dayman

I know nobody cares but here is the lexis summary of SEVERABILITY, 72 N.C.L. Rev. 203: … When a court holds a provision of a statute unconstitutional, a question remains regarding the validity of the remainder of the statute. … For example, severability becomes an issue when: (1) a party challenges an entire statute, arguing that if any provision of the statute is unconstitutional and nonseverable, the rest of the statute is ineffective; (2) a party argues that a statutory provision is invalid because it is nonseverable from another, purportedly unconstitutional provision of the statute; (3) a party contends that an ap plication of a statutory provision is invalid because it is nonseverable from other, unconstitutional applications of the statute; (4) a party argues that a statute is nonseverable, and therefore, another party's constitutional challenge to a provision of the statute would preclude that party from receiving any relief from other provisions of the statute; and (5) a party challenges a statute as being either constitutionally underinclusive or overinclusive. … It is improper to imply such a limitation on the effect of a severability clause because the ability of a statute to continue to function absent an unconstitutional provision is itself really a question of legislative intent. … The Court's recent statutory construction cases suggest two types of general rules in the severability context: a presumption of severability or a clear statement rule. … ...later on in the article... If a statute contains a severability clause (or a nonseverability clause), such an explicit statement should be construed according to its plain meaning. If the statutory text is silent regarding severability, then the structure of the act, its purpose, and the legislative history should be consulted, although such sources are often inconclusive about severability. In addition, there should be a general rule favoring severability. Severability is the general rule, severability clauses merely reinforce legislative intent. ...and here's another excerpt providing case law... Alaska Airlines v. Brock represents the Supreme Court's most recent attempt to fashion a definitive test for severability. In Alaska Airlines, several airlines challenged section 43 of the Airline Deregulation Act of 1978, which imposed a duty to hire certain protected employees who have a first right of hire by any airline hiring employees with their qualifications. 31 Section 43 authorized the Secretary of Labor to promulgate regulations to implement the program, but section 43 also contained a legislative veto authorizing either house of Congress to disapprove such regulations. 32 The airlines argued that section 43 should fall in its entirety because the legislative veto was nonseverable from the other parts of that section. 33 A unanimous Court disagreed. The Court first described its general test for determining severability. It began by stating that a court should refrain from invalidating more of the statute than is necessary. 34 Next the Court reaffirmed the Champlin test. Under this test, a statute is severable if: (1) the legislature would have enacted the remaining provisions of the statute without the invalid provisions, and (2) the remaining provisions of the statute can function independently of the invalid provision. 35 Faced with a legislative veto, which by its very nature is separate from the operation of the substantive provisions of a statute, the Court refined the Champlin test to inquire whether the statute will function in a manner consistent with the intent of Congress. 36 Finally, the Court said that a severability clause cre [211] ates a presumption that a statute is severable, but the absence of such a clause does not create a presumption of nonseverability.

Actually now that I think about it just look at the medicaid portion of this opinion released today. The Fed can apportion money on condition they spend it a certain way, however the Fed cannot compel the states to regulate something. So what was the holding? The Fed can refrain from giving the additional money set up for the Medcaid expansion if a state decides not to comply with the ACA expansion standards but it cannot pull out the existing medicaid funding the stats were already getting. The Fed argument was that Medicaid is medicaid and it's a reform of the program and if they don't want to want to spend the MEDICAID money the way we apportion it they don't get it...the court said "no"...that's unreasonably harsh and would result in compelling states into compliance b/c no state could reasonably turn that down there is no "real choice" so in this instance the "substance" of that argument is that it is compelling states to regulate, despite the "form" being that they still have the choice as to all Medicaid funding. That just shows how this sort of analysis is pervasive throughout ALL law, this is how legal analysis is done routinely in all areas. Not only does this general principle happen all throughout history in all sorts of contexts, it happened multiple times in this one opinion.

To find an example directly analogous to this wouldn't be hard I may look but it would take some searching. But off the top of anyone's head...Marbury v. Madison the most famous case in American history...you need look no further than that for the principle example of the form over substance exercise courts regularly engage in as to the constitution, legislative materials, contracts, conveyances of interests in land and the drafting of wills(the most common example where you need a drafter who knows what he's doing)...it's a matter of course.

THen educate yourself and learn something for a change. What I said there is absolute truth known across wide segments of society. The question was basically "how do courts work" in situation like this...that's the answer. Don't be a willful dumbass.

Imagine a scenario where form and not substance ruled. If you think that calling a penalty administered exclusively by the IRS in the regular course of their collections activities with no criminal competent that comes from a Bill written by the tax committee is not a tax is absurd we disagree on that...but if the mere words were what the court used guide them far more absurd results would be all over the law. Lawyers know how to call something one thing when it's another thing all together...that's why the courts look to substance...otherwise the law would be meaningless.

Are you aware of current First Amendment jurisprudence? Clearly not.

' B-Man that man has no way to prove anything he said b/c there is no way to prove it he's talking out of his ass to try and scare you into being violently against a Bill that hurts his political party. Plain and simple. Wake up.

LOL it's fine to feel this way but you are about 75 years late to say this.

And I'll say it again, if you know anything about how courts construe anything...be it a tax/penalty, be it a conveyance of land, be it anything under the sun save a few specific examples they look to substance over form...there are few areas of the law that "magic words" make a difference and this was never one of them. The oral arguments were bizarre b/e the gov't lawyer was hamstrung and wouldn't hit the ball...but regardless of what he or member of congress would admit, the court called it what it is. A penalty administered by the IRS, w/ no criminal component, that is what a tax is.

Romney speaking now basically saying he wants to do everything ACA does but not by the ACA by some unknown bill...which is strange since we saw what he came up w/ previously as Governor...lol...he should come out and say "if you have preexisting injuries, if you are within 133% of the poverty line, I will !@#$ you....if you are under 26 (and in some cases 30) I may !@#$ you."

No, you have to pay the bill. If you are under 133% of the poverty line you basically will have medicaid unless your governor hates poor people and refuses to take money to expand under the ACA...if you are over 133% and have no insurance paying the tax year to year and get sick then you get a bill and if it pushes you to bankruptcy then so be it. This bill IS about personal responsibility at it's heart. I've read a lot of Conlaw just trust me this is what courts do as a matter of course. Just look at the lower courts in this very case...that's what they were doing. Courts uphold the bill if there is a reasonable construction that allows it, if not the cut out the cancerous part, and if they can't cut out the cancerous part without disrupting the entire scheme of the bill they take the whole thing down. That's just how it's done take me at my word I've read a lot of Conlaw.

I'm reading through the opinion slowly and talking here but you can find it in the other thread. The gist of it is the CMS will promulgate regulations regarding insurance companies closed enrollment periods that deal with that issue.

As written you are penalized by TAX collected by the IRS in the normal course of it's tax collection, there are no criminal penalties. So how does it function as written?

Except there are windows for enrollment. If you are hell bent on not being covered when you are sick, you will still **** yourself. What you suggest simply isn't true. We've covered this in the original ACA thread but of course conservative nutballs wouldn't pay attention to the actual text I presented.

1) Absolutely that has happened countless times 2) The only thing struck down regarding Medicaid expansion is that if a State refuses to expand the Medicaid as the ACA demands then they cannot lose the existing Medicaid funding as a penalty, they still don't get the additional funds etc...if states want to give the finger to their people under 133% of poverty line feel free at their own political peril. Millions of people now should have access to healthcare, poor people won a huge victory provided they don't live in a state with a suicidal governor...

He was not oblivious. He was hamstrung. They tried to make the argument they wanted to make politically, as opposed to the argument they needed to make Constitutionally. In the end it did nothing except make us all think "damn, that went terrible" for a few months.

The next thing is going to be States saying to people under 133% of poverty line "we won't expand medicaid to cover you to spite the Democrats we don't care if federal grants come in we'll reject them, get a life bums." Then the right will cheer this cutting off of the nose to spite the face.

It's a cannon of constitutional construction that you uphold a bill passed by congress if any reasonable construction would make it constitutional. This is not news. Now, whether the function over form was actually going to fly was questionable after the oral arguments b/c lets face it...the US Attorney got up there and would not hit the softball they tossed him...but eventually they just hit it for him and said "Taxing power covers this."

So even if states do not comply with teh medicaid expansion their penalty would be merely losing the additional funds necessary, the existing funds they have can not be yanked to compel compliance: the Act requires state programs to provide Medicaid coverage by 2014 to adults with incomes up to 133 percent of the federal pov¬erty level, whereas many States now cover adults with children onlyif their income is considerably lower, and do not cover childless adults at all. §1396a(a)(10)(A)(i)(VIII). The Act increases federal funding tocover the States’ costs in expanding Medicaid coverage. §1396d(y)(1).But if a State does not comply with the Act’s new coverage require¬ments, it may lose not only the federal funding for those require¬ments, but all of its federal Medicaid funds. ... (b) Section 1396c gives the Secretary of Health and Human Ser¬vices the authority to penalize States that choose not to participate inthe Medicaid expansion by taking away their existing Medicaid fund¬ing. 42 U. S. C. §1396c. The threatened loss of over 10 percent of a State’s overall budget is economic dragooning that leaves the Stateswith no real option but to acquiesce in the Medicaid expansion. ... The legitimacy of SpendingClause legislation, however, depends on whether a State voluntarily and knowingly accepts the terms of such programs. Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17. “[T]he Constitution simply does not give Congress the authority to require the States to regulate.” New York v. United States, 505 U. S. 144, 178. When Congress threatens to terminate other grants as a means of pressuring the States to accept a Spending Clause program, the legislationruns counter to this Nation’s system of Federalism ... c) The constitutional violation is fully remedied by precluding the Secretary from applying §1396c to withdraw existing Medicaidfunds for failure to comply with the requirements set out in the expansion. See §1303. The other provisions of the Affordable Care Act are not affected. Congress would have wanted the rest of the Act to stand, had it known that States would have a genuine choice whetherto participate in the Medicaid expansion. Pp. 55–58. 6. JUSTICE GINSBURG, joined by JUSTICE SOTOMAYOR, [did not agree]

I thought it was 55 it would go down, 45 it would be upheld. Ultimately I predicted it would be upheld. Nobody knew.

Substance over form gentlemen, entirely predictable.

So all you guys think we would not benefit from being able to control some of the money in politics?

Obama, Krugman, Buffet would assemble and by their powers combined save the planet from certain peril. We would build highways until the Aliens just left.

Pretty sure Tilman's last words were: "men..just...vote...obama." Just me opining.

Facehugger from Alien missed him and they can't take it off or he'll die.