Posted on 12/13/2010 9:21:01 AM PST by careyb
Just in... will keep you posted...
"The Commonwealth emphasizes that the best evidence of congressional intent is the language chosen by that legislative body. In the Minimum Essential Coverage Provision (26 U.S.C. 5000A(b)(1)) Congress specifically denominated this payment for failure to comply with the mandate as a "penalty."
Judge Hudson didn't fall for the defendant's attempt to call the penalty a tax. From the ruling:
"In concluding that Congress did not intend to exercise its powers of taxation under the General Welfare Clause, this Courts' analysis begins with the unequivocal denials by the Executive and Legislative branches that the ACA was a tax. (Emphasis added)
...and...
"This Court is therefore unpersuaded that Section 1501(b)(1) is a bona fide revenue raising measure enacted under the taxing power of Congress. As the Supreme Court pointed out in La Franca, 202 U.S. at 572, 515 S. Ct. at 280. The penalizing feature of this so-called tax has clearly 'los[t] its character as such' and has become 'a mere penalty with the characteristics of regulation and punishment.' Kurth Ranch, 511 U.S. at 799, 114 S. Ct. at 1946 (citing Child Labor Tax Case, 259 U.S. at 28, 42 S. Ct. at 451). No plausible argument can be made that it has 'the purpose of supporting the Government.'"
The court therefore concluded that Section 1501(b)9(1) was a penalty, not a tax, notwithstanding the government's lame arguments to the contrary.
Excellent point!
"Having found a portion of the Act to be invalid, the Section 1501 requirement to maintain minimum essential health care coverage, the Court's next task is to determine whether this Section is severable from the balance of the enactment. Predictably, the Secretary counsels severability, and the Commonwealth urges wholesale invalidation. The Commonwealth's position flows in part form the Secretary's frequent contention that section 1501 is the linchpin of the entire health care regimen underlying the ACA." (Emphasis added)
However, in spite of this admission by the defendant, the judge went on to rule:
"this Court will hew closely to the time-honored rule to sever with circumspection, severing any 'problematic portions while leaving the remainder intact.' Ayotte, 546 U.S. at 329, 126 S. Ct. at 967. Accordingly, the Court will sever only Section 1501 and directly-dependent provisions which make specific reference to Section 1501." (Emphasis added)
So in spite of the Secretary plainly admitting that the Act was unsustainable without Section 1501, the Judge ruled for severability instead of declaring the whole thing un-Constitutional. :-(
I think had he ruled otherwise, he risked having his decision overturned. There are other laws that have been passed without a severability clause where the SCOTUS held only specific pieces were unconstitutional. (e.g. Sarbanes-Oxley)
I don’t like it either and believe as you do that if 1501 is key, then toss it all. But I’d rather see the key piece ruled unconstitutional than have Hudson’s entire decision overturned or sent back to him for reconsideration. Let the SCOTUS throw out the whole thing then there can be no arguments.
I think had he ruled otherwise, he risked having his decision overturned. There are other laws that have been passed without a severability clause where the SCOTUS held only specific pieces were unconstitutional. (e.g. Sarbanes-Oxley)
I don’t like it either and believe as you do that if 1501 is key, then toss it all. But I’d rather see the key piece ruled unconstitutional than have Hudson’s entire decision overturned or sent back to him for reconsideration. Let the SCOTUS throw out the whole thing then there can be no arguments.
What’s up, big guy? You haven’t said a word about this ruling. I expected a “Woo! Hoo!” at a minimum.
What’s up, big guy? You haven’t said a word about this ruling. I expected a “Woo! Hoo!” at a minimum.
Woo hoo!! But I’ll save the cigar until the fat lady sings.
That’s more like it. :)
Bwahahaha! Drudge reminds us of Nazi Pelosi’s response, “Are you serious? Are you serious?” to a reporter’s question about where in the Constitution Congress is authorized to mandate the purchase of health insurance.
I had forgotten. This is great!
Ok, showing my ignorance here, is this an appeal of the other 2 judges decision? I know about the appeal process, was it in lower courts in the other states? I would appreciate any info on this.
Nice! Exposed as the idiotic, lunatic, power-hungry fascist she really is.
This to me is why elections REALLLY matter. Judges. Yeah, I know, even Ronald Reagan appointed a few non conservatives. But with Obama we get all left-wing -nut-job- judges.
I will support whomever the Republican nominee is because I think nothing could be worse than Obama!!! (and I came seconds away from leaving the Republican party in 2008, had the form in-hand, only stayed so I could vote in primaries)
No, this wasn’t an appeal. This is a separate case in Virginia.
That pesky Constitution...Which was meant to be a lot more pesky to the elite than it has been thanks to our traitorous judical branch. I hope that changes...
Good point. No, GREAT point, and I hope you get that wish for Christmas.
He COULD say it 300 million times, for each and every US citizen whose Constitution has dodged another bullet, including those who think they want it. I know, I know, it will go to SCOTUS, but I believe Judge Hudson’s ruling will be upheld. I’d have been shocked if he ruled otherwise.
You waived the Constitution when you signed up for Social Security. Same with your Driver License.
Obamacare Endgame: Doctors Will be Fined or Jailed if they Put Patients First by Dr. Elaina George
LINK
Ruin Your Health With the Obama Stimulus Plan
LINK
OBAMACARE’S LETHAL THIRD RAIL SHOCK TO COME
LINK
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