The North Bend Eagle


Preparing for high court's review

by Sen. Mike Johanns
Released 1/9/12

The new year brings with it a re-energized challenge to the health care law, a law which has been unpopular since its enactment in March 2010. Once billed as a law to reduce health care premiums for American families, the unfortunate truth is that health care costs have actually increased over the past two years, and are projected to continue rising. Later this year the Supreme Court will devote a uniquely lengthy amount of time deliberating the constitutionality of the law. In my view, the entire law should be overturned, and I recently signed a brief to the Supreme Court stating as much.

One question the Court will consider is whether the entire law can be preserved if a portion of it is found to be unconstitutional. The provision under scrutiny is the individual mandate, which requires every American to purchase government-approved health insurance or else pay a fine. Such a mandate forcing every American into a specific market is an unprecedented use of federal power, and should be struck down. If it is, the question the Court must also determine is whether the entire law must then necessarily be nullified.

On this issue – known as severability – the court should find that the individual mandate cannot be separated from the rest of the law. The mandate was touted by the bill's supporters as the cornerstone of the bill's viability because it would purportedly hold down costs and widen health insurance coverage. Although the law has accomplished neither of these goals, the fact that the law's supporters made these arguments shows us the mandate is central to how the law was supposed to work, and that the law's authors intended the mandate to work together with the law’s other provisions.

The structure of the Constitution establishes that Congress writes law, the Courts uphold the law, and the executive branch implements the law. If the Court now strikes down the individual mandate but upholds the rest of the law, we would have an entirely new law, and the Supreme Court would have turned itself into part of the legislative branch, a violation of constitutional provisions we know as separation of powers and checks and balances.

Last Friday, along with 35 of my Senate colleagues, I signed an amicus brief to the Supreme Court advocating this position. I plan to continue my co-sponsorship of bills to repeal the law and will continue to do everything I can to get this law off the books so it does a minimal amount of damage. I believe changes are needed to improve our health care system, but the health care law did more harm than good.

We must repeal it so we can focus on truly improving health care access and affordability for all Americans.

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