Blind Justice?

This morning I read that a Federal Judge in Florida has declared the Patient Protection and Affordable Care Act (ObamaCare)to be void because "the individual mandate is unconstitutional and not severable". I am not a Constitutional lawyer but I do know that in a contract what severable means so it is interesting that he chose to focus on this point.

He bases his declaration of the entire act being void because the individual mandate is unconstitutional. I haven't read every page of the act, but it seems strange that it would have been written in such a manner as to make the entire act void if a section of it were to be declared void.

But then again, U.S. District Judge Roger Vinson, who was appointed to the bench by Ronald Reagan in 1983 might have an ax to grind here. He is a Republican.

Judge Vinson's decision to base his opposition on the severable aspect might show some nuance many of the opponents of the act don't have.

Some of his fellow Republicans decided to base their opposition to the act on Article I Section 8 of the Constitution which specifies exactly 18 enumerated powers of Congress, and, unsurprisingly, health care is not one of them.

From there they jump to the Tenth Amendment which grants to the states and people those powers not granted to the federal government by the Constitution. Unfortunately for them they missed the fact that the Tenth Amendment intentionally omits the word "expressly" when describing the powers not granted to the federal government. Our Founding Fathers were aware that it was dangerous to prescribe the future down to the letter.

As always, it's a question of context.

After realising that the Articles of Confederation left the Federal Government essentially powerless vis-a-vis the States our Founding Fathers convened a convention in Philadelphia in 1787. At this Convention they threw out the Articles and in their place created the Constitution. In order to get it ratifed there was quite a bit of horse-trading. The Tenth Amendment, a favorite of the Tea Party, was actually a means of placating those States which condoned slavery as it was used to support the right to own property (i.e. slaves) granted by State's constitutions.

That might not be a coincidence.