Saturday, December 22, 2018

My Obamacare Column on Verdict

by Michael C. Dorf

In my latest Verdict column, I argue that Judge O'Connor's opinion striking down all of the Affordable Care Act is wrong but that severability doctrine itself is mysterious. I won't rehash the column here, nor will I follow my usual practice of writing on a related subject. Rather, I'll just make one simple point: Just because there's no clearly right answer to how courts should go about addressing sever ability doesn't mean there aren't clearly wrong answers.

3 comments:

Shag from Brookline said...

Judge O'Connor's severability doctrine view demonstrates a "severe ability" of judicial activism at the trial court level.

Joe said...

"Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter."

-- King v. Burwell (C.J. Roberts)

Striking down to law will not do this. It is quite possible to avoid this.

The individual mandate with a tax to back it up was better policy but the law does not rise and fall on it. Long term, something needs to be done to replace it.

That is policy though. I also think we should remember this is just one judge though the 5CA itself is a conservative circuit too.

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