to fathom that? I don't think so. Make it all or nothing, and let Congress put the pieces back together again, and make it Constitutional this time - that was their job.
If the mandate is deemed unconstitutional, the correct thing to do is to strike the mandate and let Congress address whatever problems arises if it so desires. The court doesn't need to comb through the law to judge the impact, nor should it. Congress has the power to strike down its own law in a single paragraph of legislation - why should the court take this extraordinary step to invalidate a law that doesn't even fully take effect for another year and a half?
Besides, the mandate is just one part of a very large bill. I could see striking down the whole law if the intent of the law was to require people to buy insurance. But that isn't the intent. The mandate is a single provision designed to ameliorate a specific problem. Congress can easily devise other ways of accomplishing the same thing. Is it really the court's role to say that such fixes aren't possible or desirable or even necessary?
Assume for a minute that the mandate is struck down and Congress is unable to make any other changes? Are we left with a "shell of a law" as has been alleged? I don't see why. Many states require the issuance of health insurance, without underwriting and without a mandate. It's not ideal, but it is currently the law of the land in many places. If other local legislatures feel that the absence of a mandate creates problems in their states, they can institute a mandate at the state level; just like Massachusetts.
It seems to me the issue before the court is a fairly narrow one. It should answer that narrow question and leave drafting legislation to the legislature.
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