Monday, January 31, 2011


So I guess there was a surprise after all. Not on the merits of the claim, but on the severability of the minimum essential coverage requirement from the rest of the Act.

First, you can access the opinion here.

Second, it was just this past June that the Supreme Court wrote as follows:

“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.” Ayotte v.  Planned Parenthood  of Northern New Eng., 546 U.S. 320, 328–329 (2006).  Be­cause “[t]he unconstitutionality of a part of an Act does not necessarily defeat or  affect the validity of its remaining provisions,” Champlin Refining  Co. v.  Corporation Comm’n of Okla., 286 U.S. 210,  234 (1932), the “normal rule” is “that partial, rather than facial, invalidation is the required course,” Brockett v.  Spokane Arcades, Inc., 472 U.S. 491, 504 (1985)."

I am just sitting down with the opinion now, so I cannot comment on Judge Vinson's severability analysis. And I could certainly see finding the "guaranteed issue" and "community rating" provisions unseverable, as they work with the individual mandate, hand-in-hand, to comprehensively regulate the insurance market. But the entire ACA?

With respect to legislation of this magnitude, I am extraordinarily surprised that he would find the whole Act unconstitutional.