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Nonseverability

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"Nonseverability"

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The giveaway in the latest court ruling against the Affordable Care Act is the judge’s ruling that the allegedly unconstitutional “individual mandate” is “non-severable” from the rest of the law. That means that all the parts of the law are being thrown out. The provision reducing subsidies to for-profit student loans? Unconstitutional! Expanded Medicaid eligibility? Unconstitutional! Reduced prescription drug costs for seniors? Unconstitutional!

This is the view with the least support in legal precedent, but that does the most to advance the financial interests of the conservative coalition in the United States of America. And that’s about how judging works. The interesting thing, looking ahead to the Supreme Court, is that Justice Kennedy, unlike Judge Vinson, isn’t a dyed-in-the-wool member of the conservative political coalition. That said, he’s pretty conservative on economic policy questions so I’m not really sure where the confidence of progressive lawyers that they’re going to win this case comes from. Ultimately, big constitutional controversies just come down to what the median justice prefers to do.

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