Constitutional Law

Obama Administration Says Health Care Law Is All Or Nothing. Judge Gives Them Nothing.

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When Judge Henry Hudson struck down the individual mandate last year in response to Virginia's constitutional challenge to the health care overhaul, he left the rest of the law intact. In ruling on a separate multi-state challenge to the law today, Roger Vinson, a federal judge in Pensacola, Florida, went significantly further by striking down the entire law. Why the difference?

Because the law contained no severability clause, a contingency provision that would have protected the bulk of the law should one part be ruled unconstitutional, Vinson had to decide whether in striking the mandate he should also strike some or all of the rest of the law. Supreme Court guidance on laws lacking severability clauses suggests that judges should generally seek to excise as little of the law as possible, but also to ensure that if there is a remainder, it still serves the law's overall intended objective.

Therein lies the problem for the law's legal backers. As Vinson notes in his ruling, both the administration, which is implementing the law and defending it in court, and Congress, which wrote and passed the law, have made clear that the individual mandate is an absolutely critical provision. Vinson explains:

The defendants have acknowledged that the individual mandate and the Act's health insurance reforms, including the guaranteed issue and community rating, will rise or fall together as these reforms "cannot be severed from the [individual mandate]." As explained in my order on the motion to dismiss: "the defendants concede that [the individual mandate] is absolutely necessary for the Act's insurance market reforms to work as intended. In fact, they refer to it as an 'essential' part of the Act at least fourteen times in their motion to dismiss." [bold added]

Vinson provides several examples, and also notes that Congress itself, in drafting the law's text, put forth a similar claim:

Congress has also acknowledged in the Act itself that the individual mandate is absolutely "essential" to the Act's overarching goal of expanding the availability of affordable health insurance coverage and protecting individuals with pre-existing medical conditions.

As a result, Vinson concludes that "the individual mandate is indisputably necessary to the Act's
insurance market reforms, which are, in turn, indisputably necessary to the purpose of the Act." Essentially, the administration's lawyers argued that the health care law wouldn't work without the mandate, and Vinson took them at their word.

NEXT: Does Judge Vinson's Ruling Halt Implementation of ObamaCare?

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  1. COMO ESTAS, BITCHES!!

    Heh heh – own petards, hoisting, etc.

  2. A thousand plus pages, and they didn’t think to include a severability clause?

    Well, Ms. Pelosi: I guess we found out what was in it, after all.

    -jcr

    1. As Civ V reminds me periodically, the only thing that saves us from the bureaucracy is its inefficiency.

      1. Re: Kehn Shultz,

        As Civ V reminds me periodically, the only thing that saves us from the bureaucracy is its inefficiency.

        Or, its idiosyncracy.

        1. Idiosyncracy? Or idiocyy?

          1. Idiocy

    2. Why would they want the mandate to be severable? If you think about the economics, without the mandate the PPACA would obviously quickly destroy US health insurance. (as opposed to subtlely slowly with the mandate…)

      1. Well, hypothetically they could have argued for the mandatory issue and community rating portions to go along with the mandate, but separate out the subsidy and Medicare changes and exchanges.

        But no, the Administration just had to double down in their defense brief.

    3. This was not intended to be the final bill, they probably would have added it while they were putting it together with the house version.

  3. As much as we all love to hate the courts, there really is nothing better when it comes to defending our rights.

    Being in the minority sucks when your rights are up for a vote, and I am so glad my rights aren’t at the complete mercy of public opinion!

    Public opinion has average intelligence, and when you look at the people we’ve elected as presidents lately, it really shows.

    1. How about our right to throw you in a dumpster if you show up at a hospital without an insurance card and/or a cashier’s check to cover all services?

      No. I am pretty sure you want a right for people to skimp on insurance, and then stick everyone else with the bill when the crap hits the fan.

      1. Ahh.. chad.. See what you’re doing?
        You argue from the point of fiscal concern, preempting the position of fiscal conservatives on the matter. But if someone beats you to that position, you’ll play the social morality card and talk about unequal access to healthcare and racism.

        It’s unbecoming of you.

        1. “It’s unbecoming of you.”
          You’re too kind; it’s typical of chad.

          1. True.. maybe he’s just trying out new shoes.. they still don’t fit him, though. Chad the Fiscal Conservative..

      2. What, a credit card won’t do?

      3. Well, speaking as someone who once walked into an emergency room having lost 60% of the blood in my body and no insurance? I can tell you that isn’t a lot of fun…

        I can also say that was a big freakin’ bill, a lot bigger than it would have been if I hadn’t been covering my own costs and everybody on Medicare and Medicaid’s costs too…

        I had to work my ass off to pay that bill. And being self-employed with no insurance and now a preexisting condition too?!

        That wasn’t much fun either.

        Still, I’m against ObamaCare and mandatory insurance–and Medicare and Medicaid! Hell, I had to go live in Mexico for a year or so–in part so I could afford my medication!

        And I’m Still Against ObamaCare.

        This whole stupid system was set up–supposedly–to help people like me with preexisting conditions, and I don’t want anything to do with it.

        But then I worked helping with reimbursement in an acute care hospital for seven years, and I worked for several years helping write and test Grouper software for various hospitals and chains all over the country. Every payer you’ve ever heard of from New York’s weirdness and beyond…

        So–it takes a lot more bullshit than what you and Obama and flinging to pull the wool over my eyes. And if you’re someone who genuinely, truly, utterly believes all that bullshit with the best of intentions and a warm heart?

        So what?!

        1. You know what’s really cold and heartless?

          Trying to recapitalize Medicare and Medicaid on the backs of poor people, many of whom are struggling to try to stay in their homes and keep the heat on. …much less thinking about buying health insurance?!

          Scapegoating the self-employed and people who struggling to keep necessities–things more necessary and immediate than health insurance. What kind of bleeding heart liberal does that?

          A sense of entitlement leads to all manner of ugliness, doesn’t it? And I guess that’s why I find Progressives so utterly distasteful.

          It’s everything I don’t like about bleeding heart liberals–just without concern or care about their fellow man.

        2. Well, at least you learned to declaw the gerbils before you stick them up there.

          1. Up yours.

        3. If this was a libertarian society you’d be dead. Thanks for the story.

          I’m glad us progressives were able to mold this country so that you are still alive. You’re welcome.

          1. No, if this were a libertarian society, I wouldn’t have to squander my money paying for everybody else’s healthcare…

            Healthcare wouldn’t be anywhere near as expensive. Not only would I have more money in my paycheck, hospitals wouldn’t have to gouge me for all the money they lose on Medicare and Medicaid patients.

            I had to escape to a more libertarian healthcare system–Mexico’s. My doctor was a Harvard graduate. The hospital there was as nice as any major city general hospital I’ve been too–and in my work, I’ve traveled around the country to some of the biggest and the best!

            In Mexico? They insulate the private hospitals from the free clinics for the poor. In the U.S.–hospitals aren’t allowed to refuse Medicare and Medicaid patients. So, they lose money on every patients–and they can’t make it up on volume. So they make it up by gouging insurance companies…

            Why do you think your PPO penalizes you so harshly for going to a hospital they don’t have a contract with? Because they’re mean?

            It’s so they don’t get gouged.

            Why do you think it costs so much money to pay cash for an emergency room visit?

            It isn’t because of libertarianism. It’s because you’re getting gouged to cover the losses they take from Medicaid and Medicare.

            1. No, you said you rolled into a hospital missing 60% of your blood with no insurance.

              They would have put you in the dumpster in a libertarian society. There would be no rules REQUIRING them to treat you and give you a loan to pay it back – like currently exists now.

              You would be dead.

              Again, you’re welcome, even if you’re oblivious or ungrateful.

              I agree hospital care would be less – and most drugs would not exist because the government and the public would not have spent their time creating them because there would be no profit absent government enforcement of drug monopolies.

              Hospital care overall would be substandard, as “cost” seems to be the reigning principle for citizens of this country choosing anything – even if it harms them or costs them more in the long run. You see, the gross majority of humans are terrible at assessing things like risk, consequences, etc. I’m just glad that my doctor would be making $10 a hour and have little training, because holding costs down in my for profit hospital would be a top priority – i mean, its not like your “customers” have an option of where to go when they’re bleeding to death, right?

              1. You lack imagination. There are hundreds of different services offered where the need is an emergency, the costs are high. The businesses figure out ways to make it work for their customers and themselves. Quite well in fact.

                He describes such a service in Mexico where it is far cheaper than the US because of the lack of well meaning fools.

              2. They would only put him in the dumpster if he didn’t have a co-signer silly.

                I have my issue with strict Libertarianism, but this is really a stupid argument.

              3. Right. People only do decent things because there is a law requiring it. And there were no charity hospitals or any help for anyone before laws requiring ERs to treat everyone.

                If that is how you see the world, you must be a very unhappy person. Do you want poor people to die because they can’t afford care? Neither do most people.

              1. To Ken, not SM.

          2. “I’m glad us progressives were able to mold this country so that you are still alive. You’re welcome.”

            ObamaCare is a system to shore up Medicare and Medicaid (which isn’t even means tested)–by forcing people who are too poor to choose to buy health insurance to spring for it anyway. …or face the IRS.

            It’s just using the poor and uninsured to shore up Medicare and Medicaid–that’s why even Obama said it wouldn’t work without forcing people to pay who are too poor to choose to pay.

            And that isn’t anybody’s opinion. That’s a fact.

            You got a million uninsured people out there, many of whom are fighting like crazy to try to stay in their homes–and Obama was gonna help them. …by siccing the IRS on them.

            It’s a sick joke.

            1. How is expanding government subsidies for care for millions of americans “shoring up medicare and medicaid”?

              People in their homes up to 400% of the poverty level will not get subsidies to reduce the cost of their medical care – ie, they’ll be paying less. So, families making up to 90k will save money…i personally think that paying less for my healthcare is going to make it easier to say in my home.

              “And this is just a fact.”

              1. Stop confusing health care with health insurance. Yes, people will get a discount on purchasing health insurance but even discounted, health insurance may be too expensive if they are underwater on their mortgage and struggling to find a job. And even if they do find a way to purchase insurance, there is no guarentee that if they get really sick, they’ll be able to afford the actual bills for their health care services. If you have cancer and a 70/30 plan, you are pretty much screwed if you aren’t wealthy.

              2. “How is expanding government subsidies for care for millions of americans “shoring up medicare and medicaid”?

                Hospitals in urban areas all over the country are closing because they lose money on every Medicare and Medicaid patient. If hospitals don’t have enough private pay (uninsured) and insurance patients in the community they serve to make up for the losses they take on serving Medicare and Medicaid patients? …like happens a lot in urban and poor areas, then they go out of business. It’s as simple as that.

                ObamaCare’s solution to that is to force people who don’t use much in the way of hospital services (especially young working people) to pay into the system to help make it solvent. …that’s what the mandate is all about–forcing people who now choose not to pay to pay into the system anyway.

                When Obama says his ObamaCare system can’t work without that that mandate–that’s what he’s talking about! Shoring up Medicare and especially Medicaid with poor people who’ve been forced to buy insurance.

                Believe me, the hospital I worked at on the edge of what used to be called South Central LA didn’t close because we had too many private pay patients and not enough Medicare and Medicaid patients to make up for the losses–quite the opposite.

                If you don’t have enough private pay patients and rely mostly on Medicare and Medicaid patients, then you’re a hospital that’s going out of business.

        4. Speaking as a former medical professional, if you walked ANYWHERE missing 60% of your blood volume, I want nothing to do with fighting you.

          Otherwise, good stuff.

      4. How about our right to throw you in a dumpster if you show up at a hospital without an insurance card and/or a cashier’s check to cover all services?

        Yeah, just like they did before the 1960s and the dawn of Medicare and Medicaid.

        1. They didn’t? Tell us why…we’ll wait right here…

          1. Dumping potential customers in trash cans is a poor business strategy.

          2. Well, before the government got into the business, there were charitable organizations that helped people get care, and doctors used to do more charitable work on the side. Also, there used to be mutual aid societies where groups would pool their resources to get medical services for their members.

            If the government were to get out of the welfare business, such institutions would rise again, only with the advantages of modern technology and practices this time around.

            Also, of course, large amounts of government regulation of insurance along with its massive intervention in medical services have driven prices up insanely. A much freer market in healthcare would undoubtedly provide much lower costs.

            Nothing stops the richer from having better products and services than the poorer–we have scarce resources, and the allocation of those resources always favors the classes at the top (the wealthy in capitalism; the otherwise privileged in other systems). The advantage to free markets is that they tend to maximize the availability of goods and services to the majority of the population.

      5. No. I am pretty sure you want a right for people to skimp on insurance, and then stick everyone else with the bill when the crap hits the fan.

        DERP.

  4. All political theater for the proponents of this steaming pile of guano. They’ve already scored with their fade away jumper at the buzzer – by creating such disruption and uncertainty that they likely believe that their goal, as a fait accompli, has been realized – to create the false option that the only possible solution is their progressive utopian dream, single payer health care. I’m actually quite surprised that they’ve held off announcing their plans to federalize the entire health care system, along the lines of a military service. Likely that they’re too unimaginative or just too plain dumb to be able to pull off the concept, much less tap dance the sales pitch for such a perversion.

    1. Bingo. I’m hoping the SCOTUS splits the difference and throws out the mandate only…in which case we’ll be at single payer within 5 years.

      We were going to get there anyways, society progresses and you can only lie to them for so long. The for-profit healthcare gig is in its death throes…just a few more years.

      Hell, if clinton would have accepted dole-care (the bill we got) 15 years ago, we’d have single payer already.

      At least our children will have it. You’re welcome.

      1. Next up, medical conscription.

      2. Go fuck yourself, SM.

        The only thing little shits like you will accomplish is to de-legitimize government authority.

      3. I assume that you support slavery then? I mean you literally want to force people into providing health care to someone without profit. That certainly seems to be the definition of slavery.

        What you call society “progressing” is really the opposite, but you can’t seem to realize that. Let me ask you this, when the health care provided by the slaves becomes inadequate, will you devise a law to keep those that choose to go to “for profit” physicians from doing so?

  5. Because the law contained no severability clause, which would have protected the bulk of the law should one part be ruled unconstitutional[…]

    Not to worry – the language can be twisted and tortured the same way as with the language in the Constitution to mean that there IS a severability clause! All it needs is “The Statist Fuck’s Book On Expedient Grammar.”

    1. Oh, it’s constructed such that there probably exists the hope of pulling off some form of severability bullshit – with the other, thus incoherent surviving train wreck from this clusterfark, it will make it that much easier for the progressives to argue that single payer is THE solution – which by all appearances was the goal from the outset, given the utterly unworkable fantasy they managed to puke out already.

  6. While the ruling is pleasing.
    I still cant “Walk Like an Egyption”

  7. 5 SCOTUS justices at the SOTU address, 4 not.

    I am not optomistic…unless Scalia takes Kagan hunting, and then he talks some sense into her. But what are the odds of that happening?

    1. Maybe someone could get Cheney to take her….”hunting”. Maybe?

    2. Roberts was only there because he pretty much had to be (basically to keep the lie that the court is politically neutral on life support). So there’s still a chance.

  8. Anthony Kennedy is the only person to ask

  9. Judicial Activists strike down the will of the people once again.

    People are getting sick of this legislation from the bench!

    1. “Judicial Activists strike down the will of the people once again.”

      ^ EZ hunting on the troll target range.

      1. Just a parody of the Evangelical Taliban who cried that ‘Roe’ was legislating from the bench when upholding the Right to Privacy.

        Of course, the Wahabbi Christians are your type of anti-freedom fascists.

        1. by “upholding the Right to Privacy”, i guess you mean “upholding a woman’s right to privately kill the inconvenient unwanted product of her own actions.”

          funny you had to capitalize “Right to Privacy” like its sacred to you.

          1. Libertarian board here pal – of course the 4th Amendment/Right to Privacy is sacrosanct.

            Go join the Christian/Muslim Brotherhood in Egypt/Iran.

            1. Where is the Right to Privacy(tm) specifically enumerated in the Constitution?

              1. Same place as the Right to Fuck any Consenting Adult.

              2. “Where is the Right to Privacy(tm) specifically enumerated in the Constitution?”

                OK, I’m with Shriek on this. Rights are not enumerated in the Constitution; the powers of government are.
                Rights are universal, unalienable and need no listing; we have every right to do anything at all *except* for those few powers we yield to the government.

                1. Shocker! Breakthrough!

                  I call truce and will take off now.

                  1. “I call truce”

                    Not so fast; I mentioned ‘those few powers’.

                2. This is the funniest part of libertarianism, by far.

                  Hey, let’s base an entire ideology on an arbitrarily chosen “axiom” and then use circular reasoning to prove its true!

                  Good luck with that.

                  Morality is personal, not universal. You know this, look around you. I’m sorry your morality doesn’t fit exactly with that of your co-inhabitants of earth.

            2. you should ask harsanyi about that “right to privacy”.
              https://reason.com/blog/2011/01…..harsanyi-o

              science and reason. you have neither on your side.

              1. science|1.31.11 @ 8:50PM|#
                “you should ask harsanyi about that “right to privacy”.
                https://reason.com/blog/2011/01…..harsanyi-o”

                That says nothing about privacy rights, and while he mentions science and reason, he sure makes scant use of them in the article.

                1. its a “lets take it easy on their brains and take it slow” type article. it gives the liberaltarian time to re-evaluate and hopefully prevent them from becoming reflexively defensive about a position that is demonstrably paradoxical and contradictory.

                  1. “its a “lets take it easy on their brains and take it slow” type article. it gives the liberaltarian time to re-evaluate and hopefully prevent them from becoming reflexively defensive…”

                    Yes it is, and my opinion on abortion is definitely not fixed, simply because there seems to be no science on either side.
                    So far, I’ll yield to the people (women) involved, since I’d use the force of government as last resort.

                    1. ummm. the science is in. its settled. finished. game over. read any current medical text. its a human being. at this point, you may reevaluate your second sentence. (i shall assist you) to continue in your current position, you must now semantically argue “personhood” vs “human being”.

                    2. science|1.31.11 @ 9:54PM|#
                      “ummm. the science is in. its settled.”

                      Nope. That sort of BS is Chad-worthy.
                      Got a source? Fine; let’s see the cite.

                    3. I suppose you require a cite for the fact that the sky is blue as well.

                      The prochoice position that passage through a vagina makes a lump of cells into a person is laughable now and was laughable in 1973. What the subsequent science has shown is that physical human features develop much earlier than was suspected at that time.

                      Which has given us the strange spectacle of religious people pointing to scientific developments, while secularists claim that science is irrelevant.

                    4. “I suppose you require a cite for the fact that the sky is blue as well.”
                      Nice try; fail.

                      “The prochoice position that passage through a vagina makes a lump of cells into a person is laughable now and was laughable in 1973.”
                      I don’t think that was ever a position I’d support; straw is flamable.

                      “What the subsequent science has shown is that physical human features develop much earlier than was suspected at that time.”
                      Yes, and?

                    5. I don’t think the pro-choice position was that passage through a vagina was the magical creation of personhood, it was more that at the later stages of development the fetus is more likely to have the characteristics we tend to use as criteria to ascribe personhood, i.e., functioning brains and such. Just as much as a pro-life person pointing to the ‘science’ of unique DNA at conception or development of physical traits at point x or y pro-choice people can point to the science of the amazing lack of similarity of early stage embryos to persons whom we all readily ascribe rights to.

                    6. The science may be settled on what is a human being but not on what is a person. That’s a different question.

                    7. I’ve always found it interesting that conservatives tend to be pro-life and often argue that embryo’s and fetuses are full persons. Traditionally under the common law this was not the view. It would also mean a radical re-evaluation of many common sense views, something conservatives usually find much wisdom in. I heard a pro-life speaker the other day talking about how we had to do more to create a pro-life culture in this nation. It occurred to me that given the number of miscarriages that occur without the woman even knowing it that kind of position could warrant massive government regulation and intervention (after all the government spares little expense to save people in perilous situations, why wouldn’t we take steps to reduce the number of accidental miscarriages if the miscarried are full persons?).

                      It takes some pretty abstract thinking to find microscopic beings with no limbs, nervous systems or brains to be “full human beings,” abstract thinking that usually doesn’t appeal to conservatives.

                    8. MNG|1.31.11 @ 11:07PM|#
                      “I’ve always found it interesting that conservatives tend to be pro-life…”

                      I’ve always found it interesting that libs generalize their fantasies.

                    9. That’s pretty pedantic, I said “tend.”

                    10. There would also need to be full inquests for every miscarriage. Just in case it is a sneaky murder. The pro-life position seems quite rational to me (though I disagree), but impossible to legislate effectively or in a way that is not hugely intrusive on people’s private lives.

                    11. “The science may be settled on what is a human being but not on what is a person. That’s a different question.”

                      OK, I missed the memo. Let’s see it.

                    12. The pro-choice position:

                      When the religion is against you, argue the science.
                      When the science is against you, argue the religion.
                      When both the science and the religion are against you, change the definitions of words.

                    13. Yes it is, and my opinion on abortion is definitely not fixed, simply because there seems to be no science on either side.
                      So far, I’ll yield to the people (women) involved, since I’d use the force of government as last resort.

                      There you go again. You claim to have no opinion on the personhood of the fetus, but then immediately deny it by saying the mother is the only person involved.

                    14. There you go again:
                      “There you go again. You claim to have no opinion on the personhood of the fetus, but then immediately deny it by saying the mother is the only person involved.”

                      Pretty much sure the woman is a “personhood”; you’ve yet to show when a fetus becomes so.

                    15. And you haven’t shown that the fetus is NOT a person (and there are plausible reasons to think that it may be), but you advocate that the law assume it isn’t.

                    16. sevo, if you support the right of a woman to have an abortion at any time in pregnancy, you are de facto supporting the position that you claimed was a strawman: that the fetus becomes human at birth.

                    17. Sorry, “that the fetus becomes a person at birth.”

                    18. Just FWIW, only a tiny minority of pro-choicers say abortion should be unconditionally legal up to childbirth. Here’s one breakdown by trimester. I don’t think it’s fair to characterize those who believe in some accessibility to abortion as believing in the ridiculous vagina-as-gateway-to-humanity position. People progressively back off as a fetus comes to resemble a person, acquires perception, becomes sensitive to pain, and nears viability.

                    19. I have a medieval history book that cites a 10th century anatomy manuscript as saying that at 3 months a fetus is fully human “except that it is not ensouled.” The book is at home so I can’t find the exact manuscript source right now, but I thought it was interesting.

        2. shrike|1.31.11 @ 8:16PM|#
          “Just a parody of the Evangelical Taliban…”

          ^ More easy targets on the troll firing range!
          Hey, we’re target-rich today!!

          1. None of your comments have ever make any god-damn sense.

            I am an asshole but at least I clearly state my condition.

            1. shrike|1.31.11 @ 8:34PM|#
              “None of your comments have ever make any god-damn sense.”

              Reading comprehension is a learned skill.

            2. Yes, and it is clearly a dissociative disorder marked by schizophrenia and obsessive behaviors. Oh, and it’s a pre-existing condition. Quite the rub, huh?

    2. I’m guessing you haven’t really examined a poll since the passage of the health care bill, nor have you payed attention to the election in November. And you dare to talk about the will of the people, you ignorant, know nothing fuck?

      All aboard the high speed rail express!

      1. “payed”? polls?

        You’re right, I don’t give a fuck. 83% of this stupid fucking country believes in a sky daddy that fooled them with a talking snake.

        1. Ok, as long as we’re clear that you really don’t give a shit about the will of the people, and were just throwing out words to score political points. When called out on it, you show your true statist bitch colors: fuck the people, shove the government down their throats.

          You hypocritical piece of shit with a pube in it.

          1. It has no pubes – that’s why it’s so angry.

  10. I have just 5 words for you all:

    High speed motherfucking rail, bitches!

  11. Vinson took them at their word

    Which is about the cruelest thing you can do to the fuckers, it turns out. The bastage. Heh.

    1. “Vinson took them at their word”

      ‘We have to pass it to find out what’s in it.’
      Well, we found out what’s in it is unconstitutional, Ms. Pelosi.

    2. That’s FORKING bastage!

      1. …fargin iceholes.

  12. Poor Barack,

    He’s done.

    I still say we have to wait and see what Anthony Kennedy says. And, if he goes along with the rest of america that doesn’t want healthcare reform…what are we gonna do.

    1. Pay for our own fucking health care.

      1. And when you can’t afford to do so, will have to pay for your healthcare? YES

        1. That’s your own fault.

      2. But, but health care is a right. We need it, so it’s too important for profits to be involved. It’s not like it’s food or something.

        1. It’s not like it’s food or something.

          +1

    2. And, if he goes along with the rest of america that doesn’t want healthcare reform…what are we gonna do.

      Give that freaky, alien “personal responsibility” thing a whirl instead, I guess.

      Bummer, huh…?

  13. Even though i like a lot of the effort behind the health care reform, I must say that you can not force people to be insured.
    We do thing voluntary in this country and when we start making things like health insurance mandatory, we go down road
    that is unconstitutional.

  14. I never understood why the bill didn’t simply pass an $800 per adult tax increase (or, say, a 10% tax on your first $8000 in income for each adult), and then give you an $800 tax credit if you had health insurance. Both parts are obviously constitutional.

    Frankly, BECAUSE such a scheme is functionally identical to the mandate and obviously constitutional, so is the mandate.

    1. The answer, Chad, is politics. Obama was adamant that the mandate was not a tax (this was before his justice department had to argue in court that it was a tax). If he explicitly called it what it was, then he would never have been able to pass it, as there would have been more support against the bill that raised taxes. Not to mention the fact that he’d have to face a campaign in ’12 talking about his tax raising bill.

      1. Especially given his campaign pledge not to increase taxes on anyone making less than $250,000 a year.

        1. Tobacco doesn’t count.

    2. Weren’t you just arguing the other day that the Constitutional just means the government hasn’t been told to stop by a judge yet? A judge just told them they can’t do it.

    3. So anyone who makes enough money to afford a grand or more a year for health insurrance gets a frigging $800 tax credit, but poor shmucks who can’t get to pay higer taxes? How nice for the more fortunate among us. Yes, indeed – the poor should always have to pay more taxes than the rich – especially if they can be kept from realizing the fact.

    4. (or, say, a 10% tax on your first $8000 in income for each adult)

      I never saw you as a regressive tax supporter, Chad. Wait, were you one of the ones pushing a VAT earlier?

    5. Actually, this is how the house bill was written, essentially.

      We got the senate version.

      Who cares, its obviously constitutional, because it is essentially a tax and deduction, functionally. Government has required us to buy things before (muskets, etc). Plus, NO ONE is REQUIRED to buy anything – you can get a job with health insurance, if you’re young or old you don’t have to, etc. Or don’t buy it and pay a fee – which is fine too…i’m pretty sure the government can enforce a levy on citizens…thought this was settled law by now…

      1. “NO ONE is REQUIRED to avoid murder-you can do it and go to jail.”

        1. ?

          Again, show me the requirement that says anyone actually HAS to buy insurance…it just says you have to get it one way or another, or you pay a fine.

          Take the Uniform Militia Act – it said you had to “provide” yourself with a musket, etc – it didn’t care if you got it from a friend, bought it from a private seller, built it from scratch – “self armed.”

          Same here…provide yourself with health insurance one way or another…get a job, start a business and get it for yourself, apply for government insurance, get a friend to buy it for you, self-insure, whatever you want. No one is REQUIRED TO PURCHASE INSURANCE FROM THE PRIVATE MARKET. How is this so hard to understand? You have the OPTION to do this, but it is not required. And even if you decline every option, you pay a fine…not too complicated.

          You must have insurance, just like you must have a musket…

          PS. The fine was between “one months” and “one years” pay as determined by a court…a little more than the healthcare fine i would think….

          1. NO ONE IS REQUIRED TO AVOID COMMITTING MURDER! You can trick someone else into doing it, trick them into doing it themselves, or even if you decline every option you go to jail… not too complicated.

    6. I never understood why the bill didn’t simply pass an $800 per adult tax increase (or, say, a 10% tax on your first $8000 in income for each adult), and then give you an $800 tax credit if you had health insurance. Both parts are obviously constitutional.

      Because then they’d have to pass a tax increase but didn’t have the votes for it. So they opted to try for an arguably unconstitutional bait-and-switch in the hopes that it would be easier for politicians to sell to their anti-tax constituencies. This should be obvious.

      Frankly, BECAUSE such a scheme is functionally identical to the mandate and obviously constitutional, so is the mandate.

      The scheme sets the precedent that a government can require economic action, which is even more ridiculous than banning homegrown corn or marijuana because of its “substantial effect” on interstate commerce. To the contrary, an income tax is legal under the 16th. They are not functionally identical; the former expands government powers beyond their limited and defined scope.

      In short: If they’re functionally identical, then Congress would have gone with the inarguably constitutional method. Case closed.

    7. Are tax rebate for purchasing goods constitutional? Sounds like a form of corporate welfare to me.

  15. Chad|1.31.11 @ 9:00PM|#
    “I never understood why the bill didn’t simply pass an $800 per adult tax increase (or, say, a 10% tax on your first $8000 in income for each adult), and then give you an $800 tax credit if you had health insurance. Both parts are obviously constitutional.”

    Because is would have been an honest admission (which is anathema to them and you) that there is no gain in giving X money to the government and hoping to get it back.

  16. I think the ‘directly economic’ criteria used in Lopez and Morrison is a much better criteria than the action/inaction being relied on in these cases. The choice to not participate in a market by not buying something is surely an economic decision. I think any economist would see it this way, and certainly any businessperson would (talk to them around Xmas and they are highly focused on whether people will choose to buy or not).

    There’s a lot written about whether the Founders intended the Commerce Clause to be used in this way. I don’t think it matters that they may not have. Much as the ratifiers of the 14th Equal Protection Clause probably never imagined that it would have to be applied to protect whites from discrimination in favor of blacks they likely did not think it would be used to compel people to buy health insurance. But what matters is what they wrote. The 14th says equal protection, and that certainly applies to whites or blacks being treated unequally, while the Commerce Clause rather explicitly grants the federal government the “power to regulate” interstate commerce. No qualifications or limitations, the power “to regulate.” This is a regulation, health insurance in the US is an interstate market, case closed.

    This should be taken care of politically, and it is beind done. Obamacare will not be here four years from now despite what any court finds.

    1. Name one hypothetical power that is neither authorized nor forbidden to the federal government in the Constitution, MNG.

      If there aren’t any, then Article I Section 8, the enumeration of powers, is completely meaningless.

      “Regulate” doesn’t mean “compel”, by the way. Indeed it had a far stricter meaning in 1787.

      1. They can’t quarter troops in civilian homes…

        Oh wait, not allowing troops into your house can, in the aggregate, affect interstate hotel room prices. Guess they can.

        1. I don’t think the Commerce Clause would allow violations of direct provisions of the Constitution. And, as I said, I think the distinction made in Lopez and Morrison further restrict the feds power under it. It has to be a directly economic decision or it doesn’t fall under the purview.

          1. I don’t think the Commerce Clause would allow violations of direct provisions of the Constitution.

            Then you don’t know how to read.

            The entire point of the Constitution is to limit the powers of government by enumerating them, thereby preserving any other rights for the people, without infringement.

            The various decisions regarding the Commerce clause are bad precedent because they fail to form any restriction on the power of government.

            Regulating ‘economic decisions’ leaves nothing outside the sphere of government control.

      2. “Regulate” doesn’t mean “compel”, by the way. Indeed it had a far stricter meaning in 1787.

        He said case closed!

        Also, I think we get a free pair of grizzly arms.

        Seriously, MNG, name one economic act that does not qualify as “Commerce among the several States.” Either the prepositional clause has a meaning or it doesn’t. I wrote something longer, but it’s pointless.

        What commercial choice can I make that is not “among the several States”?

        1. Among can mean in the midst of or between. I’m glad Marshall decided it meant between, among would give the feds even more power.

          1. What power?

            Like I said, what limits does “among the several States” impose?

      3. This is another tired dog that will not hunt. Like a lot of words regulate meant a few things back in 1787. Yes, it was used to mean “make regular” or “make orderly” but it was also used to mean “to make rules” (as it was used in other parts of the Constitution, like the power to regulate currency). By adopting the meaning “make regular” you are saying that not only did the clause grant a power to Congress it also established its aim, this seems bizarre in a power given to a legislature. A better reading imo would be that a power to regulate is granted and the legislature would figure out best how and what kind of rules to make. Even if it means “to make orderly or regular” it is easy to argue that the mandate, which makes all people engage in the market in the same way, does exactly that.

        1. It’s also over a 100 years old!

          which makes all people engage in the market in the same way

          Wow, your love for authority bleeds through every argument you make.

    2. Not ‘interstate commerce’, but ‘among the several States’:

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

      So we can tell people in Egypt they need to stop protesting because they need to get back to work, and that’s Constitutional?

      This power is clearly written to say its about being between the states’ governments, not their people. Plus you’re using ignoring the meaning of ‘Commerce’ at the time it was written, and the fact that using your view of the Commerce Clause the government can force you to stop commenting on blogs because you should be using this time to perform economic activities across state lines.

      1. These dogs are not going to hunt. Even the most restrictive interpretation of the clause says that it can be used to get rid of inconsistent tariffs and such between the states, but we can’t set Egypt’s tariff. Also commerce had an amazingly wide meaning at the time, essentially meaning any social mixing or mingling, as the below quote demonstrates:
        Friendship is a disinterested commerce between equals; love, an abject intercourse between tyrants and slaves.
        Oliver Goldsmith

        1. Even the most restrictive interpretation of the clause says that it can be used to get rid of inconsistent tariffs and such between the states, but we can’t set Egypt’s tariff.

          I’m pretty sure that a loose interpretation, similar to what you’re using, says that if Egypt sets too high a tariff or otherwise interferes with our Commerce with them, we can go Regulate on them with our military.

        2. And this quote proves that in the 1930s, they thought time was a chemical reaction:

          Time is the school in which we learn,
          Time is the fire in which we burn.

          — Delmore Schwartz, “Calmly We Walk Through This April’s Day” in In Dreams Begin Responsibilities (1938)

          It’s called metaphor, MNG.

  17. I really hate posting this website, but it can’t be helped. It’s going to be this or the HuffPo, or what-have-you:
    http://mediamatters.org/research/201012140033

  18. The reaction from the White House, from a Politico blog entry with the usual level of grammatical and journalistic standard:

    “This ruling is well out of the mainstream of judicial opinion,” Stephanie Cutter, an assistant to President Obama, wrote on the White House’s blog after Judge Roger Vinson in Florida ruled that the entire law is unconstitutional. “Today’s ruling … is a plain case of judicial overreaching. The judge’s decision contradicts decades of Supreme Court precedent that support the considered judgment of the democratically elected branches of government that the Act’s ‘individual responsibility’ provision is necessary to prevent billions of dollars of cost-shifting every year by individuals without insurance who cannot pay for the health care they obtain.”

    A senior administration officials {sic} said the judge’s analysis of the ruling was “odd and unconventional” and expressed confidence that the decision won’t stand. “A good deal [of the analysis] is built on sort of, rhetorical conjecture,” an official told reporters on a conference call. “Obviously this case will be appealed. … This is not the last word by any means.”

    I especially like the citation of an anonymous “senior administration official” who was so concerned about secrecy that (s)he revealed this in a conference call with reporters.

    1. So because there is something you want to stop, and you need this unconstitutional mandate to do it, the mandate is constitutional? No one is claiming the mandate is unnecessary for the bill to work.

    2. A ton of conference calls are done via a call-in number, so you can’t identify who’s on the other end unless he identifies himself.

      By the way, in case you’re keeping score:

      Anonymous political speech:
      – Unacceptable when ordinary citizens do it
      – Acceptable when the government does it

  19. I quite liked it myself.

    After last month’s ruling, the bill’s backers responded by targeting the ‘necessary and proper’ clause, thereby reemphasizing how the mandate was ‘necessary’ to enforcing the rest of the bill’s requirements.

    Vinson tears them a new asshole thusly:
    It points out that the defendants’ are essentially admitting that the Act will have serious negative consequences, e.g.,encouraging people to forego health insurance until medical services are needed,increasing premiums and costs for everyone, and thereby bankrupting the healthinsurance industry — unless the individual mandate is imposed. Thus, rather thanbeing used to implement or facilitate enforcement of the Act’s insurance industryreforms, the individual mandate is actually being used as the means to avoid theadverse consequences of the Act itself. Such an application of the Necessary andProper Clause would have the perverse effect of enabling Congress to pass ill-conceived, or economically disruptive statutes, secure in the knowledge that themore dysfunctional the results of the statute are, the more essential or “necessary”the statutory fix would be.

    1. That’s Congress’s MO: pass laws to “fix” the mess they created.
      Although it is nice to see the judge point this out so clearly.

  20. Excellent ruling!!! I am personally amused that the 0 Administration has said this is “judicial overreach.” They really have audacity, those leftists. They wrote the book on “overreach”!
    From what I have read thus far, the judge seems to have laid out clearly his reasoning, his justifications in law and precedent, and conclusions. Where is the “overreach” in this cogent outline?

  21. The Federal government does not have the authority because it is not specifical?ly outlined in the constituti?on. On cannot site the welfare clause in the preamble since Article 1 section 8 defines congressio?nal power for both commerce and taxes. Section 9 outlines its limits. Amendment 16 further clarifies the taxing authority of the Federal Government?.
    The individual states DO have the authority since all powers at the Federal level are automatica?lly reserved to the states and the people – Amendment 10; now what of the remaining authority resides with the State and the people will depend upon each States constituti?on.

  22. I asked the following hypothetical above (see here http://www.afoolsgame.com/?p=63): Congress imposes an additional flat income tax equivalent to the size of the penalty on everyone in the country, and then exempts people from that tax (or gives them a tax credit) if they have health insurance meeting the minimum standards set by ACA.

    A number of commentators responded with something like “that would be constitutional, but that is not what the bill did.” Which is obviously true (there are Supreme Court cases detailing the difference between regulatory penalties and taxes, plus the incidence of the tax/subsidy switches from the inactivity to an activity), but that kind of misses the point.

    What I was trying to get at was that while LEGALLY there is a difference, FUNCTIONALLY it would have the same effect. Remember you are not sent to jail if you violate the individual mandate, you just have to pay a penalty. If the tax in my hypothetical was precisely the same size as the penalty, then everyone would have the exact same incentive that they have under the ACA. The CBO even estimates that the ACA will only cover like 95% of the population, because some percentage of the population will choose to pay the fine instead of buying insurance.

    I think this raises two important ideas. First, it shows how the legal distinction that opponents are trying to make between inactivity and activity is totally nebulous. If the government is not allowed to penalize inactivity, then it can just incentivize the opposite activity. Its been conservative mantra for decades that the incidence of the tax is irrelevant to the actual costs (which is true), so why can’t we see the individual mandate in the same light of merely being another way to allocate resources.

    Second, it begs the question ? and this is what I don’t understand and want somebody to help me with ? of why anybody would care and why there SHOULD be a legal distinction??? The government, even if opponents are successful at the Supreme Court, would still have the constitutional power to do things that have the exact same FUNCTIONAL effect. You will have no greater liberty, because the decisions you can make and the incentives you have to make them won’t have changed.

    -AFG
    afoolsgame.com

    1. The difference is that a bill imposing a tax and selective credit is much more difficult to sell to one’s constituents. There are many instances where the constitution forbids an underhanded way of doing something while leaving open the possibility of doing the same thing overtly.

  23. There are so many people diagnosed with cancer for whom the repeal of the provision stating that nobody can be denied health insurance because of a pre-existing condition would cause a lot of problems. How can they ignore these people?

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