Monday, January 31, 2011

YEAH -- Obamacare Ruled Unconstitutional!!



Ok kids, here is Judge Vinson's 78 page order finding that whole Obamacare thing a bad nightmare, much like the last season of Dallas:
It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting --- as was done in the Act --- that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.
 Ok, I'm really digging the explicit Tea Party reference.

I stopped caring about the Commerce Clause when I left law school, so I won't pretend to be a sudden expert on it now.

And I'm still analyzing the opinion.

However, on first blush, I think the Judge has written a thoughtful, comprehensive order, one that draws deeply on history and context and which attempts in good faith to tackle the parties' arguments head-on.

This is exactly what a district judge should do, regardless of how one may feel about the outcome.

Say what you want about Judge Vinson, but this comports with my personal experience with him.  He is straightforward and intelligent, tells you exactly what he thinks and where he is coming from, and tries to engage you on the merits without excessive rancor or inflated "judge-itis."

25 comments:

  1. "At a time when there is virtually unanimous agreement that health care reform is needed in this country, it is hard to invalidate and strike down a statute titled 'The Patient Protection and Affordable Care Act.'"

    Smells like bullshit.

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  2. This opinion will stand the test of time. Gotta love the mortgage/housing market analogy. I wish Obama had been around circa 1970. Could have passed a law mandating that my father buy me a Dodge Charger with all the bells and whistles.

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  3. The opinion is on the money. What they needed to do was to pass a tax to finance it like Medicare. It's the only way in my opinion they could do this constitutionally. I enjoyed the section about the piling of inferences upon inferences; reminded me of the Monty Python sketch of putting things on top of other things.

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  4. One man's judicial activism is another man's prudent constitutional conservatism.

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  5. I think he really would have scored some points if he had called into question Obama's birthplace.

    High fives all around because, after all, isn't that what it's all about? Not really whether more people will be able to get the medical care they need but rather that Republicans win and Obama fails and Limbaugh is happy tomorrow at noon.

    But, yeah, the judge sure shoved that shiv in nice and smooth.

    Thank you. May I have another?

    .

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  6. There are definitely some partisan dog whistles in the opinion, mostly gratuitous (Federalist Papers, expansion of federal power via taxation etc.) but the judge does do a creditable job explaining the long history of the Commerce Clause and its nearly unchecked expansion to pretty much cover everything under the sun.

    Yet that's precisely why most Commerce Clause experts think the reform bill is constitutional.

    To me this opinion shows you how elastic and outcome-determinative you can be with what are supposed to be "settled" constitutional issues.

    Good thing that won't be a problem when this issue hits the Supremes.

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  7. I popped by to gloat, but, after reading SFL's post, I decided against it.

    But then I read Rick's comment, and decided that I'll just go ahead and gloat, after all.

    Gloat, gloat, gloat....

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  8. Political nonsense and gamesmanship.

    swlip, the GOP has a 30 year history of supporting an individual mandate for health insurance. If it weren't for the fact that the average Tea Partier has the memory span of a hamster, and an IQ lower than their tooth count, they'd know that.

    Politics in the American dictatorship has all the genuine conflict of professional wrestling. This is another dog and pony show -- bread and circuses for the masses to make them think there is actual political conflict going on when no such conflict is present.

    For all the good or bad of Obamacare -- this is what the power brokers in Washington decided upon, and this is what you will have.

    Like you really get to make a choice -- who do you think you are, Egyptians?

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  9. I don't want to get all principled or anything all of a sudden, but I also find the WH criticism of the "radical" nature of Judge Vinson's severability ruling to be overblown and hypocritical.

    Proponents of HCR have long stressed the essential nature of the individual mandate -- it's how health care companies and Big Pharma can continue to make huge amounts of dough while providing a slight improvement for uninsured or underinsured Americans.

    (That's the "government by inches" distinctions GW is referring to).

    So like it or not, the mandate is indeed intrinsically linked to the bill as a whole -- it has always been argued as such -- and if you find that piece unconstitutional you do have a problem with the bill in toto.

    I'm not suggesting it's unconstitutional -- from what I can tell the Commerce Clause covers pretty much everything, but I don't see how you can argue cutting out the mandate is no big deal.

    Judge Vinson is not responsible for any of this; he's just a district court judge who I think ruled in good faith according to his own principles.

    Personally I blame Reid/Pelosi for years of ineptitude, obstructionist GOP partisans who don't give a crap, Obama for abandoning single-payer, and his failure to nominate more judges or push them through faster.

    I also blame the Jews. I mean, why not?

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  10. The central problem with the ruling is presuming that a person who does not buy health insurance has ZERO effect on commerce. This is not true because if that person gets sick, and has to seek medical care to which they can't pay, we all suffer. Thereby effecting commerce.

    That is where the Judge loses me.

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  11. 10:37, Steve Benen has an interesting take on your last point here:

    http://www.washingtonmonthly.com/archives/individual/2011_02/027788.php

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  12. The point that no defender of the individual manadate seems willing to address is, how can a government of limited and enumerated powers require someone to participate in market activity? Just saying that it has commercial effects isn't enough, because there is no commerce clause precedent for forcing every citizen to purchase a good or service.

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  13. @swlip

    the individual mandates supported by the GOP in places like Mass. are done on a state level. The states can require this. But the feds cannot.

    The only reason they congress and WH came up with this monstrosity was due to lack of cojones. Congress had the power all along under the taxation clause to create and fund a healthcare system. But because they did not want to be accused of raising taxes on everyone, they came up with this mess.

    The problem here is not with the judge who I believe followed existing US Supreme Court precedent. The problem lies with the way the law was written. Pure and simple and politics aside. It's sad that people would rather accept something that violates our Constitution simply because of the greater good behind the law.

    (Of course I still cannot fathom how growing and smoking your own pot substantially affects interstate commerce).

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  14. 1:39, nice way to cross reference Garvin.

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  15. If Democrats had done it that way, no one would have to buy health insurance, but our taxes would go sky high to pay for the new healthcare entitlement. The government would then be in control and would decide how much doctors make and how to ration care when there are fewer doctors. That is what the democrats really want anyway.

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  16. Reading the posts against health reform here, it's enlightening to realize that even lawyers, trained in logic and deduction, are not immune from propagandistic brainwashing.

    This fits in nicely with my plan... [evil grin]

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  17. GW, don't worry -- it will all be in Justice Kennedy's hands soon.

    (OK, start worrying....)

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  18. One more interesting tidbit, the 1993 GOP Bill which did have mandates imposed a "tax" for the failure to carry insurance as compared to the current law which imposes by definition, a "penalty" and not a tax.

    The original 2010 Act also had the word "tax" but it was changed to "penalty" obviously for political reasons. But that little change makes a world of difference on whether it's constitutional or not. The congress clearly has the power to tax and had they kept that one word in, this would all be a moot point as the law would valid on all 4's.

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