“A federal judge on Thursday ruled that a lawsuit against the new health care law brought by 20 states led by Florida can go forward. In a 65-page ruling, the judge rejected the Obama administration’s attempt to have the suit thrown out, arguing that the states had a ‘plausible claim’ to challenge the law’s constitutionality. While U.S. District Court Judge Roger Vinson dismissed some of the states’ claims, he sided with them when it came to the central challenge to the law — that forcing individuals to purchase health insurance exceeds the government’s authority under the Commerce Clause.”
“Washington sees more than its share of power plays, and there were many on display during the year-long health care debate. But even by Washington standards, the secretary’s letter is highly unusual, and startling. It is not every day that a cabinet secretary issues a threat aimed at controlling the speech of an entire industry for plainly political reasons.”
“The law’s ambitious sweep has made it a target for those who see it as an unjustified expansion of government. Plaintiffs challenging the law include a variety of religious groups, the nation’s largest small-business trade association, and a who’s who of conservative legal activism.”
“Part I addresses the Commerce Clause and includes what I think is the most thorough discussion so far of why the mandate is not authorized by the Supreme Court’s broadest-ever Commerce Clause decision, Gonzales v. Raich (pp. 6–10). Part I also addresses many other relevant Commerce Clause decisions, including lower court cases. Part II covers the Tax Clause, emphasizing that the mandate is a regulatory penalty, not a tax as defined by Supreme Court precedent (pp. 16–21). Finally, Part III discusses the Necessary and Proper Clause. Among other things, it explains why the mandate runs afoul of the five part test established in the Supreme Court’s most recent Necessary and Proper Clause decision, United States v. Comstock, which I also discussed in detail in this article.”
“For the first time in American history, the federal government has attempted to ‘commandeer the people” by imposing on them an “economic mandate.” Such economic mandates cannot be justified by existing Supreme Court doctrines defining and limiting the powers of Congress. Upholding the power to impose economic mandates “would fundamentally alter the relationship of the federal government to the states and the people; nobody would ever again be able to claim plausibly that the Constitution limits federal power.”
Justifications for ObamaCare’s individual mandate under the Necessary and Proper Clause and the Commerce Clause both fail to adhere to recent Supreme Court precedents. This suggests that the overturning of ObamaCare is plausible under a realistic analysis of contemporary jurisprudence and not merely an originalist interpretation of the Constitution.
“Congress had no scruples in passing a bill whose constitutional basis was paper thin. President Barack Obama was proud to sign it. Now only the federal courts stand between our burgeoning federal government and the Constitution’s model of limited government.”
Virginia’s Attorney General Ken Cuccinelli filed suit to overturn ObamaCare, because it violates a Virginia law which prohibits forcing citizens to purchase health insurance. The Department of Justice filed a motion to have the case dismissed, but a federal judge today ruled that the case is not frivolous and should proceed.
“A tax is when the government takes money from individuals, puts it in the Treasury, and plans to spend it. With the health-insurance mandate, the government is not taking money from private individuals; rather, it is commanding them to give their money to another private entity, not to the Treasury. If individuals don’t obey the mandate, they pay a penalty to the Treasury. But penalties aren’t taxes. The mandate is legally separate from the penalty.”
“So to sum up: McCain accurately dings Obama for being a tax-raiser. Obama responds by reiterating tax pledges he wouldn’t keep, while specifically (and ‘misleadingly’) attacking McCain for raising taxes with his health care plan. The ruse works–for most of the campaign, opinion polls showed that more people believed McCain was likely to raise taxes than Obama. Then, after the election, when Obama’s successfully passed health care plan imposes a new tax, he denies this fact in literally absolutist terms, until his administration is challenged to defend it in court. It’s breathtaking. And not in the good way.”