The Saturday Times is a must-read because it is the graveyard for stories that the editors feel obliged to cover without vexing their Upper West Side readership. Yesterday's treat was this:
Health Law Faces Threat of Undercut From Courts
By KEVIN SACK and ROBERT PEAR
WASHINGTON — As the Obama administration presses ahead with the health care law, officials are bracing for the possibility that a federal judge in Virginia will soon reject its central provision as unconstitutional and, in the worst case for the White House, halt its enforcement until higher courts can rule.
The judge, Henry E. Hudson of Federal District Court in Richmond, has promised to rule by the end of the year on the constitutionality of the law’s requirement that most Americans obtain insurance, which takes effect in 2014.
Although administration officials remain confident that it is constitutionally valid to compel people to obtain health insurance, they also acknowledge that Judge Hudson’s preliminary opinions and comments could presage the first ruling against the law.
“He’s asked a number of questions that express skepticism,” said one administration official who is examining whether a ruling against part of the law would undermine other provisions. “We have been trying to think through that set of questions,” said the official, who insisted on anonymity because he was not authorized to discuss the case freely.
While many newly empowered Republican lawmakers have vowed to repeal the health care law in Congress, a more immediate threat may rest in the federal courts in cases brought by Republican officials in dozens of states. Not only would an adverse ruling confuse Americans and attack the law’s underpinnings, it could frustrate the steps hospitals, insurers and government agencies are taking to carry out the law.
The Times eventually gets to the vexing severability question:
Virginia’s attorney general, Kenneth T. Cuccinelli II, a Republican who filed the Richmond lawsuit, argues that if Judge Hudson rejects the insurance requirement he should instantly invalidate the entire act on a nationwide basis.
Mr. Cuccinelli and the plaintiffs in the Florida case, who include attorneys general or governors from 20 states, have emphasized that Congressional bill writers did not include a “severability clause” that would explicitly protect other parts of the sprawling law if certain provisions were struck down.
An earlier version of the legislation, which passed the House last November, included severability language. But that clause did not make it into the Senate version, which ultimately became law. A Democratic aide who helped write the bill characterized the omission as an oversight.
Without such language, the Supreme Court, through its prior rulings, essentially requires judges to try to determine whether Congress would have enacted the rest of a law without the unconstitutional provisions.
The Justice Department, which represents the Obama administration, acknowledges that several of the law’s central provisions, like the requirement that insurers cover those with pre-existing conditions, cannot work unless both the healthy and the unhealthy are mandated to have insurance. Otherwise, consumers could simply buy coverage when they needed treatment, causing the insurance market to “implode,” the federal government asserts.
The challenge to the individual mandate recently survived a Federal judge's scrutiny in Ohio, as well.
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