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  • Judge Rules Obamacare Mandate Goes Beyond Letter and Spirit of the Constitution

    In the most significant decision to date involving the numerous challenges to Obamacare, a district court today ruled in favor of the Commonwealth of Virginia’s challenge, and declared the individual mandate portion of the Patient Protection and Affordable Care Act unconstitutional.  The fact that the decision is based upon cross motions for summary judgment means among other things, in simple English, that the parties have had two major hearings and two sets of merit briefs before the Court, which has now issued its second major opinion (and this is leaving aside a slew of motions decided by the court). The decision, accordingly, is the most well-developed of any court yet to address the matter, and therefore should cause quite a bit of indigestion for defenders of Obamacare.

    Judge Hudson first addressed the Obama administration’s claims that the law is constitutional under the Commerce Clause.  After weighing the arguments and the case law, he found that the mandate’s scheme was without precedent in our country’s history: “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.” 

    The judge noted that even under the broadest application of the Commerce Clause, there had to be some self-initiated action, whereas here there is not.  Accordingly, the court found that the mandate violated the Commerce Clause because it did not regulate economic activity.  The court further found that it could not be justified even under an expansive view of Necessary and Proper, because it was not tethered to a lawful exercise of an enumerated power.  The court concluded that “[t]he Minimum Essential Coverage Provision [mandate] is neither within the letter nor the spirit of the Constitution.”

    Second, the court rejected the far more dubious claim that the mandate is justified under Congress’s taxing power.  This claim is a shameful, post-hoc rationalization that does not comport with the operation (the provision raises no general revenue), the language of the law (which uses tax and penalty with precision), or the statements of proponents (President Obama emphatically denied that this is a tax), and so it is not surprising that this claim failed yet again (a Florida court rejected this claim at the Motion to Dismiss stage).

    After declaring the individual mandate and the alleged tax (really a penalty) unconstitutional, the judge had to confront two remedial issues.  The first is whether the unconstitutional provisions could be severed from the rest of the 2700 page law or whether he would have to strike down the entire act.  After discussing the general presumption that courts should try to sever only the “problematic portions while leaving the remainder intact,” and the difficulty in divining whether Congress would have enacted the law without the offending provision, the court essentially threw up its hands and applied the general presumption only to strike the individual mandate provision and “directly-dependent provisions which make specific reference to [it].”

    Although the severability question is far from clear, we think the best evidence of what Congress and the President would have done is found in the statements of its leading sponsors (including Sen. Baucus) and President Obama that the individual mandate was absolutely essential to the economic scheme in the rest of the act.  In short, they would not have enacted the law without the individual mandate, and thus, the entire law should be struck down.  Notwithstanding this possible error, the Fourth Circuit Court of Appeals and Supreme Court are free to reexamine this pure legal issue without deferring to any findings by the district court.

    And even if the Supreme Court struck down the individual mandate but was also inclined not to strike down the rest of the act (for proper reasons or out of cowardice), the end result might still be similar.  That’s because we think Sen. Baucus and President Obama got one thing right:  the economic scheme in the rest of the act—and the prohibition against denying coverage for preexisting conditions—cannot survive without the coerced payments and coverage of the individual mandate.  In short, Congress would have to open up the entire act again or the medical insurance industry would fail.

    The other remedial issue was whether to grant Virginia’s request for a ruling enjoining the implementation of the individual mandate pending appeal, which requires a federal judge to make additional findings.  Judge Hudson had no problem finding that Virginia was likely to win on appeal, but he did not think there likely would be “irreparable harm” if he did not enjoin the provision before the appellate court reviewed the matter.  To the extent that Virginia has already argued that its implementation of preparatory steps will cause irreparable harm, it can also seek an injunction in the Fourth Circuit as well.  On this one point, we think it is less likely to prevail.  However, it can also renew its motion if it wins at the next level.

    Co-authored by Todd Gaziano.

    Posted in Obamacare [slideshow_deploy]

    18 Responses to Judge Rules Obamacare Mandate Goes Beyond Letter and Spirit of the Constitution

    1. George Colgrove, VA says:


    2. John Modisett Texas says:

      Is the Dream act unconstitutional? Article 1 Section 8 To establish an uniform Rule of Naturalization.

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    4. DANEgerus, Sherwood says:

      This is really inconvenient news for the slavers…. er… Socialists… er… Progressives that seek to run our lives… er… re-educate… er… enlighten us as to our shortcomings.

      “We Can’t Just Leave It Up to the Parents” — Moochelle Obama on school lunch programs weeks after granting us permission to eat pumpkin pie on ThanksGiving.

      Because only a patient dumping hospital "executive" can explain to you proles how health-care needs to work, what you will be allowed to eat, and when.

    5. sam says:

      Auto insurance is NOT required or mandated, so those of you who keep citing that, please STOP! You are NOT required to own or drive a car and thus DO NOT NEED TO HAVE AUTO INSURANCE. If you CHOOSE to operate a motor vehicle, then yes, you are mandated AT THAT TIME to carry auto insurance AND a valid driver's license.

    6. Levi Klinkenberg, CA says:

      As to the “irreparable harm” issue vis-a-vis injunction, what about the increased medicare taxes, other taxes, and fees set to kick in Jan 1, 2011 under the current legislation? If the law is indeed delcared unconstitutional by SCOTUS, whenever that may be, do the companies / individuals paying the additional taxes receive refunds from the IRS or would they simply lose said monies under the "my bad" principle of the IRS? The fact that law requires money to start changing hands in a few weeks alone would seem to call for an injunction. Am I missing something on this point?

    7. Bobbie says:

      Please repeal all. The length contains confusion, redundancy, loop holes and a great potential for greater fraud. Doesn't ruling the President's national health care plan unconstitutional raise suspicion to the true intent?

    8. Jill, California says:

      Score one for the good guys!

      Once upon a time, I was foolish enough to buy in to the argument that health insurance should be treated like auto insurance and that the only way to ensure coverage for everyone was to make it mandatory. But then I took a class on constitutional law and saw the light.

      Sadly, dumping the individual mandate still leaves us in a position where responsible citizens must pick up the tab for those who can't … or won't … buy health insurance. But the answer is not Obamacare. We need more intelligent solutions.

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    10. Larry, Calif. says:

      I'll echo sam as to the inapplicability of the "auto insurance" argument, and would add that: only liability insurance is mandated–as a protection to others. No coverage to protect the insured (e.g. collision, UM, theft, comprehensive, etc.) is mandated. So, there is no similarity between the two.

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    13. Rick, Mckinney texas says:

      The analogy to the auto insurance would be valid if person in new york who does not own a car, does not drive and never uses the highways were forced to buy auto insurance in the possible event that some day they may use a car or the highway to go from NY to California. Then the commerce clause might apply.

    14. Sharon, California says:

      Thank God this thing was ruled unconstitutional. Now we can only hope the Supreme Court knock this thing down. Is anyone else anxiously anticipating 2012?! Can't wait to get Obama out of office before he causes any more damage. I came across this video on another site I read and comment on and thought it was quite clever ;) http://www.youtube.com/watch?v=B2FwncVrlqA

    15. Joe S. says:

      So now two different items make ObamaCare more fiscally impossible than it already was. First would be the more than 200 exemptions (and counting) granted to companies by the administration, and now the potential loss of the individual mandate if upheld by SCOTUS. Perhaps Nancy P. was right when she said we had to pass it in order to know what was in it.

    16. Carol,AZ says:

      Thank you great state of Va.!

    17. Keith A. Voelker Cin says:

      I have a question for those who have no problem with Obamacare's provision of forcing you to buy it before a certain date. How would you anti-gun people if we were talking "personal safety care" being foisted upon us all, and if one of the main provisions was that you now HAVE TO GO OUT AND BUY A GUN from a single manufacturer designated by fiat from this administration – AND do this in the name of reducing medical costs associated with having been wounded, or killed by outside forces which would not have happened if you had a gun in the first place?

      Well, I am pro gun and I am NOT requiring you to do the above. Why are you asking me to do the same illegal absurdity with Obamacare?

    18. Timely Renewed says:

      Judge Hudson's decision is good news, and we all hope that it will prevail when Obamacare finally reaches the Supreme Court two years from now. However, that is not certain, and there remain substantial political powers who regard this vast extension of federal power as acceptable based upon the Supreme Court's vast expansion of the interstate commerce clause since 1937. The only sure way to stop not only Obamacare, but the innumerable other ways in which the federal government has increased its power beyond the original scope of the Constitution, is to reverse those Supreme Court cases and restore the interstate commerce clause to its original meaning. Given how entrenched these Supreme Court precedents are, this will require a constitutional amendment restating the original, very limited scope of the interstate commerce clause. See http://www.timelyrenewed.com

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