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Non-severed portions of health care law are destroying the private health insurance industry now and even if a President Romney could grant waivers to all businesses in America, that destruction would continue.

DeVine Law is happy with the Eleventh Circuit Court of Appeals:

The Appeals Court for the 11th Circuit, based in Atlanta, found that Congress exceeded its authority by requiring Americans to buy coverage, but also ruled that the rest of the wide-ranging law could remain in effect.

The legality of the so-called individual mandate, a cornerstone of the 2010 health care law, is widely expected to be decided by the Supreme Court. The Obama administration has defended the provision as constitutional.

The case stems from a challenge by 26 U.S. states which had argued the individual mandate, set to go into effect in 2014, was unconstitutional because Congress could not force Americans to buy health insurance or face the prospect of a penalty.

DeVine Law is not happy with ObamaCare regulations that require private health insurers to cover more applicants and at lower prices than risk assessments deem prudent, but it is not the courts’ role to correct supposed Congressional mistakes, unless those mistakes are unconstitutional. Even a court filled with my fellow Federalist Society lawyers understand that Congress has the power under the Commerce Clause to regulate interstate commerce.

In fact, one of the great anomalies of the United (Regulatory States) of America, founded circa 1933, is that Congress has not used their power to break up state health insurance monopolies. One of the main reasons that the Founders scrapped the Articles of Confederation soon after winning our Independence was to draft a constitution that would unite the states economically.

Other than repealing ObamaCare, Congress could take better action that would lead to lower medical costs and insurance premiums than to allow the selling of health insurance policies across state lines. Neither tort reform, nor medical malpractice reform comes close to the positive effect of ending state monopolies, but I digress.

The better conservative position for a judge is to rule as narrowly as one can to resolve a case and to respect the acts of elected representatives in as broad a fashion as possible. In that regard, the fact that ObamaCare did not include a “severability” clause is irrelevant, and it was right for the federal appeals court not to impose one since the separate provisions are not interdependent in their operation.



Oh yes, I understand that the individual mandate was the supposed funding mechanism for ObamaCare, but it is not the duty of the courts to make such choices. The fact is that Congress has been regulating insurance companies for decades without funding mechanisms that require Americans to send money to Washington, D.C.

The “funding mechanism” for mandates that companies cover pre-existing conditions, adult children and birth control are the customers of private insurance companies, i.e. We the People, in the form of higher premium payments and increased medical costs.

Blanket waivers from ObamaCare for all 50 states and every private company in the United States, as promised by GOP presidential contender Mitt Romney, would not eliminate what ails the health care and insurance systems. No, to fix the problem a GOP majority and Congress would have to repeal the rest of ObamaCare that specifically applies to private insurers that cannot be waived.

Republicans will have to have the courage to vote against economically destructive but vastly popular pre-existing condition mandate if they want to save the private insurance industry. Moreover, the failure to fix medical cost inflation could doom even the most frugal long term conservative plans to balance the budget and reduce the debt, i.e. save America from destruction.

Will Republicans have the courage and competence to explain to voters that for insurance to be viable, the companies must be allowed to allocate and charge based on risk.

I hope so, otherwise Romney waivers and a Supreme Court ending of the individual mandate will be but a bandaid and not a cure for what ails America.

Mike DeVine

Legal Editor – The Minority Report

Atlanta Law & Politics columnist for

“One man with courage makes a majority.” – Andrew Jackson

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5 Responses to Atlanta Court right to sever ObamaCare

August 2011


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