Breaking: Federal judge rules ObamaCare mandate unconstitutional; Update: Bill argues Congressional power without “logical limitation”

posted at 12:16 pm on December 13, 2010 by Ed Morrissey

CNN has a breaking alert on a ruling by a federal judge in Virginia that rejects ObamaCare as unconstitutional:

A federal judge in Virginia has ruled parts of the sweeping health care reform effort led by President Obama to be unconstitutional. This is the first federal court to strike down the law, contradicting other recent rulings the law was permissible. The key issue of contention was the “individual mandate” requirement that most Americans purchase health insurance by 2014.

This case (Virginia v Sebelius) was the lawsuit brought by the states against ObamaCare.  This is the test case that had the best chance of overturning the law, and the states have apparently won an important finding in the district court.

According to Dan Foster at NRO, the judge ruled that Congress “exceeded its authority” by imposing an individual mandate to purchase insurance.

Update: Actually, this suit was brought by Virginia alone.  The other case brought by 20 other states in one suit is still pending.

Update II: Still waiting for more data from the opinion, but several commenters have mentioned the lack of a severability clause in ObamaCare to argue that this decision would invalidate the entire bill.  Not so fast, wrote David Catron at American Spectator last week:

This is probably why the White House has made so much of recent rulings by U.S. District Judges George Steeh and Norman Moon, Clinton appointees who dismissed relatively inconsequential anti-PPACA lawsuits. The administration knows, of course, that the Virginia case presents a far more serious threat than either of these cases. It has already survived a motion to dismiss and it was heard in the U.S. District Court for the Eastern District of Virginia, the famous “rocket docket” from which important cases are expeditiously launched to the U.S. Court of Appeals and beyond. As Judge Hudson put it during the October hearing, “[T]his is only one brief stop on the way to the United States Supreme Court.” Nonetheless, if he rules in favor of Virginia, the administration will no doubt claim it is ahead two-to-one.

The jumpiness of the White House notwithstanding, it is not a given that Judge Hudson will strike down the entire law. He has shown skepticism about the mandate, but that issue is relatively straightforward compared to the severability question. On the mandate, he can follow the example of Judges Steeh and Moon, who held that the decision notto engage in economic activity somehow constitutes “commerce” as the word is used in the Constitution, or he can rule that such reasoning does too much violence to the intent of the founders. On severability, Hudson’s choices are more numerous and the legal precedents are less auspicious. In fact, the Supreme Court recently invalidated an important part of the Sarbanes-Oxley accounting law, which contains no severability clause, while leaving the rest of its provisions in place.

It’s also a given that the Supreme Court will wind up deciding this, so any talk of severability at this point is academic.

Update III: Fox News is now reporting that Judge Hudson won’t issue an injunction against the entire ObamaCare law, which means that he’s seeing a de facto severability in it.  Without the mandate, though, the system won’t work at all, which gives Congress a big opening to dismantle the rest.

Update IV: Gabe Malor has begun perusing the opinion and finds the heart of Hudson’s decision on page 24:

Judge Hudson (pg 24): mandate “exceeds the Commerce Clause powers vested in Congress under Article I”

Hudson also rejected the administration’s argument that this was permissible under taxation authority by noting that the administration had publicly disputed that it was a tax, and Congress had rejected that argument as well when passing the bill (pages 33-36).   Instead, Hudson found it to be a “penalty,” and unconnected to any enumerated power (page 36).

Update V: Hudson hits the nail on the head with this:

Hudson rejected the government’s argument that it has the power under the Constitution to require individuals to buy health insurance, a provision that was set to take effect in 2014.

“Of course, the same reasoning could apply to transportation, housing or nutritional decisions,” Hudson wrote. “This broad definition of the economic activity subject to congressional regulation lacks logical limitation” and is unsupported by previous legal cases around the Commerce Clause of the Constitution.

Hudson — perhaps not inadvertently — just described the progressive agenda in a single sentence, and why the Constitution forbids it.

Stand by — more to come….


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I suppose that’s possible – frankly, I don’t know but that law just isn’t gonna get passed regardless.

Proud Rino on December 13, 2010 at 2:00 PM

It won’t right now, but I could see substantial support for a law that forces individuals to make smarter, healthier choices for their lives, from signing up for a gym (or some other approved fitness program) to buying certain foods, if we’re all forced into health insurance, even without a public option. At that point, obese Americans are harming more than just themselves.

Esthier on December 13, 2010 at 3:08 PM

Badger40 on December 13, 2010 at 3:02 PM

And yes. That will give us 50 different independent little governments that will have hoards of different rules & regs for baking bread within each little state.
But in order to participate in interstate commerce by selling bread across state lines, you then have to play by the Fed’s rules. If you find that too onerous, then don’t sell your product out of state.
If your state is forcing you to buy something, like in MA with Romneycare, then you have the option of moving to another state where their govt is more to your liking.
This is what our founders wanted for us.
And yes, it is chaotic.
But central govt is despotic.
They agreed with that.
Hence the states each doing their own thing.

Badger40 on December 13, 2010 at 3:08 PM

Wow. That’s completely incorrect, and should be reversed on appeal. The whole point of the NPC is that gives power to Congress outside of the enumerated powers, in order to accomplish an end in Article I. If the NPC didn’t expand Congress’ powers beyond the other enumerated powers, it would be completely redundant.

crr6 on December 13, 2010 at 3:03 PM

I’m not a lawyer, but even I can tell you are completely wrong.

The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the

foregoing Powers

, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

It just says that Congress has the power to pass the laws that are necessary to carry out the duties of the government spelled out elsewhere. It does not give Congress new power to do whatever social engineering it might care to do from time to time.

pedestrian on December 13, 2010 at 3:10 PM

Just one question for the statists here, such as Proud Rino and crr6: Is Soviet or Mao-style communism unconstitutional? And under what provision? How about Mussolini style Fascism?

Answer, please.

Vanceone on December 13, 2010 at 3:12 PM

Then there’s the whole nonsense about Congress and Obama referring to it as a penalty, as if that matters. I’m almost through the entire opinion. It’s awfully reasoned thus far, and could be reversed on many grounds.

crr6 on December 13, 2010 at 3:03 PM

They didn’t “refer” to it as a penalty. They wrote the law AS A PENALTY.

It matters.

Count it.

Skywise on December 13, 2010 at 3:13 PM

Vanceone on December 13, 2010 at 3:12 PM

commerce clause makes everything constitutional according to them

angryed on December 13, 2010 at 3:14 PM

It just says that Congress has the power to pass the laws that are necessary to carry out the duties of the government spelled out elsewhere. It does not give Congress new power to do whatever social engineering it might care to do from time to time.

pedestrian on December 13, 2010 at 3:10 PM

But it does if you go into your analysis looking for ways to justify ‘broad’ powers of federal government.

Fighton03 on December 13, 2010 at 3:16 PM

crr6 on December 13, 2010 at 3:03 PM

What is the end in article I in this case?

JeffWeimer on December 13, 2010 at 3:16 PM

commerce clause makes everything constitutional according to them

angryed on December 13, 2010 at 3:14 PM

I think you are right. But I want to hear them say it. Because if Soviet or Maoism is Constitutional according to them, then really they don’t believe that the citizens have any freedoms at all. In which case, it’s Second Amendment time and bring out the Declaration of Independance for another go around. Because if our government and Constitution says that we can be Sovietized, or make a Great Leap Forward, then we need a new government.

But if our Constitution forbids such things (as I believe it does) then I want crr6 et. al to explain where, and how, and then tell me where the line is between the Commerce clause forcing me to buy something and me being sent to the gulag to build license plates for the Politburo.

Vanceone on December 13, 2010 at 3:19 PM

Badger40 on December 13, 2010 at 3:08 PM

And that’s where we have different, say, emissions laws and 49-state and 50-state cars. Companies will have to deal with it. Or the states could get together and agree to have broadly similar laws to make it easier to trade back and forth.

JeffWeimer on December 13, 2010 at 3:21 PM

Judge Hudson (pg 24): mandate “exceeds the Commerce Clause powers vested in Congress under Article I”

And the people who passed this POS Bill knew it when they passed it so WHY did they waste so much time and money?

Progressives trying to probe the strength of U.S. Constitution, in this the year of our lord 2010?

Trying to chip – chip away at the foundation of our Republic?

Either way, it’s not looking good for the co-dependents.

Dr Evil on December 13, 2010 at 3:21 PM

Badger40 on December 13, 2010 at 3:08 PM

and why that is so good is that you get 50 little experiments in how to bake bread. Some will succeed other will fail, and those that failed will end up adopting the methods of those that succeed.

Fighton03 on December 13, 2010 at 3:21 PM

Is it true that the Dimwitocrats neglected to put a severability clause into the Obamacare bill? If so, if parts of the contract are found to be invalid THE WHOLE CONTRACT IS INVALID. I hope this is true, because if the SC ultimately rules the mandatory aspect of this horrid bill unconstitutional, they’ll have to start all over aga8in. No way, Jose, with a new Republican House.

MaiDee on December 13, 2010 at 3:25 PM

That has reinforced the notion — fueled by the White House — that the lawsuits are as much a political assault as a constitutional one. The Richmond case was filed by Virginia’s attorney general, Kenneth T. Cuccinelli II, a Republican, and all but one of the 20 attorneys general and governors who filed a similar case in Pensacola, Fla., are Republicans. Other lawsuits have been filed by conservative law firms and interest groups.

The White House neglects to mention that the ObamaCare law itself was a political assault. EVERYONE who voted for it in Congress was a Democrat, as was the President who signed it.

Practically every public opinion poll on ObamaCare shows 55 to 60% opposition, or support for repeal, which is far higher than the percentage of registered Republicans in the electorate (low 30′s). The voters just gave Republicans 55.6% of the seats in the House of Representatives. Coincidence?

We’re supposed to be a government of laws, and not men. Checks and balances, to keep any branch from usurping power. If one party tries to force its will down the throats of a majority, the majority will revolt wherever they can. Better at the ballot box and in court than with pitchforks!

Steve Z on December 13, 2010 at 3:26 PM

It’s awfully reasoned thus far, and could be reversed on many grounds.

crr6 on December 13, 2010 at 3:03 PM

There you go again talking in generalities. I am really worried about you today girlfriend.

Liberty or Tyranny? I’ll err to Liberty every time. Too bad you don’t feel that way.

BierManVA on December 13, 2010 at 3:31 PM

commerce clause makes everything constitutional according to them

angryed on December 13, 2010 at 3:14 PM

When BobMbx is in charge, I will submit and pass, and sign into law a bill that outlaws abortion, due to its negative impact on interstate commerce. My argument will be based on the actuarial data surrounding life span, average income, and amount of economic activity lost due to each abortion. IOW, a Commerce clause case.

As soon as the liberals make the counter-argument that the commerce clause cannot extend to privacy rights, I will have them, to borrow a manouver from chess, forked. They will either have to give up the commerce clause as the power to do whatever they want, or abortion.

Their choice.

BobMbx on December 13, 2010 at 3:31 PM

And yes. That will give us 50 different independent little governments that will have hoards of different rules & regs for baking bread within each little state.
But in order to participate in interstate commerce by selling bread across state lines, you then have to play by the Fed’s rules. If you find that too onerous, then don’t sell your product out of state.

Some states have extremely strict rules on what diseases and procedures MUST be covered by health care insurance sold to people living within the states. If the Federal Government had allowed people to shop out-of-state for health insurance, this would have opened health-insurance competition to the entire country, under a single set of regulations, and let the MARKET find the best and cheapest solution, enabling more people to be covered at a lower price.

The Federal Government has the right to regulate insterstate commerce, but it doesn’t have the right to FORCE in-state commerce.

Steve Z on December 13, 2010 at 3:34 PM

That people would argue in favor of giving the government the power to make you buy something is simply astounding.

lorien1973 on December 13, 2010 at 3:37 PM

The govt allows me to decide when to pee?

angryed on December 13, 2010 at 2:34 PM

No, but it can decide if you have to buy underwear or not.

lorien1973 on December 13, 2010 at 2:42 PM

Well, that Depends.

Barnestormer on December 13, 2010 at 3:37 PM

and why that is so good is that you get 50 little experiments in how to bake bread. Some will succeed other will fail, and those that failed will end up adopting the methods of those that succeed.

Fighton03 on December 13, 2010 at 3:21 PM

Unfortunately, the Founders never envisioned the utter cluelessness of liberal Nirvanas like New York, Taxachussetts, and Mexifornia, to whom it would never occur to copy their more successful neighbors.

VelvetElvis on December 13, 2010 at 3:38 PM

I love the headline at Drudge which simply shows a photo of Obama with the tile “Unconstitutional” written below. ]

Pretty much sums up this man’s presidency.

Keemo on December 13, 2010 at 3:40 PM

Their choice.

BobMbx on December 13, 2010 at 3:31 PM

sorry Bob you will lose, because in typical progressive fashion they’ll choose ‘BOTH’ and then vote for you to pay their legal fees.

Fighton03 on December 13, 2010 at 3:41 PM

I’m all for individual States having more power and the Feds having much less power. DC is damaged goods; plain as day in this era. I think States should send the Feds packing when and where ever possible.

Keemo on December 13, 2010 at 3:42 PM

Companies will have to deal with it. Or the states could get together and agree to have broadly similar laws to make it easier to trade back and forth.

JeffWeimer on December 13, 2010 at 3:21 PM

That kind of governmental chaos is what is so beautiful about our republic.

Badger40 on December 13, 2010 at 3:42 PM

So he’s reading earlier drafts of a law that weren’t passed in order to interpret a clearly written law. No judicial activism there, right? Just a straightforward reading of the text. Not of the law of course, but of some other stuff’s text. Great. Next time I want the law interpreted, I’d like to know beforehand which other stuff the judge wants to read and interpret along with it because I always thought that interpreting the law means actually interpreting the law. Silly me.

Proud Rino on December 13, 2010 at 2:50 PM

It’s called determining “legislative intent.”

Barnestormer on December 13, 2010 at 3:42 PM

Unfortunately, the Founders never envisioned the utter cluelessness of liberal Nirvanas like New York, Taxachussetts, and Mexifornia, to whom it would never occur to copy their more successful neighbors.

VelvetElvis on December 13, 2010 at 3:38 PM

oh, but they did. That’s why they formed a Republic with state appointed senators, and a presidency from an electoral college, not a democracy with popular vote for all federal positions.

Fighton03 on December 13, 2010 at 3:44 PM

The govt allows me to decide when to pee?

angryed on December 13, 2010 at 2:34 PM

No, but it can decide if you have to buy underwear or not.

lorien1973 on December 13, 2010 at 2:42 PM
Well, that Depends.

Barnestormer on December 13, 2010 at 3:37 PM

:D

ladyingray on December 13, 2010 at 3:45 PM

But if our Constitution forbids such things (as I believe it does) then I want crr6 et. al to explain where, and how, and then tell me where the line is between the Commerce clause forcing me to buy something and me being sent to the gulag to build license plates for the Politburo.

Vanceone on December 13, 2010 at 3:19 PM

They never will of course. But they will call you racist about 30 times.

angryed on December 13, 2010 at 3:47 PM

This type of reporting is why I check HotAir 5x a day. ..I gotta get a life ;-)

Quetzal on December 13, 2010 at 3:53 PM

What I find incredible is that the same people who went crazy when Bush tapped phones of foreign terrorists – which didn’t affect 99.99% of the population – are perfectly OK with the govt dictating how 100% of the population lives every second of their lives.

angryed on December 13, 2010 at 3:54 PM

What is the end in article I in this case?

JeffWeimer on December 13, 2010 at 3:16 PM

Regulating interstate commerce.

crr6 on December 13, 2010 at 3:54 PM

What I find incredible is that the same people who went crazy when Bush tapped phones of foreign terrorists – which didn’t affect 99.99% of the population – are perfectly OK with the govt dictating how 100% of the population lives every second of their lives.

angryed on December 13, 2010 at 3:54 PM

They’re OK with it as long as Democrats control all branches of government.

I have a feeling after 2012, when the Senate flips, there will be strange new respect from the left for the notion of limited government that they attacked during the age of Obama.

Good Lt on December 13, 2010 at 3:56 PM

That people would argue in favor of giving the government the power to make you buy something is simply astounding.

lorien1973 on December 13, 2010 at 3:37 PM

These are the people we are always fighting with to maintain our freedom & liberty.
They never stop.
And we must ever be vigilant.
Our apathy has almost ruined us.
The phenomenon of the Tea Party is the result of liberty & freedom loving Americans awakening from their apathetic slumber.

Badger40 on December 13, 2010 at 4:00 PM

oh, but they did. That’s why they formed a Republic with state appointed senators, and a presidency from an electoral college, not a democracy with popular vote for all federal positions.

Fighton03 on December 13, 2010 at 3:44 PM

Yes.

Badger40 on December 13, 2010 at 4:02 PM

I’m not a lawyer, but even I can tell you are completely wrong.
pedestrian on December 13, 2010 at 3:10 PM

Yer just as much of a lawyer as the moron yer replying to.

BigWyo on December 13, 2010 at 4:03 PM

Well, that Depends.

Barnestormer on December 13, 2010 at 3:37 PM

Doh!

lorien1973 on December 13, 2010 at 4:05 PM

What is the end in article I in this case?

JeffWeimer on December 13, 2010 at 3:16 PM

Regulating interstate commerce.

crr6 on December 13, 2010 at 3:54 PM

crr6, I point your attention back to what you quoted (emphasis mine):

Becase an individual’s personal decision to purchase-or decline to purchase- health insurance from a private provider is beyond the historical reach of the Commerce Clause, the Necessary and Proper Clause does not provide a safe sanctuary.

So actually, he is correct in this interperetation of the Necessary and Proper clause. If it’s pointing to, as you said, the Commerce Clause and the Commerce Clause is not operational here, then Necessary and Proper has nothing to support.

JeffWeimer on December 13, 2010 at 4:10 PM

I’m not a lawyer, but even I can tell you are completely wrong.
pedestrian on December 13, 2010 at 3:10 PM
Yer just as much of a lawyer as the moron yer replying to.

BigWyo on December 13, 2010 at 4:03 PM

Isn’t it funny how some think you need to be a lawyer to read & understand the Const & Bill of Rights?
You do nto have to be a lawyer to get it.
This is a myth.
More obfuscation & dishonesty.
That is how lawyers often make their living.
The Const etc is written in plain language.
A common literate of moderate intelligence can understand it.
It is not complicated.

Badger40 on December 13, 2010 at 4:11 PM

Badger40 on December 13, 2010 at 4:11 PM

You just need to be a lawyer to read all the garbage D.C. puts out to usurp the Constitution and the Bill of Rights.

Cindy Munford on December 13, 2010 at 4:15 PM

Badger40 on December 13, 2010 at 4:11 PM

Congress shall make no law….pretty straight forward language that even a simpleton liberal should understand.

angryed on December 13, 2010 at 4:17 PM

They’re OK with it as long as Democrats control all branches of government.

I have a feeling after 2012, when the Senate flips, there will be strange new respect from the left for the notion of limited government that they attacked during the age of Obama.

Good Lt on December 13, 2010 at 3:56 PM

Yes, and they will tell us it’s because the Wealthy insist on Big Government, that’s why they keep trying to raise taxes/ It’s always going to be the Wealthiest People’s fault. Class Envy – Morning, Noon, and Night.

Dr Evil on December 13, 2010 at 4:21 PM

That people would argue in favor of giving the government the power to make you buy something is simply astounding.

lorien1973 on December 13, 2010 at 3:37 PM

They’d be perfectly happy to take your money via taxes and buy it for you, so the difference is inconsequential in their eyes. If giving the proles some illusion of control and choice keeps them quieter and easier to manage, they’re willing to concede that for practical reasons, but the sentiment is obviously the same.

TexasDan on December 13, 2010 at 4:21 PM

That people would argue in favor of giving the government the power to make you buy something is simply astounding.

lorien1973 on December 13, 2010 at 3:37 PM

They want the government to make you buy something for them or for the people they want to have it…

“A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship. The average age of the world’s greatest civilizations has been 200 years.”
— Alexis de Tocqueville

This judge is trying to give us a few more years. Good for him.

pannw on December 13, 2010 at 4:27 PM

That people would argue in favor of giving the government the power to make you buy something is simply astounding.

lorien1973 on December 13, 2010 at 3:37 PM

Not if you are on the receiving end and don’t pay taxes (those people just benefit). This is Takers vs Makers. So far we have been holding them off. The Progressives answer. “Pass the DREAM ACT” it’s not an accident that’s “Harry’s legislative priority before the 112th takes over on January 5th 2011. Then all that arguing about insuring illegal aliens, and leaving them out of the Health Care Reform Bill is a moot point.

Dr Evil on December 13, 2010 at 4:28 PM

Congress shall make no law….pretty straight forward language that even a simpleton liberal should understand.

angryed on December 13, 2010 at 4:17 PM

‘Educated’ people-AKA college brainwashed morons are evidently not capable of understanding the obvious.
From my 7 yrs of undergrad experience in 3 different colleges, I would say 1/2 of it was a complete waste of time & $$ & it caused you to be ‘stupid’.
This is why I work so hard in my classroom to make learning science meaningful instead of requiring students to wonder whether they’re being tricked all the time.

Badger40 on December 13, 2010 at 4:34 PM

Alexis de Tocqueville

pannw on December 13, 2010 at 4:27 PM

He should be required reading for everyone in public school.
I read & own the book & it is wonderful.

Badger40 on December 13, 2010 at 4:35 PM

From my 7 yrs of undergrad experience in 3 different colleges, I would say 1/2 of it was a complete waste of time & $$ & it caused you to be ‘stupid’

Seven years of college down the drain! :D

Venusian Visitor on December 13, 2010 at 4:45 PM

“logical limitation”

Quick, someone explain to the Marxists what that means! Heck, the judge might just has well spoke Martian to them! lol

csdeven on December 13, 2010 at 4:47 PM

BTW, where’s JetBoy on that NYJ coach tripping that Dolphin yesterday? what is up with that?

ted c on December 13, 2010 at 2:03 PM

That was Bill Belichick’s fault.

Del Dolemonte on December 13, 2010 at 4:48 PM

From my 7 yrs of undergrad experience in 3 different colleges, I would say 1/2 of it was a complete waste of time & $$ & it caused you to be ‘stupid’.
This is why I work so hard in my classroom to make learning science meaningful instead of requiring students to wonder whether they’re being tricked all the time.

Badger40 on December 13, 2010 at 4:34 PM

It starts in grade school.

csdeven on December 13, 2010 at 4:49 PM

I’m almost through the entire opinion. In my Leftist opinion, it’s awfully reasoned thus far, and could be reversed on many grounds.

crr6 on December 13, 2010 at 3:03 PM

Fixed.

Del Dolemonte on December 13, 2010 at 4:53 PM

Didn’t crr6 say that the public loves O-Care?

Eighty-six percent of Republicans in the new ABC/Post poll, produced for ABC News by Langer Research Associates, oppose the health care law; that subsides to 47 percent of independents and 27 percent of Democrats. But support among Democrats (67 percent) is far exceeded by opposition across the aisle. And intensity of sentiment is far higher among Republicans – 69 percent “strongly” oppose the law, while just 41 percent of Democrats strongly favor it.

angryed on December 13, 2010 at 4:56 PM

This so called health insurance reform bill was for one purpose and one purpose only “Wealth Redistribution”. It was never designed to do anything else.

Turns out the Commerce Clause isn’t gonna get the job done.

Dr Evil on December 13, 2010 at 4:59 PM

He should be required reading for everyone in public school.

I read & own the book & it is wonderful.

Badger40 on December 13, 2010 at 4:35 PM

:) Agreed.

pannw on December 13, 2010 at 5:08 PM

So actually, he is correct in this interperetation of the Necessary and Proper clause. If it’s pointing to, as you said, the Commerce Clause and the Commerce Clause is not operational here, then Necessary and Proper has nothing to support.

JeffWeimer on December 13, 2010 at 4:10 PM

You’re confused.

crr6 on December 13, 2010 at 5:11 PM

So actually, he is correct in this interperetation of the Necessary and Proper clause. If it’s pointing to, as you said, the Commerce Clause and the Commerce Clause is not operational here, then Necessary and Proper has nothing to support.

JeffWeimer on December 13, 2010 at 4:10 PM

You’re confused.

crr6 on December 13, 2010 at 5:11 PM

To be fair, Judge Hudson is confused as well.

crr6 on December 13, 2010 at 5:13 PM

You’re confused.

crr6 on December 13, 2010 at 5:11 PM

You’re a diseased piece of worm ridden donkey dung.

csdeven on December 13, 2010 at 5:13 PM

We should all be praying that when it comes time for the SC to rule on this, Justice Kennedy wakes up on the right side of the bed. I think we all know he is the deciding vote here.

dczombie on December 13, 2010 at 5:20 PM

Breyer will find the mandate constitutional because we all know that the Commerce Clause was a sop to states rights dill holes just to get the Constitution ratified.

NotCoach on December 13, 2010 at 5:20 PM

Anyone who thinks inactivity constitutes “commerce” is confused.

forest on December 13, 2010 at 5:21 PM

To be fair, Judge Hudson is confused as well.

crr6 on December 13, 2010 at 5:13 PM

oh, but this line of response says so much.

Fighton03 on December 13, 2010 at 5:22 PM

To be fair, Judge Hudson is confused as well.

crr6 on December 13, 2010 at 5:13 PM

But you’re so clear thinking that you can point to that statement and say it means just the opposite.

Or are you saying you think his use of that clause is incorrect because you disagree with his interpretation of the other clause? Because from reading both of you, you agree on the Necessary and Proper clause and it’s place in this decision. It’s there to support Congress enacting laws pursuant to article I, which in this case is the Commerce Clause – your words. If the Commerce clause doesn’t support the mandate, then by extension the Necessary and Proper clause can’t support the Commerce Clause in this case.

JeffWeimer on December 13, 2010 at 5:26 PM

angryed on December 13, 2010 at 4:56 PM

I think what it meant is that eventually, people will accept they have no choice in the matter.

lorien1973 on December 13, 2010 at 5:26 PM

There really is a God.

dforston on December 13, 2010 at 12:26 PM

…The same God who visits record cold waves upon ‘Global Warming’ conferences: reminding us all that government can provide neither health nor weather!!

landlines on December 13, 2010 at 5:29 PM

To be fair, Judge Hudson is confused as well.

crr6 on December 13, 2010 at 5:13 PM

I’d trust Judge Dredd’s legal opinions before I’d trust yours, cupcake.

After all, he IS the law.

Good Solid B-Plus on December 13, 2010 at 5:29 PM

Interesting, where in the Constitution does it say that Congress can regulate commercial activity but not commercial inactivity? Where does it mention activity at all?

And, assuming your Constitution is like mine and its Commerce Clause doesn’t mention activity, isn’t it “inventing” a new thing to make the distinction regarding what is permissible based on the “activity v. inactivity” distinction?

Proud Rino on December 13, 2010 at 2:46 PM

The Constitution gives Congress the power to regulate commerce between the states. If you are not engaging in commerce between the states, that power obviously does not apply.

So there are actually two reasons:
1) Commerce implies activity, and the lack of commerce does not create any activity to regulate
2) Even if you went the ridiculous length of arguing that failure to engage in commerce is just as subject to regulation, Congress only has power to regulate commerce between the states. If inactivity is equivalent to commercial activity, which states is it between? By analogy, what state boundaries are crossed if you’re sitting still?

tom on December 13, 2010 at 5:39 PM

To be fair, Judge Hudson is confused as well.

crr6 on December 13, 2010 at 5:13 PM

Goes to show anyone can have an opinion on anything.

Badger40 on December 13, 2010 at 5:40 PM

But you’re so clear thinking that you can point to that statement and say it means just the opposite.

Or are you saying you think his use of that clause is incorrect because you disagree with his interpretation of the other clause?

No, that’s not what I’m saying. Even if we assume Congress can’t pass the mandate under the ICC, they may still pass it under the necessary and proper clause. Again, if the NPC only permitted Congress to pass laws that would otherwise be authorized under other enumerated powers anyway, the NPC would be completely redundant. Thus, under your theory, it would confer no new power on Congress at all, and presumably it was included in the Constitution just for fun.

Because from reading both of you, you agree on the Necessary and Proper clause and it’s place in this decision. It’s there to support Congress enacting laws pursuant to article I, which in this case is the Commerce Clause – your words. If the Commerce clause doesn’t support the mandate, then by extension the Necessary and Proper clause can’t support the Commerce Clause in this case.

JeffWeimer on December 13, 2010 at 5:26 PM

No, that’s not how the NPC works. It has never been interpreted that way, from McCulloch all the way up to present day.

The NPC allows Congress to pass laws which are necessary and proper for the execution of an end listed in Article I. The Article I end here is regulating the massive interstate market in healthcare, and the mandate is a necessary and proper means to that end. It’s really not very complicated.

crr6 on December 13, 2010 at 5:42 PM

Proud Rino on December 13, 2010 at 2:50 PM

The defense argued that even though the bill actually said “fine” it really meant “Tax”. To find that it was in fact a “tax”, the judge would have had to do the mental gymnastics you are accusing him of.

Fighton03 on December 13, 2010 at 2:55 PM

Exactly. So the argument that it was intended to be a tax when the text of the law called it a penalty effectively opened the door for the judge to examine how the law was passed and what it was intended to mean, but now the critics of the ruling are blaming the judge for what they effectively required him to do in considering their argument.

Always fun seeing liberals hoist on their own petard.

tom on December 13, 2010 at 5:45 PM

JeffWeimer on December 13, 2010 at 5:26 PM

In any event, if you don’t understand all of this now, the 4th Circuit will likely explain it to both you and Judge Hudson soon.

crr6 on December 13, 2010 at 5:46 PM

Again, if the NPC only permitted Congress to pass laws that would otherwise be authorized under other enumerated powers anyway, the NPC would be completely redundant. Thus, under your theory, it would confer no new power on Congress at all, and presumably it was included in the Constitution just for fun.

crr6 on December 13, 2010 at 5:42 PM

Where else in the Constitution does it say that the Congress can pass a law?

pedestrian on December 13, 2010 at 5:50 PM

crr6 on December 13, 2010 at 5:42 PM

You fail to persuade. You say at the same time that the NPC doesn’t need the ICC to be able to regulate Interstate Commerce in healthcare. Interstate Commerce being an end listed in Article I by the ICC.

You’re stuck in a logic loop.

JeffWeimer on December 13, 2010 at 5:50 PM

The Article I end here is regulating the massive interstate market in healthcare, and the mandate is a necessary and proper means to that end. It’s really not very complicated.

crr6 on December 13, 2010 at 5:42 PM

You mean the massive interstate market that they outlawed?

pedestrian on December 13, 2010 at 5:51 PM

Always fun seeing liberals hoist on their own petard.

tom on December 13, 2010 at 5:45 PM

yes it is

Dr Evil on December 13, 2010 at 5:52 PM

The Obama Administration will Appeal to the 4th Circuit Court Of Appeals, the most Conservative Court in our Country.

Dr Evil on December 13, 2010 at 5:54 PM

You fail to persuade. You say at the same time that the NPC doesn’t need the ICC to be able to regulate Interstate Commerce in healthcare.

Well it does, in the sense that it needs an Article I end and the ICC provides that end. But it doesn’t, in the sense that something may be passed under with the aid of the NPC which could not be passed under the ICC alone.

Put visually:
ICC=mandate is unconstitutional.

ICC + ICC= mandate is constitutional.

Do you understand now? If not, I suggest you do some reading on your own. You can start with McCulloch v. Maryland, or if you want something more recent, read Scalia’s concurrence in Gonzalez v. Raich. But I’m not really sure how else to explain it to you.

crr6 on December 13, 2010 at 5:55 PM

Sorry, the visual aid should read like this…

Put visually:
ICC=mandate is unconstitutional.

ICC + NPC= mandate is constitutional.

crr6 on December 13, 2010 at 5:55 PM

crr6 on December 13, 2010 at 5:56 PM

The Obama Administration will Appeal to the 4th Circuit Court Of Appeals, the most Conservative Court in our Country.

Dr Evil on December 13, 2010 at 5:54 PM

Unnecessary Capitalization is Fun.

crr6 on December 13, 2010 at 5:57 PM

The NPC allows Congress to pass laws which are necessary and proper for the execution of an end listed in Article I. The Article I end here is regulating the massive interstate market in healthcare, and the mandate is a necessary and proper means to that end. It’s really not very complicated.

crr6 on December 13, 2010 at 5:42 PM

well, obviously Judge hudson did not agree that this law is necessary and proper then.

Fighton03 on December 13, 2010 at 5:59 PM

Unnecessary Capitalization is Fun.

crr6 on December 13, 2010 at 5:57 PM

can’t stand capitalism in any form can you?

Fighton03 on December 13, 2010 at 6:00 PM

well, obviously Judge hudson did not agree that this law is necessary and proper then.

Fighton03 on December 13, 2010 at 5:59 PM

He could have held that, but he didn’t. He simply said, without any citation:

Because [the mandate] is beyond the historical reach of the Commerce Clause, the Necessary and Proper Clause does not provide a safe sanctuary.

Now, there’s a reason he didn’t cite anything after that proposition. It’s not supported by any of SCOTUS’s NPC jurisprudence, all the way back to McCulloch.

crr6 on December 13, 2010 at 6:03 PM

It’s Going To Come Down To Kennedy In The End. What Are The Odds, He’s Going To Apply Pretzel Logic?

Dr Evil on December 13, 2010 at 6:06 PM

crr6 on December 13, 2010 at 5:55 PM

So what you’re saying is … if the government felt the massive auto market needed regulation, because some people just can’t afford a car, it could mandate everyone buy a car. And just like health insurance, it would subsidize those who can’t afford to buy a car with the money it makes people spend to buy really expensive cars that they may not want or need.

To top it off, the NPC would justify this under the commerce clause.

darwin on December 13, 2010 at 6:08 PM

Now, there’s a reason he didn’t cite anything after that proposition. It’s not supported by any of SCOTUS’s NPC jurisprudence, all the way back to McCulloch.

crr6 on December 13, 2010 at 6:03 PM

Why does it have to be supported by anything other than the Constitution?

darwin on December 13, 2010 at 6:11 PM

Now, there’s a reason he didn’t cite anything after that proposition. It’s not supported by any of SCOTUS’s NPC jurisprudence, all the way back to McCulloch.

crr6 on December 13, 2010 at 6:03 PM

Not so. Not only might he have a federalist view of the clause, he might also consider that the cautions placed within McCullogh give him the latitude.

Fighton03 on December 13, 2010 at 6:15 PM

Palinization of the Judge has begun!!

PappyD61 on December 13, 2010 at 6:17 PM

It’s Going To Come Down To Kennedy In The End. What Are The Odds, He’s Going To Apply Pretzel Logic?

Dr Evil on December 13, 2010 at 6:06 PM

Is this really how freedom dies? One man alone wearing a black robe gets to be the deciding vote on whether America remains a free nation or not? Wow. How far we have fallen.

JellyToast on December 13, 2010 at 6:17 PM

crr6 on December 13, 2010 at 5:56 PM

So you’re saying that since the ICC doesn’t do it, the NPC could, just because it supports the idea of the ICC? It’s a sort of “spirit of the law” clause. That seems to be the reasoning behind the two cases you cited.

In any case, it seems the judge is declaring that since the mandate is beyond the bounds of even the idea of the enumerated power, the NPC cannot go further than that, and it can’t be used as well.

Of course, you disagree with the limit of the enumerated power, so of course you disagree with the reasoning behind shutting out the NPC.

We’ll see when the 4th reviews.

JeffWeimer on December 13, 2010 at 6:19 PM

Not so. Not only might he have a federalist view of the clause, he might also consider that the cautions placed within McCullogh give him the latitude.

Fighton03 on December 13, 2010 at 6:15 PM

Well then why didn’t he say that? The language I quoted is plainly an incorrect reading of the clause.

crr6 on December 13, 2010 at 6:19 PM

Of course, you disagree with the limit of the enumerated power, so of course you disagree with the reasoning behind shutting out the NPC.

JeffWeimer on December 13, 2010 at 6:19 PM

Ugh, no. You still don’t get it.

crr6 on December 13, 2010 at 6:20 PM

You mean the massive interstate market that they outlawed?

pedestrian on December 13, 2010 at 5:51 PM

Heh.

Good Solid B-Plus on December 13, 2010 at 6:21 PM

It’s Going To Come Down To Kennedy In The End. What Are The Odds, He’s Going To Apply Pretzel Logic?

Dr Evil on December 13, 2010 at 6:06 PM

Is this really how freedom dies? One man alone wearing a black robe gets to be the deciding vote on whether America remains a free nation or not? Wow. How far we have fallen.

JellyToast on December 13, 2010 at 6:17 PM

The Supreme Court is evenly divided between conservative judges, and liberal judges. Kennedy is the tie breaker that’s our reality.

Dr Evil on December 13, 2010 at 6:28 PM

I don’t see Obama’s picks Kagan and Sotomayor upholding Hudson, but of the two of them if one did support Hudson, it would probably be Kagan.

Dr Evil on December 13, 2010 at 6:33 PM

Unnecessary Capitalization is Fun.

crr6 on December 13, 2010 at 5:57 PM
can’t stand capitalism in any form can you?

Fighton03 on December 13, 2010 at 6:00 PM

For The Win!

TheVer on December 13, 2010 at 6:33 PM

So wait … if the individual mandate is necessary and proper to the function of the health care law, what’s to stop Congress from mandating the food we eat? After all, a healthy diet is critical to good health. What about exercise? Alcohol? Tobacco?

darwin on December 13, 2010 at 6:40 PM

Sheesh Crr get a life.Oh and keep both hands on the keyboard. These health care threads are like some masterbatory exercise for you.

Oh btw your snide remarks earlier only confirm your ugliness. The fact that you think this government should have this much power is scary and you really need to look inside yourself. Truly sad.

CWforFreedom on December 13, 2010 at 6:47 PM

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