Wednesday, February 9, 2011

Obamacare Ruled Unconstitutional Again

From the New York Times:

"A second federal judge ruled on Monday that it was unconstitutional for Congress to enact a health care law that required Americans to obtain commercial insurance, evening the score at 2 to 2 in the lower courts as conflicting opinions begin their path to the Supreme Court.

But unlike a Virginia judge in December, Judge Roger Vinson of Federal District Court in Pensacola, Fla., concluded that the insurance requirement was so 'inextricably bound' to other provisions of the Affordable Care Act that its unconstitutionality required the invalidation of the entire law.

'The act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker,' Judge Vinson wrote...

In his 78-page opinion, Judge Vinson held that the insurance requirement exceeded the regulatory powers granted to Congress under the Commerce Clause of the Constitution. He wrote that the provision could not be rescued by an associated clause in Article I that gives Congress broad authority to make laws 'necessary and proper' to carrying out its designated responsibilities.

'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,' the judge asserted...

Judge Vinson’s opinion hangs on a series of Supreme Court decisions that have defined the limits of the Commerce Clause by granting Congress authority to regulate 'activities that substantially affect interstate commerce.'

The plaintiffs characterized the insurance requirement as an unprecedented effort to regulate inactivity because citizens would be assessed an income tax penalty for failing to buy a product.

Justice Department lawyers responded that a choice not to obtain health insurance was itself an active decision that, taken in the aggregate, shifted the cost of caring for the uninsured to hospitals, governments and privately insured individuals.

In his decision, Judge Vinson wrote, 'It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause.' If Congress has such power, he continued, 'it is not hyperbolizing to suggest that Congress could do almost anything it wanted.'"

Why did Vinson rule the whole law unconstitutional because of a single provision? Ken Klukowski of the Family Research Council did a surprisingly great job of explaining why at Fox News:

"A single law usually contains many different provisions. Lawmakers know that if someone challenges the constitutionality of a statute, they often challenge only one or two provisions of it. So lawmakers usually try to make sure at least part of their law will survive.

The process of striking down only part of a law is called 'severability.' Therefore Congress almost always inserts a severability clause, saying that if part of the law is struck down, the remaining provisions continue in full force and effect.

Congress did not insert a severability clause in ObamaCare. So even though only a couple provisions of the health care law are being challenged in the Florida case — those two provisions being the individual mandate aka the requirement that every American has to buy insurance and also the sweeping expansion of Medicaid — the issue arises that if a court strikes down either of those provisions, it might strike down the entire statute...

Severability is an issue so far off the beaten path that few lawyers have ever dealt with it, even though including a severability clause in legislation — or in contracts — is so common that it’s now boilerplate. So it would surprise most lawyers that a judge would strike down all of ObamaCare.

But it’s not surprising if you look at how the Supreme Court deals with the issue of severability...

Not only does ObamaCare lack a severability clause, Congress also includes in the individual mandate section (which is Section 1501) a declaration that the mandate is 'essential' to the statute functioning in the manner Congress desires. This closely tracks language in the Supreme Court’s precedents for when a court must strike down the entire law."

Left unsaid is why no severability clause (which Klukowski describes as "boilerplate") was included in Obamacare. My guess is that Team Obama was so delusional in their assumption of how popular most of their reforms would be, they made it an all-of-nothing as a legal poison pill against challenges. A more cynical (and conspiratorial) explanation is that Democratic leadership secretly wants health reform to fail and have those evil Republicans in the Supreme Court be their scapegoat.

Perhaps the most disappointing trend of the ruling is this, as noted by the Times:

"The ruling by Judge Vinson, a senior judge who was appointed by President Ronald Reagan, solidified the divide in the health litigation among judges named by Republicans and those named by Democrats.

In December, Judge Henry E. Hudson of Federal District Court in Richmond, Va., who was appointed by President George W. Bush, became the first to invalidate the insurance mandate. Two other federal judges named by President Bill Clinton, a Democrat, have upheld the law."

This despite the AP noting that the individual mandate is "an idea dating back to Republican proposals from the 1990s but is now almost universally rejected by conservatives." Indeed, the individual mandate was central to John McCain's "health reform" plan of 2008.

This underscores the pathetic dynamics of Obamacare: bunch of a Democratic apologists bending over backwards defending an unpopular plan made by right-wingers who wisely won't even defend it.

The upside down Bizzaro world of the Obamacare debate is summed up in by the World Socialist Web Site:

"The focus of the legal proceedings on the individual mandate is a byproduct of the Obama administration’s overall approach to the issue of health care, which is politically reactionary. The White House drafted legislation whose main purpose was to reduce health care costs for American corporations and the federal government, while enlisting the insurance industry, the drug companies and the for-profit hospital chains in the process and ensuring their profit interests.

Instead of establishing the right of all people to medical care — a right that is essential to a decent and humane society — the Obama administration legislated the right of profit-making insurance companies to collect premiums, mandating that every individual not covered by Medicare or Medicaid must purchase a health insurance policy.

This policy in effect blames the uninsured, i.e., the victims, for the failure of the profit-driven US health care system, and seeks to punish them by forcing them to pay exorbitant premiums or a fine estimated at nearly $2,100 per capita, once the system is fully in place in 2014.

This measure is regressive in itself, placing a considerable financial burden on hard-pressed low-wage workers. And it is doubly reactionary because it allows the political right, which opposes any extension of social benefits, to posture as the defender of 'individual freedom' against a new government imposition.

To the extent that the Tea Party agitation, financed by a handful of ultra-right-wing billionaires, was able to gain any popular influence, it is because of measures like the individual mandate and the Obama administration’s decision to finance its supposed expansion of coverage by cuts in Medicare, rather than through taxes on the wealthy or big business."

Federal Judge Rules That Health Law Violates Constitution
January 31, 2011

ObamaCare Unconstitutional -- Why Judge Vinson's Ruling Is So Important
Ken Klukowski
February 01, 2011

Federal judge rules Obama health care law unconstitutional
Patrick Martin
3 February 2011

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