Judge to Obamacare architects: Ahem. Meet the Constitution, power-grabbers.
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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The good in this is not just the decision. It’s in Virginia, so the appeal won’t go to the 9th Circus Court.
Thank you, Virginia!
This is indeed great news! I know this will probably go to the SC, but this is a blow to bhocare. An early Christmas present from Judge Hudson, thank you.
L
Pelosi, Reid, et al: “What is this Constitution of which they speak?”
This is a great start!!
This is a big effin’ deal.
Make no mistake, this is not a tax, unless we want to call it a tax…
And you all have to buy this because then we can call it commerce.
And without it, how will we fund our takeover, uh power grab, uhhh medical ponzi scheme?
John Deaux
ROFL!
perfect!
Oh, to be sure they know of the Constitution. Its that quaint historic document penned by by dead white men and of little relevance today, except as a vague and living guideline that can be reinterpreted as needed. Keep the masses ignorant of it as it competely gets in the way of their agenda.
I think that there are about 20 other states besides Virginia that have similar cases pending.
This is a HUGE effin’ deal. No doubt some or all of these will wind up at the SCOTUS and let’s just hope that Anthony Kennedy wakes up on the right side of the bed that day.
It’s like Elaine in Seinfeld:
“Doesn’t the President get to do whatever he wants?”
“Uh, no…”
J.J. Sefton#10,
I think FL has about 20 other states attorney generals he will soon rule on bhocare. I don’t know when he intends to rule though.
L
Michelle – no link to the opinion – PDF. would like to read it.
Henry Hudson’s still alive?
you’re welcome!
Henry Hudson isn’t one of those judges that makes it up as he goes along, imagine that!
Keep in mind: The problems and potential solutions in the current healthcare system were never identified and publicly analyzed, nor were they debated. The healtcare bill was certainly never publicly read, reviewed or debated. Instead it was written and shepherded through the Congressional law-writing process in the dead of night and passed via tricks and Congressional rule manipulations.
This is precisely why most Americans now refer to the Democratic Party as the Democrat Party [sic], because there is nothing Democratic about their process or belief system. They are Communist statists who are determined to exert their will by hook or crook. “Screw the Constitution!” is their war cry.
Heh. Treasury notes and bonds gain for the first time in six months! You don’t s’pose BarryCare was holding the economy back? Ya think?
Treasuries Gain as Ruling Against Health-Care Plan Eases Deficit Concern
My understanding that striking down ANY part of ObamaCare strikes down the entire law. That is because it has no severalty clause which would state that the rest of the law is still in force if any part is ruled unconstitutional.
Also for practical reasons the law requires a mandate because of costs. The idea was to have a 27 year old who would otherwise pay $200 a month for insurance to pay $800 instead.
But I also think the part that puts “children” up to 26 years old to be on the parents insurance is also unconstitutional based upon equal protection clause (why not 30 year old children, or 50 year old children?). Also the waivers are blatant examples of equal protection violations.
So Obama who care little about process (which is what the constitution cares much about), will have to now deal with Paul Ryan who will not fund anything that has to do with ObamaCare.
Good, now lets jail every treasonous bastard who violated their oath to uphold and protect the U.S. Constitution.
Nancy, Harry, this was never really about healthcare was it? Given the fact you could not write a rational law covering pet licensing I know you could not be trusted to analayze and identify problems in the greatest healthcare system on the face of the earth. No offense Nancy and Harry, but you are both dumb as a bag of hammers. You intended harm to the Republic and you should be held accountable.
Trying to imagine how this might help the housing market. Obama is holding hostage my Jacksonville house. Impeachment? Is it too early to discuss among friends?
Geez, Nancy. Instead of being a stupid socialist that wants to be rid of the Constitution, why didn’t you just answer the quesiton? Oh, that’s right! Because there is no such power granted to congress.
Why do brain-dead socialists have to question any question they can’t answer? Why not just admit there isn’t any such legislative power and it’s nothing but a grab for political power? The knuckle-draggers would still agree and vote for them. And their water-carriers in the press would find a way to justify it anyway.
Why not force everybody to buy a Volt from government motors. Makes about the same amount of sense, doesn’t it.
No RedDog, it is not too early to discuss impeachment or to hold competency hearings. Every democratic house and senate member should be sent either in a straightjacket to the nuthouse or to jail. The same goes for the white house staff.
Okay. Now that we have your attention.
REPEAL!
Eh, not so much. Ed/Hot Air has an excellent piece on the severability angle.
Either way without the mandate the law is gutted. Will be easy to tear down.
If you are inclined, you can vote if American’s should be required to buy bhocare.
http://www.foxnews.com/opinion/2010/12/13/decide-americans-required-buy-health-insurance/
L
Here is a thought. What if this case comes before the Supreme Court after a Republican wins the presidency. Then the new Attorney General of the US, Cuccinelli drops the case. Does that end it?
If the mandate is assigned a 0$ cost;
Would it then be legal?
Impeachment is reserved for high crimes and misdemeanors. Universal health care is a policy (of many) that got Obrainless and democrats elected. You can’t impeach a politician because you don’t like their policies. And unfortunately, proving that this specific policy decision made them violate their constitutional oath would take some doing.
Bill Clinton committed a felony while in office. That was impeachable and he was impeached, but never convicted. I don’t know if anything the democrats have done over this healthcare law rises to the level of being impeachable. But it definitely lowers them to the level of socialism.
I’m thankful we have kept Gitmo open because when obama is impeached and then ultimately imprisoned it will be nice for him to have access to Qurans.
The gov’t would have to prove that the cost is truly zero.
Basically, it boils down to the socialist belief that healthcare is a right and the intelligent knowledge that healthcare is a commodity. And no matter how the socialists try to say there is no cost, how do you pay doctors and any healthcare providers for their services? That would be tough to prove that there is no cost somewhere to someone.
The following applies to this discussion:
This is good news indeed. Hopefully the same findings are found in the case in Florida. Obviously this is just a battle in the war, as we all know it will go to the SC, but it is still great news.
So much for Obowmao being a Constitutional scholar.
Now show us those college transcripts Urkel!
We really need to understand that the POTUS appoints judges, justices, and supremes, so consider well your choice for POTUS. The last two supremes make the case that NO liberals should ever be in the white house again. What the libs can’t get through the legislatures they impose on us through the courts. This is why you can’t trust a dem for governor or POTUS and God help us when they get ahold of the keys to the treasury of either states or the U.S.
If they existed, Wikileaks would have found them.
(raises hand) I have a question.
Well, that means about 75%+ vacancies in the House and Senate, as well as looking for an entirely new administration.
Who’s 322nd in line of ascension for the Presidency?
Wow! Somebody finally pulls the choke-chain on our out-of-control Obama-led government. How does it feel to know your limitations, Mr. President?
Eureka! A voice of wisdom calls out from this maddening storm of power-grabbing tempests.
Let’s go people. Much more work to do. The hard choice is usually the right choice and much hard work awaits us.
I had not thought of that. With a 0$ mandate, taxes would have to increase on nearly everyone, including everyone who had a 0$ mandate.
But it doesn’t officially change it to a tax, so its still not legal I suppose.
Question (liberal) authority.
At least somebody still values the Constitution. If the rest of the clowns in DC valued it as well, we would not have this bloated, overspending, sorry excuse for a gov. They all need to get out of our pockets and our lives. We can’t afford to have the gov that the libs/socialist want to force on us. I’m sure there is a 3rd would country which would be oh so happy to hire them to run their country.
This also means RomneyCare here in Taxachussetts is also UnConstitutional, which I always knew it to be!
About time! Now all the rest of the other states should go forward! Congress should be told we are serious!
But will the Republicans now work to repeal it?
“Um,we’ll have to look into maybe changing some of the provisions,sort of kinda like.”
REPEAL THE STINKING THING ALREADY.
I agree with Vinny. Some jail time is in order – but I realize that’s a pipe dream. This is one of the few times when i wish we were France. They would gladly jail these morons.
Hey Senator Leahy: Heh…..You wanna reconsider that statement, you pompass windbag?
vinny for Senate.
Yeah, it’s right there in the, uh, “Good-n-Plenty” clause, or the “Penumbras and Emanations” clause, or some damn thang. Looks like “Judge Nobody” did more than just question the “authority” here, hmm?
I don’t usually associate “Monday” with “Great Day,” but today’s an exception…
Although I wonder about the executive order/regulatory bypass tactics of which this regime is so fond.
It’s a shame the guillotine went out of style back in the ’70s. Heads SHOULD be rolling.
Now send this onto the Supreme Court, and watch a fist fight break out over who gets to write the first brief upholding Hudson’s decision. Alito, Roberts, Scalia, Thomas.
Sorry Nan, we be adjudicating up in here in this place….it’s called checks and balances, look it up if you are unfamiliar with the separation of powers.
Of course you’re right. It would be like trying to grab hold of a greased eel while wearing boxing gloves. It does not mean that their actions do not belie a contempt for the Constitution or at least gross ignorance of its fundamental principles. Socialism is incompatible with the US Constution no matter what mental gymnastics the Leftists use.
From Judge Hudson’s opinion:
Or a box of donuts, for that matter……
And Ta Da! Stevens makes it 5-4….
WE WIN!
We are Right
They are wrong
End of story
Opps!
Make that Justice Kennedy tips the scales 5-4……
Yes, Virginia, there is a Santa Claus!!
And yes, it’s Virginia!
MSNBC’s reaction: Its just one judge’s opinion.
When I was in grade school, late 1940′s to early 1950′s, third graders had enough knowledge of the constitution to make that judgment. Now we have law makers, many with legal backgrounds, to stupid or dishonest to come to a similar conclusion. What a long way down we have come.
And MSNBC is right. None of this really matters in any way except to push this to the Supremes.
Query:
Would refusing to rent a motel room to black people similarly be “inactivity”?
isn’t that one of her (only)two gears, right next to ‘gloats’? Or does she also have a ‘backpedals’?
No. The owners of the motel have voluntarily gone into the motel business. Being a homeowner and living in the home and not renting out rooms is “inactivity”.
Those two are separate Botox treatments, so her expression only changes every 90 days.
This is where Bush’s eight years in office are about to pay off. Despite all of his mistakes, he did put two conservatives on the court.
3 more reverse gears and she’d be a French tank.
Obviously the opinion of one federal district judge appointed by George W. Bush means nothing, but I would bet any money that the Supreme Court upholds this ruling. Scalia, Thomas, Roberts and Alito are gimmes, and Kennedy has voted down every law challenged under the Commerce Clause that has come before him with the exception of Gonzales v. Raich (the medical marijuana case) which even Scalia upheld. And I would agree with them.
Huh. Mine go to eleven.
Michelle Obama, I’ve never been this proud of my state before. Signed, The Virginian
Yes, if there is no attempt to rent any of the rooms. Seems like a rather stupid question.
All this because no one had the guts to tell boy wonder he was ineligible to be President……
Really. A Federal decision is not conclusive, but it certainly matters.
BTW counselor, Ms Botox et al guffaw at the question, and refuse to answer. Where specifically in the Constitution is Congress granted the authority to mandate individuals to purchase anything? Help me out – I’m just a dopey racist everythingophobe, but I suire can’t find it.
It’s prima facie unconstitutional legislation.
Guess Madison knew what to expect from the scoundrels that would inhabit the halls of Congress.
Read the entire article at
http://www.creators.com/opinion/walter-williams/moral-or-immoral-government.html
How does that affect whether or not a refusal to do something, ontologically, is an “activity”? In both cases there is a refusal to perform an act intimately related to something in which they engage. In one, a refusal to pay for health care in a particular way and in the other a refusal to serve a particular class.
The only way you can distinguish the two is if you say that not everyone is a consumer of health care (which is absurd) or, in the case of the hotel owner, there is an affirmative obligation for him to act. Are you claiming this to be the case? And if so, on what basis?
I’m saying that the hotel owner has voluntarily gone into the hotel business, and the Commerce Clause can – and has been – applied to their business activity. They are suppliers by the way, not consumers, so why bring it up?
Someone should really bring that up with any adult member of Christ Church and the General Assembly and Church of the First Born amongst others that are not health care consumers due to their religious conviction.
The commerce clause is not limited to business activities. It is limited to activities (business or otherwise) that affect interstate commerce. There is a difference.
Again, I don’t think this makes a difference.
You may have a point if not for the fact that there is a specific exemption from the mandate on the basis of religion.
Anyway…interesting case. But anyone that thinks it is a slam dunk analysis (either pro or con mandate) are kidding themselves. I just think the whole distinction between “activity” and “inactivity” is contrived and not supported.
Off to make
ChristmasHoliday toffee!You may also have a point if not for the fact that this may then give preference to followers of one religion over another with regard to the individual mandate. Not to mention those that are atheists.
I agree that this ruling is not going to be a slam dunk either way.
I can’t speak for the entire Afro-American community, but I CAN say that “lots/most” of them hold the quiet belief that the Constitution is in the way of Obama “making good.” That wish like a magic wand he ahould wave unlimited Executive Orders to enable all idealistic lib programs. Yes, that’s scary. Makes Thanksgiving and Christmas dinner a lively reunion to say the least.
James Greenidge
Queens NY
WaterFoodclothingshelterairProtection from enemies, foreign and domestic.Gee, Can’t seem to find anything the government can provide my family better than i can.
The government will be calling shortly to tell you how much your room at the Heart of Atlanta Motel costs. Wait – you mean you weren’t planning on staying there? Sorry, no distinction between activity and inactivity.
200 non-religion based exemptions and counting.
By the way, Chap, thanks for the Beaujolais tip, it was good!
***
It’s great news–but it’s like the original Boston Tea Party. A long and bitter war still lies ahead. And the Supreme Court is still a 5-4 travesty on many Constitutional items that should be 9-0 opinions.
***
Mark Levin has made excellent comments on how the SCOTUS has been eroding our basic Constitutional Rights since liberal / socialist leaning Presidents Woodrow Wilson, Franklin Roosevelt, Lyndon Johnson, Jimmy Carter, and Comrade Obama have pursued their agendas. And have stacked the court “deck” against the Constitution.
***
Witness the misuse of the Commerce Clause to support Gubmint takeover of all economic areas of our lives. Or take note of the “anchor baby” or abortion “rights” they found in our Constitution. Pray that all of the 5 conservative Justices stay healthy and that President Obama doesn’t get to fill another vacancy with another “wise” Latina or stealth statist. Our liberty is hanging by one vote–until we send the good Comrade into Funemployment in 2012.
***
John Bibb
***
I don’t know, Heart of Atlanta was a pretty blatant example of the Supreme Court finding an excuse — any excuse — to use the Constitution as a means to an end that had nothing to do with the Commerce Clause. Even if you agree with that interpretation, it ain’t gonna fly with the court after W peed in the water.
this will not stop the communists…and they will not stop until they have it all…
*This is a good first step to getting Obamacare blown out and replaced with proper reform; Don’t see how the SC could see it any other way, at least for the Fab 5 that know of the constitution.
*Now if the states desire to get their residents insured(self insured), then they should mandate that all bills will be paid in full for received care from date of service until your estate is liquidated, with no exceptions; Only then will you see most people insured; It’s all about personal responsibility.
Not necessarily. Federal law is different from state law.
No, in one case there’s an activity: renting out motel rooms. Congress enacted that if you do that, these are the rules you have to go by. In the other case, there’s no activity.
Now you can say that the activity is consumption of health care services, but nowhere does the “law” make that the condition of operation. It does not say that if you want to consume health care services, you have to be insured. It simply says, you have to be insured.
Big difference there. No amount of verbal gymnastics will make them the same thing.
And you gotta love this spin from the NYT article:
“Confusion”? What the hell are they talking about? Who’s confused? Congress tried to take federal power to an unprecedented new level, and the court checked them. Pretty simple to understand.
Point being that when it comes to health care, aside from a few relgious nuts, we all ARE staying there. Unless,of course, modern medicine somehow ccures disease, injury and death.
You cannot possibly deny that getting health care is an activity and that having or not having insurance for such affects the cost for every other person that seeks to engage in that same activity. So Congress says that if you do that, there are rules you have to go by. Just so happens that basically evey single person does this.
I was surprised by the quality. My Thanksgiving pairing this year was ridiculous. I stumlbed upon some 2005 Trimbach Pinot Gris in my local liquor store. Have no idea why it was there, should have been cleared out 2 years ago. But it was perfect for a traditional meal.
In the AP story on this earlier today, they stressed the fact that he was a Republican appointed judge, that the two other judges who previously ruled in favor of it were appointed by Democrats, then seemed to relish the thought of the Appeals court getting where there were a majority of Democrat appointed judges.
The veil certainly came off in that story, and they made no bones whatsoever that they expected Democrat appointed judges to uphold Democrat passed and supported legislation.
So much for unbiased news.
The AP article is here.
An excerpt:
So the AP is pointing out that Democratic appointed judges have (and likely will) uphold the mandate while a Republican appointed judge did not?
That’s not bias, fella. That’s reality. Once upon a time that is what was expected of reporters.
I have some government sanctioned diet links, if you need them.
P.S. In addition to food and transportation as examples, Judge Hudson also cited housing as an area where the Government could, under the same rationale as healthcare reach into citizen’s lives. (Simply imagine chapoutier, the Federal government saying which loans you could or could not apply for based on bureaucratic factors, to lessen the chance of another housing bubble! Do you think it is far fetched, or do you truly think it would work? If you think it would work, you don’t know what CREATED the housing bubble: it was bureaucratic factors which incentivized or rewarded banks to make bad loans. Of course, the banks were in a no-lose situation, since they helped fashion the bureaucratic factors through their captive government representatives to produce a no-lose (bailout) situation for the banks and a lose-lose situation for the public. They were laughing all the way to the ….)
Speaking of the Constitution…
Nigel Tufnel: The numbers all go to eleven. Look, right across the board, eleven, eleven, eleven and…
Marty DiBergi: Oh, I see. And most amps go up to ten?
Nigel Tufnel: Exactly.
Marty DiBergi: Does that mean it’s louder? Is it any louder?
Nigel Tufnel: Well, it’s one louder, isn’t it? It’s not ten. You see, most blokes, you know, will be playing at ten. You’re on ten here, all the way up, all the way up, all the way up, you’re on ten on your guitar. Where can you go from there? Where?
Marty DiBergi: I don’t know.
Nigel Tufnel: Nowhere. Exactly. What we do is, if we need that extra push over the cliff, you know what we do?
Marty DiBergi: Put it up to eleven.
Nigel Tufnel: Eleven. Exactly. One louder.
Marty DiBergi: Why don’t you just make ten louder and make ten be the top number and make that a little louder?
Nigel Tufnel: These go to eleven.