Monday, January 31, 2011

Obamacare Declared Unconstitutional In Its Entirety

Heh. (H/T Nice Deb)

The much anticipated decision in State of Florida (plus 25 other states' attorneys general) versus U.S. Dept. of Health & Human Services, challenging the constitutionality of Obamacare, has been released. Legal Insurrection has posted the entire 78 page decision.

In an Opinion lauded by law Prof. Ilya Solmin as "thorough and impressive" and by the WSJ as "by far the best legal vindication to date of Constitutional principles that form the outer boundaries of federal power," Judge Roger Vinson held that Obamacare's requirement that all Americans purchase health insurance (the "individual mandate") is unconstitutional and, therefore, that the entire 2,000+ page Obamacare bill is unconstitutional. Thus, as it stands today, the government cannot enforce any provisions of the act. It's a very good day for America.

Most of the decision was spent discussing the outer limits of Congress's power under the Commerce Clause:

Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

(Const. Art. I Sec. 8)

The Judge reasoned that, if the government were to have the power to regulate inactivity - i.e., the decision not to purchase health insurance - then its power under the Commerce Clause, already massively expanded by a series of decisions beginning in the New Deal era, would be limitless. In deciding that this was beyond any possible interpretation of what our Founder's intended, the Judge opined with the most insightful statement I have heard on the issue to date:

It is difficult to imagine a nation that 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.

I will bet a dollar to a dime that the above quote ends up in Scalia's soon to be written (hopefully concurring) opinion on this case. Ultimately, the Court held:

To now hold that Congress may regulate the so-called "economic decision" to not purchase a product or service in anticipation of future consumption is a "bridge too far." It is without logical limitation and far exceeds the existing legal boundaries established by Supreme Court precedent.

The Court incorporated its previous decision dispensing with the HHS's argument that Obamacare's individual mandate could be justified on the grounds that it was actually a tax. You will recall that Obama repeatedly maintained that the individual mandate was not a tax prior to the vote on the bill. The HHS has now tried to raise the "it's really a tax" argument in four seperate cases. Judge Vinson's refusal to credit this argument marked the fourth case in which it has been denied.

Judge Vinson then went on to dispense with the defendant's other argument, that somehow the Necessary & Proper clause provided a Constitutional basis for upholding Obamacare's individual mandate. The Necessary & Proper clause provides:

Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

(Const. Art. I Sec. 8)

As the Court pointed out, the Necessary & Proper Clause merely authorizes Congress to pass laws in furtherance of its enumerated powers. It was never intended to act independently to give Congress additional powers beyond those enumerated in the Constitution.

Having determined the individual mandate unconstitutional, the judge then turned to the issue of whether the rest of the 2000+ Obamacare bill must also be deemed unconstitutional. This turned on the legal doctrine of "severability." It is customary to include a "severability" clause in bills and contracts. Such a clause provides that, should any individual clause in the bill or contract be deemed void, unenforcable or unconstitutional, all of the remaining clauses shall still be deemed enforcable.

In the case before the Court, the defendants made a significant tactical error in stipulating that the individual mandate was of such importance that it could not be severed from the 2,000+ page Obamacare bill without the entire construct failing. And lest there be any doubt on that issue, the Court pointed out that Congress saw fit to remove a severability clause from the bill before passing it. After going the additional step of independently assessing that, yes, in fact, without the individual mandate, the rest of the bill would fail, the Court declared the entire Obamacare bill unconstitutional.

(Update: Apparently, Congress's failure to include a severability provision in the Obamacare bill was merely an "oversight." Heh.)

This was by far the most well reasoned decision of the four decisions decided on this issue to date. There are still two to three cases pending at the district court level on the constitutionality of Obamacare. Expect this case and its sister cases to be heard at the Appellate Court level in the next year, then on to the Supreme Court, where the decision will likely turn on which side of the bed Justice Kennedy happens to wake up. In any event, this is a very important decision, both for its reasoning and the breadth of the Court's decision.

Update: Let the wailing and gnashing of leftist teeth commence. By far the most ridiculous of the left wing lamentations thus far comes from Brian Buetler at TPM, who charges that the Court has engaged in "extreme [judicial] activism."

There is a yawning chasm that sets apart "judicial activism" from the proper role of a court - to determine original intent and, in light of that and precedent, give an intellectually honest appraisal of the law. When you hear a leftie embrace the "living constitution" theory, what they are championing is real "judicial activism," not originalism and adherence to precedent. So when the left starts hurling around charges of "judicial activism," you can rest absolutely assured that they are engaging in a bit of Orwellian "tendentious redefinition." And lo and behold, that is precisely what Buetler does in this case.

Buetler claims the courts decision here is "judicial activism" because . . . ipse dixit, it is because he says it is. Buetler doesn't explain how the judge strayed from the original intent of the drafters (which he didn't), nor where the judge's decision violated precedent (it didn't). Instead, Buetler is upset that the judge concurred with both Congress and the HHS that the individual mandate is not severable. To quote fron another individual with at least the same degree of legal scholarship as Mr. Buetler, though far more intellectual honesty, "what a maroon."

Others blogging this issue:

WSJ - The Constitutional Moment: Judge Vinson Introduces Obamacare To Madison & Marshall
Jennifer Rubin/WaPo - Left Unprepared For Obamacare Ruling
The Volokh Conspiracy - Today’s Florida District Court Ruling Striking Down the Obamacare Individual Mandate
Maggies Farm - 26 States Belly Up To The Bar: ObamaCare Unconstitutional
Doug Ross - Federal Judge To Nancy Pelosi, "Yeah Lady, We're Quite Serious"
Legal Insurrection - Florida Judge Rules Against Obamacare, Injunction Denied As Unnecessary Since Entire Law Unconstitutional
Cato - Florida Ruling Requires Government to Stop Implementing Obamacare
Powerline - Florida Judge Rules Obamacare Unconstitutional
Neo-Neocon - (with a Pelosi cameo) Obamacare ruled unconstitutional–for now
Pirate's Cove - Snap! Being Forced To Purchase Health Insurance Like Buying A TV
Right Pundits - Obamacare Unconstitutional; Individual Mandate Nullifies Entire Bill
Bookworm Room - A Blow To Obamacare
No Sheeples Here - Obamacare Dead In Its Tracks
The BlogProf - Victory
Nice Deb - Just A Reminder

1 comment:

Chris Taus said...

It matters not. Obama will ignore the decision, as he did the one on the gulf drilling ban, and full steam ahead with this and all of his agenda until he is actually stopped. He will also remain in office until he can be proven ineligible and actually be removed, highly unlikely.