More Double-Talk on Health Care Lawsuits
The Administration on Friday filed with the Eleventh Circuit Court of Appeals its appellate brief in the multi-state lawsuit. Of particular note is the section appealing Judge Vinson’s ruling that the entire bill should be stricken; the brief argues that this element of the ruling was misguided “because Congress legislated against the background presumption of severability.”
The Justice Department makes this statement despite the fact that the individual mandate in the law was subject to multiple constitutional points of order in the Senate, and despite the fact that the House-passed health reform bill (H.R. 3962) included very clear language (Section 255) on severability. When this specific provision was clearly under Constitutional challenge, when many of the bill’s advocates insisted the provision was key to the operation of Obamacare, and when Congress specifically considered – and rejected – a severability clause, it is hardly appropriate to follow a presumption in favor of severability. An unelected judge, acting on his own to insert severability in a case like this, would amount to judicial activism.
The Justice Department brief comes after the Administration changed its stance to argue that the mandate penalty is in fact a tax; all five justices ruling on the merits of the mandate to date have dismissed the notion that Democrats could “absolutely reject” the notion that the individual mandate was a tax before the bill passed – as President Obama claimed in his September 2009 interview with George Stephanopoulos – only for the Justice Department later to defend the provision as a constitutional tax. On a separate front, Judge Kessler in a ruling upholding the mandate argued that the distinction between “mental activity” and “physical activity” was essentially meaningless. (Left unanswered by her ruling: Does the lack of an arbitrary distinction between mental and physical activity mean that Congress can regulate, or prohibit, this mental activity, on the grounds that it could affect economic activity in the aggregate?)
Previous generations have seen liberal justices define “penumbras” and “emanations” as rationales for activist court rulings. Given the track record thus far of those supporting the individual mandate – “mental activity,” “background presumptions of severability,” and the “Alice-in-Wonderland” position that a tax can be retroactively declared as such after its passage – some may think the health care lawsuit would represent new standards of judicial activism, in which courts would use this torturous logic to force Americans to buy a product for the first time ever.