Brutal: D.C. Circuit upholds ObamaCare mandate — in opinion authored by Reagan appointee

posted at 5:39 pm on November 8, 2011 by Allahpundit

Not just any Reagan appointee, either. It’s Laurence Silberman, a guy I’ve described before quite rightly as a “conservative judicial icon.” (Frum Forum has a quickie bio.) Four years ago, he wrote the landmark D.C. Circuit opinion striking down Washington’s gun ban as a violation of the Second Amendment; a year later, the Supremes affirmed his decision. And now … this.

Dude, I’m nervous.

“It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race … or that a farmer cannot grow enough wheat to support his own family,” wrote Judge Laurence Silberman in the majority opinion, citing past federal mandates that inspired legal fights.

“The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local — or seemingly passive — their individual origins.”…

In the latest case, Judge Brett Kavanaugh broke with the other two justices on the panel and said the court did not have jurisdiction to decide the case.

Says, the Journal, correctly, “The D.C. Circuit’s rulings traditionally get particularly close attention from the Supreme Court, in part because four of the justices—including Chief Justice John Roberts—previously sat in that circuit.” The killer aspect of Silberman’s opinion isn’t merely that he voted the wrong way, it’s that it’s an (almost) unqualified endorsement of the most expansive possible reading of the Commerce Clause. Which, in fairness, is in line with Supreme Court precedent. A choice quote from Time, which notes that Silberman was overheard scoffing at the anti-ObamaCare position even during oral arguments:

“The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants’ argument,” he wrote. “No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.”

As for the appellant’s argument that penalizing inactivity — not carrying insurance as opposed to, say, actively breaking the speed limit– was similarly out of bounds, he was every bit as firm. “To be sure, a number of the Supreme Court’s Commerce Clause cases have used the word ‘activity’ to describe behavior that was either regarded as within or without Congress’s authority,” Silberman argued. “But those cases did not purport to limit Congress to reach only existing activities. They were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question–presented here–of whether ‘inactivity’ can also be regulated.”

Silberman ceded that the ACA’s mandate marks an unprecedented new federal power and professed a “discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates.” But he also argued that Congress was in its right to seek a novel solution to a novel problem. “The health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services,” he wrote. “Moreover, the novelty cuts another way. We are obliged–-and this might well be our most important consideration–-to presume that acts of Congress are constitutional…. Appellants have not made a clear showing to the contrary.”

So there you go: Congress is now free to regulate commercial activity even when there isn’t any activity. That’s the same logic that the Michigan district court used last year when it upheld the mandate, and it poses the same problem identified at the time: What limit, if any, still exists on the Commerce Clause? To borrow George Will’s hypothetical, what part of the Constitution is left to prevent Congress from ordering overweight people to join Weight Watchers? The costs of treating them for weight-related issues are also part of our “novel” insurance problem, so in theory that’s regulable too. There’s no stopping point here.

Here’s the decision. The section on the mandate begins on page 28.
DC Aca Opinion

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Comment pages: 1 2

Which makes Bachmann right. You cant simply as president use executive power you have to drive a legislative steak through its heart.

William Amos on November 8, 2011 at 5:41 PM

Reagan also put Sandra Day O’Connor and Anthony Kennedy on the Supreme Court. He wasn’t God….

notropis on November 8, 2011 at 5:42 PM

The courts are not going to do away with O-Care. They aren’t.

The only way to be rid of it will be a full legislative repeal from Congress signed by a President.

catmman on November 8, 2011 at 5:43 PM

One-bama’s managed decline of America is moving full speed ahead. And what is the GOP doing? We’re getting ready to nominate a sexual preditor for POTUS..

Viva!! Everybody dance!!!

NickDeringer on November 8, 2011 at 5:43 PM

Nothing will guarantee a 2012 GOP sweep like the courts ramming ObamaCare down our throats.

darwin on November 8, 2011 at 5:45 PM

The only way to be rid of it will be a full legislative repeal from Congress signed by a President.

catmman on November 8, 2011 at 5:43 PM

I forgot to add:

Then stake it.

Cut off its head.

Burn everything.

Wizz on the ashes.

Then shoot them into the sun.

Then of course destroy the sun.

catmman on November 8, 2011 at 5:45 PM

God help us!

cirrus on November 8, 2011 at 5:45 PM

cripe….

dear leader will spin this big time…i’m surprised the lsm is not shouting this from the rooftops, fox news alert et al

cmsinaz on November 8, 2011 at 5:46 PM

I need a drink.

ElectricPhase on November 8, 2011 at 5:47 PM

OK, now I read it. No more off-the-cuff snark….

We are obliged–-and this might well be our most important consideration–-to presume that acts of Congress are constitutional

Imagine a conservative, Reagan appointee practicing judicial restraint, especially at the Circuit level….

notropis on November 8, 2011 at 5:47 PM

The courts are not going to do away with O-Care. They aren’t.

The only way to be rid of it will be a full legislative repeal from Congress signed by a President.

catmman on November 8, 2011 at 5:43 PM

Agreed with your first point but not the second. Should there be no judicial or legislative end to Obamacare then reality will intrude, we simply don’t have the money and nothing will change that.

jarodea on November 8, 2011 at 5:48 PM

… or that a farmer cannot grow enough wheat to support his own family,” wrote Judge Laurence Silberman in the majority opinion,

Really, you going to hold THAT up too? sick.

Maybe we should ask this guy about dread scott…

clement on November 8, 2011 at 5:48 PM

I wish they would mandate that we all drive the same car because I get jealous when people have better cars than mine.

SouthernGent on November 8, 2011 at 5:48 PM

There’s no stopping point here.

*shudder*

if we don’t take the white house and/or the senate…

goodbye america as we know it…

constitution will be eighty-sixed

cmsinaz on November 8, 2011 at 5:48 PM

the imperative that Congress be free to forge national solutions to national problems

Unemployment and underemployment are national problems. Congress should make it a federal crime to not have a job paying at least the national average.

And yes, I understand the math involved.

malclave on November 8, 2011 at 5:49 PM

This is what happens when you stop making the conservative case. People forget what it’s about, even judges.

jnelchef on November 8, 2011 at 5:49 PM

I suppose the good news is, regardless of how the courts rule, continuing on this path will leave us in default in, ohhhh, 20 years. So Obamacare can only last for so long.

hawksruleva on November 8, 2011 at 5:50 PM

Elections have consequences peeps.

Sugar Land on November 8, 2011 at 5:51 PM

“It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race …

Race has nothing to do with this. Obamacare now requires everyone to “eat in a restaurant” or “stay in a hotel”. It’s a requirement on the consumer, not of the business owner…

Neo-con Artist on November 8, 2011 at 5:51 PM

Reagan also put Sandra Day O’Connor and Anthony Kennedy on the Supreme Court. He wasn’t God….

notropis on November 8, 2011 at 5:42 PM

Yep.

Too many people remember some sort of cartoon version of Reagan that never existed.

Reagan accomplished a lot… but he failed just like every other President in history.

tetriskid on November 8, 2011 at 5:51 PM

We Are All Socialists Now

John the Libertarian on November 8, 2011 at 5:52 PM

“The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants’ argument,” he wrote.

No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.

So that’s the controlling concern for ruling on “novel” inventions of governmental powers – whether or not the Supreme Court has ever explicitly said that the government can’t do it.

Hell, forget the obvious absurdity of Commerce Clause jurisprudence being the justification for our mammoth regulatory state, which any “conservative jurist” should regard as a necessary evil of stare decisis to be circumvented as much as lawyerly possible. This “conservative judicial icon” is saying that Congress can do anything that the Supreme Court has not previously forbidden them from doing directly!

HitNRun on November 8, 2011 at 5:52 PM

It won’t take that many states not complying to collapse ObamaCare.

darwin on November 8, 2011 at 5:53 PM

I thought Kelo -v- New London was bad.

You might as well light a match to the parchment residing in the National Archives at this point.

Opposite Day on November 8, 2011 at 5:53 PM

Ok, so Boner and the GOP boys choir have already been squeaking about not undoing Obamacare; court just punted.

Which means we have to depend on President Romney (should he actually win against Obama)to strongarm Congress to repeal it.

hahahahahahahahahahahahahahaha! Well, that issue is closed. We’re f**ked. Ham Sandwich 2012!

austinnelly on November 8, 2011 at 5:55 PM

Reagan also put Sandra Day O’Connor and Anthony Kennedy on the Supreme Court. He wasn’t God….

notropis on November 8, 2011 at 5:42 PM

To be fair, Kennedy was not his first choice.

aunursa on November 8, 2011 at 5:55 PM

If crr6 doesn’t post we can likely consider her gone.

rogerb on November 8, 2011 at 5:56 PM

But hey, the people that will stay home if Mitt Romney is the GOP nominee are going to help this!

It’s not like there will be any SCOTUS consequences of the next election.

Abby Adams on November 8, 2011 at 5:56 PM

Meh. Even C-BS “News” wasn’t making that much of a big deal about this latest ruling earlier-it’s still going to SCOTUS.

Del Dolemonte on November 8, 2011 at 5:57 PM

Told ya it wouldn’t be close. Obama will win 7-2. The Supremes are, after all, the most powerful of government employees, so they like them some guvment power. It’ll be up to Congress to discard this monstrosity. Think they’ll have the guts? Nah. And every election ever after will be all about national health care, left and lefter, hello Great Britain, goodbye America. Give granny an extra hug this holiday season; if she gets sick, she’ll be gettin’ the government hot shot, and there won’t be a damn thing you can do about it. Granny costs too much. And your really, really, really sick baby? Yeah, also costs too much, and “Congress (must) be free to forge national solutions to national problems.” You can make another baby. Quit whinin’.

Rational Thought on November 8, 2011 at 5:58 PM

Shoving that piece of cr*p through was not democracy. It will be neutered one way or another.

Blake on November 8, 2011 at 6:00 PM

Allah; I need a palate cleanser before I jump off a bridge./

ted c on November 8, 2011 at 6:02 PM

but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race

You know what’s roughly equivalent to being able to shop at a store?

Being forced to do so.

lorien1973 on November 8, 2011 at 6:02 PM

From the Cato Institute:

Today the D.C. Circuit ruled that the individual mandate is a constitutional exercise of federal power under the Commerce Clause. Senior Judge Laurence Silberman (Reagan appointee) wrote the opinion, which was joined by Senior Judge Harry Edwards (Carter appointee). Judge Brett Kavanaugh (George W. Bush appointee) dissented on jurisdictional grounds without reaching the merits, finding that the Anti-Injunction Act barred the suit until the individual mandate/penalty/tax goes into effect. (The case is Seven-Sky v. Holder; see Cato’s amicus brief and a quick breakdown by Tim Sandefur.)

Sure, this is a loss for our side but it’s not a big deal. Every development in the Obamacare litigation has been anticlimactic since the Eleventh Circuit split with the Sixth, guaranteeing that the Supreme Court would take the case. Today’s ruling, therefore, is notable not so much for its result — upholding the individual mandate — as for the reluctance with which it reached it.

After acknowledging the novelty of the power Congress is asserting, the court expressed concern at “the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce.” In other words, the majority saw itself bound by the Supreme Court’s broad reading of federal power under the Commerce Clause but felt “discomfort” at reaching a result that seemingly had no bounds.

Indeed, the government has yet to tell any court in any of the cases what it cannot do under the guise of regulating interstate commerce. But rest assured that the Supreme Court will ask again, and soon — it considers the myriad cert petitions later this week. And if the high court is as unsatisfied with the government’s jurisprudential non-theory as the D.C. Circuit was, it will not hesitate to strike down this expansion of federal power.

“Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity,” wrote Justice Kennedy for a unanimous Court last term (United States v. Bond). “Federalism secures the freedom of the individual.”

I am confident that the Supreme Court will not allow this unprecedented invasion of individual liberty.

visions on November 8, 2011 at 6:02 PM

The reason we got Anthony Kennedy was because Robert Bork was “borked”, to the everlasting shame of Ted Kennedy.

mydh12 on November 8, 2011 at 6:02 PM

So that’s the controlling concern for ruling on “novel” inventions of governmental powers – whether or not the Supreme Court has ever explicitly said that the government can’t do it.

HitNRun on November 8, 2011 at 5:52 PM

The SC never said Congress can’t pass a law requiring all to bow before Obama and refer to him as “King Barack” so I guess that’s legal too.

Fezzik on November 8, 2011 at 6:02 PM

“It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race … or that a farmer cannot grow enough wheat to support his own family,” wrote Judge Laurence Silberman in the majority opinion, citing past federal mandates that inspired legal fights.

the reality is that he is correct – if you follow precedent, the mandate is not unconstitutional. The only way SCOTUS overturns Obamacare is if they craft a decision that narrows past precedence as to commerce clause jurisprudence. When you have a case out there from the supreme court holding that growing tomatoes in your own back yard for your own consumption affects interstate commerce giving congress the right to regulate it – then really, what is not within congress’ power to regulate?

to me, the precedent itself is unconstitutional. If the precedent is constitutional, it essentially means that the commerce clause subsumes the rest of the constitution making it all meaningless. the powers reserved to the states are illusory as everything – even drawing breath or procreating, affects interstate commerce to some degree. After all, every action has a reaction. Well – if I go on a diet I am affecting interstate commerce as I am purchasing less food. If I forgo having kids I am affecting interstate commerce by not supplying future consumers.

The chances of Kennedy doing something as bold as narrowing the scope of 100 years of commerce clause precedent are pretty slim. And, the chances of the GOP actually repealing this boondoggle are just as slim.

Monkeytoe on November 8, 2011 at 6:03 PM

The analogy that this is akin to a restaurant having to serve all customers regardless of race makes no sense. If I didn’t like it I just wouldn’t go there. The analogy is if they forced you to eat there.

rjoco1 on November 8, 2011 at 6:03 PM

allahP; I need a palate cleanser, or some comedy gold before I jump off a bridge tonight. Can we mix it up a bit, we’ve had a run of bad news ’round here.

ted c on November 8, 2011 at 6:03 PM

If crr6 doesn’t post we can likely consider her gone.

rogerb on November 8, 2011 at 5:56 PM

Do occupy tents have internet access?

ButterflyDragon on November 8, 2011 at 6:04 PM

[William Amos on November 8, 2011 at 5:41 PM]

Not just that, though. We then we need an amendment to the Constitution limiting the commerce clause.

Dusty on November 8, 2011 at 6:04 PM

God help us.

davidk on November 8, 2011 at 6:05 PM

austinnelly on November 8, 2011 at 5:55 PM

Does it appear to you now that the GOP doesn’t want Obamacare to be repealed? That probably they are pulling levers so that this “conservative icon” set a worse ruling? Don’t you think it’s odd that the party is doing everything it can to make Romney the nominee the one candidate who can’t run against Obamacare? What does it say about the GOP? It’s in love with the Obamacare. Individual manadate was supported by many conservatives during the conservatives during Hillarycare debate. That is the real concern, not this ruling.

promachus on November 8, 2011 at 6:06 PM

The courts cannot be relied upon to overcome political bias through logic. When I say political bias, I do not mean right versus left, but government versus citizen. We have one of three choices:

1. Repeal through congress, signed by a president
2. Constitutional convention, or
3. Violence

I am convinced one of the three will happen.

Vashta.Nerada on November 8, 2011 at 6:08 PM

Dude, I’m nervous.

“It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race … or that a farmer cannot grow enough wheat to support his own family,” wrote Judge Laurence Silberman in the majority opinion, citing past federal mandates that inspired legal fights.

Remember, Allahpundit-san, crisis represents two signs of the I Ching… Danger, and Opportunity.

If in fact it is less of an infringement on liberty than tohose things mentioned, and the SCOTUS finds that it goes too far…

… it would give the Court, manned by the right judges, the ability to strike down large chunks of the uber-state on the basis of redrawing the authority of the Commerce Clause.

And in a delicious twist of irony, should it play out that way, it will have been brought to you, courtesy of Barrack Hussein Obama.

JohnGalt23 on November 8, 2011 at 6:10 PM

To a certain point, it almost doesn’t even matter to me anymore if the mandate is upheld. I mean, on it’s face, that’s a blatantly untrue statement. But what I mean is, I don’t need the Supreme Court, or any lower court, to tell me the mandate is unconstitutional. It obviously is. I have no intention of ever complying with the mandate, nor do I consider myself to have any moral duty to do so.

I obey laws, I pay my taxes, even when I think they are stupid. Other laws, such as state requirements to purchase auto insurance, are bad law–but constitutional, and I obey those laws. This law, with this mandate, however? Different story. My conscience is clear on this. I’ll never comply. This strikes at the core of what it is to be American, and if in fact this law is constitutional, then we have irretrievably lost what it means to be American.

Andy in Colorado on November 8, 2011 at 6:10 PM

Not to be one of those repeal the 17th amendment kooks (although I am), but the commerce clause jurisprudence is exactly why that amendment needs to be repealed. The whole point of having the senate advise and consent on judicial nominees was to require representatives of the states to give the OK on judicial nominees before they went on. So now we have the President and 100 other guys who equally benefit from the expansion of federal authority picking judges, anyone shocked they read the commerce clause as they do?

galenrox on November 8, 2011 at 6:10 PM

I am convinced one of the three will happen.

Vashta.Nerada on November 8, 2011 at 6:08 PM

I’m pretty confident number three will be in full bloom before the 2012 election. This is the last chance for the left to destroy the old US and remake it in their image. They will stop at nothing.

darwin on November 8, 2011 at 6:12 PM

“No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.”

So what? Does that mean the commerce clause confers unlimited powers on the federal government? To hell with original intent, I guess. Based on this logic, there is no individual activity or non-activity that can’t be said to affect interstate commerce and the very idea of individual liberty is rendered meaningless.

RadClown on November 8, 2011 at 6:12 PM

Surreal verbal diarrhea from this judge and court, and utterly disgraceful and lamentable, and blatantly dishonest decision.

rightwingyahooo on November 8, 2011 at 6:13 PM

He is absolutely right that there is nothing inheriently significant about the activity — inactivity dichotomy. However, it was the BS rule set up by SCOTUS when they were creating the imaginary expansive powers under the Commerce Clause. It was an imaginary limitation on imaginary powers. I guess the power is now real, but the limitations are still imaginary.

tommylotto on November 8, 2011 at 6:13 PM

Okay so another district court goes for ObamaCare. Seems the Appellate courts are still two to one against. Heap big smoke. This goes to SCOTUS anyhow, if not there already.

Caststeel on November 8, 2011 at 6:14 PM

It certainly is an encroachment on individual liberty

Just like laws protecting the individual liberties of unborn children–oh, wait.

davidk on November 8, 2011 at 6:14 PM

Ha!
That means they will have to try to arrest me which will end in a death by cop scenario and that will wind up ruining the health of several officers along the way.

esnap on November 8, 2011 at 6:15 PM

OK, now I read it. No more off-the-cuff snark….

We are obliged–-and this might well be our most important consideration–-to presume that acts of Congress are constitutional

Imagine a conservative, Reagan appointee practicing judicial restraint, especially at the Circuit level….

notropis on November 8, 2011 at 5:47 PM

That quote is insanity.

To presume acts of Congress are constitutional??

Hey, the Founders WANTED gridlock. It’s called checking power grabs of the other branches of government.

INC on November 8, 2011 at 6:16 PM

Seriously. If the Supreme Court upholds Obamacare… Liberty is dead, the U.S. Constitution is dead. And there will be NOTHING that Congress can’t do to us.

Murf76 on November 8, 2011 at 6:17 PM

“It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race …

Race has nothing to do with this. Obamacare now requires everyone to “eat in a restaurant” or “stay in a hotel”. It’s a requirement on the consumer, not of the business owner…

Neo-con Artist on November 8, 2011 at 5:51 PM

Excellent point.

INC on November 8, 2011 at 6:17 PM

the country is over if the supremes side with obama.

sbvft contributor on November 8, 2011 at 6:19 PM


“We are obliged–-and this might well be our most important consideration–-to presume that acts of Congress are constitutional”

 
notropis on November 8, 2011 at 5:47 PM

 
Wow. That might be one of the most horrifying statements I’ve ever read.
 
To think that all these years I’ve completely misunderstood the phrase “checks and balances”.

rogerb on November 8, 2011 at 6:20 PM

When they used interstate commerce to argue constitutional authority for mary jane prohibition, I didn’t speak up because I wasn’t really adhering to conservative principles. But now when it counts, oops.

/drug warriors

SirGawain on November 8, 2011 at 6:21 PM

“The D.C. Circuit’s rulings traditionally get particularly close attention from the Supreme Court…”

There’s no such thing as “the Supreme Court.” There are four yeas, four nays, and Anthony Kennedy. All that matters, about any subject in the entire country. is what he thinks.

Fabozz on November 8, 2011 at 6:23 PM

notropis on November 8, 2011 at 5:47 PM

Wow. That might be one of the most horrifying statements I’ve ever read.

rogerb on November 8, 2011 at 6:20 PM

Yes, it does tend to jump out at you, does it not? Alarming indeed.

the country is over if the supremes side with obama.

sbvft contributor on November 8, 2011 at 6:19 PM

No, the country is over when the GOP signs off on immigration reform, guaranteeing a permanent voting majority FOR Ogabecare, and other lefty bucket list legislation…..

rightwingyahooo on November 8, 2011 at 6:26 PM

That’s OK. Mitt Romney is sure to sign an executive order outlawing Obamacare.

Dude, where did my country go?

angryed on November 8, 2011 at 6:28 PM

I think it’s clear Reagan would repent of Silberman at this point.

Just like he repented of his amnesty.

OF course, the HOTAIR amnesty support group clings to the idea that Reagan’s amnesty was a conservative win and the right thing to do, so much so that we should repeat it with a number 7 times as large today.

Let’s see them apply the same standard to this ruling, and applaud Silberman, and call down blessings from St Ronaldus upon him.

rightwingyahooo on November 8, 2011 at 6:30 PM

This is disgusting.

mikeyboss on November 8, 2011 at 6:30 PM

Judges are part of the big gov machine. Some will go against it but in general they are very open to the the machine. Expand govs power and you expand the judiciary’s power.

CW on November 8, 2011 at 6:32 PM

The courts are not going to do away with O-Care. They aren’t.

The only way to be rid of it will be a full legislative repeal from Congress signed by a President.

catmman on November 8, 2011 at 5:43 PM

Agreed with your first point but not the second. Should there be no judicial or legislative end to Obamacare then reality will intrude, we simply don’t have the money and nothing will change that.

jarodea on November 8, 2011 at 5:48 PM

Apparently you didn’t factor in those death panels -and don’t think that a president who supports slaughtering a baby, out of the womb and fully alive, won’t demand that cost trumps life itself!

Don L on November 8, 2011 at 6:33 PM

“We are obliged–-and this might well be our most important consideration–-to presume that acts of Congress are constitutional…. Appellants have not made a clear showing to the contrary.”

If this is Silberman’s salient point – he’s an idiot.

If this were so, then there is absolutely no reason for the Federal Appellate and Supreme Courts.

GarandFan on November 8, 2011 at 6:33 PM

This is RIDICULOUS !!! One of the reasons the judges gave, that I just read in Drudge, was that the mandate is fine because it is not different than requiring stores to accept all customers regardless of race. Aside from the many issues with that statement is the one that tips the whole decision on it’s head: it’s APPLES AND ORANGES!!! WE ARE NOT THE STORE OWNERS, WE ARE THE CLIENTS!!!! WE HAVE THE FREEDOM TO CHOOSE TO ENTER A STORE OR NOT!!!

THis has been one of the worst thought out decisions that have come out of this whole ordeal.

My God… How dumb are these judges?!!!

ptcamn on November 8, 2011 at 6:35 PM

Thus the world ends. Not with a bang but a simper.

spmat on November 8, 2011 at 6:38 PM

This decision is so bad, maybe it’s all part of a secret plan by the judge. Write something so idiotic than even a liberal member of SCOTUS will be forced to strike it down.

angryed on November 8, 2011 at 6:38 PM

this is just going with precedent. if the scotus overturns obamacare it will be casting a blow at many precedents.

it may, but generally scotus doesn’t like to do that. So electric cars…well, yes, in every driveway

remember, this country confiscated gold that people held privately…so let’s not be naive

r keller on November 8, 2011 at 6:39 PM

My God… How dumb are these judges?!!!

Not quite as dumb as those guys that found mysterious emanations from penumbras that resulted in 53 million innocent lives so far.

I ask again -is there a point in a free nation at which court decisions need to be ignored or overturned by impeachment?

How long will star decicis and corrupted case law as taught in le3ftist law schools replace what the constitution clearly says?

Don L on November 8, 2011 at 6:40 PM

catmman on November 8, 2011 at 5:45 PM

Salt the ashes, THEN wizz on them.

dogsoldier on November 8, 2011 at 6:45 PM

“We are obliged–-and this might well be our most important consideration–-to presume that acts of Congress are constitutional…. Appellants have not made a clear showing to the contrary.”

This joke must not have hears of the enumerated powers or the Bill of Rights. In a real America if they were to presume one way or the other they would presume that the Federal Government should have less power.

CW on November 8, 2011 at 6:47 PM

It all comes down to precedent, as other stated above.

This appeals court just followed precedent, as it should. Case law, especially turning over years of precedent, should be left to SCOTUS.

Frankly, SCOTUS will have to find a new limit to the commerce clause. There have been other examples, such as the Lopez case, but this is all new ground. Either they say the individual mandate follows past precedents and uphold it, or they say that this treads new and dangerous ground and overturn it.

neoavatara on November 8, 2011 at 6:48 PM

Again most judges love power.When Obamacare goes to SCOTUS it will be upheld. Bank on it.

CW on November 8, 2011 at 6:49 PM

Well, say hello to socialized medicine. It is just a matter of time now.

Only an armed you know what will restore true freedom at this point.

WisCon on November 8, 2011 at 6:49 PM

This appeals court just followed precedent, as it should. Case law, especially turning over years of precedent, should be left to SCOTUS.

neoavatara on November 8, 2011 at 6:48 PM

You sound like a smart person. Where is that rule written?

CW on November 8, 2011 at 6:50 PM

NickDeringer on November 8, 2011 at 5:43 PM
I’m no Cain supporter-but your ‘sexual predator’ comment is outta line.

annoyinglittletwerp on November 8, 2011 at 6:54 PM

Well, say hello to socialized medicine. It is just a matter of time now.

WisCon on November 8, 2011 at 6:49 PM

It is around the bend.

CW on November 8, 2011 at 6:56 PM

Again most judges love power.When Obamacare goes to SCOTUS it will be upheld. Bank on it.

CW on November 8, 2011 at 6:49 PM

Wouldn’t it be more powerful to strike it down? Shows YOU DA MAN!

angryed on November 8, 2011 at 6:56 PM

Damn! The news tonight is starting to suck already…

AUINSC on November 8, 2011 at 6:57 PM

Wouldn’t it be more powerful to strike it down? Shows YOU DA MAN!

angryed on November 8, 2011 at 6:56 PM

No it puts health care more even in the federal realm. If they strike it down more power stays with states.

CW on November 8, 2011 at 7:02 PM

The life tax…

equanimous on November 8, 2011 at 7:02 PM

“even more”
darn it

CW on November 8, 2011 at 7:03 PM

“It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race … or that a farmer cannot grow enough wheat to support his own family,”

So, it is completely unconstitutional, but, because other Supreme Courts have let other completely unconstitutional laws pass, we have to let this one go too?

Count to 10 on November 8, 2011 at 7:03 PM

I wish they would mandate that we all drive the same car because I get jealous when people have better cars than mine.

SouthernGent on November 8, 2011 at 5:48 PM

You wish you had my 2003 Chevy Venture, but you ain’t getting it.

keep the change on November 8, 2011 at 7:05 PM

Nancy Pelosi and Harry Reid = Masters of the Game.

Republicans = Amatures

rickyricardo on November 8, 2011 at 7:06 PM

You can thank the Heritage Foundation for coming up with the individual mandate. They’re the ones that come up with this idea.

Conservative Samizdat on November 8, 2011 at 7:12 PM

but, because other Supreme Courts have let other completely unconstitutional laws pass, we have to let this one go too?

Count to 10 on November 8, 2011 at 7:03 PM

The lawyer types go nuts when I say this: that is the joy of precedent. Leave your brain at home justices.

CW on November 8, 2011 at 7:15 PM

Time to attach an individual mandate to the second amendment.

Scrappy on November 8, 2011 at 7:17 PM

Time to attach an individual mandate to the second amendment.

Scrappy on November 8, 2011 at 7:17 PM

I think you can count on Smith and Wessons support.

CW on November 8, 2011 at 7:20 PM

There’s no stopping point here.

Welcome to the Fourth Reich. You asked for it, you got it.

oldleprechaun on November 8, 2011 at 7:21 PM

One-bama’s managed decline of America is moving full speed ahead. And what is the GOP doing? We’re getting ready to nominate a sexual preditor for POTUS..

NickDeringer on November 8, 2011 at 5:43 PM

Nonsense. Cain will be gone in a few weeks. The GOP is in fact getting ready to nominate the champion of Obamacare’s legislative inspiration.

rrpjr on November 8, 2011 at 7:22 PM

You sound like a smart person. Where is that rule written?

CW on November 8, 2011 at 6:50 PM

.
Yeah, since the Lopez appellate didn’t follow that rule. United States v. Lopez (93-1260), 514 U.S. 549 (1995)

ExpressoBold on November 8, 2011 at 7:22 PM

The courts are not going to do away with O-Care. They aren’t.

The only way to be rid of it will be a full legislative repeal from Congress signed by a President.

catmman on November 8, 2011 at 5:43 PM

DITTO.

Lourdes on November 8, 2011 at 7:28 PM

And this is an excellent, informative post, AP. Thanks.

Lourdes on November 8, 2011 at 7:29 PM

NickDeringer on November 8, 2011 at 5:43 PM

Nonsense. Cain will be gone in a few weeks. The GOP is in fact getting ready to nominate the champion of Obamacare’s legislative inspiration.

rrpjr on November 8, 2011 at 7:22 PM

Romney’s said repeatedly in public that as President, he’ll defeat OCare.

Lourdes on November 8, 2011 at 7:30 PM

The courts are not going to do away with O-Care. They aren’t.

catmman on November 8, 2011 at 5:43 PM

Quite right. You’ll be heartbroken if you’re waiting for salvation from the Court. No way Kennedy will overturn it. We lost this fight in the trenches and that’s where we’re going to have to win it.

rrpjr on November 8, 2011 at 7:31 PM

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