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EDITOR OF REDSTATE

Obamacare Meets Its Death Panel

“Judge Vinson’s ruling ultimately tells a group of people used to saying ‘yes we can’ that, in fact, ‘no, you can’t.’ ”

I am not, with this post, going to attempt a detailed exposition on Judge Vinson’s ruling that declared the individual mandate unconstitutional and, due to the lack of a severability clause, struck the whole law as unconstitutional. But I will give you a brief overview and direct you to other good sources.Here are the basics you will need to start your day.First, you need to understand that the case before Judge Vinson was not directed at whether the federal government can involve itself in healthcare. Instead, the case was whether the individual mandate is constitutional.The individual mandate is the keystone to the whole legislation. Without it, the funding mechanisms of the law collapse in on themselves. Judge Vinson ruled that forcing people to buy healthcare insurance, whether they want it or not, is unconstitutional.As Judge Vinson put it rather directly,

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.

To understand this, you must understand there is a great difference between activity and inactivity. Congress certainly has the right to regulate activity in commerce, but Congress cannot compel you to act. The Obama Adminstration called this argument “novel” and “unprecedented,” but as Kyle Wingfield points out, the judge turned this around on them and got to the core of the activity vs. inactivity debate.

According to the defendants [the Obama administration], because the Supreme Court has never identified a distinction between activity and inactivity as a limitation on Congress’ commerce power, to hold otherwise would “break new legal ground” and be “novel” and “unprecedented.” … First, it is interesting that the defendants — apparently believing the best defense is a good offense — would use the words “novel” and “unprecedented” since, as previously noted, those are the exact same words that the CRS [Congressional Research Service] and CBO [Congressional Budget Office] used to describe the individual mandate before it became law. Furthermore, there is a simple and rather obvious reason why the Supreme Court has never distinguished between activity and inactivity before: it has not been called upon to consider the issue because, until now, Congress had never attempted to exercise its Commerce Clause power in such a way before.

Having ruled the individual mandate unconstitutional, the judge then relied on the Obama Administration and Congress’s own words to declare the whole law unconstitutional. For a more thorough analysis of the severability issue, John at Powerline has a good write up. Suffice it to say, as Avik Roy notes in Forbes,

In order to overturn Judge Vinson’s ruling upon appeal, it will be necessary for the government to rebut itself: to disprove its own arguments that the individual mandate is essential to PPACA.

Why? Because, according to Judge Vinson, and again from his actual decision at pages 68-70 as quoted by Avik Roy:

Moreover, the defendants have conceded that the Act’s health insurance reforms cannot survive without the individual mandate, which is extremely significant because the various insurance provisions, in turn, are the very heart of the Act itself. The health insurance reform provisions were cited repeatedly during the health care debate, and they were instrumental in passing the Act. In speech after speech President Obama emphasized that the legislative goal was “health insurance reform” and stressed how important it was that Congress fundamentally reform how health insurance companies do business, and “protect every American from the worst practices of the insurance industry.” See, for example, Remarks of President Obama, The State of the Union, delivered Jan. 27, 2009.28 Meanwhile, the Act’s supporters in the Senate and House similarly spoke repeatedly and often of the legislative efforts as being the means to comprehensively reform the health insurance industry…Congress has also acknowledged in the Act itself that the individual mandate is absolutely “essential” to the Act’s overarching goal of expanding the availability of affordable health insurance coverage and protecting individuals with pre-existing medical conditions: “[I]f there were no [individual mandate], many individuals would wait to purchase health insurance until they needed care . . . The [individual mandate] is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.” Act § 501(a)(2)(I) (emphasis added).In other words, the individual mandate is indisputably necessary to the Act’s insurance market reforms, which are, in turn, indisputably necessary to the purpose of the Act. This is obviously a very different situation than in Alaska Airlines, Inc., supra, 480 U.S. at 694 n.18 and 696 (unconstitutional provision severed from rest of statute where the provision was “uncontroversial,” and the debate on the final bill demonstrated its “relative unimportance”), and is more in line with the situation alluded to in New York, supra, 505 U.S. at 187 (suggesting by implication that the entire legislation should be struck when “the purpose of the Act is . . . defeated by the invalidation” of one of its provisions).

The Left’s reaction has been humorous. Powerline notes Ezra Klein’s particular reaction. Klein, you will remember, only a few short weeks ago declared the constitution difficult to understand because it was written more than 100 years ago. He then, being a non-lawyer, did his best to explain Judge Vinson’s decision to readers of the Washington Post and bungled badly.Bush v. Gore is the best comparison the left can come up with while attacking Judge Roy’s political motivations.Jen Rubin makes mincemeat out of these arguments by succinctly noting

These are complaints, not legal arguments. And they suggest that the left was totally unprepared for the constitutional attack on their beloved handiwork. After all, the recent mocking by the left of conservatives’ reverence for the Constitution suggests they are mystified that a 200-year old document could get in the way of their historic achievement. They are truly nonplussed, and so they vamp, not with reasoned analysis but with an outpouring of adjectives.

Precisely.The left had plenty of warning from constitutional scholars and Congress’s own in-house non-partisan researchers that the individual mandate may be unconstitutional. The Democrats chose to ignore all that and proceed. In so doing, they did not just embrace the individual mandate, but they made it the keystone of the legislation — a vital and essentially necessary part of the legislation for it all to work.In a move that will surely make Mr. Obama bristle, Stephen Dinan at the Washington Times points out, Judge Vinson used Barack Obama’s own words against him.

“I note that in 2008, then-Senator Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that, ‘If a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house,’” Judge Vinson wrote in a footnote toward the end of his 78-page ruling Monday.

A bit of buzz has come up over Judge Vinson refusing to enter an injunction. In fact, some initial statements by several Governors and Attorneys General suggested the states would continue making preparations for Obamacare should the Supreme Court not agree with Judge Vinson. But a close reading of his opinion suggests the 26 states involved in the lawsuit may not have to begin preparations. According to Judge Vinson

“there 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.’ … There is no reason to conclude that this presumption should not apply here.”

By my reading, Judge Vinson is saying that there need be no injunction because the law is unconstitutional and need not be complied with. That took some testicular fortitude to get to that point.All the White House and its minion lawyers and leftists can do tonight is call Judge Vinson’s very traditional reading of the constitution “odd and unconventional.”Judge Vinson’s ruling ultimately tells a group of people used to saying ‘yes we can’ that, in fact, ‘no, you can’t.’ And only in that sense can anyone view this as “odd and unconventional.” A limited federal government is, after all, what the founders had in mind.

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