The Next Round of the ObamaCare Fight
What members of Congress, academics, and pundits had dismissed as out of left field is rapidly on its way to reality -- more courts are finding that Obamacare is unconstitutional. The result of today's ruling is the same as the recent decision in Virginia federal district court holding the requirement that all individuals buy health insurance to be outside the federal government's enumerated powers. Two judges now have found that the federal government's power to regulate interstate commerce does not give it the power to force or compel unwilling individuals to take part in an activity. But Judge Vinson's opinion goes far beyond the earlier decision in its depth and sophistication. It analyzes at length the reach of the Commerce Clause, and his opinion is replete with references not just to existing Supreme Court opinions, but also to the Federalist Papers and statements of the Framers and the latest academic scholarship. It is as if Judge Vinson saw the shakiness of the Virginia opinion (which reached the same conclusion, but in a few hurried pages) and came to the rescue armed with Alexander Hamilton, James Madison, and John Marshall.
Personally, I think Vinson is exactly right. The Framers would be aghast at the idea that the federal government has the power to force citizens to do something they don't want to do. The only two areas where this could happen would be a military draft and jury duty, which arise under different constitutional provisions. As Judge Vinson nicely points out, it would be astounding to think that a people who revolted from Great Britain because they didn't want to buy tea from a British monopoly would allow a new federal government to force people to buy tea. (Was this, in fact, a veiled reference to the Tea Partiers? I am sure the kooks on the far Left will soon be scanning video of tea party meetings in Florida to see if Judge Vinson has been to any). If the federal government can force people to buy insurance, or cars, or to eat and exercise for better health, there is no stopping point to its powers -- the very result that the Framers guarded against by carefully enumerating Congress's powers in the Constitution.
Two other interesting points:
First, Judge Vinson dismissed the claim that Congress had imposed an unconstitutional condition on states in exchange for receiving federal medicare and medicaid funds. I think this is a closer case than he made out -- it may be unduly coercive to say to states that they must enforce certain federal mandates or lose up to 50 percent of their healthcare budgets. The problem is that the Supreme Court hasn't told us enough about what "coercion" in this situations amounts to.
Second, and most importantly, Judge Vinson held that Obamacare's provisions are so interrelated that he had to strike down the whole system, even though it was only the individual mandate that was unconstitutional. This is the question of "severability." It requires courts to figure out whether Congress would have wanted the rest of the statute to continue in effect, even if one piece of it is unconstitutional. This is an arcane area of separation of powers law. Vinson's conclusion essentially took the Obama Justice Department up on a threat. DOJ seems to have argued that the individual mandate is a central part of Obamacare, and cannot be separated easily from it -- essentially, they are banking on the idea that no judge will strike down the whole statute. Well, DOJ lost on that bet, and in so doing, have upped the ante even higher now on the constitutional challenge to Obamacare, much to what may be their regret.
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Comments :
Jul '10
Re: The Next Round of the ObamaCare Fight
My guess is Obama and Eric Holder will smell out racism somewhere in this opinion.
Jul '10
Re: The Next Round of the ObamaCare Fight
I see that the White House Blog and the Department of Justice have already denounced Vinson's opinion in condescending tones.
Is this something new in American politics - for the Executive branch to engage in political attacks upon the judiciary while cases are still working their way through the courts?
Vinson, by the way, is a Reagan appointee. Elections do have consequences.
Jun '10
Re: The Next Round of the ObamaCare Fight
It will be interesting to see if the left charges the judge with judicial activism and legislating from the bench. Har, har...
May '10
Re: The Next Round of the ObamaCare Fight
What's the earliest one of these cases could reach the Supreme Court?
If Obamacare is not overturned until years from now, the ruling that does so will still be a victory. But the longer this drags out, the more damage that will be done to insurance companies, the medical industry, and every business that relies on them.
Some of that damage will be irreparable. A company forced out of business doesn't typically open back up the moment a favorable market returns.
Oct '10
Re: The Next Round of the ObamaCare Fight
I noticed that all of the Senate Republicans have now cosponsored the SB 192 to repeal Obamacare. Could the court give those squishy rhinos the backbone to follow through? Even more interesting, perhaps the judicial cover can convince some Dems to break ranks and sign on to the bill. Once the legislation starts to crumble, no one is going to want to be left holding the unconstitutional bag. I am interested to see how it plays out.
Re: The Next Round of the ObamaCare Fight
Dave Molinari: It will be interesting to see if the left charges the judge with judicial activism and legislating from the bench. Har, har... · Jan 31 at 4:58pm
But of course, Dave. The NYT reports:
May '10
Re: The Next Round of the ObamaCare Fight
Mr. Yoo, do you see Hamilton, Madison, & Marshall--although respectable in my eyes--to be of interest to SCOTUS' left wing? Do you see the arcaneness that you cited above to be a hook for an opposing jurist to hang his/her argument on? It's an interesting footnote that this may all boil down to the swing Justice that was Reagan's third nominee after Judges Robert Bork and Douglas Ginsburg went down in the Senate.
Jun '10
Re: The Next Round of the ObamaCare Fight
Of course, of course. Thanks for the spot. Life is a merry-go-round.
Diane Ellis, Ed.
Dave Molinari: It will be interesting to see if the left charges the judge with judicial activism and legislating from the bench. Har, har... · Jan 31 at 4:58pm
But of course, Dave. The NYT reports:
Jan 31 at 5:19pm
Jan '11
Re: The Next Round of the ObamaCare Fight
If this thing goes down the way we want it to, what will happen to the insurance companies? The pre-existing condition rule will still be in place, and without a government mandate to force us to buy insurance, will they take a financial hit by all of this? Are we going to see massive mergers happen?
May '10
Re: The Next Round of the ObamaCare Fight
I would like Congress to pass a bill requiring Nancy Pelosi to buy my insurance for me.
May '10
Re: The Next Round of the ObamaCare Fight
They'll get out of the insurance business or go out of business, sooner or later.
Jan '11
Re: The Next Round of the ObamaCare Fight
Kervinlee
They'll get out of the insurance business or go out of business, sooner or later. · Jan 31 at 8:02pm
Let the public option debates ring!
Sep '10
Re: The Next Round of the ObamaCare Fight
If the entire law goes down, so do the requirements that insurance companies must cover all pre-existing conditions, allow children up to age 26, etc.
This makes it more important than ever that the House speed up their creation of alternatives that can not only pass the House, but pass the Senate, so the GOP is not left holding a "Party of No" bag in 2012.
Dec '10
Re: The Next Round of the ObamaCare Fight
The only thing that matters is the opinion of Justice Kennedy
Jan '11
Re: The Next Round of the ObamaCare Fight
Finance is gambling. Give me some money upfront, let me play with it, make more of it, so that when you need it we'll have enough to cover more than what you had upfront.
Funding is just paying the bill. No strategy. No foresight. No possibility of preparing for the future. Just pay me. (I can't help but think of Ray Liotta's mafia variation on that in Goodfellas.)
If they have to cover pre-existing conditions but can't generate any reserves, the insurers will drop out of business. Healthcare will no longer be financed. It will only be funded. The government won't have any strategy. It won't have any foresight. The government won't prepare. They'll just send a bent-nosed wiseguy to your door who says Pay Me.
Sep '10
Re: The Next Round of the ObamaCare Fight
The Framers would be aghast at the idea of” – Social Security, Medicare, ethanol program, the list is almost endless.
Dec '10
Re: The Next Round of the ObamaCare Fight
Does anyone think a better version of healthcare reform would have come out of congress if the democrats hadn't kicked the republicans completely out of the sand box while crafting the monstrosity Judge Vinson just invalidated? Is the mandate to provide treatment regardless of ability to pay (a large part of why we need reform, in my opinion) a moral necessity?
Sep '10
Re: The Next Round of the ObamaCare Fight
If you want to force everyone to buy H.I. you can mandate an across the board $700 tax on every adult and then give a $700 rebate to everyone who has H.I.; does the same thing as O. care without the constitutional problems. The government at its current size can force people to do just about anything. Most of this constitutional posturing is big government Republicans trying to sound like small government advocates.
Dec '10
Re: The Next Round of the ObamaCare Fight
LJ, what I'm really getting at is that if the system was entirely free market and responsibility was absolute then hospitals would be able to turn away those who had neither insurance nor cash, and those who bring a world of negative health effects on themselves could very well perish as a direct result of their own actions. However, we are a very compassionate people and do not behave as such. As a result we have a system in which people can get a free ride, except that nothing is ever free. Someone has to pay for their decisions and the health care required as a result of those decisions. We end up with a clash of liberties. At what point does one person's liberty to have another BigMac and get type II diabetes end and my liberty to not pay to have his foot cut off because of the diabetes begin? If I'm footing the bill do I now have the moral authority to tell him what to eat? Is our system more moral than one in which he is responsible for his own choices even unto death?