O's house of cards

NY Post ^ | February 1, 2011 | MICHAEL A. WALSH

[Scanian]

Monday's ruling by federal Judge Roger Vinson that the Patient Protection and Affordable Care Act -- a k a ObamaCare -- is unconstitutional is a signal event in modern American history. For the first time since FDR browbeat the Supreme Court into accepting most of his New Deal, the Leviathan known as the federal government has been rocked back on its heels.

If the administration and the Senate Democrats had any sense, they'd take Judge Vinson's ruling as a gift, not a setback. Because, whether they know it or not, the judge just handed them an opportunity to get health care right.

The House Republicans took a dramatic step forward last month when they passed repeal, and Senate Minority Leader Mitch McConnell announced yesterday that he'll attach a repeal amendment to a bill authorizing funding for the Federal Aviation Administration as the Senate's next order of business.

Good for him. It's imperative that the Republicans keep the momentum going; whether the fate of ObamaCare is eventually decided by the Supreme Court is secondary to deciding its fate in the proper venue -- the legislative branch.

Judge Vinson's lucidly written and cogently argued decision, which approvingly cited the Federalist Papers, John Marshall and the Tenth Amendment, seized upon the Democrats' arrogant decision to not include a "severability clause" in the legislation -- which would've allowed the rest of the 2,000-page law to stand even if parts of it were to be found unconstitutional.

[screaminsunshine]

The statists may repeal it to avoid having a precedent set.

[HarleyD]

Senate Democrats had any sense, they'd take Judge Vinson's ruling as a gift,

If they had any sense they would never have passed it in the first place. I wouldn't count on that.

[SkyPilot]

The only reason Nancy Pelosi stayed on with this Congress is because she wanted to preserve ObamaCare, which see views as her "legacy." She used the word "Historic" 36 times within one 12 hour period while shoving this unlawful act down our throats last year.

Harry Reid released a statement yesterday that GOP Senators want to "deny health care to sick children." I am not joking.

These people are a parody of themselves.

Dear Nancy: "Are you serious? Are you serious?"

As for Obama and his wife "The Posterior" - they are on the verge of calling for race riots if ObamaCare is not funded or repealed. In speech after speech, Obama and his goon wife have alluded to this.

Going to be interesting.

[Psalm 144]

“The statists may repeal it to avoid having a precedent set.”

Interesting point. They just might.

[screaminsunshine]

A ruling against them would open the floodgate.

[snowsislander]

Monday's ruling by federal Judge Roger Vinson that the Patient Protection and Affordable Care Act -- a k a ObamaCare -- is unconstitutional is a signal event in modern American history. For the first time since FDR browbeat the Supreme Court into accepting most of his New Deal, the Leviathan known as the federal government has been rocked back on its heels.

I was certainly glad to see it; I finally had time to read some of the decision, and it is generally good. The judge certainly has a nice hand at writing clear and direct prose, and is adroit at analyzing complex situations.

The best part (which I have noticed many people quoting) is from pages 42 and 43:

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting --- as was done in the Act --- that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. 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. 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 for it would be “difficult to perceive any limitation on federal power” [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended. See id. at 592 (quoting Hamilton at the New York Convention that there would be just cause to reject the Constitution if it would allow the federal government to “penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals”) (Thomas, J., concurring). In Lopez, the Supreme Court struck down the Gun Free School Zones Act of 1990 after stating that, if the statute were to be upheld, “we are hard pressed to posit any activity by an individual that Congress is without power to regulate.” See id. at 564. (emphasis added). If some type of already-existing activity or undertaking were not considered to be a prerequisite to the exercise of commerce power, we would go beyond the concern articulated in Lopez for it would be virtually impossible to posit anything that Congress would be without power to regulate.

(I have removed all of the original emphasis, and substituted my own.)

While I don't personally agree with every stance the judge took, overall if his decision holds, it is another advancement from the worst days of Wickard wielded as the ultimate in commerce clause jurisprudence.

[Adder]

Do I just dream that the “commerce clause” will be scaled back to something approaching its original intent?

Talk about reverbrations...c’mon Roberts and Scalia! Here is the chance to right several generations of wrongs.

[bill1952]

>seized upon the Democrats’ arrogant decision to not include a “severability clause” in the legislation

IMO, there was no such decision.
Most of them never even READ the damn thing, let alone knew what was in it, and many of those that might have, probably don’t even know what that legal term means...

[Wolfstar]

I’m thrilled the states have at long last rediscovered their power to control the federal government. They are not mere subdivisions of the feds, but creators of it. It’s long past time they pushed back against at least the worst excesses of the federal behemoth.

[Scanian]

We’re still not out of the woods on this-—not by a long shot.

For all any of us know, the ‘Rats might have run O-care past some of the Supremes beforehand and were told that the bill would pass muster if it were litigated. The fix might have been in from the start.

I hate being so cynical but look at the kind of people we are talking about.

[Scanian]

Rush feltthat the severability clause was left out so that the numbers would jive with the CBO.

Take out mandates and even the rigged numbers in the bill wouldn’t work.

[BunnySlippers]

.

[cc2k]

BruceS wrote:

Rush feltthat the severability clause was left out so that the numbers would jive with the CBO.

Take out mandates and even the rigged numbers in the bill wouldn’t work.

Rush was off his game yesterday.

The CBO assumes everything in the bill is as written, and that Congress is honest. The CBO won't (can't) score based on any assumption that some part of the legislation will be struck down by the courts.

The fact the CBO "believed" even the most absurd provisions of the Patient Protection and Affordable Care Act was part of how it scored so good on the budget numbers. There was skepticism within the report on that Senate version last year, especially around the Medicare reimbursement cuts. Something in that CBO report said that reimbursement rates had never gone down like that before, and the CBO didn't believe that Congress would hold to those numbers. The CBO turned out to be correct in their skepticism on that. Less than a week after passing the "Health Care Reform," the Senate passed the "Medicare Doctor Fix" which undid those savings.

Rush also allowed too many callers yesterday to invoke the "you have to buy car insurance" analogy. He did explain that those were state laws. He didn't explain that no state requires every citizen to buy car insurance. There are millions of people in the five boroughs of New York City who don't have car insurance and aren't breaking any law.

As for the severability clause, the House version of the Health Care Reform bill had a severability clause. The Senate did not put one in their version. It was deliberate. They wanted to brow beat any judges who were faced with challenges to this law. Even Holder's Justice Department argued that the "individual mandate" that was at the center of this Florida (and 25 other states) case was so important to the law that the rest of the law didn't work without it. They were thinking that the law would be popular enough that no judge would want to toss the whole thing out for a minor flaw. They thought wrong in Judge Vinson's case. It remains to be seen whether SCOTUS will be as strong.

[Buckeye Battle Cry]

Wow, you make a great point! I never considered that, but it makes perfect sense. Retreat now and prevent the legal precedent from forever forbidding such liberal meddling in our lives. Keep their powder dry for future Supreme Courts that lean to the left.

I’m glad I saw your post. Sharp point on your effort there!

[phockthis]

the way that reads it will be hard for any court to rule against it

[MortMan]

I believe there was a decision to omit - or even remove - the severability clause. With the blatant bribes and codified special treatment of certain states, they couldn’t let there be an easy way of removing the offensive parts, lest they lose the votes. So, because they couldn’t conceive a principled conservative ruling on the merits of the law’s constitutionality, they gambled, and appeared to have lost.

The lawmakers themselves may not have known about the discussions, but the staffers who played the game surely did.

Just my $.02, naturally.

[MortMan]

I’m not sure they understand retreat as a tactic for winning long-term, but you raise a very good point, FRiend.

[HiTech RedNeck]

Somehow this has to figure into the whole weird way the monster was ushered into law. Scott Brown plugged up the Senate from being able to accommodate the House bill (that did have the severability afaik) so Barama shoved and oiled and wheedled and pulled and got the House to swallow the grodier and unseverable Senate bill (which “technically” was a House bill in a previous life before it was gutted by the Senate — just how much pretentious unconstitutional nonsense is the country going to put up with?)

[InterceptPoint]

As for the severability clause, the House version of the Health Care Reform bill had a severability clause. The Senate did not put one in their version. It was deliberate. They wanted to brow beat any judges who were faced with challenges to this law. Even Holder’s Justice Department argued that the “individual mandate” that was at the center of this Florida (and 25 other states) case was so important to the law that the rest of the law didn’t work without it. They were thinking that the law would be popular enough that no judge would want to toss the whole thing out for a minor flaw. They thought wrong in Judge Vinson’s case. It remains to be seen whether SCOTUS will be as strong.
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Well stated and worth repeating. This has been my theory all along.