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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darwin on December 13, 2010 at 6:40 PM

If the HCL mandate is not stopped you will see some forms of those things and Crr will be cheering it all the way. These freaks like Crr that long for so much governmental control are sickening. I think many of them have Daddy complexes.

CWforFreedom on December 13, 2010 at 6:48 PM

what’s to stop Congress from mandating the food we eat? After all, a healthy diet is critical to good health.
darwin on December 13, 2010 at 6:40 PM

Already started see:
Healthy, Hunger-Free Kids Act– a law that will subsidize funded school-based feeding programs

TheVer on December 13, 2010 at 6:50 PM

dr k speaking about it now

cmsinaz on December 13, 2010 at 6:51 PM

Think about it Darwin this whole law will only lead to more and more of that. They will now have an even bigger argument that one’s health habits impact others’ and therefore justify the government’s regulation of our personal choices.

CWforFreedom on December 13, 2010 at 6:54 PM

So, now can we find the theft of two auto companies also unconstitutional? How about the theft of someones lifetime accumulated wealth, I don’t remember there being something in the Constitution where all wealth returns to the state upon one’s death. EPA, IRS, TSA should follow soon after.

rgranger on December 13, 2010 at 6:55 PM

“Life, Liberty & The Pursuit Of Happiness”

I don’t see “under penalty of law”

Dr Evil on December 13, 2010 at 6:57 PM

You load sixteen tons, and what do you get?
Another day older and deeper in debt.
Saint Peter don’t you call me, ’cause I can’t go,
I owe my soul to the government store.

malclave on December 13, 2010 at 7:01 PM

The language I quoted is in my Leftist opinion plainly an incorrect reading of the clause.

crr6 on December 13, 2010 at 6:19 PM

Fixed again.

Del Dolemonte on December 13, 2010 at 7:04 PM

A Judge finds the mandatory requirements to buy healthcare insurance in ObamaCare unconstitutional? Really? You mean all those punks that voted for Obama can’t be thrown in Jail for refusing to subsidize my healthcare?

I was looking forward to that.

DANEgerus on December 13, 2010 at 7:09 PM

I don’t remember there being something in the Constitution where all wealth returns to the state upon one’s death.

rgranger on December 13, 2010 at 6:55 PM

Necessary and proper clause. Everything you have can and will be taken by the government.

In my opinion the best thing to do is give it all away before you die, preferably to charity. Leave nothing for the government to get.

darwin on December 13, 2010 at 7:09 PM

The language I quoted is in my Leftist opinion plainly an incorrect reading of the clause.

crr6 on December 13, 2010 at 6:19 PM

Fixed again.

Del Dolemonte on December 13, 2010 at 7:04 PM

Heh.

crr6 on December 13, 2010 at 7:11 PM

The language I quoted is in my Leftist opinion plainly an incorrect reading of the clause.

crr6 on December 13, 2010 at 6:19 PM

Fixed again.

Del Dolemonte on December 13, 2010 at 7:04 PM

Heh.

crr6 on December 13, 2010 at 7:11 PM

Seriously though, I think everyone with some level of familiarity with the NPC will tell you Judge Hudson’s language there was flatly incorrect. That of course, excludes both you and Jeff Weimer.

crr6 on December 13, 2010 at 7:14 PM

CRR of course because someone who is not a leftist agrees with you means that the opinion is not leftist./

You’re an idiot.

CWforFreedom on December 13, 2010 at 7:15 PM

Heh.

crr6 on December 13, 2010 at 7:11 PM

Sorry, Del was right. Your source is as Leftist as they come.

ladyingray on December 13, 2010 at 7:18 PM

Doesn’t this just pave the way faster for single payer?

SouthernGent on December 13, 2010 at 7:19 PM

Sorry, Del was right. Your source is as Leftist as they come.

ladyingray on December 13, 2010 at 7:18 PM

Orin Kerr is as leftist as they come? That’s news to me. And him. And the Volokh Conspiracy.

crr6 on December 13, 2010 at 7:22 PM

Sorry, Del was right. Your source is as Leftist as they come.

ladyingray on December 13, 2010 at 7:18 PM

Seriously though, I’m curious as to what you’re basing your conclusion off of. Is it the fact that he did well at good schools? Cause that would be pretty funny.

Anyway, if you read his writings, you’ll see he’s a libertarian/conservative.

crr6 on December 13, 2010 at 7:23 PM

crr6 on December 13, 2010 at 7:14 PM

I understand perfectly what you are saying. I, and the judge, disagree with your reasoning. You reason that this regulation – the mandate – would satisfy the intent of the ICC, therefore the NPC could be used to uphold the mandate even if it didn’t technically fit in the ICC. It makes sense. It just doesn’t fit here, according to the judge.

Now remember, the argument was about the inactivity of this commerce. Does inactivity constitute interstate commerce? Is it Necessary and Proper for it to be considered so, and thus regulated? You apparently think “If Congress thinks so, then yes.” The judge disagrees, since he seems to be arguing that the enumerated powers are exactly that, in spirit and in word, and inactivity is no commerce at all. If it is not commerce, the enumerated power has no claim, and thus neither does the NPC.

JeffWeimer on December 13, 2010 at 7:30 PM

Already, there’s 222 companies/unions who have successfully opted out of ObamaCare, (excluding our beloved Congress, who never had to deal with it in the first place).

Right now. the whole shamble is looking like the goods you find in the grocery cart as you walk in the front door of the supermarket…out of date foodstuff, up for quick sale…mostly things you’d never buy in the first place.

betsyz on December 13, 2010 at 7:32 PM

crr6 on December 13, 2010 at 7:23 PM

I base my statement that he accepted a position as Special Counsel on Supreme Court Nominations to Senator John Cornyn, where he would advise on the confirmation proceedings for Sonia Sotomayo.

No true conservative judge would have done that. His clerking for Kennedy is no ringing endorsement, either.

ladyingray on December 13, 2010 at 7:33 PM

I understand perfectly what you are saying. I, and the judge, disagree with your reasoning.

You and the judge have absolutely no idea what’s going on. And it’s not my reasoning, it’s the reasoning from virtually every NPC decision over the last 200 years.

You reason that this regulation – the mandate – would satisfy the intent of the ICC, therefore the NPC could be used to uphold the mandate even if it didn’t technically fit in the ICC.

No that’s not what I’m saying. May God have mercy on your soul.

crr6 on December 13, 2010 at 7:35 PM

Anyway, if you read his writings, you’ll see he’s a libertarian/conservative.

crr6 on December 13, 2010 at 7:23 PM

Libertarian and conservative aren’t the same thing, btw.

ladyingray on December 13, 2010 at 7:36 PM

I base my statement that he accepted a position as Special Counsel on Supreme Court Nominations to Senator John Cornyn, where he would advise on the confirmation proceedings for Sonia Sotomayo.

ladyingray on December 13, 2010 at 7:33 PM

….uhh…I’m pretty sure John Conryn is a conservative.

crr6 on December 13, 2010 at 7:36 PM

Yes CRR because you find one Con that agrees with you that means that Dole’s point is totally without merit. /

You are hilarious.

May God have mercy on your soul.

crr6 on December 13, 2010 at 7:35 PM

You are a whack job.

CWforFreedom on December 13, 2010 at 7:39 PM

crr6 on December 13, 2010 at 7:36 PM

Whoops, you’re so right. My apologies. I read that name wrong, I often do with Cornyn.

ladyingray on December 13, 2010 at 7:41 PM

crr6 on December 13, 2010 at 7:14 PM

Why do you want the Government to be allowed to force me to buy something I don’t want or need?

And as for your citing Kerr, isn’t government health care out of his level of expertise? His bag is electrical engineering and that kind of stuff.

One of his fellow law professors at the University of Chicago also read the opinion, and came to the exact opposite conclusion, by the way.

Del Dolemonte on December 13, 2010 at 7:50 PM

Anyway, if you read his writings, you’ll see he’s a libertarian/conservative.

crr6 on December 13, 2010 at 7:23 PM

Libertarian and conservative aren’t the same thing, btw.

ladyingray on December 13, 2010 at 7:36 PM

In crr6′s world, conservatives also want to legalize drugs, not just libertarians.

Del Dolemonte on December 13, 2010 at 7:53 PM

In crr6′s world, conservatives also want to legalize drugs, not just libertarians.

Del Dolemonte on December 13, 2010 at 7:53 PM

So ernesto is a conservative in crr6′s world?

ladyingray on December 13, 2010 at 7:58 PM

I think the judge is hitting on the “proper” portion of Necessary and Proper. It may be necessary to have a mandate, but it must be proper – that is it must be constitutional itself. He reasons that since a lack of commerce fails to meet Congress’ jurisdiction via ICC, the NPC can’t cover it either to meet that end. Ironic.

JeffWeimer on December 13, 2010 at 8:04 PM

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

As much as I really like the idea of allowing people to shop for out of state health insurance, it also has a major flaw.

Once you allow people to start shopping across state lines for health insurance, the federal government can regulate it.

Hence, I believe the best option is for each of the 50 states to come up with their own health care plan. Its the only way to keep government from regulating or nationalizing health care.

Conservative Samizdat on December 13, 2010 at 8:05 PM

crr6 on December 13, 2010 at 5:55 PM

Then what, pray tell, are the Constitutional limits on Congress? Because it seems to me that the argument here is that the Commerce Clause combined with the Necessary and Proper Clause can do anything.

malclave on December 13, 2010 at 8:08 PM

Conservative Samizdat on December 13, 2010 at 8:05 PM

Yes, they would be able to regulate it at that point. They could create minimum requirements to sell nationally that could make insurance so expensive that the states would have to create their own *mandates*, constitutionally, in order to fight a defensive action against skyrocketing costs.

That’s not what I think they should do. I think the “regulation” by the federal govt. across state lines should be to support the integrity of the contracts an little more.

I also think much local regulations should go by the wayside, as they add cost without adding value to many consumers. I think FSAs should be expanded, and funded for children out of the “child tax credit” and allowed to roll over, the account to be turned over to the child when they stop using their parent’s insurance. And with the release of regulations, that catastrophic-only health insurance is offered, since out of pocket expenses can be managed out of the FSA.

That would lower premiums, bring drug prices and minor doctor’s visit costs down, and keep the government mostly out of administrating it. It will fundamentally shift the current, and proposed, paradigm of third-party payer health insurance to a more consumer-focused regime.

I’m with Ed, it’s the “somebody else will pay” mindset that has caused this problem, such as it is; “Obamacare” doesn’t change that paradigm in the slightest, mandate or no mandate. Therefore, it will fail to bring costs down without cutting care one way or another, by delaying or denying it.

JeffWeimer on December 13, 2010 at 8:31 PM

malclave on December 13, 2010 at 8:08 PM

She’s pretty much saying that…

ladyingray on December 13, 2010 at 8:42 PM

I think the judge is hitting on the “proper” portion of Necessary and Proper.

JeffWeimer on December 13, 2010 at 8:04 PM

He hinted at nothing of the sort.

Why do you want the Government to be allowed to force me to buy something I don’t want or need?

Because you’re going to need it at some point in your life, and if you don’t purchase insurance you’re going to externalize the costs of your care to the rest of society.

And as for your citing Kerr, isn’t government health care out of his level of expertise? His bag is electrical engineering and that kind of stuff.

He has many areas of expertise.

One of his fellow law professors at the University of Chicago also read the opinion, and came to the exact opposite conclusion, by the way.

Del Dolemonte on December 13, 2010 at 7:50 PM

What, that the judge’s NPC holding was correct? I’d be curious to see that.

crr6 on December 13, 2010 at 8:42 PM

And as for your citing Kerr, isn’t government health care out of his level of expertise? His bag is electrical engineering and that kind of stuff.

He has many areas of expertise

crr6 on December 13, 2010 at 8:42 PM

In any event, pointing out that the judge made an egregious error in the NPC portion of the opinion doesn’t require any expertise regarding health care. It just requires basic knowledge about the NPC. That’s why his error is so startling.

crr6 on December 13, 2010 at 8:46 PM

“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.

This guy’s been reading Hot Air.

29Victor on December 13, 2010 at 8:49 PM

Why do you want the Government to be allowed to force me to buy something I don’t want or need?

Because you’re going to need it at some point in your life, and if you don’t purchase insurance you’re going to externalize the costs of your care to the rest of society.

crr6 on December 13, 2010 at 8:42 PM

F-

Isn’t “the rest of society” already paying for health care for illegal aliens?

My buying, or not buying, health insurance in no way affects the welfare or safety of anyone else in America.

Yep, you’ll make a fine Holder DOJ lawyer. Too bad he and O’bama will be gone by the time you have your shingle!

As for Kerr, thanks for admitting he’s not an expert in this subject. That wasn’t so hard, was it?

Del Dolemonte on December 13, 2010 at 8:52 PM

Del Dolemonte on December 13, 2010 at 8:52 PM

Forgot to include the answer to your other query-namely the Chicago Law prof, namely Richard Epstein:

The key successful move for Virginia was that it found a way to sidestep the well-known 1942 decision of the Supreme Court in Wickard v. Filburn, which held in effect that the power to regulate commerce among the several states extended to decisions of farmers to feed their own grain to their own cows. Wickard does not pass the laugh test if the issue is whether it bears any fidelity to the original constitutional design. It was put into place for the rather ignoble purpose of making sure that the federally sponsored cartel arrangements for agriculture could be properly administered.

At this point, no district court judge would dare turn his back on the ignoble and unprincipled decision in Wickard. But Virginia did not ask for radical therapy. It rather insisted that “all” Wickard stands for is the proposition that if a farmer decides to grow wheat, he cannot feed it to his own cows if a law of Congress says otherwise. It does not say that the farmer must grow wheat in order that the federal government will have something to regulate.

It is just that line that controls this case. The opponents of the individual mandate say that they do not have to purchase insurance against their will. The federal government may regulate how people participate in the market, but it cannot make them participate in the market. For if it could be done in this case, it could be done in all others.

In making this position, the district court rejected the view that the individual mandate was a necessary and proper offset to the congressional decision to require all insurers to take customers without regard to their preexisting conditions. In the government’s view, the two issues are the opposite side of the same coin. If the system is going to give some individuals a subsidy, it must find a way to tax someone else to provide that subsidy. Hence the individual mandate.

Notwithstanding the unanimous support of the cross subsidy by the political classes, their use is not a sound idea. Cross subsidies are always unstable because they lead to overconsumption by the privileged class and massive resistance by the losers. In a real sense, a revitalized takings-clause argument would condemn these as transfers of wealth from A to B, without just cause.

But here no one in the political elites of either party wants to challenge the correctness of the subsidy. So the argument now has to be that the only way to fund this is out of general revenues, not out of selective charges against those who do not wish to join in the system. As a matter of political theory, there is no clear rule that says if X group is entitled to the subsidy, we can somehow identify the Y group who is duty bound to pay it. So as a normative matter, it is hard to explain why the individual mandate has to be the flip side of the subsidy when general taxes are still available.

As a political matter, however, the unhappiness with the cross subsidy could prove the undoing of Obamacare. The only way to get general revenues for this proposal is to get the next Congress to go along, which will not happen now that there is a Republican House of Representatives. So a bill that is already in hock is now ruinously so, which will only increase the political unease.

The government finds itself here in a real pickle. Virginia has drawn a clear line that accounts for all the existing cases, so that no precedent has to be overruled to strike down this legislation. On the other hand, to uphold it invites the government to force me to buy everything from exercise machines to bicycles, because there is always some good that the coercive use of state authority can advance. The ironic point is that this is not a commerce-clause argument as such, for in my view any state statute would be subject to the same objection even though the state has plenary police powers.

Del Dolemonte on December 13, 2010 at 8:57 PM

crr6 on December 13, 2010 at 8:42 PM

I didn’t say he was hinting.

JeffWeimer on December 13, 2010 at 8:57 PM

Isn’t “the rest of society” already paying for health care for illegal aliens?

If they can’t pay for it themselves and they don’t have insurance, yeah. But that’s not a phenomenon that’s unique to illegal aliens. It’s true of everyone.

My buying, or not buying, health insurance in no way affects the welfare or safety of anyone else in America.

Del Dolemonte on December 13, 2010 at 8:52 PM

Not the safety, no. But the welfare, yes. God forbid, if you were to get in a horrible accident tomorrow which requires expensive medical care, it’d be the rest of us that foots the bill.

crr6 on December 13, 2010 at 8:57 PM

I didn’t say he was hinting.

JeffWeimer on December 13, 2010 at 8:57 PM

Well he wasn’t hitting on it either.

crr6 on December 13, 2010 at 8:57 PM

Del Dolemonte on December 13, 2010 at 8:57 PM

He doesn’t say anything about the judge’s NPC reasoning.

crr6 on December 13, 2010 at 8:59 PM

Because you’re going to may need it at some point in your life, and if you don’t purchase insurance or have it purchased for you by strangers obligated to provide for you, you’re going to might externalize the costs of your care to the rest of society.

crr6 on December 13, 2010 at 8:42 PM

Fixed. And the corrected argument is less than compelling.

malclave on December 13, 2010 at 8:59 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

So anything you consider to be a good goal, but the Constitution doesn’t give the government the power to do, you can just blend in the magic NPC and it’s now Constitutional?

Very inventive. But if the Constitution doesn’t set any limits, what point is there in having one?

tom on December 13, 2010 at 9:16 PM

tom on December 13, 2010 at 9:16 PM

We don’t need a Constitution – or a Congress and Executive Branch. crr6 is quite happy letting courts decide our fates.

ladyingray on December 13, 2010 at 9:18 PM

Not the safety, no. But the welfare, yes. God forbid, if you were to get in a horrible accident tomorrow which requires expensive medical care, it’d be the rest of us that foots the bill.

crr6 on December 13, 2010 at 8:57 PM

What if someone never needs healthcare? Holistic practioners, the Amish, etc?

Here’s the thing you aren’t getting. We are all (those of with jobs) subsidizing those who don’t have medical insurance through higher premiums.

Under ObamaCare, nothing changes except how much we (the ones with jobs) have to pay for the un-insured insurance premiums. And that will be more than we pay now. And, thanks to the death panels, we’ll get less care.

Costs more…less service. Too bad its real life and not a funny commercial.

BobMbx on December 13, 2010 at 9:19 PM

No time to read 500 comments, so if repeating someone else’s, apologies. This is a nice Christmas present, notwithstaning that it is one step on the way. A nice Christmas present, like Saddam’s capture this time of year was.

churchill995 on December 13, 2010 at 9:22 PM

Almost a hundred years ago the Reverend J. H. Boetcker dispensed some advice on this subject – commonly mis-attributed to Abraham Lincoln – that is nevertheless every bit as sound today as it was in 1916:
You cannot strengthen the weak by weakening the strong.
You cannot help small men by tearing down big men.
You cannot help the poor by destroying the rich.
You cannot lift the wage earner by pulling down the wage payer.
You cannot keep out of trouble by spending more than your income.
You cannot further the brotherhood of man by inciting class hatreds.
You cannot establish security on borrowed money.
You cannot build character and courage by taking away a man’s initiative and independence.
You cannot help men permanently by doing for them what they could and should do for themselves.

Mcguyver on December 13, 2010 at 9:26 PM

tom on December 13, 2010 at 9:16 PM

We don’t need a Constitution – or a Congress and Executive Branch. crr6 is quite happy letting courts decide our fates.

ladyingray on December 13, 2010 at 9:18 PM

It’s truly amazing how often progressivism leads exactly to this point: that the Constitution is nothing in itself, just whatever a judge decides it should mean at some point.

Just like Humpty Dumpty telling Alice, “When I use a word, it means exactly what I want it to mean, no more, no less.”

tom on December 13, 2010 at 9:29 PM

Finally some sanity from the courts. I’m guessing this judge wasn’t a Clinton appointee.

abobo on December 13, 2010 at 9:52 PM

What I can’t seem to wrap my head around is that there they were, the Founding Fathers, putting the U.S. Constitution together, after having won independence from Great Britain. And someone in the room says, “Hey guys, all this talk of liberty and freedom and government having limited power is great and all, but do you know what this Constamatution-majiggy really needs? A clause that empowers the federal government to tax and regulate the absolute crap out every single person’s daily life? You know, pretty much the reason we fought the Brits in the first place? Yeah, that’d be so righteous!” And then everyone else saying, “Dude, that’s so awesome! Why didn’t we think of that?”

Left Coast Right Mind on December 13, 2010 at 9:54 PM

Put visually:
ICC=mandate is unconstitutional.

ICC + NPC= mandateanything I want is constitutional.

crr6 on December 13, 2010 at 5:55 PM

pedestrian on December 13, 2010 at 9:59 PM

Left Coast Right Mind on December 13, 2010 at 9:54 PM

Little known fact – “freedom of the press” in the First Amendment is a copying error. The actual right is “freedom of the press gang”, which gives the government the right to force any citizen into servitude (and which, by the way, makes the Obamacare mandate perfectly legal).

A big-government liberal told me, so it must be true.

malclave on December 13, 2010 at 10:06 PM

Left Coast Right Mind on December 13, 2010 at 9:54 PM

The history of the American Re^olution & the mindset of those who fought it is totally lost on the modern liberal.
They do not understand their history.
And they probably do not care.
The ones that do eventually understand it change & develop an informed opinion.

And BTW-as I have said uber times before: the courts do not have a monopoly on decisions of Constitutionality.
Each state has a perfect right to decide this issue of Obamacare for themselves.
See the KY & VA resolutions of 1798 & 1799.
Also, see Madison’s opinion on all that (~1803??).
This notion that the courts have some sweeping power to be the only one to say this $hit should or should not fly is ridiculous.
Why are we letting, as individual states, a branch of the FEDERAL GOVT decide this?
Please states will you fricking just stand up & pass a resolution?
It has been done before, & rightly so.
It needs to be done AGAIN. NOW.

Badger40 on December 13, 2010 at 10:13 PM

malclave on December 13, 2010 at 10:06 PM

I hadn’t heard that, but when I was visiting D.C. in July 2009, I did get a chance to stop by the National Archives to see the Declaration of Independence. There was some Wite-Out® on it that I don’t remember seeing before, which was kinda weird, and caused the text to read, “We hold these truths to be self-evident, that all men are created equal, that they are endowed[................]with certain [.]inalienable Rights…”.

Left Coast Right Mind on December 13, 2010 at 10:18 PM

Crr let us federalize automobile insurance as more and more people are driving with no insurance. They of course cost the rest of society.

You are a loser

CWforFreedom on December 13, 2010 at 10:20 PM

Left Coast Right Mind on December 13, 2010 at 10:18 PM

Wow.

I wouldn’t have believed it, but since I read it here on the internet it must be true.

malclave on December 13, 2010 at 10:22 PM

Badger40 on December 13, 2010 at 10:13 PM

I appreciate the references to pursue. I was being [more than] a little facetious with my post. But nobody has been able to answer that question for me. Why would the Founders put a clause in the Constitution that would allow the Federal government they were creating to emulate that of the one they had just broken free of and defeated? That is essentially what we’re being told to believe.

Left Coast Right Mind on December 13, 2010 at 10:27 PM

….uhh…I’m pretty sure John Conryn is a conservative.

crr6 on December 13, 2010 at 7:36 PM

angryed on December 13, 2010 at 10:30 PM

malclave on December 13, 2010 at 10:22 PM

You can trust me. – Joe Isuzu

Left Coast Right Mind on December 13, 2010 at 10:30 PM

In any event, pointing out that the judge made an egregious error in the NPC portion of the opinion doesn’t require any expertise regarding health care. It just requires basic knowledge about the NPC. That’s why his error is so startling.

crr6 on December 13, 2010 at 8:46 PM

This from a law student! That judge’s law clerk has more experience than you do.

Law students are among the most arrogant people on the planet, but they usually learn enough in the first few semesters to know when to keep their mouths shut. Start explaining your “egrigious errors” with citations if you want to maintain what credibility remains to you. You’re making a fool out of yourself, kid.

Venusian Visitor on December 13, 2010 at 10:30 PM

That last comment of mine was supposed to be followed with

BWA HA HA HA HA HA HA HA.

Oh man crr6, you are so out of touch with reality if you think Cornyn is a conservative. Dude, seriously, get out of NYC every now and then. There’s a whole country out there waiting to be explored.

angryed on December 13, 2010 at 10:32 PM

…Because you’re going to need it at some point in your life, and if you don’t purchase insurance you’re going to externalize the costs of your care to the rest of society…

crr6 on December 13, 2010 at 8:42 PM

At some point in my life I am going to need the services of a mortician. Am I therefore going to be required to buy memorial and burial insurance, on pain of death?

There is a point where the overreach of the central committee and its acolytes actuate armed uprisings. Where would you estimate that point to be?

belad on December 13, 2010 at 10:40 PM

I won’t have time to read six pages of comments. Has crr6 started quoting the virtues of Lenin yet ?

viking01 on December 13, 2010 at 10:52 PM

Oh man crr6, you are so out of touch with reality if you think Cornyn is a conservative. Dude, seriously, get out of NYC every now and then. There’s a whole country out there waiting to be explored.
angryed on December 13, 2010 at 10:32 PM

Heh. Actually, I think you just need to get off HA now and then.

At some point in my life I am going to need the services of a mortician. Am I therefore going to be required to buy memorial and burial insurance, on pain of death?

Even assuming that situation were analogous (which it’s not), I don’t think you understand how the mandate works. The worst think that can happen to you for choosing not to purchase health insurance, is a small penalty being deducted from your income tax return. Not “pain of death.” Quit the hysterics.

There is a point where the overreach of the central committee and its acolytes actuate armed uprisings. Where would you estimate that point to be?

belad on December 13, 2010 at 10:40 PM

I think that point should be right now, and you should lead the way. Seriously, go ahead!

After you, really!

crr6 on December 13, 2010 at 11:01 PM

Yes, they would be able to regulate it at that point. They could create minimum requirements to sell nationally that could make insurance so expensive that the states would have to create their own *mandates*, constitutionally, in order to fight a defensive action against skyrocketing costs.

I’m with Ed, it’s the “somebody else will pay” mindset that has caused this problem, such as it is; “Obamacare” doesn’t change that paradigm in the slightest, mandate or no mandate. Therefore, it will fail to bring costs down without cutting care one way or another, by delaying or denying it.

JeffWeimer on December 13, 2010 at 8:31 PM

My point about the idea of allowing people to purchase insurance across state lines is that its a double edged sword. Sure, it allows for competition but it also allows for massive regulation for government…even to the point of making ObamaCare perfectly constitutional via the Commerce Clause.

That’s why I support the idea of each state doing their own health care plan. If Massachusetts wants RomneyCare, fine. If California, Utah, Florida or any other state wants to create their own health care plan…more power to them.

I just don’t want the federal government involved with regulating health care.

And by the way, we already had a national mandate in this country created when Ronald Reagan was president.

Conservative Samizdat on December 13, 2010 at 11:01 PM

This from a law student! That judge’s law clerk has more experience than you do.

Venusian Visitor on December 13, 2010 at 10:30 PM

Probably, and that’s the startling thing about it. Neither the clerk nor the judge caught the error.

crr6 on December 13, 2010 at 11:03 PM

Then what, pray tell, are the Constitutional limits on Congress? Because it seems to me that the argument here is that the Commerce Clause combined with the Necessary and Proper Clause can do anything.

malclave on December 13, 2010 at 8:08 PM

You should ask Justice Scalia. Everything I’ve said is consistent with his concurrence in Raich.

crr6 on December 13, 2010 at 11:05 PM

Not the safety, no. But the welfare, yes. God forbid, if you were to get in a horrible accident tomorrow which requires expensive medical care, it’d be the rest of us that foots the bill.crr6 on December 13, 2010 at 8:57 PM

222 waivers given…so far.
—————————-
To anyone who can clue me in on this please answer—-Not including the religious waivers. We are up to 222 waivers from the Obamacare mandates. How do you feel SCOTUS will judge with this information? Do you think it will have any effect at all on the judgement of constitutionality? Isnt this unequal treatment, or special rights?

canditaylor68 on December 13, 2010 at 11:10 PM

To anyone who can clue me in on this please answer—-Not including the religious waivers. We are up to 222 waivers from the Obamacare mandates.
canditaylor68 on December 13, 2010 at 11:10 PM

Those are waivers given to employers so that they don’t have to comply with some of the consumer protection provisions of the mandate. The waivers don’t exempt anyone from the actual mandate.

But to answer your question, even if the waivers did exempt people from the individual mandate, it wouldn’t have any bearing on the mandate’s constitutionality.

crr6 on December 13, 2010 at 11:13 PM

After you, really!

crr6 on December 13, 2010 at 11:01 PM

I expected as much. You are always behind, never leading, don’t trust someone behind you, eh?

LMAO, transparent as a jellyfish.

belad on December 13, 2010 at 11:15 PM

God forbid, if you were to get in a horrible accident tomorrow which requires expensive medical care, it’d be the rest of us that foots the bill.

crr6 on December 13, 2010 at 8:57 PM

What are the actuarial chances of that happening?

Del Dolemonte on December 13, 2010 at 11:21 PM

canditaylor68 on December 13, 2010 at 11:10 PM

Isn’t Congress itself exempt? If so, that should tell you all you need to know about Obamacare. Heck, I’m pretty sure the guy it’s named after doesn’t even have to abide by it. So, you know it’s good.

Left Coast Right Mind on December 13, 2010 at 11:23 PM

…Not “pain of death.” Quit the hysterics….

crr6 on December 13, 2010 at 11:01 PM

Its obvious that you don’t get out much or even bother to rent movies. Your snobbery is showing as well as your lack of recognition of a movie line. LMAO!

belad on December 13, 2010 at 11:25 PM

I don’t think you understand how the mandate works. The worst think that can happen to you for choosing not to purchase health insurance, is a small penalty being deducted from your income tax return. Not “pain of death.” Quit the hysterics.

crr6 on December 13, 2010 at 11:01 PM

Wow, you’re shoveling with 2 hands…

Del Dolemonte on December 13, 2010 at 11:27 PM

belad on December 13, 2010 at 11:15 PM

So you’re not going to lead a revolution? I expected as much. Always talking boldly, never backing it up with actions. A simple coward.

What are the actuarial chances of that happening?

Del Dolemonte on December 13, 2010 at 11:21 PM

That depends on a lot of things.

crr6 on December 13, 2010 at 11:27 PM

A simple coward.

crr6 on December 13, 2010 at 11:27 PM

Says the person posting from the safety of their own home behind the curtain of anonymity on the internet.

Left Coast Right Mind on December 13, 2010 at 11:35 PM

Isn’t Congress itself exempt? If so, that should tell you all you need to know about Obamacare. Heck, I’m pretty sure the guy it’s named after doesn’t even have to abide by it.
Left Coast Right Mind on December 13, 2010 at 11:23 PM

Have you guys finally succeeded in deluding yourselves into thinking that the Patient Protection and Affordable Care Act was actually named after Obama?

crr6 on December 13, 2010 at 11:37 PM

crr6 on December 13, 2010 at 11:37 PM

Nicknamed then?

But while we’re on the subject, it’s cute that you’ve deluded yourself into thinking that the Patient Protection and Affordable Care Act is actually going to protect patients and make health care affordable.

Left Coast Right Mind on December 13, 2010 at 11:40 PM

crr6 on December 13, 2010 at 11:37 PM

You missed the substance: that congress, the ruling class, exempts itself from what it mandates for everyone else.

Eren on December 13, 2010 at 11:48 PM

crr6, how’s the view from whichever room in the White House you are working from? Did you get to see Bill last week?

churchill995 on December 13, 2010 at 11:54 PM

Eren on December 13, 2010 at 11:48 PM

No, that was the whole point of their post. Nitpick at the Obamacare moniker (and take a sarcastic swipe at “you guys”) while letting the much more substantial point go by…because it’s inarguable and indefensible.

Left Coast Right Mind on December 13, 2010 at 11:57 PM

Have you guys finally succeeded in deluding yourselves into thinking that the Patient Protection and Affordable Care Act was actually named after Obama?

crr6 on December 13, 2010 at 11:37 PM

If you have any integrity whatsoever, you will proceed to all the major left-wing websites (including media outlets) and make the same point about the “Bush tax cuts”.

But then… you’re a liberal law student studying to be a liberal lawyer, so integrity isn’t something to expect.

malclave on December 14, 2010 at 12:02 AM

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

I disagree. I read that by stating the fed gov’t has not historically stretched the CC even close to that far, or never had reason to in the past, he didn’t see that it was necessary and proper to do so now. Seems pretty clear cut….until a progressive agenda gets involved in redefining commerce.

Fighton03 on December 14, 2010 at 12:19 AM

Count it bish.

Inanemergencydial on December 14, 2010 at 1:19 AM

God forbid, if you were to get in a horrible accident tomorrow which requires expensive medical care, it’d be the rest of us that foots the bill.

crr6

BS. Guess you’ve never heard of people paying their own bills, which happens most of the time when there is no insurance. Furthermore, if I’m in an accident here in NC, you probably won’t pay one dime for it up there in NYC. If I stiff my mechanic after he fixes my car, do you have to pay for it up there in New York, or wherever it is you’re stinking up these days?

To the extent that you do pay for it in any way is part of the problem, not a reason to make the problem even worse. The only reason we pay for the health care of others in any way now is because of the socializing of the health care system. In other words, government makes you. Take care of that, and you won’t be paying for anyone but yourself. Kind of like we do in pretty much every other aspect of our lives.

xblade on December 14, 2010 at 2:00 AM

Have you guys finally succeeded in deluding yourselves into thinking that the Patient Protection and Affordable Care Act was actually named after Obama?

crr6 on December 13, 2010 at 11:37 PM

Lars Larson stated this case last night on his show. He said that Obama made this bill a centerpiece of his presidency, and he essentially took ownership of it. Thus, tagging it with his name is appropriate and denying the obvious does nothing to distance your shrinking POTUS from the unconstitutional, illegal bill. He signed it, he owns it, and you own him. Enjoy stewing in your failure and good luck on your Marxist finals!!

ted c on December 14, 2010 at 6:42 AM

Bill argues Congressional power without “logical limitation”

When you are in the beginnings of a fledgling tyranny, there is no such thing as “logical limitation”.

I am just glad to finally see a federal judge call this thing for what it really is.

pilamaye on December 14, 2010 at 7:37 AM

Obamacare is Supreme Court Bound

kingsjester on December 14, 2010 at 8:18 AM

In crr6′s world, conservatives also want to legalize drugs, not just libertarians.

Del Dolemonte on December 13, 2010 at 7:53 PM

Not true. I know at least one conservative – who is about as rabidly right-wing as they come – that has the illegal status of pot this as one of his biggest pet peeves.

He has to go through all sorts of mental gymnastics to justify his “ah wunt maw pot” stance, but there is NO doubt where he stands on that issue.

Dark-Star on December 14, 2010 at 10:24 AM

I note that crr6 avoided my challenge of explaining whether Soviet or Mao style communism is unconstitutional or not. It’s probably because in his or her mind, it IS constitutional, but knows that saying so would, shall we say, not go over well.

Disposing of the obvious, that Washington fought to free us from oppressive government control unlike crr6 who thinks that we all want Obama running our lives, my question is this:

Isn’t the mandate a taking by the government? They are seizing my property and giving it to some insurance company. If I fight, they can do all sorts of nasty things to me. I’m not being compensated by the goverment for their seizure, so isn’t it unconstitutional? I know that for the progressives, the commerce clause is the most important clause in the constitution and overrules everything else, but a sane view suggests otherwise.

Vanceone on December 14, 2010 at 10:39 AM

I like the fact that not a single one of you monkeys is able to refute crr6 on the law. It always comes back to name calling and those brittle, unconvincing “LMAO”s.

Thankfully this will be overturned on appeal and the mandate will stand, as it should.

Grow Fins on December 14, 2010 at 11:18 AM

I like the fact that not a single one of you monkeys
Grow Fins on December 14, 2010 at 11:18 AM


Racist.

Inanemergencydial on December 14, 2010 at 11:43 AM

That is essentially what we’re being told to believe.

Left Coast Right Mind on December 13, 2010 at 10:27 PM

I know. Which is incredible bcs we are supposed to understand why we have the Re^olution in the 1st place.
US History should be taught to school children every year, instead of just 1 year in HS & maybe 1yr in middle school.

Crr let us federalize automobile insurance as more and more people are driving with no insurance. They of course cost the rest of society.

CWforFreedom on December 13, 2010 at 10:20 PM

I imagine this is coming. This is very strange that we have so much competition in that market, but NONE in the health ins market.
Notcie how cheap some people can get basic auto ins.
Why does the fed. govt want to limit our health ins choices?

Thankfully this will be overturned on appeal and the mandate will stand, as it should.

Grow Fins on December 14, 2010 at 11:18 AM

I don’t know, I think this simple statement is pretty obvious:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

The fed. govt. has no business messing around with INTRA-state commerce. It is an usurpation of state’s rights via the 10th:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Legalese double-speak can obfuscate the plain & simple language of these statements & there are many fools who will fall for it.
But there is no need to be a lawyer, or rely upon any legal cases, to be able to understand the fed govt’s role here.

Badger40 on December 14, 2010 at 11:59 AM

How about this plan? The Federal Government can mandate that everyone pay for groceries, cell phones, and a new computer plus internet. For everyone. Then, they can issue waivers through a well-defined process that exempt people paying said mandate if 1) they vote Republican 2) live in a Red State.

Sounds Constitutional to me! And Grow Fins should love it–it has an individual mandate to provide something that as we all can agree, impacts everyone in a commercial fashion. Plus, since liberals are all about the individual mandate, they should have no problems paying their fair share, right? It would be hypocritical to argue otherwise….

Vanceone on December 14, 2010 at 12:05 PM

Someone should really point out the obvious…

Amendment II. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Since firearm ownership is a Constitutional RIGHT (like liberals try to construe for healthcare), conservatives should warn liberals that if individual mandates are allowed, conservatives could pass a law (2013!) requiring all able-bodied citizens to purchase firearms and ammo to protect themselves.

(You might want to stand back when their little liberal heads explode!)

dominigan on December 14, 2010 at 12:18 PM

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