Mr. Clement, there are so many things in this Act that are unquestionably okay. I think you would concede that reauthorizing what is the Indian Healthcare Improvement Act changes to long benefits, why make Congress redo those? I mean it's a question of whether we say everything you do is no good, now start from scratch, or to say, yes, there are many things in here that have nothing to do frankly with the affordable healthcare and there are some that we think it's better to let Congress to decide whether it wants them in or out. So why should we say it's a choice between a wrecking operation, which is what you are requesting, or a salvage job.You know what would prevent Congress from being in this position in the future? Passing discrete laws to deal with particular problems, instead of 2,700 page boilermakers that they don't even have time to read before they pass.
It would be healthy for Congress to have to go back and re-pass every good part of the bill, insofar as there are any. For the Court to undertake to do the work of sorting this out for them is to present Congress with a kind of moral hazard: it will make it less likely in the future that the legislature will exercise diligence in reading or considering the legislation it passes, and it will make it more likely they will continue to lump thousands of legal changes together instead of carefully considering each law as it comes up. The American people must live under these laws, after all: it is therefore important that no law should ever be passed without due care and consideration.
Neither this Congress nor any recent Congress has demonstrated a great deal of fortitude in the face of moral hazards. This ought to be a consideration.
9 comments:
"You know what would prevent Congress from being in this position in the future? Passing discrete laws to deal with particular problems, instead of 2,700 page boilermakers that they don't even have time to read before they pass."
Hallelujah...
Couldn't agree more. And they'd do well not to dare the Court not to overturn the whole thing merely by inserting that stupid non-severability clause.
Who wrote the bill? Legislative aides?
If legislators do not have the time to read a bill, they should not vote for it.
Yes, Justice G., the poor Congress critters might have their feelings hurt if the Supremes call the whole thing unconstitutional. Maybe they should read the bill before voting for it.
Agreed. Plus, wouldn't the USSC be putting off other cases in order to do the legislature's job for them? "Justice delayed is justice denied," eh?
We've already seen how quickly coordinated legislation can get passed, and how effortlessly, with the House bills sent up for Senate consideration. We've seen how quickly Congress as a whole can pass legislation with the tax bills of the end of last year and the start of this one.
If, for instance, Indian Healthcare Improvement Act is such a good idea that it survives an election, then it will be a stroll in the park for Congress to repass it.
Justice Ginsburg is barking up the wrong tree here. And that doesn't begin to address the fact that PPACA is, by explicit Congressional design, not severable. Severability language was in the House-passed version of the legislation, and it was deliberately, consideredly, taken out in the final legislation. Would Justice Ginsburg, with her convoluted reasoning, presume to overrule the will of the Congress on severability--a question with no constitutional involvement?
Moreover, as Justice Kennedy noted, When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if . . . one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike — than striking the whole.
Eric Hines
AMEN!
It annoyed me to hear Ginsberg suggesting that the "conservative" thing to do would be to re-write the legislation so as to save as much of it as possible.
You know what would be conservative? To let the legislature legislate, that being its assigned sphere of competence under that stuffy old Constitution.
Apparently different bits of the bill were written by different groups, then the entire mass was paginated and bound, then offered for vote. (See: "sausage, making of"). I can understand why the justice invoked the 8th Amendment against reading the entire concatination.
LittleRed1
You know what would prevent Congress from being in this position in the future?
Re-instituting the application of tar and feathers to legislative miscreants comes to mind...
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