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  • A Stunning Victory for the Constitution over Obamacare

    This afternoon, a three-judge panel of the U.S. Eleventh Circuit Court of Appeals in Atlanta ruled that the individual mandate in the Patient Protection and Affordable Care Act (PPACA), more commonly known as Obamacare, is unconstitutional.  The carefully worded and thorough (over 300 page) set of opinions may be a bit mind-numbing for the uninitiated, but they are a joy to read for those of us who think the words of the Constitution actually mean something beyond whatever an activist Congress, President, and pliant judge want them to mean.

    The decision is important for several reasons.  First, it puts to rest the canard that justice regarding Obamacare is just a partisan enterprise, in which Republican-appointed judges rule one way, and Democratic-appointed judges rule another.  Today’s decision was co-authored by Judge Frank Hull, a Clinton appointee both to the district court and the court of appeals.

    The second is that the ruling all-but-guarantees that the Supreme Court will hear the case.  Plaintiffs in another case from the Sixth Circuit have already asked the Supreme Court to hear their challenge to the identical provision that was struck down today.  Although the Supreme Court takes only about 80 cases per year, any one of three factors would have made it likely that the High Court would hear this case:  that a total of 28 states are challenging the constitutionality of a federal statute (26 in the instant case alone), that there is a split among the federal judicial circuits on an important issue of federal law, and that any one federal circuit court struck down any (even less important) federal statute.  Now that all three conditions are present, the Court can hardly refuse to hear the case.

    The third is that it is much more likely with today’s ruling that the High Court will hear the case in its next term which starts on October 3, with a decision likely to be handed down by the end of June 2012.  Although the Obama administration has an option to ask the full Eleventh Circuit to rehear the case, en banc, that is unlikely to succeed for a variety of reasons, including that the 26 states and NFIB who won the decision today originally asked the entire Eleventh Circuit to hear the case because time was of the essence.  The Obama administration opposed that request last spring.  The circuit court is unlikely to agree to another delay given this prior history, including Florida District Judge Vinson’s rebuke of the government for its previous stalling tactics in the case when it was in the district court.

    In short, the Obama administration has lost its battle to delay review of the individual mandate until after the 2012 election.  Until today, there was at least a chance that the Supreme Court would pass on the case until after its forthcoming term, but now, with a split between the Eleventh Circuit and Sixth Circuit, the High Court will have little choice but to take the case and resolve the fate of the forced-purchase mandate.  After over a year of delaying tactics, the Obama Administration has no more options to slow-walk the constitutional end-game for the mandate.  Our best estimate is that the case will be argued either in late March or in April 2012.  The Court will issue its decision near the end of its term in June, during the presidential candidate nominating season.

    The Eleventh Circuit’s opinion is also a carefully conceived and tightly reasoned opinion that properly and narrowly addresses the issue before the court, without broad gestures or the irrelevant policy discussions in the Sixth Circuit’s opinion.  More than merely a judgment, it is a persuasive and elegant affirmation of our constitutional structure, one that may even sway the high court’s liberal wing in its concern for liberty and political accountability.

    Another significance of today’s decision is that it provides a roadmap for the Supreme Court on how to strike down the individual mandate provision and still save part of the Obamacare law.  We believe that part of the court’s opinion today (on severability) was in error and that the entire Obamacare statute should be struck down as a matter of law.  However, the severability issue is admittedly a closer call, and one that the Supremes are better suited to deciding than a lower court.  Today’s opinion provides the High Court with another well-reasoned option.  It also makes it even harder for those who want to mislead the public that the judges who voted to strike down the law were some sort of anti-government ideologues.

    Finally, not only is the majority opinion thorough and rigorous, its conclusion is crisp and precise:

    [T]he individual mandate is breathtaking in its expansive scope. It regulates those who have not entered the health care market at all. It regulates those who have entered the health care market, but have not entered the insurance market (and have no intention of doing so). It is overinclusive in when it regulates: it conflates those who presently consume health care with those who will not consume health care for many years into the future. The government’s position amounts to an argument that the mere fact of an individual’s existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life. This theory affords no limiting principles in which to confine Congress’s enumerated power….

    The federal government’s assertion of power, under the Commerce Clause, to issue an economic mandate for Americans to purchase insurance from a private company for the entire duration of their lives is unprecedented, lacks cognizable limits, and imperils our federalist structure.

    Bravo.  In answer to Ben Franklin’s famous question:  we still have a republic, and there is still great hope that lovers of liberty will be able to defend our republic with its noble and wonderful Constitution.

    Posted in Featured, Obamacare [slideshow_deploy]

    31 Responses to A Stunning Victory for the Constitution over Obamacare

    1. Jack says:

      "The federal government’s assertion of power, under the Commerce Clause, to issue an economic mandate for Americans to purchase insurance from a ___private company____ for the entire duration of their lives is unprecedented, lacks cognizable limits, and imperils our federalist structure."

      So it's OK to force Americans to purchase coverage from a public entity?

      Also, this:

      "In fact, says Len Nichols of the New America Foundation, the individual mandate was originally a Republican idea. "It was invented by Mark Pauly to give to George Bush Sr. back in the day, as a competition to the employer mandate focus of the Democrats at the time." (http://www.npr.org/templates/story/story.php?storyId=123670612)

      • Jeekem says:

        The New America Foundation, although claiming to be a non-partison think tank, was begun and run by several leftist Democrats that have made a career of working against the right. Spend ten minutes looking up the biographies of the foundations leadership and I think you'll find an agenda that Len Nichol's statements promote. I wouldn't put a lot of faith in statements from an organization of devout Democrats that claim non-partizan status. We all know where the Heritage Foundation is coming from but it seems to me that the "New America Foundation" has been less than honest about the policies they promote. Sort of like NPR.
        They are not exactly a "we report, you decide" type of news organization.

    2. @USAGeorge says:

      Why is it that the Federal government can or willfully slows down the hearing of a case this important. This decision is of the utmost importance to the American people and it seems due process has been hampered by the Obama adminstration. Some one is playing games here and that belongs on the playground,not with the people of the USA. I never hear or read this in the news,will someone please explain why.

    3. ironboltbruce says:

      And the PATRIOT (ugh) Act? What about the PATRIOT Act?!?

    4. Jon says:

      The polls are consistently over 50 percent for the repeal of Obamacare. 28 states are suing for Obamacare to be declared unconstitutional. If Obamacare is implemented, every state will have a substantial increase in the cost of Medicaid that will be passed on the taxpayers. In Texas, the projected increase in new enrollment on Medicaid due to Obamacare is 2,416,752 additional people. This is a 56.7 percent increase over our current enrollment. Gov Perry stated that "This administration continues to spend excessively and impose unfunded mandates upon the states, including this federal health care reform bill that will cost Texas taxpayers more than $27 billion over 10 years for the Medicaid expansion starting in 2014." We cannot afford to take care of the people we now have on Medicaid. Only 45 percent of the Doctors in Texas now take Medicaid. Moreover, Gov Perry has commented that Texas may drop out of Medicaid and replace it with Texas's own version of Medicaid. The bottom line is that the vast majority of states are having very severe budget problems. At the time we are facing the most severe budget problems in the states, Obamacare will impose an addition burden in which the Federal Government expects the taxpayers in the budget strapped states to pick up the bill. The extra costs for Obamacare in the majority of states will be met with a very strong backlash from the people that pay the bills in each state: the taxpayer. In Texas, we have finished the process of establishing our budget for the next two years. We balanced the budget and did not raise taxes. A lot of teachers and government workers will be laid off as a result of belt tightening. In two years we will be faced with the choice of significantly reducing the number of teachers and government workers again or significantly increasing our Medicaid expenditures.

      The bottom line is, when Obamacare is implemented, all of the cash strapped states will have to decide whether they will fund the Obamacare mandated significantly expanded Medicaid or reduce the payments to pension funds¸ reduce the funding sent to the local schools, reduce the number of state workers, increase taxes, etc. Obamacare is redistribution of wealth gone amuck.

    5. Northview says:

      God bless the Eleventh Circuit. In the culture wars, finally a heavy cruiser has let fly a full broadside at Obama's invasion fleet.

    6. Bobbie says:

      Thank goodness the Constitution exposes some of it's strength in meaning. The whole law should be struck down to reflect the Constitution. For Obama to impose this terrible legislation in such contrast to the Constitution without notification and by force, reflects his contempt for the Constitution!

      It's a magnificent, brilliant document that fits in for all mankind that chooses to live in America! For the president to be working against it by abuse of his authority, is a great danger…

    7. Jeff, Illinois says:

      There's more to this story . . Ultimately the Supreme Court will rule in favor of the ACA . .

      • TrueAmerican says:

        Keep drinking that Kool-Aid, Jeff. Our dear leaders and all their heavy-fisted pals are counting on people like you.

      • joecool says:

        Should we assume you're a constitutional lawyer, Jeff, or is that too presumptuous? Who else stands to gain from this fiasco?

      • bob says:

        Sorry, Kagen will have to recluse herself. She wrote the health care law. Split Supreme Court (4-4) will accept decision from the U.S. Eleventh Circuit Court of Appeals in Atlanta.

    8. Lee says:

      You do realize that Judge Hull is a woman?

    9. Zeek says:

      For every judge there's an equal and opposite judicial activist. Count on that.

      • Bobbie says:

        every American judge is by law not bias, so we shouldn't count on that or accept, but be aware!

    10. Adam Corn says:

      Shouldn't there be a stay placed on any activity and action on ObamaCare since it has been declared unconstitutional? Without the "mandate" it can't work.

      • bagofwater says:

        I don't believe that is within the scope of the court's ruling. The ball is in the administration's court — either deal with the consequences of the failure they have themselves created, or beg the legislature to amend or repeal the law.

    11. Should force the hand of the Supreme Court now!

    12. jimmydxyz says:

      Can't wait for the tea party repubs to take over gov't so that we can get back to smaller and cheaper constitutional govt.

    13. Kyle says:

      May REAL justice prevail, ending President BO's disregard for our Constitution, and his continued rape of the American taxpayer!

    14. Tony Hayward says:

      It is high time something is done to stop the progressives in washington that continually use our constitution for toilet paper. If they are that dissatisfied with our constirution they are more than welcome to move to a country where they would fit in. I say we even buy their plane tickets for them. Yugo would welcome them with open arms.

    15. VICTORY! When it comes to Obamacare, the Constitution will stand! The individual mandate in Obamacare was ruled unconstitutional in Atlanta & the Supreme Court is next! LIKE this post if you think it's time to repeal Obamacare!

    16. jade says:

      Truly i understand not wanting anything forced on us, but we should not even be arguing this issue we should have national free health care like every other country.

      • jeekem says:

        I think we already do. It's one of the reasons for the size of the national debt.
        It's only free to those who don't contribute to society.

    17. William says:

      There is no way to fund this monstrosity without the individual mandate. It's done.

    18. allen says:

      Here we go again,FREE Health Carelike other countries. We are not like other countries. WQe arew free if you like other countries Go there and help them . STOP your damm Crying and pay for your own. If YOU served to protect this country You should get FREE HEALTH CARE and WE DO. This should be the Carrot in front of the stick . Join, Free Health and College other wise pay for your own. Dont spend your cash going to the clubs and want me to pay for you. While Iam taking rounds. Do you understand Homie

    19. Robert H. Davidson says:

      What happened to Legal president, hasn't our law consisted of legal president since the mid 1800's! Why hasn't legal president been used by the states to protect us all from this monster Patient Protection and The Affordable Care Act. I retired from the insurance business and for all the years I was in the business my state controlled the insurance business, they allowed each insurance company to come into my state and do business, they set the rates, charged and regulated everyone and every thing concerning the insurance business, including claims payments. If I or an insured had a question or a problem we went to the State insurance commissioner about our concern. I give you all these facts because if that didn't set president for states rights, What does? Our states are failing to protect its citizens and that is its primary duty. The Tenth Amendment gives the states the authority to say no to anything that affects its citizens and stop it from encroaching it borders. So now we have two items of defense Prescident & the Tenth Amendment. Plus add the lack of Congressional authorty under the enumerated powers ( Article 1 Section 8). Lets stop failing to protect and defend that is governments legal task!

      • Mke says:

        I agree with the thoughtful points you made. I only wish to correct your spelling of precedent. Mike

    20. LynnTorgeson4Congrss says:

      Thank you for the update. Bravo for the Constitution! Lynne Torgerson for Congress!

    21. Sheepdog81 says:

      Good ruling, but it can be overruled by the Supreme Court…with Obama's newest shill in there, Kagan, I wouldn't be surprised.

    22. Dance says:

      Don't forget the Dem. and RINO Congress's part in this matter.

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