Plenty of coverage everywhere, see blog linked by Bigdog in the previous post on this thread.
Seems to me this makes it more likely it will rise to the Supreme Court, though it could stop first in the 4th District as other challenges proceed elsewhere. Instead of this crucial question being decided by one conservative judge in Virginia, it will likely be decided by one bizarre, unpredictable judge in Washington, Anthony Kennedy.
The Obama administration says the mandate is no different than a tax. Obama also went on national television a year ago during the heated policy debates to tell us this is not a tax. Go figure.
Minds smarter than mine will tell you how this is merely a logical extension of the commerce clause or the income tax amendment. But the framers didn't envision a healthcare mandate. They envisioned future desires to expand federal government powers and put in a very specific AMENDMENT CLAUSE so people later could easily (or not so easily) expand the powers to those needed later that they didn't envision or enumerate a couple of hundred years ago.
Try this at home, fill in the blank: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are ... what?? .................................................................
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http://online.wsj.com/article/SB10001424052748703727804576017672495623838.htmlDecember 14, 2010
ObamaCare Loses in Court
A victory for liberty and the Constitution in Virginia.
Only a few months ago, the White House and its allies on the legal left dismissed the constitutional challenges to ObamaCare as frivolous, futile and politically motived. So much for that. Yesterday, a federal district court judge in Virginia ruled that the health law breaches the Constitution's limits on government power.
In a careful 42-page ruling, Judge Henry Hudson declared that ObamaCare's core enforcement mechanism known as the individual mandate—the regulation that requires everyone to purchase health insurance or else pay a penalty—exceeds Congress's authority to regulate the lives of Americans.
"The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision [the individual mandate] would invite unbridled exercise of federal police powers," Judge Hudson writes. "At its core, this dispute is not simply about regulating the business of insurance—or crafting a scheme of universal health insurance coverage—it's about an individual's right to choose to participate."
So the issue is joined, and no doubt with historic consequences for American liberty. For most of the last century, the U.S. Supreme Court interpreted the Constitution's Commerce Clause as so elastic as to allow any regulation desired by a Congressional majority. Only with the William Rehnquist Court did the Justices begin to rediscover that the Commerce Clause has some limits, as in the Lopez (1995) and Morrison (2000) cases.
The courts up through the Supremes will now decide if government can order individuals to buy a private product or be penalized for not doing so. If government can punish citizens for in essence doing nothing, then what is left of the core Constitutional principle of limited and enumerated government powers?
Judge Hudson's opinion is particularly valuable because it dispatches the White House's carousel of rationalizations for its unprecedented intrusions. The Justice Department argued that the mandate is justified by the Commerce Clause because the decision not to purchase insurance has a substantial effect on interstate commerce because everybody needs medical care eventually. And if not that, then it's permissible under the broader taxing power for the general welfare; and if not that, then it's viable under the Necessary and Proper clause; and if not that, well, it's needed to make the overall regulatory scheme function.
But as Judge Hudson argues, the nut of the case is the Commerce Clause. Justice can't now claim that the mandate is "really" a tax when the bill itself imposes what it calls a "penalty" for failing to buy insurance and says the power to impose the mandate is vested in interstate commerce. Recall that President Obama went on national television during the ObamaCare debate to angrily assert that the mandate "is absolutely not a tax increase."
Moreover, Judge Hudson says that no court has ever "extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market."
Liberals are attacking Judge Hudson because he was appointed by George W. Bush, but his ruling is relatively narrow. He didn't strike down the rest of ObamaCare even though it lacked a severability clause, and he didn't enjoin the law's implementation pending appeal. His opinion also doesn't touch Virginia Attorney General Ken Cuccinelli's long-shot claim that his state's "health freedom" law can nullify an act of Congress. In fact, federal laws that are constitutional are supreme under the 10th Amendment.
Yesterday liberals were crowing that even if the mandate is eventually declared illegal, it's no big deal because the rest of ObamaCare's new system would remain intact. Yet they've argued for years that the mandate is essential to health reform, because the mandate is at the heart of the regulatory machine. ObamaCare without a mandate would mean individuals wouldn't have to pay into a system until they were sick, driving up costs even faster and ruining what's left of health insurance markets.
While Judge Hudson's ruling is the first to declare part of the law unconstitutional, more than 20 state attorneys general and the National Federation of Independent Business are also suing in Florida. Oral arguments will be heard on Thursday in that case, which we think is the strongest constitutional challenge to the law.
As the Virginia case shows, ObamaCare really does stretch the Commerce Clause to the breaking point. The core issue is whether the federal government can order individuals to do anything the political class decides it wants them to do. The stakes couldn't be higher for our constitutional order.
