In it, but not of it. TPM DC
"The lack of deference to Congress here is just breathtaking," said Washington and Lee University professor Timothy Jost.
Neera Tanden of the Center for American Progress, who helped craft the law, noted that judges, "try to minimize the impact of their rulings, because of concerns over judicial activism and deference to other branches of government."
Tanden noted that by and large, Vinson relied on the ruling relied heavily on a similar ruling in Virginia late last year. Except on severability. In Virginia, Judge Henry Hudson severed the mandate from the rest of the law. Vinson, as Tanden noted, "chose to basically do the following...throw out the baby with the bathwater."
"I don't know that I've ever seen a severability analysis quite like that," said a senior administration official.
"We don't believe this kind of judicial activism will be upheld and we are confident that the Affordable Care Act will ultimately be declared constitutional by the courts," wrote Stephanie Cutter, assistant to President Obama.
As the result of an apparent oversight, the final version of the health care reform bill did not include a severability clause. Most experts expect that higher courts will respect Supreme Court Chief Justice John Roberts' reasoning and read severability into the law. But if Democrats had included the clause in the first place, they would have avoided today's outcome.
"If there were a severability clause, I believe that would settle the question," Jost said. "The provision would be severed from the rest of the statute and the rest of the statute would be upheld."
Importantly, Vinson declined to enjoin the law, which means implementation will continue pending appeal, which the Justice Department is now preparing. The senior administration official insisted that the ruling will have "no" impact on implementation of the law, which will continue as the legal process unfolds.
"Lower courts routinely strike down landmark legislation," Tanden said, with the expectation that higher courts will rule differently.