Obamacare struck down as Unconstitutional

[Logan Darklighter]

Ilya Somin has a very good analysis of Judge Roger Vinsen's ruling that the entirely of the "Obamacare" bill is unconstitutional. Here are some excerpts.

Today’s Florida district court
ruling that the individual mandate is unconstitutional is by far the
best court opinion on this issue so far. Judge Roger Vinson provides a
thorough and impressive analysis of the federal government’s arguments
claiming that the mandate is authorized by the Commerce Clause and the
Necessary and Proper Clause, and explains the flaws in each. He had already rejected the government’s claim that the mandate is constitutional because it is a tax in a previous ruling.
So far, all three federal courts that have considered the tax argument
have rejected it, instead ruling (in my view correctly) that the mandate
is a penalty.

This is perhaps the most important of all the anti-mandate lawsuits
because the plaintiffs include 26 state governments and the National
Federation of Independent Business.
One of the best parts of
today’s opinion is Judge Vinson’s critique of the federal government’s
argument that the mandate is constitutional under the Commerce Clause
because the Clause gives it the power to regulate “economic decisions”:

The
problem with this legal rationale, however, is it would essentially
have unlimited application. There is quite literally no decision that,
in the natural course of events, does not have an economic impact of
some sort. The decisions of whether and when (or not) to buy a house, a
car, a television, a dinner, or even a morning cup of coffee also have a
financial impact that — when aggregated with similar economic decisions
— affect the price of that particular product or service and have a
substantial effect on interstate commerce. To be sure, it is not
difficult to identify an economic decision that has a cumulatively
substantial effect on interstate commerce; rather, the difficult task is
to find a decision that does not....
The important distinction is
that “economic decisions” are a much broader and far-reaching category
than are “activities that substantially affect interstate commerce”
[which Supreme Court precedent allows Congress to regulate]. While the
latter necessarily encompasses the first, the reverse is not true.
“Economic” cannot be equated to “commerce.” And “decisions” cannot be
equated to “activities.” Every person throughout the course of his or
her life makes hundreds or even thousands of life decisions that involve
the same general sort of thought process that the defendants maintain
is “economic activity.” There will be no stopping point if that should
be deemed the equivalent of activity for Commerce Clause purposes.

Judge Vinson has a similarly compelling answer to the government’s
claim that choosing not to purchase health insurance is an “economic
activity” because everyone participates in the health care market at
some point:

[T]here are lots of markets — especially
if defined broadly enough — that people cannot “opt out” of. For
example, everyone must participate in the food market. Instead of
attempting to control wheat supply by regulating the acreage and amount
of wheat a farmer could grow as in Wickard, under this logic, Congress
could more directly raise too low wheat prices merely by increasing
demand through mandating that every adult purchase and consume wheat
bread daily, rationalized on the grounds that because everyone must
participate in the market for food, non-consumers of wheat bread
adversely affect prices in the wheat market. Or, as was discussed during
oral argument, Congress could require that people buy and consume
broccoli at regular intervals, not only because the required purchases
will positively impact interstate commerce, but also because people who
eat healthier tend to be healthier, and are thus more productive and put
less of a strain on the health care system. Similarly, because
virtually no one can be divorced from the transportation market,
Congress could require that everyone above a certain income threshold
buy a General Motors automobile — now partially government-owned —
because those who do not buy GM cars (or those who buy foreign cars) are
adversely impacting commerce and a taxpayer-subsidized business....

As
Vinson explains, both the “economic decisions” argument and the “health
care is special” argument ultimately amount to giving Congress the
power to mandate virtually anything, and therefore conflict with the
text of the Constitution and Supreme Court precedent.

Judge Vinson also notes that the scenarios he raises are not merely a “parade of horribles,” but have a realistic basis,

Turning to the Necessary and Proper Clause, Judge Vinson concedes that
the individual mandate is “necessary” under existing Supreme Court
precedent, but argues that it isn’t “proper” because the government’s
logic amounts to giving Congress virtually unlimited power.

Vinson also notes that the mandate probably runs afoul of the five part test recently outlined by the Supreme Court in United States v. Comstock, though he ultimately does not base his ruling on this point. ...  Overall, Judge Vinson’s analysis of the Necessary and Proper Clause is a big improvement on Judge Henry Hudson’s performance in the recent Virginia ruling striking down the mandate.
Unlike Judge Henry Hudson in the Virginia case, Judge Vinson ruled
that the mandate is not “severable” from the rest of the health care
bill, and therefore invalidated it in its entirety. I think this may be
somewhat too sweeping. However, Vinson is on strong ground in ruling
that the mandate cannot be severed from the bill’s provisions forcing
insurance companies to cover people with preexisting conditions. As he
emphasizes, the federal government itself has repeatedly stressed this
point in the litigation.
Finally, Judge Vinson rejected the 26
states’ argument that the funding provisions of the bill are
unconstitutionally “coercive.”

Ultimately, the issue of the individual mandate will be resolved by the
courts of appeals and probably by the Supreme Court. Still, Judge
Vinson’s ruling is a victory for opponents of the mandate. It’s also
extremely well-written, and thereby provides a potential road map for
appellate judges who might be inclined to rule the same way.

Also of note is this Op-ed from the Wall Street Journal:

'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."


Federal Judge Roger Vinson opens his decision declaring ObamaCare
unconstitutional with that citation from Federalist No. 51, written by
James Madison in 1788. His exhaustive and erudite opinion is an
important moment for American liberty, and yesterday may well stand as
the moment the political branches were obliged to return to the
government of limited and enumerated powers that the framers envisioned.

I recommend reading the entire article in both cases.
As Ezra Klein and several others
take pains to inform us, Vinson is a Republican-appointed judge.
Rhetorical question: do you think that when liberal rulings come down,
those same people are equally eager to lead with the fact that the
judges in question are Democrat-appointed?

[robkelk]

Judge Vinson's arguments against buying health insurance appear to me to be equally valid arguments against paying income tax. (In fact, they may be more valid arguments against paying income tax, since the taxpayer - the purchaser of federal government services - has no choice in which federal government he'll pay for those services, while he does have a choice in health insurance providers.)

I want to see somebody apply these arguments in that manner...
--
Rob Kelk
"Governments have no right to question the loyalty of those who oppose
them. Adversaries remain citizens of the same state, common subjects of
the same sovereign, servants of the same law."

- Michael Ignatieff, addressing Stanford University in 2012

[Black Aeronaut]

Rob, no tax talk. It runs the risk of derailing the topic. I have my own issues about taxes, but not with actually having to pay them. Let's discuss in another thread.

As for Obamacare being struck down as unconstitutional... well, I can honestly say I'm not happy about that, but at least it is being done for the right reasons. Does anyone here think this can be salvaged? It kinda goes over my head at the moment. (^^

[Sofaspud]

I've only been keeping half an ear on this one -- in my admittedly-cynical view, I'm gonna get screwed in the end regardless, so I'm not too concerned with the mechanics of said screwing, if you catch my drift -- but in my probably ignorant opinion, the judge nailed the mandatory insurance angle perfectly.  That is, really, the single biggest sticking point I had with the whole bill, and I agree that you can't sever that from the rest -- leastwise, not and keep a straight face when calling it the same bill afterwards.
I think it could be salvaged, if by salvaged you mean re-forged in the fires of debate and better designed the next time around.  Unfortunately, what I suspect will happen (see above re: cynicism) is that the ruling will be overturned and it'll get pressed into law anyway.
While I don't make use of insurance myself -- and no, that does not mean I cause a burden upon medical services, either -- I *do* choose to carry it for my son and for my wife.  And that's expensive.  But medical care for them (my wife, ongoing; my son, because kids tend to have short, sporadic spasms of YE GODS the BILLS!) makes insurance worthwhile; it spreads out the payments.  The issue with the bill is not higher taxes or mandatory payments; it is the lack of choice.  It is the gov't taking the decision out of my hands, and I strongly object to that.
Yes, universal health care is a good thing (in theory).  Yes, it comes with a large price tag, and yes, if I want it (debatable), then I must be willing to pay the price.  What I object to is handing money to a private insurer.  I'd rather pay more in taxes, similar to what I understand is how the EU system works.  But my fellow citizens mostly seem to react with knee-jerk speed to the word "taxes" by hissing and reaching for the holy water, and of course the private insurance companies scream holy hell because it would cut into their profits.
I'd like to think that the judge understands my stance better, and more rationally, than *I* myself do, and that's why he struck it down.  But as I said, I don't expect it to stop the juggernaut for long.

--sofaspud
--"Listening to your kid is the audio equivalent of a Salvador Dali painting, Spud." --OpMegs

[CattyNebulart]

Ah but sofaspud, say you are driving (to work, the grocery store or whatever) and some bozo driving drunk hits your car at 100km/hr, leaving you hospitalized for months and racking up medical bills to the tune of a few hundered thousand or so. Why should I pay for your healthcare cost (I am just assuming you would be unable to cover such an amount, if you can cover that kind of expense just assume it's somebody who can't.) through an extra cost on my insurance premiums? Because that is how it's covered at the moment, since doctors need to be paid, electricity is required, etc.

Now in a true free-market 'utopia' the hospital would kick out your lazy ass for not having earned enough money before your luck ran out even if it kills you. Perhaps they would even let you pay a little extra to make your death quick and painless. But we don't live in such an 'utopia' (thank socialism) and instead we expect hospitals to care for people and save them if possible, but that requieres money, and that money has to come from somewhere. At the moment it's coming out of a tax on everyone who does buy insurance, which together with some other quirks of the system tends to drive prices up, everybody but the insurers can agree that this is the worst outcome of the design.

Without insurance you are basically running a gamble, but if you lose it's everyone with insurance that pays, not you. That is a freedom I object to, much like I would object to the freedom not to pay taxes. Then again you are paying for part of your family so your likely hospital costs would be covered.

And so you really don't have a choice on whether to get healthcare, some base level is always provided, the only choice you get is if you want to pay for yourself and the freeloaders or not. And when that is the choice it makes a lot of rational sense to be a freeloader, which in turn drives the extra pricetag on insurance up, etc. You can't have your cake and eat it too, either you have socialized healthcare and hospitals take care of people or you have a free-market system where there will always be plenty of fresh bodies at the hospital curbside.

I'd rather pay more in taxes, similar to what I understand is how the EU system works.

That is how the danish system kinda works (you have the option to be exempt form the tax or at least most of it if you buy private insurance). But there is no such thing as an EU system of healthcare, each country has their own version.

-*-*-*-
E: "Did they... did they just endorse the combination of the JSDF and US Army by showing them as two lesbian lolicons moving in together and holding hands and talking about how 'intimate' they were?"
B: "Have you forgotten so soon? They're phasing out Don't Ask, Don't Tell."

[Dartz]

If I were American.... I'd be more worried about supposedly impartial judges voting alongside party lines. And not just conservative judges.

That said, mandatory insurance from a private company is an idiotic system. If it's anything like the car insurance system here, all that's going to happen is that it'll crank premiums up, as the companies now have a product that people *must* buy. It's the the worst of both worlds almost.

My uncle got shafted by his insurance company a couple of years ago. The state system saved his life.
________________________________
--m(^0^)m-- Wot, no sig?

[Sofaspud]

Catty: You seem to be laboring under the misapprehension that I haven't considered these things.  I do not pay -- by choice -- for medical insurance, for reasons I think I've covered; that doesn't mean I don't pay for other insurance, which -- in your scenario -- would cover my medical expenses after I paid my deductible (a practice which I also find abhorrent -- perhaps it's acceptable while you 'build up' your account, so to speak, but after that, it's pure extortion).  I pay vehicle insurance, including the options for medical coverage whether I'm driving or not, because that's a gamble that isn't worth whatever nebulous payoff there might be.  I pay homeowners (well, renter's) insurance because the price of that is actually reasonable versus what's provided.
In the case of something causing me to wind up hospitalized without insurance of one sort or another covering it?  You're quite right in that I would expect them to try to save my life.  And yes, that costs money.  I don't dispute that at all.  Why do you assume I won't make arrangements to pay it off?  And if it IS hundreds of thousands, and for whatever reason I'm unable to refuse treatment (even an emergency hospital stay for six days, incl. ICU visit, only ran me about 35k), then... well, I guess I'll be paying off the equivalent of a house, won't I?
The only difference is the time of payment, and I think you'll find that this is the precise thing that insurance companies make their money on -- they accept money from people in exchange for a promise to pay, immediately, the debt incurred as a result of whatever the policy covers, banking -- statistically -- on the fact that the majority of their clients don't actually make use of the insurance they purchase.  In addition, they manipulate the set, always looking to profit.  This is something else I find abhorrent, and is the main reason why I support higher taxes to pay for universal health care -- even though, both from a statistics standpoint and from a personal one, I won't see any direct benefit from it -- rather than mandatory payment to private insurers who are literally only there to make a buck.
If my personal medical expenses run past what I can reasonably pay off in my lifetime, then I would argue quite bluntly that I simply can't afford to live.  That's reality, whether I like it or not.  It's also a side-effect of a broken system, but it's the only system I have at the moment and I have to work with it -- and I do.  I've paid off, without the help of any insurance, every medical bill I've ever incurred since I was 21 years old.  And I'll continue to do so, without costing anyone else.
As for it being someone other than me... I already pay for those people by way of taxes -- unless you're unaware that a lot of medical funding (in the US) comes from the public as well as private insurers -- which, as of the last time I looked into this, about a year or so ago, only comprise about 35% of all hospital funding -- a significant amount, yes, but by no means a majority.  Every person who doesn't have insurance is paid for by, yes, the insured, but also (and more so) by every tax-paying citizen.
Which I am.  I don't begrudge my taxes at all.

--sofaspud
--"Listening to your kid is the audio equivalent of a Salvador Dali painting, Spud." --OpMegs

[CattyNebulart]

The only difference is the time of payment, and I think you'll find that this is the precise thing that insurance companies make their money on -- they accept money from people in exchange for a promise to pay, immediately, the debt incurred as a result of whatever the policy covers, banking -- statistically -- on the fact that the majority of their clients don't actually make use of the insurance they purchase.  In addition, they manipulate the set, always looking to profit.  This is something else I find abhorrent, and is the main reason why I support higher taxes to pay for universal health care -- even though, both from a statistics standpoint and from a personal one, I won't see any direct benefit from it -- rather than mandatory payment to private insurers who are literally only there to make a buck.

Sorry if I came on a little strong before I'm just tired of crazies ranting about deathpanels.
Almost everyone will benefit from healthcare eventually, because as we get older we tend to need it more, and those who don't make it so far tend to run up a lot of expenses on the way out. Ideally it would work like your retirement account, you pay in your entire working life and you get the help when you need it, along with some wealth shifting, because a family that earns 24'000$ a year is just never going to be able to pay to take their kids to the doctor, and there are significant benefits to not having epidemics breed in the poor sections of the country, and it gives those kids a better chance to make something of themselves, although granted an education would be more helpful in that regard.

Also agreed about the insurance companies, but the political system seems powerless to take them on. (Not that surprising since in 2008, before the big healthcare debate the healthcare industry spent roughly one million per congress-critter on lobbying.)

-*-*-*-
E: "Did they... did they just endorse the combination of the JSDF and US Army by showing them as two lesbian lolicons moving in together and holding hands and talking about how 'intimate' they were?"
B: "Have you forgotten so soon? They're phasing out Don't Ask, Don't Tell."

[khagler]

Logan Darklighter wrote:
As Ezra Klein and several others
take pains to inform us, Vinson is a Republican-appointed judge.
Rhetorical question: do you think that when liberal rulings come down,
those same people are equally eager to lead with the fact that the
judges in question are Democrat-appointed?

Not a chance. When that happens, it's partisan cheerleaders for the Republican faction of the Boot On Your Neck Party who do that.

It's a little silly to worry about whether some or all of Obamacare is unconstitutional. Of course it is, because pretty much everything the US government does is unconstitutional. The Constitution is just something that politicians give occasional lip service to when it suits their factional infighting needs, but the only thing it has to do with the actual government of the US is deciding what to call certain officials and how often to hold a sham election.

(Personally, I think they should rename "President" as "God-Emperor of the Universe," to reflect the way people in the US who believe in the system see them.)

Regarding the subject of health care in the US, the one thing we can be sure of is that things will get worse. I'm just glad I live so close to Mexico. From what I've heard talking to people who have lived there, their health care system is actually considerably more free than the US system. Ah, free in the sense of "liberty," that is, not cost. Although it's also apparently much, much cheaper without the gazillion layers of bureaucracy and mismanagement the US has...

[Logan Darklighter]

posted at 1:22 pm on March 3, 2011 by Ed Morrissey at Hot Air

A mild surprise here,
as Judge Roger Vinson’s earlier ruling seemed fairly categorical.  If a
law is unconstitutional, then implementation should be abandoned, and
Vinson’s ruling suggested that no further clarification would be
necessary.  In his stay, Vinson now appears to press for an expedited Supreme Court review:

In his ruling, Vinson repeated what he has said
previously — that “the citizens of this country have an interest in
having this case resolved as soon as practically possible.”

“That was nearly eleven months ago,” he wrote. “In the time since,
the battle lines have been drawn, the relevant case law marshaled, and
the legal arguments refined. Almost everyone agrees that the
constitutionality of the Act is an issue that will ultimately have to be
decided by the Supreme Court of the United States. It is very important
to everyone in this country that this case move forward.”

And in fact, the stay in this case is only good for seven days, and
is predicated on the Obama administration filing an application for expedited appeal, either with the appeals court or the Supreme Court:

After careful consideration of the factors noted above,
and all the arguments set forth in the defendants’ motion to clarify, I
find that the motion, construed as a motion for stay, should be GRANTED.
However, the stay will be conditioned upon the defendants filing their
anticipated appeal within seven (7) calendar days of this order and
seeking an expedited appellate review, either in the Court of Appeals or
with the Supreme Court under Rule 11 of that Court.

Otherwise, Vinson ruled, his original ruling has an immediate
injunctive effect that nullifies the entirety of the ObamaCare law.  He
also expressed no small amount of derision for the respondents’ argument
to the contrary:

So to “clarify” my order and judgment: The individual
mandate was declared unconstitutional. Because that “essential”
provision was unseverable from the rest of the Act, the entire
legislation was void. This declaratory judgment was expected to be
treated as the “practical” and “functional equivalent of an injunction”
with respect to the parties to the litigation. This expectation was
based on the “longstanding presumption” that the defendants themselves
identified and agreed to be bound by, which provides that a declaratory
judgment against federal officials is a de facto injunction. To the
extent that the defendants were unable (or believed that they were
unable) to comply, it was expected that they would immediately seek a
stay of the ruling, and at that point in time present their arguments
for why such a stay is necessary, which is the usual and standard
procedure. It was not expected that they would effectively ignore the
order and declaratory judgment for two and one-half weeks, continue to
implement the Act, and only then file a belated motion to “clarify.”6

Furthermore, Vinson goes right up to the edge of accusing the Obama administration of lying to the court:

The defendants have suggested, for example, that my order
and judgment could not have been intended to have the full force of an
injunction because, if I had so intended, I would have been “required to
apply the familiar four-factor test” to determine if injunctive relief
was appropriate. …

I did not undertake this four-factor analysis for a simple reason: it
was not necessary. Even though the defendants had technically disputed
that the plaintiffs could satisfy those four factors, the defendants had
acknowledged in their summary judgment opposition brief that, if I were
to find for the plaintiffs, separate injunctive relief would be
superfluous and unnecessary. The defendants expressly assured the court
that, in light of the “long-standing presumption that a declaratory
judgment provides adequate relief as against an executive officer, as it
will not be presumed that that officer will ignore the judgment of the
Court,” any declaratory judgment in the plaintiffs’ favor “would [ ] be
adequate to vindicate [the plaintiffs’] claims.” Defendants’ Memorandum
in Opposition to Plaintiffs’ Motion for  summary Judgment (doc. 137), at
43. Consequently, there was no need to discuss and apply the
four-factor test to determine if injunctive relief was appropriate
because the defendants had confirmed that they would “not . . . ignore
the judgment of the Court” and that my “declaratory judgment would [ ]
be adequate.” In other words, the defendants are now claiming that it is
somehow confusing that I bypassed the four-factor test and applied the
“long-standing presumption” that they themselves had identified and
specifically insisted that they would honor.

Basically, this forces the Department of Justice to expedite the
appeals process, which they were clearly hoping to avoid.  The dilatory
tactics that Vinson blasts in this ruling almost certainly won’t impress
the appellate court, either.  Furthermore, the order forces the Obama
administration to fight on Vinson’s ruling first and now rather than
wait for a more friendly set of rulings and hope to marginalize Vinson
down the road.

The White House asked for a clarification.  They got a trip to the
woodshed instead, and a very short time frame to stop the halt to
ObamaCare that Vinson’s ruling creates.