The following article elucidates the cited issues challenging the constitutionality of the Obamacare legislation and provides supportive legal history/cases bolstering this position. His argument is quite cogent and may serve as an appetizer for the argued positions when the States’ case is ultimately heard by the Supreme Court.
Importantly, this case can be considered to be a watershed one that can serve to vanquish and turn back the tide of ever expanding federal government insinuation and encroachment into our daily activities. Thus, if it is struck down by the Supreme Court, this defeat may very well be the Waterloo of the Progressive agenda.
ObamaCare: The 28th Amendment?
Roger D. Luchs April 17, 2011
ObamaCare is under assault, and properly so, because it tramples on enumerated constitutional rights of individuals and the states. Given President Obama's predilection, it must also be viewed as his most aggressive effort to date to recast the Constitution to empower the Federal government to inject itself into areas of everyday life from which it has been fenced off since its inception.
In a 2001 interview, Obama expressed frustration that the Constitution was framed as a "limiting" document rather than an "empowering" document. He understands that there is simply no prospect of amending it to bestow on Congress and him substantially broader authority to regulate broad sectors of the private economy. His sole option, then, is to convince the public that 225 years of constitutional jurisprudence is wrong or outdated.
ObamaCare is his opening salvo for making his case. No doubt there are more than a few liberal judges who will back him up. Some have already ruled in Obama's favor. If Obama succeeds even in only small part in recasting the Constitution as transferring powers to the central government beyond those expressly identified therein, then, to Obama and his liberal allies, it will be seen, to borrow a phrase, as "the end of the beginning" rather than "the beginning of the end."
Obama knows better, of course, which is why he said what he did in his 2001 interview. He can't change history, as much as he'd like to try, so he hopes to erase it from people's memories so over time, it is replaced with "progressive" reading of the Constitution. Facts, however, are stubborn things.
The colonies ceded to the newly-established Federal government only those powers they agreed among themselves would benefit the separate states, collectively. The Tenth Amendment reserved to the states those many powers not expressly ceded. The Bill of Rights was adopted to ensure that the Federal government could not infringe on the liberties the Revolution was fought to restore and preserve. Citizens of the colonies, and later of the territories, agreed to this arrangement with the understanding that the states and the Federal government would honor what was a set of covenants among them, which all agreed to honor so the nation would succeed. The Civil War was fought, in part, because to the Southern states, the North, when it elected Lincoln, signaled its willingness to violate that compact, by changing one of the key terms to which it had agreed to obtain Southern participation in the union. The Civil War, once concluded, was followed by several amendments which extended the reach of the Bill of Rights to state governments.
Though the Civil War brought forth a "new nation," by destroying the institution of slavery, and causing the amendment of the Constitution to protect freedoms of newly-liberated citizens, in all other respects, it reverted to what it was originally intended to be, i.e., a compact that ceded to the Federal government only those powers that would enable the nation to take on the character of a unified assemblage of willing actors. Although in the New Deal, its powers were broadened, neither Roosevelt nor succeeding presidents sought to recast the fundamental nature of the Constitution.
Those states which have already challenged ObamaCare have focused, in part, on the Tenth Amendment's preservation of state power over those realms of governance and regulation not expressly ceded to the Federal government. Historically, each state has exercised sovereign authority over the conduct of the insurance business within its borders. Although the Supreme Court ruled in 1944 that certain aspects of the insurance business were subject to the Commerce Clause and, therefore, the sovereignty of the states to regulate insurance within their respected borders could be preempted by Congress, in its regulation of interstate commerce, Congress rebelled. It overrode the Court's ruling, by enacting legislation reaffirming the sovereignty of the states over the insurance business, except as specified in the statute.[1] Absent a change in that law, then, the President's ability to infringe upon and override state sovereignty over insurance business conducted within the states' respective borders is minimal. ObamaCare, nevertheless, includes several mandates to insurers which arguably exceed the Federal government's powers to regulate insurance. However, those pale in comparison to the individual mandate.
It is that mandate that most clearly signals Obama's intent to "rewrite" the Constitution to dispense with its fundamental character. The mandate implicates the Bill of Rights' guarantee that persons may not be deprived of life, liberty or property without due process of law. Obama, in this regard, must be creative, because his mandate infringes upon the same right of privacy liberals fought for years to establish, in order to afford women a constitutional right to abortion. It seems self-evident that if that right inhibits the Federal and state governments from intruding upon a woman's choice, then it also protects women, and men, from government interference in their choices affecting their personal physical and mental well-being.
ObamaCare's guiding principle, however, is not paternalism. It is about the government's power to identify "public uses," as contemplated by the Fifth Amendment, and then compel unwilling individuals to engage in conduct that would, in the government's view, advance such uses. Requiring someone to buy health insurance from a private insurer is no different, in kind, from forcing New London, Connecticut property owners to sell their land to a private development authority established by the city, so that it could devote that property to more "productive" uses.[2] In the case of ObamaCare, the "public use" contemplated is a Federally- controlled, all encompassing healthcare system that would compel the citizenry to purchase insurance, to facilitate the government's exercise of control over how they make use of the healthcare system, which comprises about 16% of the private economy. It is a means to achieving a Federally-prescribed end.
However unjust the circumstances in Ms. Kelo's case, at least the Fifth Amendment ensured that she would receive "just compensation". The Constitution expressly recognizes the doctrine of eminent domain, though that is an ancient doctrine founded on the principle that real property belongs to its owners, and they may not be compelled by government to part with it, except under limited circumstances, and for a fair price.
Anyone forced to buy health insurance will also be compelled to part with private property, i.e., private wealth, but unlike in Kelo, what he receives in return is what the government instructs him to receive, i.e. insurance from a private insurer, the content of which will be regulated, to some extent, by the Federal government. It is fair to ask, if the Constitution required amendment to authorize a Federal income tax which taxpayers must pay to avoid punishment, why should an amendment not also be a prerequisite to the implementation of ObamaCare?
If there is any doubt about government's power to compel ordinary citizens to engage in conduct mandated by the Federal government, one need only look at Supreme Court precedent on the constitutionality of Federal rent control statutes to allay such doubt. Rent control, and its intersection with Constitutional rights, was taken up in challenges to rent control statutes enacted in World War I and World War II. In two precedential decisions, the Supreme Court ruled that the laws were constitutional, because they were adopted as temporary measures, enacted by Congress in the exercise of its police power, to meet the exigencies of the pending wars.
In its decisions, the Court, both implicitly and explicitly, focused on provisions in each statute that carved out an exception for property owners who wanted to remove their properties from the rental market. Each statute reserved to this right to landlords, even if they did so solely to avoid being subjected to Federal regulation. In the decision upholding the World War I statute, Justice Holmes, writing for the majority, commented that "there comes a point at which the police power ceases and leaves only that of eminent domain."[3] Applying this same reasoning to ObamaCare, anyone forced to purchase health insurance will find himself entangled in the Federal regulatory scheme that will accompany that law's implementation, but, unlike government-imposed rent control, without any viable way to escape participation.
It is no answer that ObamaCare offers the uninsured a choice, i.e. the option to pay a fine in lieu of mandated health insurance. Under the doctrine of eminent domain, there is no "option" to pay a fine in lieu of selling one's property to the government, but the government must pay the property owner the value of his property and the property owner may use that payment as he wishes. Under ObamaCare, the government will pay the involuntary purchaser nothing in exchange for forcing him to buy health insurance. The uninsured's choice, then, falls somewhere between Scylla and Charybdis.
Beyond this, the Eighth Amendment, which bars "cruel and unusual punishments," contains a separate provision which raises an additional doubts about ObamaCare's constitutionality. That provision prohibits government from imposing "excessive fines." This language was included to prevent the arbitrary use of what in feudal times were known as amercements, employed by the crown to punish those who offended the king, or violated the king's law. Amercements had sometimes been used to ruin people financially. Because ObamaCare's fines are intended as punishment for those who refuse to buy health insurance, they too, may be excessive, at least in some instances. Absent a binding court ruling in which it is held that the statutory fines may be imposed uniformly, they are ostensibly subject to review on a case by case basis. It is doubtful that the blanket imposition of more than a token fine without regard to each person's circumstances can withstand judicial scrutiny, except, of course, by liberal judges who are indifferent to the merits of challenges to ObamaCare's constitutionality.
To Obama and his fellow "progressives", it is too much to ask that the compact upon which the nation was founded should stand in their way. The Administration and the political movement it represents are intent on changing the rules of the game for all times, and not just to legitimize ObamaCare. If they succeed, over two centuries of jurisprudence consistent with the Founders' intent will be replaced by a new jurisprudence that leaves the Constitution, as drafted and originally adopted, just dust in the wind. Over generations, any understanding of the framers' original intent will gradually fade into the background.
But properly and aggressively challenged, ObamaCare could become this century's Hindenburg. If it does crash and burn, there is little doubt that whatever takes its place will have to heed the limits on government's power set by the Constitution. If fully informed, the public will expect, and demand, no less.
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[1] United States Dept. of Treasury v. Fabe, 508 U.S. 491 (1993)
[2] Kelo v. City of New London, 545 U.S. 469 (2005)
[3] Block v. Hirsh, 256 U.S. 135, 154(1921). The World War II law is addressed in Bowles v. Willingham, 321 U.S. 503, 517 (1944). ("There is no requirement that the apartments in question be used for purposes which bring them under the Act.")
With the 2011 and 2012 budgets occupying much of the news these days, coverage of attempts to defund and dismantle Obamacare by the Republicans have been relegated to low priority and interest by the liberal “mainstream” media. We must make sure that the anathema of Obamacare be relentlessly publicized.
This dangerous, disastrous and extraordinarily expensive government take-over of healthcare and usurpation of our rights must be abrogated. The American people have unequivocally voiced their antipathy of this government confiscation. They know what this will lead to and on virtually all accounts, it is extremely bad.
Socialized medicine has been an abysmal failure worldwide and there were and are so many models that exemplify this. Canada and Great Britain are quintessential examples of this. Both countries are have been seeking radical changes in order to improve their abject care and bankrupting costs.
We must continue to keep the pressure on our politicians for the repeal of Obamacare. This corruptly passed (and probably unconstitutional) legislation was all about power and control by the Democrats – and not about costs or access.
Pain And Suffering
Investor’s Business Daily 04/06/2011
Health Care: Recall the complaints that the U.S. is the only developed nation in the world that doesn't provide universal medicine? So how's that arrangement working elsewhere? Rather poorly, particularly in Britain.
Agitators for government health care can no longer, as they did at one time, hold up the British system as the model the U.S. should follow. They've learned to stay away — and for good reason. The system has followed the path that all socialist systems must follow: It is breaking under its own weight.
The nation with the reputation for rotten dental care is quickly developing a reputation for delays in medical treatment. "Devastating and cruel" is how British surgeons are now describing the long waits for operations.
It's the National Health Service's way, reports the BBC, of finding nearly $33 billion in efficiency savings by 2015. To achieve those savings, knee and hip replacements apparently have been limited by the bureaucratic rationing teams.
"We've started to get reports over the last nine months that access to these services is being restricted," Peter Kay, president of the British Orthopaedic Association, told the BBC. Of the 692 surgeons contacted by the broadcaster, 106 said "routine operations had been put on hold in their area. Others described new limits on when patients qualify for hip or knee replacements."
Meanwhile, "152 specialists said patients now have to be more disabled or in greater pain, and 118 told us hip and knee surgery had been regarded as a procedure of low priority."
The consequences of trying to treat everyone through the government go far beyond the pain and suffering of missed joint-replacement surgery. Sometimes, the wages are death.
That's how it ended for Margaret Hutchon, who happened to be a former NHS director. She died last month, the Daily Mail reported, "after waiting for nine months for an operation — at her own hospital" (emphasis ours).
She "had been waiting since last June for a followup stomach operation," but "her appointments to go under the knife were cancelled four times and she barely regained consciousness after finally having surgery."
Not only are treatments being delayed, so is NHS legislation that would, among other provisions, make the system less bureaucratic and increase private-sector involvement.
The political left, which clings tenaciously to government programs that permit the exercise of power over others, has demagogued the legislation, sounded the dreaded "privatization" alarm and won a delay.
Britons should be outraged. If the government taxes them to fund universal care, they should get the care. If the government can't do the job — which clearly it can't — it should get out of the business of meddling in people's lives and let everyone take care of his or her own health care.
Americans should be outraged as well, because a Democratic Congress and White House have forced on them a program that will be no more successful than the British health care wreck.
Yes, ObamaCare is an unpopular law with low approval ratings. But the antipathy toward it and those who engineered its passage over constitutional limitations and public opposition is not as intense as it should be.
Pressure for ObamaCare's repeal should be so sharp that official Washington will be left with no other option. If not, the British health care problems of today will be America's health care problems tomorrow.
In the following article, Peter Ferrara lucidly and thoroughly dissects Judge Vinson’s ruling on Obamacare which was deemed to be unconstitutional and then conjectures on its future prospects and potential political actions that may need to take place. He reviews the painstaking research including historical precedents and considerations and the flawless logic in arriving at what appears to be a conclusion and ruling that will be extremely difficult to be overturned by the Supreme Court justices if intellectual integrity is employed.
Judge Vinson proclaimed in his verdict that:
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…that compelling the actual transaction is itself commercial and economic in nature, and substantially affects interstate commerce…it is not hyperbolizing to suggest that Congress could do almost anything it wanted.
The real coup de grace for Obamacare in Judge Vinson’s ruling which ironically touches upon the original Tea Party was his prescient statement:
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.
This is an outstanding assessment of the ruling and dim future prospect for Obamacare is a must read.
The Legal Future of Obamacare
Peter Ferrara 2/2/2011
As of this moment Obamacare is officially not the law of the land. As Federal Judge Roger Vinson ruled on Monday in Florida, "[T]here is a long standing presumption that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction." That law as declared by the Federal District Court in Florida is now that Obamacare is unconstitutional.
This, of course, is the second federal court ruling that Obamacare is unconstitutional, following the ruling of Judge Henry Hudson in the Northern District of Virginia on December 13. I predicted in this space at the time that Judge Vinson would rule the same. Now he has. I filed amicus curiae briefs in both cases on behalf of the American Civil Rights Union arguing for these results. Those briefs drew on my work in The Obamacare Disaster: An Appraisal of the Patient Protection and Affordable Care Act, published by the Heartland Institute.
Recall former House Speaker Nancy Pelosi laughing off Tea Party objections that Obamacare was unconstitutional with the reply, "Are you serious? Are you serious?" Now she knows just how serious we were.
Limits to Federal Power
Judge Vinson's ruling, as Judge Hudson's before him, represents a return to the original Constitution of limited enumerated powers delegated by the people to the federal government. Vinson opens his decision quoting James Madison in the Federalist Papers explaining, "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite," noting further that "the Tenth Amendment reaffirmed that relationship."
Vinson goes on to explain that the reason for that is to "ensure protection of our fundamental liberties" and "reduce the risk of tyranny and abuse." He goes on to quote the ultimate explanation again from James Madison in The Federalist Papers:
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
The enumerated power claimed by Congress for Obamacare was the Commerce Clause, which grants Congress the power "To regulate Commerce with foreign nations, and among the several states, and with the Indian Tribes." Trade among the states was mentioned so Congress would have the power to eliminate the protectionist trade restrictions and barriers that had been erected among the states against trade with each other. Eliminating those protectionist trade barriers is a fundamental reason for the long term, world leading prosperity of America. This is the original reason for the Commerce Clause, not to allow abominations like Obamacare.
But this was dramatically changed during the New Deal to allow Congress to affirmatively regulate interstate commerce based on the language of the Commerce Clause, and neither Judge Vinson nor Judge Hudson challenged that change. But more recent Supreme Court decisions have reaffirmed that there are still limits to Congress's power to regulate under the Commerce Clause. Both Judge Vinson and Judge Hudson have now ruled that the individual mandate in Obamacare exceeds those limits.
Obamacare's individual mandate requires all individuals without employer-provided health insurance to buy insurance with all the politically correct and expensive coverage the government dictates they must buy. But as Judge Vinson noted, " (essentially for life) just for being alive and residing in the United States." Every prior regulation upheld as constitutional under the Commerce Clause involved some activity that could be construed as participation in interstate commerce. But failure to buy health insurance involves no such activity, and no participation in interstate commerce at all.
As a result, Judge Vinson concluded:
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…that compelling the actual transaction is itself commercial and economic in nature, and substantially affects interstate commerce…it is not hyperbolizing to suggest that Congress could do almost anything it wanted.
Then in words that will be memorialized on future Tea Party walls, Vinson wrote:
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.
Judge Vinson consequently ruled, "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."
They Can't Believe He Ate the Whole Thing
Once the individual mandate was declared unconstitutional, it was inevitable that the whole Obamacare law would be struck down, as Judge Vinson also ruled. The legislation included no severability clause as in most every bill, which provides if one provision is struck down, the rest survives. That was not an oversight.
Without the individual mandate, the rest of Obamacare is transparently unworkable, as President Obama and the Democrats themselves said during the jihad for its enactment. That is because the bill also includes what is known as "guaranteed issue" and "community rating." Under those provisions, an insurance company must insure whoever applies, and charge them no more than anyone else, no matter how sick or costly they are when they first apply.
This is like fire insurance regulation requiring the insurer to accept whoever calls for coverage, and to charge them no more than anyone else, even if their house is already on fire when they first call! In health insurance as in fire insurance, this would naturally cause premiums to skyrocket. But it's worse than that.
The skyrocketing premiums cause younger and healthier individuals to drop their coverage. That forces insurers to raise premiums even more because the remaining pool is even sicker and costlier on average. The younger and healthier than flee even more,knowing they can automatically get coverage later if they become sick! In fire insurance terms, this leaves the insurer with a "risk pool" of all burnt down houses, which is quite costly to cover. The result is a financial death spiral both for the insurers and anyone still trying to pay premiums.
The individual mandate was intended to be the antidote to this death spiral. If everyone must buy the insurance in any event, premiums would still rise, but no one could drop out in response. The system could then still function, albeit at higher insurance rates, exactly contrary to what was promised. But without the individual mandate, the whole system inevitably collapses as described above.
This is why, as Judge Vinson wrote, "the defendants concede that the individual mandate is absolutely necessary for the Act's insurance market reforms to work as intended. In fact, they refer to it as an essential part of the Act at least fourteen times in their motion to dismiss." Where there is no severability clause, the legal standard that determines whether the whole law must be struck down is whether what is left can still function independently of the part that was struck down, and whether Congress would have intended for the law to continue in that manner. The remaining dysfunctional Obamacare without the individual mandate does not fit this legal standard.
As a result, Judge Vinson rightly concluded:
[T]he record seems to strongly indicate that Congress would not have passed the Act in its present form if it had not included the individual mandate. This is because the individual mandate was indisputably essential to what Congress was ultimately seeking to accomplish….The Act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker.
The Supremes in the Final Act
Just as I predicted that Vinson would follow Hudson in making this ruling, I predict as well that Justices Roberts, Scalia, Thomas, and Alito will now follow Vinson and Hudson in also finding the individual mandate unconstitutional, and in throwing the whole Obamacare Act out on the same grounds as above.
The swing fifth vote is as usual up to Justice Anthony Kennedy. I believe what will be decisive in winning his vote as well is to demonstrate there are other alternative means to achieving the goals of Obamacare that would be constitutional, so we would not be asking Kennedy to rule that universal health care for all must be unconstitutional.
Just two basic reforms would provide a universal health care safety net that would ensure that no one need ever suffer without essential health care. First would be to block-grant Medicaid back to the states, with each state then to replace it with Medicaid vouchers for the purchase of private health insurance. Each state would decide how much to provide at each income level in their state to ensure that no one would lack basic health insurance because they were too poor.
This would benefit the poor enormously because the current Medicaid program so badly underpays doctors and hospitals that the poor often cannot find doctors and hospitals that will treat them under Medicare. With these Medicaid vouchers, the poor would enjoy the same health care as the middle class, because they would enjoy the same health insurance as the middle class.
The second reform is state uninsurable risk pools for those who nevertheless still do not buy health insurance, and then become too sick and costly to buy it, like the homeowner who fails to buy fire insurance before his house catches on fire. These uninsurables would get coverage from the risk pool, paying premiums based on their ability to pay. The state would subsidize the pool for the remaining costs. A majority of the states already operate such uninsurable risk pools, and they have proved quite workable.
Everyone would then have the means of obtaining essential coverage and care, without any individual or employer mandate. Indeed, unlike Obamacare, this safety net covers everyone, and so achieves the valid social goal far better.
These reforms would not be costly because less than one fourth of the uninsured fail to get health coverage because they are too poor to do so, and only a relatively small number of people find themselves without insurance and then too sick to get it. If we do this in the context of block-granting Medicaid back to the states, the net result could well be less overall government spending rather than more. The only reason President Obama and the Democrats would not even consider this approach is that it does not involve the government takeover of health care, which was the real goal all along, so the wise government could run health care in the interests of progressive "social justice" (which sometimes means denying people health care).
The only option left for President Obama is to decide when he gets the final death notice for Obamacare, before the 2012 election or after. If he agrees to an expedited appeal to the Supreme Court, he will likely have to run for reelection having wasted his first term putting the entire country through a meaningless exercise, which only served to discredit the Democrat party. If he decides to slog through the Circuit Courts, he will likely suffer further adverse rulings before Election Day, with legal momentum building against him, reinforcing the likelihood that the Reagan-appointed Kennedy would go with the conservatives.
We can see the impact of that legal momentum in Vinson's ruling. Hudson declined to strike down the entire statute, even though that inevitable result was obvious then, undoubtedly because he felt it was brave enough to find the individual mandate unconstitutional. But Vinson was emboldened by his ruling as a bolstering precedent to go the whole nine yards.
But it would be wise to deny Obama even this choice, because which way Kennedy would go can never be certain. That is why Senate Republicans should still force a vote on the House repeal, which is even more likely to win assent now. Obamacare will decline even further in the polls as the public increasingly recognizes its unconstitutionality, and even fewer Senate Democrats will be willing to fall on their political swords for an increasingly doomed cause.
President Obama would then have the choice of killing his own Obamacare baby himself, and then running on taking the credit for it.
Peter Ferrara is director of entitlement and budget policy at the Institute for Policy Innovation, a policy advisor to the Heartland Institute, a senior fellow at the Social Security Institute, and general counsel of the American Civil Rights Union. He served in the White House Office of Policy Development under President Reagan, and as Associate Deputy Attorney General of the United States under the first President Bush. He is a graduate of Harvard College and Harvard Law School. He is author of The Obamacare Disaster, from the Heartland Institute, and President Obama's Tax Piracy.
In a very strong and unambiguous decision, a U.S. District judge in Florida ruled that the individual mandate of Obamacare requiring people to buy health insurance violates the Commerce Clause of the Constitution. Judge Roger Vinson further declared that "Because the individual mandate is unconstitutional and not severable, the entire act must be declared void."
This is very positive news for all Americans who are strongly against the federal government’s legislated takeover of the health care system. As expected, the Dept. of Justice is appealing this verdict to the 11th Circuit of Appeals.
Ultimately as we all know, the final decision on this issue will be determined by the Supreme Court.
Judge Rules Health Care Law Is Unconstitutional
January 31, 2011 FoxNews.com
A U.S. district judge on Monday threw out the nation's health care law, declaring it unconstitutional because it violates the Commerce Clause and surely reviving a feud among competing philosophies about the role of government.
Judge Roger Vinson, in Pensacola, Fla., ruled that as a result of the unconstitutionality of the "individual mandate" that requires people to buy insurance, the entire law must be declared void.
"I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the act with the individual mandate. That is not to say, of course, that Congress is without power to address the problems and inequities in our health care system. The health care market is more than one-sixth of the national economy, and without doubt Congress has the power to reform and regulate this market. That has not been disputed in this case. The principal dispute has been about how Congress chose to exercise that power here," Vinson wrote.
"While the individual mandate was clearly 'necessary and essential' to the act as drafted, it is not 'necessary and essential' to health care reform in general," he continued. "Because the individual mandate is unconstitutional and not severable, the entire act must be declared void."
Department of Justice spokeswoman Tracy Schmaler said the department plans to appeal Vinson's ruling to the 11th 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," she said. "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," she added.
The case is undoubtedly headed to the Supreme Court. But for now, opponents of President Obama's signature domestic legislation exalted while supporters denounced the decision.
"I applaud the ruling today by Judge Vinson," said Florida Gov. Rick Scott, who, prior to getting elected in November, helped lead the charge against the law. "In making his ruling, the judge has confirmed what many of us knew from the start -- ObamaCare is an unprecedented and unconstitutional infringement on the liberty of the American people. ... Patients should have more control over health care decisions than a federal government that is spending money faster than it can be printed."
"Judge Vinson's decision is radical judicial activism run amok, and it will undoubtedly be reversed on appeal. The decision flies in the face of three other decisions, contradicts decades of legal precedent, and could jeopardize families' health care security," said Ron Pollack, executive director of Families USA. "If this decision were allowed to stand, it would have devastating consequences for America's families."
Vinson's decision, while surprising, was not unforeseen. In October, the judge dismissed four of the six counts in the suit led by then-Florida Attorney General Bill McCollum and joined by 25 other states. But he allowed two counts, including one challenging the law's controversial requirement that Americans buy health insurance, to proceed. Arguments were heard in December.
In his earlier ruling, Vinson said that a government report called the requirement to buy insurance legally unprecedented and worth examining in court.
"The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive," he wrote.
Nearly two dozen suits have been filed in federal courts, but Monday's ruling is the biggest judicial decision to come down the pike since Congress last March passed the bill aimed at covering 30 million uninsured Americans whether they want insurance or not.
In other cases, a federal district judge in Richmond, Va., ruled the individual mandate is unconstitutional but left standing other parts of the law. In Michigan, the argument concerning the "individual mandate" -- the central tenet that requires Americans to start buying health insurance in 2014 or pay a penalty -- was thrown out by another federal judge.
"That judge, under his mindset, said basically if someone thought that I were overweight, if they rule this way, the federal government would be able to mandate that I go down to the Gold's Gym and fill out an application and contract with Gold's Gym to lose weight and lower my cholesterol," said South Carolina Attorney General Alan Wilson, whose state is among the parties filing the multi-state suit. "That is the kind of logic that we're going to right now where you're actually telling people that they have to engage in an activity and that is simply too broad a policy for the federal government."
Last week, the U.S. House of Representatives passed a repeal of the 10-year, $1 trillion plan that critics say will cost closer to $2.6 trillion. But the repeal bill will likely die in the Senate, meaning Vinson's ruling is the newest grounds on which supporters and opponents proceed.
Defenders of the law say that Americans need to be covered from ruthless insurance companies that either refuse to insure children with illnesses and adults with pre-existing conditions or charge exorbitant amounts for individual coverage. The law aims to provide a federal umbrella under which Americans can purchase and keep insurance regardless of their health, career changes or ability to pay.
But Vinson said that is not the U.S. government's job.
"Regardless of how laudable its attempts may have been to accomplish these goals in passing the act, Congress must operate within the bounds established by the Constitution. Again, this case is not about whether the act is wise or unwise legislation. It is about the constitutional role of the federal government," he wrote.
Supporters of the law also note that Congressional Budget Office figures that show if repealed, government deficits will climb by $230 billion over the next 10 years.
Critics counter with a "junk in, junk out" description of the CBO's estimates, claiming the numbers used to reach the conclusions are bogus and based on best-case scenarios that don't realize additional spending and unlikely savings, particularly as the law, in the first decade, collects taxes for 10 years though it only pays for six years of coverage and relies on money to be collected for a separate health program -- Medicare.
In his State of the Union address, Obama said he was willing to open his mind to changes in the law if they made dollars and sense and didn't prevent patients with pre-existing conditions or other barriers to insurance companies from gaining coverage.
He pointed to the near-universally hated 1099 provision that orders businesses to report to the Internal Revenue Service all purchases exceeding $600 as the first provision to be scrapped.
Obama Chief of Staff Bill Daley repeated the president's position on Sunday, adding that the law was intended to help employers as much as patients.
"The president has said he's open to changes to this. He is not open to re-fighting the entire fight of health care," Daley told CBS' "Face the Nation."
"I absolutely believe, having been in business and hearing from business people, the importance of a need for the reform of health care. It was the business community that was really saying to the politicians, this is costing us too much, it's too much of a wet blanket on the economy," he said.
It is an auspicious start as the House Republicans have kept their campaign promises to seek the repeal of Obamacare and have successfully passed such a bill in the House. Though the Senate is expected either not to bring the repeal to a vote or fail to pass it due to Democrat control, their action shows unity and resoluteness in the Republican Party on this issue and responsiveness to the will of the majority of voters and may enlighten voters in decision making regarding the Democrats in the next election.
House Republicans Vote to Overturn ObamaCare in Symbolic Move
January 19, 2011 FoxNews.com
Speaker of the House John Boehner
WASHINGTON -- The newly muscular House Republicans voted Wednesday to overturn President Obama's health care overhaul -- a move that is largely symbolic because the Democratic-controlled Senate is poised to ignore it while Obama is certain to veto it should it somehow pass through Congress.
The House passed the bill 245-189 with three Democrats -- Reps. Mike Ross, Dan Boren and Mike McIntyre --joining the Republican effort.
Even though Democrats are certain to block the bill in the Senate, Republicans are determined to chisel away at the law through attempts to deny funding for parts of the legislation as they go into effect in the coming years.
"The Congress can do better in terms of replacing Obamacare with common-sense reforms that will bring down the cost of health insurance and expand access for more Americans," House Speaker John Boehner said Wednesday.
House Majority Leader Eric Cantor took aim at Senate Majority Leader Harry Reid, who has said he won't even take up the repeal measure in his chamber.
"I've got a problem with the assumption here that somehow the Senate can be a place for a legislation to go into a cul-de-sac or a dead end," he said. "The American people deserve a full hearing. They deserve to see this legislation go to the Senate for a full vote."
Republicans and Democrats adopted a more civil tone without angry shouts in the first debate after the shooting rampage in Arizona that left a Democratic congresswoman wounded and lawmakers of both parties stunned.
The House vote had been slated for last week as the Republicans' first order of business -- a campaign promise that helped them regain the majority in the lower chamber. But action was put off after the attack on Arizona Rep. Gabrielle Giffords, who was shot through the head. She is hospitalized in serious condition, but six others who attended her meeting with constituents in Tucson, Arizona, were killed. They include a federal judge and a 9-year-old girl.
While most politicians agree that the heated rhetoric had gotten out of hand, little has changed in narrowing the deep partisan divide on such key issues as the health care reform legislation.
The measure that Obama signed into law last March extended health care coverage over a period of four years to 32 million Americans who now lack it, and reshaped the way most Americans receive and pay for medical treatment. The signing followed a year of intense political battles and marked a victory that eluded presidents stretching back almost half a century.
The health care law has divided the nation, and polls show many Americans support repeal even though they favor keeping certain elements.
Dissatisfaction with the law stems in part from a powerful campaign by Republicans and the conservative Tea Party movement to portray it as further intrusion into citizens' private lives by the federal government.
Some insisted the new legislation amounted to socialized medicine, even though parts of the law were lifted from a Republican plan drawn up in the 1990s.
In some extreme cases, opponents falsely claimed that the legislation would set up so-called government "death panels" to decide when to end treatment for elderly patients.
Others object to it on the basis that it's too expensive, especially given the spiraling U.S. deficit.
Now, Republicans are warning the health care reform law will cost 650,000 U.S. jobs if it is not repealed. Experts debunk that claim as a creative use of statistics from the nonpartisan Congressional Budget Office.
What the CBO actually said is that the impact of the health care law on supply and demand for labor would be small. Most of it would come from people who no longer have to work, or can move to less demanding employment, because insurance will be available outside the job. Under the previous system, most Americans got their health insurance through work.
For the tens of millions of Americans who are vehemently opposed to Obamacare, its mandates and federal government intrusion in their health care, there is great news. U.S. District Court Judge Henry Hudson issued a ruling on intrinsic issues of Obamacare yesterday. His verdict was that the requirement that a person purchase health insurance "exceeds the constitutional boundaries of congressional power" meaning that it is unconstitutional.
On the question as to whether this issue could abrogate that entire legislation, he did not commit except to state that though there was not a severability clause in it, he did not have enough information to adjudicate this.
It is now on to the Supreme Court for this particular challenge of Obamacare. There are many other lawsuits waiting in the wings.
Federal Judge Declares ObamaCare's Mandate Unconstitutional
Philip Klein on 12.13.10
Dealing a blow to the Obama administration, a federal Judge on Monday ruled that the requirement that individuals purchase health insurance -- a central component of the national health care law -- "exceeds the constitutional boundaries of congressional power."
In a 42-page ruling (PDF), U.S. District Court Judge Henry Hudson, an appointee of George W. Bush, said that the Commerce Clause of the constitution did not give the federal government the authority to force an individual to purchase something. He also rejected the Obama administration's argument that the mandate to purchase "minimum essential coverage" was justified by Congressional taxing power. At the same time, Hudson declined to overturn the entire law, severing the mandate from the rest of the legislation.
The decision arose from a lawsuit brought by Virginia Attorney General Ken Cuccinelli, one of the two main legal challenges to ObamaCare. The other one is led by Florida and involves 19 additional states.
"Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market," Hudson wrote. "In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I."
The judge went on to say that, "Because an individual's personal decision to purchase -- or decline to purchase -- health insurance from a private provider is beyond the historical reach of the Commerce Clause, the Necessary and Proper Clause does not provide a safe sanctuary...The Minimum Essential Coverage Provision is neither within the letter nor the spirit of the Constitution. Therefore, the Necessary and Proper Clause may not be employed to implement this affirmative duty to engage in private commerce."
The Obama administration had also advanced a secondary argument that the mandate could be justified under the Congress's power to levy and collect taxes. Yet Hudson said this argument didn't hold up, because the revenue collection element is incidental to the mandate -- it's a penalty and its primary purpose is as a regulatory enforcement mechanism. Also, the legislation itself cited the Commerce Clause as its constitutional justification.
Hudson did rule against Virginia on two other counts, though. As enacted, the law did not include what's known as a "severability clause," which specifies that if one part of the law is struck down, the rest of the law stands. Virginia had argued that it should be struck down entirely if the mandate is considered unconstitutional, but Hudson declined to do so, saying the Court didn't have sufficient information to determine "what, if any, portion of the bill would not be able to survive independently."
Hudson also declined to grant Virginia's request for an injunction against the mandate, because it has not yet gone into effect.
The judge acknowledged that "the final word will undoubtedly reside with a higher court."
It should be noted that in two other lower profile cases, liberal judges have upheld the health care law. So ultimately, it's likely that this will end up having to be decided by the Supreme Court, with Anthony Kennedy, as always, casting the deciding vote.
The arrogance, disdain for the average American, limitless deception, elitism and egregious naked power grab of Obama, Pelosi and the Congressional Democrats in the formulation and corrupt passage of government controlled health care exceeded a level of reprehensibility unparalleled in Washington politics. It irrefutably demonstrates an intention and method for stealing our personal rights and liberties away and providing an irreversible way for the federal government to rule us – not represent us.
This is government by fiat as in many Third World countries – not by legal, Constitutional means. As enumerated below, the Democrats sought to shield this legislation from attempts to change or nullify it and did so in ways that were blatantly unconstitutional and depraved.
The Goldwater Institute is attempting to block a crucial provision of Obamacare: the creation of the Independent Payment Advisory Board which is charged with creating Medicare policies and health care payments. It is an autonomous commission with members appointed by the President that is designed to have no Congressional oversight or be subject to judicial review.
This arrangement wreaks tyranny – and was just what Obama and Pelosi wanted.
The election was one payback for the public’s rebuking of this pernicious legislation. We strongly recommend that the soon to be Republican dominated House impose condign retribution for the depraved actions of these two despicable politicians. It can start, for example, by severely curtailing Obama and Michelle’s White House budgets including for parties, trips, etc.
Keep them on a short leash and punish them financially when possible!
Goldwater Institute Asks Court To Block Key Provision of Federal Health Care Law
Health care bill created ‘untouchable’ Independent Payment Advisory Board
Goldwater Institute News Release
November 16, 2010
PHOENIX – The Goldwater Institute has requested an injunction [1] to block a provision of the federal health care law that prevents Congress from repealing a new agency that would control health care payments. A preliminary injunction is needed so Congress can consider revoking the Independent Payment Advisory Board before the agency has been established.
Among other measures, the federal health care law orders the creation by 2012 of the Independent Payment Advisory Board, an unelected commission that will be free to set Medicare policy and health care payment rates with no meaningful congressional oversight and without the possibility of judicial review. The law also prohibits Congress from acting to repeal the agency in perpetuity, except for a narrow window in 2017.
“Protecting any new federal agency from being repealed by Congress appears to be unprecedented in the history of the United States,” said Diane Cohen, the Goldwater Institute’s lead attorney in this case.
The motion for preliminary injunction has been filed as part of Coons v. Geithner [2], one of nearly two dozen lawsuits around the country challenging the health care law. If granted by U.S. District Judge Murray Snow, the injunction will be the first time that any part of the law has been blocked, said Clint Bolick, litigation director at the Goldwater Institute.
“This injunction would restore power to our elected representatives to repeal an agency with new sweeping powers that are removed from any semblance of legislative, executive, or judicial review,” Mr. Bolick said.
The Goldwater Institute Scharf-Norton Center for Constitutional Litigation represents a number of clients in this lawsuit including U.S. Representatives Jeff Flake, Trent Franks, and John Shadegg of Arizona. The congressmen have supported repeal of the Independent Payment Advisory Board, a 15-member commission appointed by the president that will have far-reaching and uncontrollable powers, Ms Cohen said.
Unlike any other federal commission, the Independent Payment Advisory Board won’t have to follow the basic steps for adopting and enforcing administrative rules. The board’s annual payment schedules and policy proposals can’t be examined by the courts and automatically will become law unless amended by Congress through a difficult and complex procedure.
Finally, even if Congress were to approve a repeal of the board in 2017, following the complex process allowed in the health care law, that repeal automatically would be delayed until 2020.
“No possible reading of the Constitution supports the idea of an unelected, standalone federal board that’s untouchable by both Congress and the courts,” Mr. Bolick said.
The appearance of the Tea Parties is a powerful statement of the parallels between our political situations today and those during the pre-Revolutionary times under British rule. We now have a triumvirate of Obama, Pelosi and Reid as compared to just King George III. Unfortunately, we have almost come full circle, largely as a result of our autocratic elitist government under unstoppable Democratic domination.
A similar comparison was employed by Virginia’s attorney general, Ken Cuccinelli, when he appeared in federal court this week arguing against the constitutionality of Obamacare which mandates that all citizens purchase health insurance. In fact, he noted that Obama WAS WORSE than King George III.
Given our historical perspective and the responses of these two heads of state to their “subjects”, we find his argument difficult to refute.
Virginia attorney general compares Obama to King George III
Chris Moody - The Daily Caller 10/18/2010
Virginia’s fiery attorney general Ken Cuccinelli, who argued against the constitutionality of the health care law in federal court this week, has a new line: President Obama is worse than King George III, the English king in power when Americans declared independence in 1776.
Cuccinelli said Monday that at no other time in American history had a government forced citizens to purchase a product and gotten away with it, even the British King that sparked the American Revolution.
The Patient Protection and Affordable Care Act passed in April contains a provision that requires citizens to buy health insurance. Virginia’s lawsuit argues that the mandate is beyond the powers of the federal government, as defined in the Constitution. (A Massachusetts state measure, championed by former governor and Republican presidential candidate Mitt Romney, requires everyone in the state to have insurance.)
In 1774, the American colonists signed onto a document that notified King George III that Americans would boycott British goods until the so-called “Intolerable Acts” were lifted. Speaking like a history professor, Cuccinelli told the story of how American colonists boycotted British products in response to the Acts more than 200 years ago.
“The King’s own lawyer, his solicitor general, advised him that the boycott was legal under British law and that Americans could not be forced to buy British goods,” Cuccinelli said. “Yet in 2010 we have a Congress and a president that have enacted a law that compels Americans for the first time in history under the guise of regulating commerce, that they must buy a private product even when the King of England and the parliament that we rebelled against acknowledged that they should not have the authority to compel us to do that when we were their subjects.”
The Obama administration has countered that Congress has the power to mandate health insurance under the Commerce Clause of the U.S. Constitution. The battle over the mandate is expected to reach the U.S. Supreme Court.
The multistate lawsuit challenging the constitutionality of Obamacare has cleared a major hurdle. U.S. District Judge Roger Vinson has ruled that the case against the federal government can proceed and will not be dismissed.
This ruling is the first step in a path that may lead all the way to the Supreme Court in attempts to abrogate Obamacare. Such an outcome would be an incredible victory for the American people who are vehemently against the legislation and government takeover of health care. It would also be extremely beneficial for businesses and state governments.
Judge lets states' healthcare suit go forward
Tom Brown October 14, 2010
MIAMI (Reuters) - U.S. states can proceed with a lawsuit seeking to overturn President Barack Obama's landmark healthcare reform law, a Florida judge ruled Thursday.
U.S. District Judge Roger Vinson had said at a hearing last month that he would block efforts by the Justice Department to dismiss the lawsuit, led by Florida and 19 other states.
"In this order, I have not attempted to determine whether the line between constitutional and extraconstitutional government has been crossed," Vinson, of the U.S. District Court for the Northern District of Florida, wrote in his ruling.
"I am only saying that ... the plaintiffs have at least stated a plausible claim that the line has been crossed," Vinson said.
Opponents of Obama's overhaul of the $2.5 trillion U.S. healthcare system have said it violates the Constitution by imposing what they consider unlawful taxes and requiring citizens to obtain healthcare coverage, among other issues.
The suit was originally filed in March by mostly Republican state attorneys general.
The ruling allowing the case to proceed was a setback for Obama, who has made healthcare reform a cornerstone of his agenda and who is struggling to fight off a strong Republican challenge in November 2 mid-term Congressional elections.
Vinson dismissed four of six claims the states brought against the healthcare law but said he saw grounds to proceed on two counts, including one relating to the way critics say it would force huge new spending by state governments.
On the issue of the so-called "individual mandate," the law's provision that all Americans obtain healthcare insurance, Vinson said the plaintiffs had "most definitely stated a plausible claim" for their objections.
"The power that the individual mandate seeks to harness is simply without prior precedent," he said.
The White House said the government expects to prevail.
"We saw this with the Social Security Act, the Civil Rights Act, and the Voting Rights Act -- constitutional challenges were brought to all three of these monumental pieces of legislation, and all of those challenges failed," presidential adviser Stephanie Cutter wrote in a blog post.
"VICTORY FOR STATES"
Vinson said the case would continue as scheduled. He had previously set a hearing for December 16.
"This ruling is a victory for the states, small businesses and the American people," Florida Attorney General Bill McCollum said.
"This decision is a recognition that Congress has never gone this far and that the constitutional arguments have real merit," Utah Republican Senator Orrin Hatch said.
The challenge being heard by Vinson is one of many against the healthcare law. There is a hearing in Virginia Monday on the merits of a separate suit against the healthcare overhaul.
On October 7, a Michigan District Court judge upheld the portion of the healthcare law requiring Americans to obtain coverage. The Michigan judge, in a ruling noted by Vinson, said Congress had the authority to enact the law under the Commerce Clause of the U.S. Constitution and therefore could also impose a penalty for those who failed to obtain health insurance.
Apart from Florida, states joining in the lawsuit include Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Indiana, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Dakota, South Carolina, South Dakota, Pennsylvania, Texas, Utah and Washington.
Legal analysts say there is a good possibility the matter will reach the U.S. Supreme Court, but most say there is only a slim chance the states would prevail.
(Additional reporting by Maggie Fox, Patricia Zengerle and Susan Heavey in Washington; Editing by Pascal Fletcher and Xavier Briand)
In the following video, Stuart Varney discusses the significance of the refusal by U.S. District Judge Henry Hudson to agree to the federal government’s motion to dismiss a lawsuit brought by the state of Virginia which challenges Obamacare and its Constitutionality. This case specifically focuses on one of its most inherently important yet egregious requirement that compels all citizens to purchase health insurance. If it is ruled unconstitutional, the viability of Obamacare may thankfully be jeopardized.
It is expected that this case ultimately will be heard by the Supreme Court.
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