Free Markets, Free People


FL Federal judge rules ObamaCare unconstitutional as a whole

I’m not a lawyer nor do I pretend to be, although I do enjoy discussing legal matters very much. 

Anyway, as you might imagine, Judge Vinson’s ruling has created a bit of a stir with the left, of course, accusing him of “extreme activism” and the right saying “right on”.   In reality, all it means is the future of the law depends on what Justice Kennedy is feeling like when the SCOTUS hears it because they are going to have to review it now.

So, back to me not being a lawyer, I’d like to turn to someone who is and who has followed this closely and, in fact, wrote amicus briefs for two of the governors involved in the lawsuits – Hans Bader who is a senior attorney with the Competitive Enterprise Institute.   Here’s his opinion of the ruling:

A judge in Florida just declared the health care law known as “Obamacare” unconstitutional, ruling it void in its entirety. Judge Vinson rightly declared the health care law’s individual mandate unconstitutional, since the inactivity of not buying health insurance is not an “economic activity” that Congress has the power to regulate under the Interstate Commerce Clause. (Under the Supreme Court’s decision in United States v. Morrison (2000), which I helped litigate, only “economic activity” can be regulated under the Commerce Clause, with the possible exception of those non-economic activities that harm instrumentalities of interstate commerce or cross state lines.)

Judge Vinson also rightly declared the law as a whole unconstitutional. The health care law lacks a severability clause. So if a major provision like the individual mandate is unconstitutional — as it indeed was — then the whole law must be struck down.

The absence of a severability clause meant that, at a minimum, the burden of proof shifted to the government to prove (among other things) that the law would have passed even without the individual-mandate provision that the court has just ruled unconstitutional. The government could not, and did not, meet that burden of proof, given the incredibly narrow margin by which the health care law passed in the House, and the fact that it circumvented a filibuster with no votes to spare in the Senate.

Earlier, a judge in Virginia declared Obamacare’s individual mandate unconstitutional, but declined to strike down the rest of the law.

As I noted earlier in The Washington Examiner, “To justify preserving the rest of the law, the judge” in the earlier Virginia case “cited a 2010 Supreme Court ruling [Free Enterprise Fund v. PCAOB] that invalidated part of a law — but kept the rest of it in force. But that case involved a law passed almost unanimously by Congress, which would have passed it even without the challenged provision. Obamacare is totally different. It was barely passed by a divided Congress, but only as a package. Supporters admitted that the unconstitutional part of it — the insurance mandate — was the law’s heart. Obamacare’s legion of special-interest giveaways that are ‘extraneous to health care’ does not alter that.” In short, Obamacare’s individual mandate is not “volitionally severable,” as case law requires.

The individual mandate provision also was not “functionally” severable from the rest of the law, since the very Congress that passed deemed it absolutely “essential” to the Act’s overarching goals (as Judge Vinson in Florida correctly noted).

(In our amicus brief in the Florida case for Governors Tim Pawlenty and Donald L. Carcieri, we also argue that Obamacare violates the Tenth Amendment by exceeding Congress’s power under the Spending Clause, a so-called Pennhurst argument.)

Cato legal scholar Ilya Shapiro, who filed briefs against the law in both Virginia and Florida, comments on today’s decision here, calling it a “victory for federalism and individual liberty.”

In footnote 27, the judge cited with approval the thoughtful brief of legal scholar Ken Klukowski explaining why Obamacare should be struck down in its entirety under settled principles of severability.

So there it is with all the links.  I’m hoping that’s how the SCOTUS sees it as well.  So for the lawyers among us – have at it guys.

~McQ

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23 Responses to FL Federal judge rules ObamaCare unconstitutional as a whole

  • Oh hell.  He’ll be in here any second with a whole lot of liberal splainin’.

  • McQ[A]ll it means is the future of the law depends on what Justice Kennedy is feeling like when the SCOTUS hears it…

    I’m pretty sure that the Founding Fathers didn’t envision that our country would be effectively ruled by the caprice of a single justice.  I would ask how we managed to get into such a sorry state but, sadly, I’ve got a pretty good idea:

    We voted for it. 

    Judge Vinson rightly declared the health care law’s individual mandate unconstitutional, since the inactivity of not buying health insurance is not an “economic activity” that Congress has the power to regulate under the Interstate Commerce Clause.

    With all due respect to Judge Vinson, he is smoking crack: the Congress has the power to regulate whatever the Congress SAYS that it has the power to regulate unless and until SCOTUS says differently.  That ship sailed back in the ’30s when the Congress and SCOTUS dreamed up a littany of powers that – somehow – had never been seen in the Constitution before to allow the government to get into the charity racket.  For my money, there are a host of government programs and departments that are unconstitutional, but I’m guessing that Judge Vinson wouldn’t agree.  We gave the government quite a lot of inches back in the ’30s and again in the ’60s and ’70s; now they are taking the last mile.  Unfortunately, most people are fundamentally happy with (or, at least, resigned to) that: though the Constitution is coming back into vogue, I suspect that the vast majority of Americans expect and demand that the federal government do such blatantly unconstitutional things as Social Security, Medicare, education, housing, food stamps, etc.  I think that the reason that ObamaCare is under so much attack is that the dems were just so politically maladroit about the way that they went about passing it: had they not been so arrogant and ambitious, national health care would have passed with a larger, truly bipartisan majority and people wouldn’t be nearly so upset.  Look at Bush’s prescription drug program: it is a budget-buster and (IMO) patently unconstitutional, but nobody really challenged it at all.  Why?  Because Bush, Frist and Haster were a helluva lot smarter than The Dear Golfer, Dingy Harry and SanFran Nan in that they didn’t try to get too much, too fast AND they got the opposition on board.

    • There are lots of things that are clearly unconstitutional. The key problem is, how would a modern judge rule something like social security unconstitutional? Imagine the response.

      • In principle, it’s easy and even has precedent: “seperate but equal” had been the law of the land for over fifty years when it was overturned.

        But you are right, and this underscores the problem that the Constitution faces theses days: people care more about getting what they want or keeping what they have then the rule of law,  This is one case where liberals are very honest about what they believe.

  • Everybody here knows how I feel and think about this.
    It was a no-brainer.  But I maintain that the Commerce Clause has to be subject to an amendment that returns it to what the words actually mean…those on the effing PAGE.

    • I actually think a Due Process taking is a decent argument as it pertains to the individual mandate.  I also agree with the judge that it is not severable.  The interstate commerce clause is so murky that it will be a tough battle.  There is no question that health care and health insurance are effectively delivered locally.  But that the health insurers are operating on a national level – with local subsidiaries – cuts the argument a bit.  I still think they have to knock this down if they killed off the gun free schools act.

  • It is judicial activism, but it may be the right ruling.  I haven’t dug into the constitutional arguments that deeply.  Ultimately this will be decided by the US Supreme Court, and that ruling must be respected by all sides.  It should be a fascinating legal battle.

    • So in other words, you posted basically just to “hear the sound of your own voice”

      Because that is quite the non-sequitur.

      “It may be right……………..but it may not”

      FASCINATING LEGAL ANALYSIS THERE.  You’re a regular F.U. Bailey…

    • What an idiot.  (And, yes, that is a learned legal opinion.)

    • It is judicial activism, but it may be the right ruling.

      Judicial activism?  WTF?  So not only has the charge of  judicial activism been claimed for what the Constitution does not say (such as claiming privacy rights that are not mentioned as reason for Roe V Wade) but now the term is being used for what the Constitution does say?  Well, I guess that’s reasonable since whenever there are warm temps the cry of Global Warming abounds and now whenever there are cold tems, the same cry is heard.

    • “It is judicial activism,”

      Only if ‘activism’ is defined as making a decision you don’t agree with which case, given your predilection for idiosyncratic definitions, is not unexpected.

    • Another idiotic comment from the “Reality Oriented” crowd.
      Wash the feces out of your hair before you go to bed tonight.

    • Hmmm.  Like clock work.

  • As to the outer limits of the commerce clause, perhaps the most insighful observation in the opinion was:

    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.

    As to the severability, that was a relatively easy question in this case.  The HHS itself argued that the individual mandate was the glue holding the entire law together at least 14 times in its arguments and briefs.  Add to that the fact that Congress itself put a severability provision into the drafts before removing it in the final bill and you have evidence that Congress itself believed the individual mandate to be unseverable from the entire bill.  The Judge even started into his own severabiity analysis to see if he could justify saving the rest of the bill despite the stipulation of the HHS and the actions of Congress. 

    The bottom line, this was a very well reasoned decision that examined the Commerce Clause from inception through today.  Further, the left’s lamentations today about severability come only from people who didn’t read the opinion and who refuse to acknowledge that the Judge did nothng more than agree with the Defendant and Congress.  Its a good day.  No we wait to see how Justice Kennedy will vote.

  • So, as I think I said in an earlier message, the fight is not over. The House has repealed the bill. The Senate has 47 votes lined up and while they may not be able to get to a vote, a majority in favor of it may still emerge. This is a very risky ruling for the Administration to let get to the Supreme Court, lest the court firmly rule against this sort of bill being possible, which they really won’t want. It is not out of the question that the Administration will decide that it’s simply too risky to let the Supreme Court set a precedent they don’t like and will instead encourage the Senate to let the repeal vote through.

    I don’t think this will happen, because I have no idea whatsoever how they would spin the signing ceremony. I mean, sure, I can think of spinny things to say, that’s not the problem, the problem is that absolutely nobody will buy it, anywhere, ever. But even despite this problem, it’s still rock and a hard place; a bill being overturned by the Supreme Court with near or real majorities in Congress for repeal can’t even be called “judicial activism”, unless it’s “legislative activism” as well to want to repeal it, which is just gibberish. The piper is rapidly approaching with his hands out for what the Democrats forced through last year, they’re still not done paying for it.

    • It’s possible that the pooch-screwing that is ObamaCare has so deeply frightened the Left that the USSC will have more than an Anthony Kennedy majority to strike it down if the case gets there. Breyer could be enlisted to lend a hand, for instance. Although I wouldn’t be surprised if the Court found an implicit severability in the law, and merely struck down the mandate, which would then throw it back to the Congress.

      I don’t think it’s much of a stretch to now say, after this ruling, that Obama is losing his taste to run for re-election defending his “greatest achievement.” I wouldn’t have thought that a few days ago.

      • I NEVER predict what judges will pull out of their butts, but severability really cannot be implicit.
        There are rules for interpreting statutory law, and one of the best and most fundamental is that if it ain’t there, the legislature didn’t intend for it to be there…for whatever reason.

        • Like the “right” to abortion?  Or the ability of the federal government to force the states to collect unemployment taxes?

          The courts can and have found whatever they want in emanations from penumbras of implied laws both foreign and domestic.

          • doc, there is a difference.  I know you are cynical about the law and courts, and who can blame you?
            But there is a whole jurisprudence around statutory interpretation.  You will see some of it referred to in the instant decision by Judge Vinson.
            Again, I will not say that they could not find severability…but that they cannot based on the law as I understand it.  I have to approach such questions from the belief that rational thinking will prevail, and not caprice.  It would be hard to fight day-to-day without that.

  • I don’t have a cite, but apparently the judge used a position paper by then candidate for President, Barack Obama, when citing one of the reasons why the individual mandate was unconstitutional.