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Judge to Obamacare architects: Ahem. Meet the Constitution, power-grabbers.

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By Michelle Malkin  •  December 13, 2010 01:41 PM

The story of the day: Virginia judge strikes down a key piece of the Dems’ government health care takeover — the individual mandate.

Hey, remember when conservatives objected to the Obamacare federal individual mandate on constitutional grounds and the liberal establishment laughed.

Flashback October 2009 – Pelosi scoffs at constitutional concerns. Listen:

Flashback October 2009 – Sen. Leahy scoffs at constitutional concerns. Remember:

CNSNews.com: “Where, in your opinion, does the Constitution give specific authority for Congress to give an individual mandate for health insurance?”

Sen. Leahy: “We have plenty of authority. Are you saying there is no authority?”

CNSNews.com: “I’m asking–”

Sen. Leahy: “Why would you say there is no authority? I mean, there’s no question there’s authority. Nobody questions that.”

Who’s laughing now?

Let’s read and relish the NYTimes’ take first:

A federal district judge in Virginia ruled on Monday that the keystone provision in the Obama health care law is unconstitutional, becoming the first court in the country to invalidate any part of the sprawling act and ensuring that appellate courts will receive contradictory opinions from below.

Judge Henry E. Hudson, who was appointed to the bench by President George W. Bush, declined the plaintiff’s request to freeze implementation of the law pending appeal, meaning that there should be no immediate effect on the ongoing rollout of the law. But the ruling is likely to create confusion among the public and further destabilize political support for legislation that is under fierce attack from Republicans in Congress and in many statehouses.

In a 42-page opinion issued in Richmond, Va., Judge Hudson wrote that the law’s central requirement that most Americans obtain health insurance exceeds the regulatory authority granted to Congress under the Commerce Clause of the Constitution. The insurance mandate is central to the law’s mission of covering more than 30 million uninsured because insurers argue that only by requiring healthy people to have policies can they afford to treat those with expensive chronic conditions.

The judge wrote that his survey of case law “yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product, not withstanding its effect on interstate commerce or role in a global regulatory scheme.”

Read the entire opinion right here (PDF).

***

Flashback December 22, 2009:

Today, U.S. Senators Jim DeMint (R-South Carolina) and John Ensign (R-Nevada), raised a Constitutional Point of Order on the Senate floor against the Democrat health care takeover bill on behalf of the Steering Committee, a caucus of conservative senators. The Senate will vote tomorrow on the bill’s constitutionality.

“I am incredibly concerned that the Democrats’ proposed individual mandate provision takes away too much freedom and choice from Americans across the country,” said Senator Ensign. “As an American, I felt the obligation to stand up for the individual freedom of every citizen to make their own decision on this issue. I don’t believe Congress has the legal authority to force this mandate on its citizens.”

“Forcing every American to purchase a product is absolutely inconsistent with our Constitution and the freedoms our Founding Fathers hoped to protect,” said Senator DeMint. “This is not at all like car insurance, you can choose not to drive but Americans will have no choice whether to buy government-approved insurance. This is nothing more than a bailout and takeover of insurance companies. We’re forcing Americans to buy insurance under penalty of law and then Washington bureaucrats will then dictate what these companies can sell to Americans. This is not liberty, it is tyranny of good intentions by elites in Washington who think they can plan our lives better than we can.”

Americans who fail to buy health insurance, according to the Democrats’ bill, would be subject to financial penalties. The senators believe the bill is unconstitutional because the insurance mandate is not authorized by any of the limited enumerated powers granted to the federal government. The individual mandate also likely violates the “takings” clause of the 5th Amendment.

The Democrats’ healthcare reform bill requires Americans to buy health insurance “whether or not they ever visit a doctor, get a prescription or have an operation.” If an American chooses not to buy health insurance coverage, they will face rapidly increasing taxes that will rise to $750 or 2% of their taxable income, whichever is greater.

The Congressional Budget Office once stated “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

A legal study by scholars at the nonpartisan Heritage Foundation concluded: “An individual mandate to enter into a contract with or buy a particular product from a private party, with tax penalties to enforce it, is unprecedented– not just in scope but in kind–and unconstitutional as a matter of first principles and under any reasonable reading of judicial precedents.”

Sen. DeMint’s statement today: “Today’s decision makes it clear that President Obama and Democrats overreached and violated the Constitution in their rush to pass a federal takeover of our health care system. Virginia Attorney General Ken Cuccinelli made a compelling case that Obamacare violated the constitutional rights of Americans by forcing them into a government program against their will. The Constitution neither grants Congress nor the President the power to compel every American to buy government-approved health insurance. The unconstitutional individual mandate is the centerpiece of the health care takeover and today’s ruling should signal the beginning of the end for Obamacare. Congress must listen to the American people and fully repeal Obamacare immediately. Then we can move to real solutions that make health care more affordable and increase choices that keep patients in control over their own care.”

The Competitive Enterprise Institute signed onto an amicus brief in the Virginia case. CEI’s general counsel Sam Kazman and counsel Hans Bader react:

Kazman: “Judge Hudson’s ruling is a welcome reaffirmation of the Constitution’s limits on the federal government. Those limits are totally at odds with the Obama Administration’s attempt, in its individual mandate provision, to transform a person’s decision not to buy health insurance into an activity subject to Congress’s power over interstate commerce. Because this ruling comes only days before the anniversary of the Senate’s rushed Christmas Eve vote on Obamacare, it is, quite frankly, a great way to start off the New Year. ”

Bader: “Supporters of the individual mandate claim it is a valid exercise of Congress’s power to regulate interstate commerce. But in Supreme Court rulings issued in 1995 and 2000, ‘the high court said the commerce clause is limited to economic activities that substantially affect interstate trade.’ (I was an attorney in the latter ruling, United States v. Morrison (2000)). Refusal to buy health insurance is not economic activity but rather inactivity. As UPI once noted, ‘the weight of Supreme Court jurisprudence seems to favor a Commerce Clause challenge’ to the healthcare legislation. This so-called ‘individual mandate’ is unprecedented and exceeds Congress’s power under the Commerce Clause of the Constitution. As the Congressional Budget Office noted in 1994, ‘A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.’”

Nancy? Hello?

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