Monday, January 31, 2011

What Judge Vinson's severability analysis misses

A critical passage of the opinion's analysis of the severability question states as follows:

"If Congress intends to implement health care reform -- and there would appear to be widespread agreement across the political spectrum that reform is needed -- it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not. It is Congress that should consider and decide these quintessentially legislative questions, and not the courts."

What this fails to address is why Congress should take up this task with no legislation on the books, rather than the Act minus the one unconstitutional provision.

Judge Vinson admirably reasons in several places that it would exceed the judicial competence for a judge to pick through the ACA's thousands of provisions and decide which should stand and which depend too much on the individual mandate. But on that logic, it seems just as defensible to leave everything in place other than 1501(b). Why is it more judicially modest to force Congress to start over from scratch than to force Congress to re-work the Act as currently written, absent the individual mandate?

This seems especially true here, when the provision Judge Vinson found unconstitutional will not go into effect until 2014, while many other (perfectly constitutional) parts of the Act are currently being implemented.

In short, the judicial incompetence to wade through the entire 2,700 pages is well stated, and the justification of judicial modesty is to be applauded. But the genuinely modest approach in this case, I think, would have been to strike the minimum coverage provision  alone, and let Congress deal with whatever is left in the next three years.