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The White House’s (Counterproductive) Critique of Judge Vinson's Ruling

8:19 AM, Feb 2, 2011 • By JEFFREY H. ANDERSON
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It was entirely predictable that, if United States District Court Judge Roger Vinson ruled that ObamaCare was unconstitutional, the Obama administration would accuse Judge Vinson of partisanship. What wasn’t so predictable was that the administration’s own response would so compellingly support Vinson’s ruling.

The White House’s (Counterproductive) Critique of Judge Vinson's Ruling

Judge Vinson’s ruling had two key parts: First, he ruled that ObamaCare’s individual mandate — its requirement that all Americans buy federally approved health insurance — is an attempt to compel commerce, not to regulate it, and thereby exceeds Congress’s power “To regulate Commerce…among the several States.” Second, because the rest of ObamaCare can’t realistically function — and wouldn’t realistically have been passed — without the individual mandate, that mandate cannot be surgically extracted from the center of the act, leaving the surrounding parts intact; rather, the mandate’s invalidation must invalidate the entire act.

This is especially true, Judge Vinson writes, because ObamaCare doesn’t have a severability clause: a clause specifying that if one part of the act is thrown out, the rest needn’t be thrown out along with it. As Judge Vinson observes, ObamaCare not only lacked such a clause in its final version, but it did have one in an earlier version — which suggests that Congress deliberately took it out.

In response to the second part of Judge Vinson’s ruling, Stephanie Cutter, an assistant to the President and the White House’s deputy senior advisor, writes on the White House blog, “[T]he judge declared that the entire law is null and void even though the only provision he found unconstitutional was the ‘individual responsibility’ provision.”

Cutter’s complaint seems to pose a good question: Why invalidate an entire 2,700-page act when the individual mandate is “the only provision” that clearly (in the judge’s estimation) must go? Cutter, inadvertently, proceeds to answer that question:

The Affordable Care Act…bans insurance companies from discriminating against people with pre-existing conditions. However, unless every American is required to have insurance, it would be cost prohibitive to cover people with pre-existing conditions.

Here’s why: If insurance companies can no longer deny coverage to anyone who applies for insurance – especially those who have health problems and are potentially more expensive to cover – then there is nothing stopping someone from waiting until they’re sick or injured to apply for coverage since insurance companies can’t say no. That would lead to double digit premiums increases – up to 20% – for everyone with insurance, and would significantly increase the cost [of] health care spending nationwide. We don’t let people wait until after they’ve been in a car accident to apply for auto insurance and get reimbursed, and we don’t want to do that with healthcare. If we’re going to outlaw discrimination based on pre-existing conditions, the only way to keep people from gaming the system and raising costs on everyone else is to ensure that everyone takes responsibility for their own health insurance.

So, in Cutter’s own words, without the individual mandate, ObamaCare would be “cost prohibitive,” “would lead to double digit premiums increases,” and “would significantly increase the cost [of] health care spending nationwide.” In fact, “the only way” to make it all work is to enforce the individual mandate. In other words, without its unconstitutional cornerstone, ObamaCare would be much more of a disaster than it already is.

In light of Cutter’s observations, Judge Vinson’s subsequent choice after having found the individual mandate to be unconstitutional was (A) to invalidate the entire act and punt it back to Congress (which he did); (B) to leave us with an act that even the Obama administration says would result in “double-digit premium increases,” “significantly” higher nationwide health costs, and a decimated insurance market — an act that, in such form, clearly would not have passed the House (where it passed with only three votes to spare as it was) or the Senate (where it passed with no votes to spare); or (C) to cherry pick among the other parts of the act, deciding, as if a legislator (or as the Legislator) what parts should be scrapped, and what parts should be kept, regardless of whether Congress would have voted for the resulting judge-determined hodgepodge or not. It would seem that Judge Vinson made the right call, as well as the one most befitting the role of a judge.

As for the first part of Judge Vinson’s ruling, Cutter replies,

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