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Unconstitutional: Florida judge strikes down Obamacare mandate; full decision embedded; all 47 GOP Senators sign on to DeMint repeal bill; White House reax: ruling is “odd,” “overreaching” “activism;” DOJ readies appeal

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By Michelle Malkin  •  January 31, 2011 04:10 PM

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

The word of the day: “Void.”

The constitutional clause of the day: The Commerce Clause.

Via Forbes (and remember that more than half of all states are suing to nullify Obamacare and three states – Missouri, Arizona and Oklahoma – rejected the Obamacare mandate via ballot measure):

Justice Roger Vinson of the U.S. District Court in Pensacola ruled today that the primary mechanism used by health reform to achieve universal insurance coverage–the individual mandate–is illegal. If his ruling stands it would void the 2,700 page, $938 billion health reform bill passed last year.

“Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void. This has been a difficult decision to reach, and I am aware that it will have indeterminable implications,” Vinson writes.

With this ruling, and a similar one in December by Judge Henry Hudson in Virginia, it’s likely that the U.S. Supreme Court will be the final arbiter of whether ObamaCare stands. Two other lawsuits–one in Michigan and one in Virginia–were thrown out by other federal district judges last year who ruled the constitutional challenge lacked merit…

…The argument that’s had the most traction is based on the limitations of the Commerce Clause of the Constitution. The Commerce Clause explicitly allows the federal government regulate interstate commerce. But it also has been used to justify federal laws that affect other kinds of economic activity.

The question raised by the state lawsuits against the health reform bill is whether refusing to buy insurance constitutes interstate commerce. In his ruling Vinson says that in the past the Commerce Clause has been used to regulate concrete activities like growing marijuana or navigating a waterway, but not used to force someone to do something they weren’t already doing. “It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause,” he writes.

Vinson rejects the administration’s argument that the health care market is unique since nobody can truly opt out, and that not buying insurance is in itself an economic activity since the cost of care then falls on others. Vinson mocks this argument, writing: “Everyone must participate in the food market… under this logic, Congress could [mandate] that every adult purchase and consume wheat bread daily.” If they didn’t buy wheat bread they might have a bad diet which would put a strain on the health care system, he writes.

Vinson Ruling

***

Heritage:

Today’s decision should be a major source of concern for the Obama administration for at least five reasons.

First, the parties involved. This case involves a majority of the states (26), and the National Federation of Independent Business. If not completely unprecedented, the very fact that more than half the states marched into federal court on behalf of themselves and their citizens to challenge an unconstitutional federal program falls into the category of “beyond any recent memory.” The sheer magnitude of the parties involved guarantees that the courts on appeal will pay particular attention to this case.

Second, the case creates a very bad trend for the administration. Those courts which have taken the time to more fully develop the record in the case, and to have more briefing and hearings (Virginia and Florida), have ruled Obamacare unconstitutional. This is important because, contrary to the White House spin, litigation is not a scoreboard. It is not enough to say that you have won some and lost some. Some district court wins “count” more, because they are more indicative of what is likely to come next. Here, the cases the administration has lost have been better developed, have significant and sophisticated parties, and are in a better position for appeal than the more cursory cases that they have won at more preliminary stages.

Third, the case strikes down the whole of Obamacare based on the unconstitutionality of the mandate. The administration has tried to have it both ways on this one, with the President and key proponents arguing how essential the mandate is, while the Justice Department arguing at times that it was absolutely essential, and at times that it was severable. If the DOJ really wanted to keep the bill severable, perhaps they should not have argued in court that removing the mandate while maintaining the remaining requirements of the bill would “inexorably drive [the health insurance] market into extinction.” Those who would falsely accuse the Judge of overstepping his bounds must recognize both the standards for severability, which he properly applied, and the damning concession made on this point by the Justice Department.

The fourth problem for the Obama DOJ: Judge Vinson’s decision is thorough, well-reasoned, and likely will be very persuasive to appellate judges, and eventually Justices, who review the case. He was judicious, ruling against the states on the spending clause claim and for them on the Commerce Clause. The most important document in any appeal is the decision below, and Judge Vinson’s will give the court of appeals much to consider. Put simply, Vinson has just made the Obama DOJ’s job much more difficult…

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Update: Sen. Jim DeMint tweets that all 47 GOP Senators are now on board as co-sponsors of his Obamacare repeal bill.

Update: The White House calls the Florida ruling “odd” and “overreaching.”

Pot. Kettle.

***

DOJ gets ready to appeal:

“The department intends to appeal this ruling to the Eleventh Circuit Court of Appeals.

“We strongly disagree with the court’s ruling today and continue to believe – as other federal courts have found – that the Affordable Care Act is constitutional. This is one of a number of cases pending before courts around the country, including several that the government has won in the district courts that are now before the courts of appeals. There is clear and well-established legal precedent that Congress acted within its constitutional authority in passing this law and we are confident that we will ultimately prevail on appeal.”

“We are analyzing this opinion to determine what steps, if any – including seeking a stay – are necessary while the appeal is pending to continue our progress toward ensuring that Americans do not lose out on the important protections this law provides, that the millions of children and adults who depend on Medicaid programs receive the care the law requires, and that the millions of seniors on Medicare receive the benefits they need.”

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