Florida’s Obamacare court ruling presents President Barack 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 might try to save most of his signature legislation by sacrificing its heart.
Florida Judge Roger Vinson 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 Ken 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 it down meant striking down this entire leviathan.
Republicans in Congress have moved quickly to repeal Obamacare entirely. Every day that passes means 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 have shifted to Plan B. One proposal is to repeal the individual mandate.
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 If the mandate is repealed, those cases all become moot and must be summarily dismissed.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 only forfeits its most important provision.
Also, this could 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 launch constitutional challenges against other parts of the president’s agenda.
And Democrats might tinker with other sections of Obamacare and try retroactively inserting a severability clause. Although there is a compelling legal argument that you cannot make severability retroactive, there is 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 time frame), 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 health care at some future point. It is quite a dilemma.
Ken Klukowski is the director of the Center for Religious Liberty at the Family Research Council. Ken Blackwell is a professor at Liberty University School of Law and a senior fellow at the American Civil Rights Union.