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.

http://spectator.org/archives/2011/02/02/the-legal-future-of-obamacare/

Our freedoms can be ephemeral – they can be taken away in a flash. The “progressives” and the far-left in our country are relentlessly attacking our innate rights and freedoms, often in incremental and stealth ways. The Second Amendment not only allows us to protect ourselves from others who aim to harm us but as Thomas Jefferson noted, it also is what can protect us from a tyrannical, overreaching government.

We must be ever vigilant in protecting and defending these rights and freedoms.

'Right To Bear Arms' Means Just That
Investors Business Daily   03/03/2010

Gun Rights: Otis McDonald, 76, an Army vet who lives in a high-crime area of Chicago, thinks the Constitution gives him the right to bear arms to protect himself and his wife as he protected his country. We think so too.

On Tuesday, the Supreme Court heard arguments on behalf of four Chicago residents led by homeowner McDonald, the Second Amendment Foundation and the Illinois State Rifle Association to overturn Chicago's three-decade-old ban on owning handguns.

In a 5-4 decision in 2008, Heller v. District of Columbia, written by Justice Antonin Scalia, the Supreme Court overturned the District of Columbia's draconian, 32-year-old ban on the private ownership of handguns. Scalia wrote that an individual right to bear arms is supported by "the historical narrative" before and after the Second Amendment was adopted.

The joy of Second Amendment defenders was short-lived. A three-judge panel of the 7th Circuit Court of Appeals, led by Judge Frank Easterbrook, rejected subsequent suits brought by the National Rifle Association against the city of Chicago and its suburb of Oak Park, Ill.

According to Easterbrook, the Revolution was fought and independence won so that the Founding Fathers could write a Constitution with a Bill of Rights that applied only to the District of Columbia.

"Heller dealt with a law enacted under the authority of the national government," he wrote, "while Chicago and Oak Park are subordinate bodies of a state."

We're all for federalism, but the U.S. Constitution is the U.S. Constitution. Surely he can't be serious.

Alan Gura, the Alexandria, Va., lawyer who won the Heller case, has expanded the argument to include the 14th Amendment, adopted in 1868 to prevent infringement on constitutional rights by states and others concerned about newly freed slaves owning firearms.

Introducing the 14th Amendment to Congress, Sen. Jacob Howard of Michigan referred to "personal rights" such as "the right to keep and bear arms, " explaining that his amendment would compel the states "to respect these great fundamental guarantees."

In 2008, Texas Attorney General Greg Abbott filed an amicus brief on behalf of 32 states that also challenged the constitutionality of the D.C. ban. Now he represents a group of 38 states fighting the Chicago ban. "The Second Amendment right to keep and bear arms is a critical liberty interest, essential to preserving individual security and the right to self-defense," Abbott explained.

Chicago Tribune columnist John Kass wrote in 2008 that in Chicago only two classes of people can possess firearms: "The criminals and the politicians."

City politicians, he noted, used their influence to "become deputized peace officers so they can carry" or "often go around surrounded by armed bodyguards on the city payroll."

Otis McDonald wants the same right to defend himself and his family. To deny him that right, city officials argue that repealing the ban will bring carnage in the streets. Yet in the forthcoming third edition of "More Guns, Less Crime," John Lott points out that the Windy City's murder rate fell relative to America's other 50 largest cities before the ban and rose afterward.

In an essay Monday for FoxNews.com, Lott noted that after the D.C. gun ban was ruled unconstitutional, murders in Washington plummeted 25% from 2008 to 2009. D.C.'s murder rate, he reports, is down to 23.5 per 100,000 people, its lowest since 1967.

More guns do seem to mean less crime. And as Mr. McDonald insists, those who gave us liberty gave us the means and the right to defend it.

http://www.investors.com/NewsAndAnalysis/Article.aspx?id=522844

Too bad he has not displayed such vigor and attention to the real important issues facing the American people like jobs, the economy, and terrorism.

Is Freedom Of Speech Really An Emergency?
By Thomas McArdle       Investors Business Daily   01/26/2010

A full year into his presidency we suddenly discover what it takes to get Barack Obama all worked up.

Not terrorism.

In the president's estimation, a near repeat of the Lockerbie bombing Christmas Day wasn't worth remarking on until three days later.

Not the risk of a fiscal doomsday.

Only after 12 months of joint one-party rule to secure his place as the biggest-spending president in history does he call for a bipartisan spending-restraint commission and a spending freeze. Both the commission and the freeze don't come along until the fall at the earliest, if they materialize at all.

But when the Supreme Court nullifies congressional incumbents' legislative attempts to suppress the threat of political speech via modern means of communication, he runs to the microphone as if it were a national emergency.
"With its ruling today, the Supreme Court has given a green light to a new stampede of special-interest money in our politics," he declared, promising swift action. "We are going to talk with bipartisan congressional leaders to develop a forceful response to this decision."

Millions of Americans are suffering from double-digit unemployment. And now the nation has been assessed by the congressionally mandated Commission on the Prevention of Weapons of Mass Destruction Proliferation as being unprepared for a biological terrorist attack. The panel slapped the Obama administration with a failing grade on its readiness and response plans to combat the use of deadly viruses or bacteria by an enemy.

Yet what does the president devote his radio address to last Saturday? Accusing the high court of the land of issuing a ruling that "strikes at our democracy itself."

Most Americans may be under the misapprehension that terrorists such as underwear bomber Umar Farouk Abdulmutallab are the people to keep from striking at our democracy. Uh-uh. According to the president's priorities, the real threat to our democracy comes from Justice Anthony Kennedy and his warped view that American citizens should be able to use "their financial clout to directly interfere with elections by running advertisements for or against candidates in the crucial closing weeks."

The president says, "I can't think of anything more devastating to the public interest" — not $12 trillion in federal debt; not an abysmal 26% of teens working (a record low since statistics began being kept in 1948, according to a report by Northeastern University); not the terrorist state of Iran on track to building nuclear bombs.
Let's look at that Supreme Court's Citizens United decision, which our chief executive considers a calamity of such historic proportions that "When this ruling came down, I instructed my administration to get to work immediately with members of Congress willing to fight for the American people to develop a forceful, bipartisan response to this decision."

Kennedy is viewed by liberal Democrats as the most reasonable of the five conservative justices; he was co-author with former Justices Sandra Day O'Connor and David Souter in their joint Casey opinion reaffirming the Roe v. Wade decision legalizing abortion.

Kennedy's 5-4 decision abrogating McCain-Feingold pointed out that under that law, "skits on YouTube.com" satirizing politicians too close to Election Day are a felony "solely because a corporation, other than an exempt media corporation, has made the 'purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value' in order to engage in political speech."

Before posting that YouTube video with corporate funding, of course, McCain-Feingold lets you ask Uncle Sam's (specifically the Federal Election Commission) permission.

As Justice Kennedy's ruling notes: "If parties want to avoid litigation and the possibility of civil and criminal penalties, they must either refrain from speaking or ask the FEC to issue an advisory opinion approving of the political speech in question."

Then, "government officials pore over each word of a text to see if, in their judgment, it accords with the 11-factor test they have promulgated."

As he and the four justices joining him recognize, "This is an unprecedented governmental intervention into the realm of speech."

Yet it is this victory for free speech last week that requires, according to Obama, "a forceful, bipartisan response" — not the whole myriad of more pressing challenges facing our country, ranging from the fiscal time bomb of out-of-control entitlement programs to our dangerously porous borders.

Blasting the Citizens United ruling may set the stage for another successful Supreme Court nomination for the Obama administration. But it won't restore the public confidence a president needs at a time of serious economic troubles and a continuing global war on terror.

http://www.investors.com/NewsAndAnalysis/Article.aspx?id=519165

This is massive program that will legislate and implement “legal” reverse discrimination which is blatantly wrong both legally and morally. This is remarkably similar to the recent Ricci vs. DeStefano and the City of New Haven firefighters case that “racially empathetic” Sonia Sotomayor ruled against but was subsequently overturned by the Supreme Court.

IBD shrewdly noted, “Whether it's that firefighter coming up the ladder, or the brain surgeon about to remove that tumor in your head, everybody wants that person to be the best regardless of race or ethnicity — and not admitted by quotas and promoted by political correctness.”

Though not necessarily assuming fault or jumping to conclusions, Michael Jackson’s death may be the quintessential example on two counts of the downside of using race as a criteria versus qualifications. It is not clear if Michael Jackson selected his doctor, who now is being investigated for manslaughter in his death, solely because he was black (see Kanye West's deceased mother's scenario). Secondly, he should have thought more about checking the doctor’s training, credentials and qualifications before selecting of him. If he did, he would have discovered that apart from other significant issues, this doctor attended a medical school that historically trains black physicians who quite frequently lack the intellectual aptitude and scholastic credentials required to attend “mainstream” medical schools. This same medical school consistently ranks at or near bottom in comparison to the other medical schools in this country. If you want great quality, you have to start with the best raw materials.

There is also a significant and unfortunate unintended consequence of affirmative action that can be problematic for the countless members of those minorities who have succeeded because of their abilities and not because of quotas or racial preferences. For example, if you have an emergent medical problem and the doctor who is about to treat you who is Afro-American, can and should you trust his/her abilities and judgment? You think: Is he/she a doctor because he/she earned it based on personal merit and intelligence or because of skin color and affirmative action? This should never be a question that one is forced to ponder! On the other side of the coin, minority physicians who earned their medical degree based on merit like everyone else shouldn't have to deal with the questioning of their abilities just because race based affirmative action quotas.

Read: Reparations By Way Of Health Care Reform

Read:  American capitalism gone with a whimper

Read: Sotomayor backers urge reporters to probe New Haven firefighter

Read: New Haven Firefighters Testify at Sotomayor Hearing

Read: Obama Wants Health Reform Bill This Week