Tuesday was a likely setback in the efforts to see the national health care law overturned.
A computerized lottery delivered a bad break to opponents of the legislation when it randomly selected three Democratic appointed judges from the Fourth Circuit Court of Appeals to hear two cases challenging the law’s constitutionality.
The entire Fourth Circuit has 14 judges, 7 of which were appointed by Democrats, 6 of which were appointed by Republicans, and one judge who was originally appointed by President Clinton but then renominated by President Bush. Yet the three judges hearing the case were Obama nominees James A. Wynn Jr and Andre M. Davis and Clinton nominee Diana Gribbon Motz.
Based on their backgrounds and line of questioning during the oral arguments, it doesn’t bode well for challengers of the law, the state of Virginia and Liberty University.
However, those hoping to see the law, or at least its individual mandate, struck down by the courts, will have several more cracks at the bat.
Two other appeals courts will be hearing challenges to the health care law – the Sixth Circuit, which will hear a challenge from the Thomas More Law Center on June 1st in Cincinatti, and the 11th Circuit, which will consider the suit filed by 26 states led by Florida.
Necessary and Proper Clause
[Editor’s note: This post should not be construed as an endorsement of Mitt Romney or of Republican candidates for U.S. Senate or U.S. House in 2012. The author is a political media strategist by trade.]
Regular readers know I am not a lawyer, and that I do not specialize in health policy. I also did not come to Washington through Capitol Hill and am therefore no expert in parliamentary procedure. Still, I wanted to share a few thoughts on the Supreme Court’s decision to uphold Obamacare — some original, some not — and they’re not all bad.
First, here’s the opinion itself (PDF).
Second, the greatest legal minds on the left have spent the last couple of years arguing that the individual mandate is constitutional under authority granted to Congress under the Commerce Clause and Necessary and Proper Clause. The Court summarily rejected this argument, and that is great for individual liberty. Congress does not, as Obamacare opponents have argued all along, have the power to force you to buy health insurance, broccoli, or anything else. It does not have power to regulate economic inactivity.
Third, the mandate was upheld because Chief Justice Roberts wrote that the penalty for not purchasing health insurance can reasonably be construed as a tax. Because the power to tax is an enumerated power of Congress as outlined in Article 1, Section 8 of the Constitution, this provision of the law was upheld.
An interesting political point — in September 2009, fearing political blowback from pushing so hard for the law, the president flatly rejected that Obamacare constituted a tax increase on Americans during a recession:
Today, the Supreme Court will take up perhaps one of the most important cases we’ll see in our lifetime. Over the next three days, members of the nation’s High Court will hear arguments on the constitutionality of the Patient Protection and Affordable Care Act (PPACA), also known as ObamaCare.
While we’ve seen several important cases over the 20 years that have dealt with economic and civil liberties — including property rights, free speech, and habeas corpus, Department of Health and Human Services v. Florida deals directly with the limitations placed on Congress by the Constitution.
The question of whether or not ObamaCare is good policy is meaningless to the Supreme Court. The issue at hand isn’t that law won’t keep health insurance premiums, or because it raises taxes or that it is unpopular with the American public. The only thing that matters, or at least should matter, is the Constitution.
During today’s oral arguments, the Supreme Court will hear an hour of arguments on whether or not legal challenges to the individual mandate are barred by the Anti-Injunction Act. The reason for this question is because the penalities that would be imposed by the individual mandate won’t be in place until 2014. Since no one has been necessarily impacted by the policy, the theory is that the court could punt until it’s implement.
Last week a severe blow was dealt to the long-term prospects of ObamaCare. U.S. District Court Judge Henry E. Hudson ruled that the Minimum Essential Coverage Provision (commonly referred to as the “individual mandate”) is unconstitutional. ObamaCare required weeks of arm-twisting and bribes, along with a labyrinthine process of obscure parliamentary procedures, to get the bill passed without a final vote. Even then it required Nancy Pelosi keeping her caucus in Washington (and away from the growing number of voters back home vehemently and vocally opposed to the bill) until nearly midnight on Christmas Eve in order to get the bill to pass by a hair.
There are a number of constitutional issues with the health care “reform” legislation, but none may be more important to implementing it than maintaining the individual mandate. There is no doubt that this is not the end of the issue. The Obama administration will appeal the ruling and eventually it will end up in the Supreme Court. However, that may not be a hospitable venue for the arguments that Obama will make before the court to protect this provision.
The Supreme Court finished out the third and final day of oral arguments yesterday on ObamaCare with severability being the first issue the of the day. The question before the the Justices is if the individual mandate is indeed unconstitutional, does that mean the rest of the Patient Protection and Affordable Care Act (PPACA) have to be thrown out? The second issue before the court yesterday was whether or not Medicaid expansion would be coercive to the states and therefore unconstitutional.
Philip Klein, who has been covering oral arguments before Supreme Court on the PPACA for the last three days, provides a recap of the severability arguments:
ustices on the U.S. Supreme Court this morning considered what to do with the rest of President Obama’s national health care law if its individual health insurance mandate is struck down. Though it was difficult to get a clear read on their thinking as they asked tough questions of all sides, the Court seemed open to the possibility of overturning the entire law.
Paul Clement, arguing for the 26 states challenging the law along with the National Federation of Independent Business, started off the arguments by suggesting the Court look at whether Congress would have passed the law without the individual mandate.
The more liberal justices argued that there were plenty of elements of the law that had nothing to do with the mandate.
Yesterday was an interesting day at the Supreme Court. Justices heard the case on the individual mandate from both sides, with Solicitor General Donald Verrilli arguing the case for central part of ObamaCare and Paul Clement and Michael Carvin presenting the case against it. If you support the individual mandate, then it wasn’t a good day. If you oppose ObamaCare, there was reason for optimism that it will be struck down.
In case you missed it, you can listen to the oral arguments below and read the transcript from the Supreme Court’s website:
If you were hoping that the Supreme Court would punt on a ruling on the controversial health care reform law, the Patient Protection and Affordable Care Act (PPACA), you’re no doubt disappointed in yesterday’s oral arguments. It appears, based on comments from various Justices, that there is no appetite for punting on the issue.
In case you missed it, you can listen to the oral arguments below and read the transcript from the Supreme Court’s website:
Over at the Washington Examiner, Philip Klein reports that two lawsuits challenging ObamaCare were heard before three judges appointed by Democratic presidents, including Barack Obama:
In an recent editorial at the Wall Street Journal, Randy Barnett and Elizabeth Price Foley explained Monday’s ruling by Judge Roger Vinson:
Judge Vinson flatly rejected the administration’s attempt to escape the restrictions of the Commerce Clause by appealing to the Necessary and Proper Clause. His decision acknowledges that, while reforming an insurance market is a regulation of commerce, Congress cannot artificially create its own “free rider” crisis in the insurance market and then use that crisis to justify an otherwise unconstitutional mandate as “necessary and proper” to save the market from collapse.
This novel use of the Necessary and Proper Clause, if allowed to stand, would fundamentally transform our constitutional scheme from limited to unlimited federal power, narrowing the scope of individual liberty. In Judge Vinson’s words, “the more harm the statute does, the more power Congress could assume for itself under the Necessary and Proper Clause. This result would, of course, expand the Necessary and Proper Clause far beyond its original meaning, and allow Congress to exceed the powers specifically enumerated in Article I.”
One crucial difference between the Florida and Virginia decisions relates to the breadth of the remedy. While both courts agreed that the individual mandate was unconstitutional, the Virginia decision merely declared the mandate alone to be unconstitutional—the rest of ObamaCare was unaffected. But Judge Vinson concluded that the individual mandate could not be “severed” from the rest of the law, and so the entire law must be struck down.
Just a few days after a federal judge in Virginia found the individual mandate to be unconstitutional, Judge Roger Vinson heard similar arguments in a challenge by 20 states against the health care reform law:
Attorneys for 20 states fighting the new federal health care law told a judge Thursday it will expand the government’s powers in dangerous and unintended ways.
The states want U.S. District Judge Roger Vinson to issue a summary judgment throwing out the health care law without a full trial. They argue it violates people’s rights by forcing them to buy health insurance by 2014 or face penalties.
“The act would leave more constitutional damage in its wake than any other statute in our history,” David Rivkin, an attorney for the states, told Vinson.
President Barack Obama’s administration counters that Americans should not have a choice of opting out of the overhaul because everyone requires medical care.
Initial reports are that Vinson views the law in much the same light that he did back in October, that the individual mandate is unconstitutional. Vinson wonder how far the Commerce Clause could stretch if the federal government could mandate every citizen buy health insurance:
In a federal courtroom Thursday, Judge Roger Vinson questioned how far Congress’s authority would go if it can legally require nearly all Americans to purchase health insurance.
In a case dealing with sex offenders, the Supreme Court ruled today that Congress could pass a law authorizing the Federal Bureau of Prisons to keep someone in custody for an indefinite period even if they had served the full term of their sentence:
WASHINGTON (AP) — The Supreme Court ruled Monday that federal officials can indefinitely hold inmates considered ‘’sexually dangerous” after their prison terms are complete.
The high court in a 7-2 judgment reversed a lower court decision that said Congress overstepped its authority in allowing indefinite detentions of considered ‘’sexually dangerous.”
”The statute is a ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others,” said Justice Stephen Breyer, writing the majority opinion.
President George W. Bush in 2006 signed the Adam Walsh Child Protection and Safety Act, which authorized the civil commitment of sexually dangerous federal inmates.
The act, named after the son of ”America’s Most Wanted” television host John Walsh, was challenged by four men who served prison terms ranging from three to eight years for possession of child pornography or sexual abuse of a minor. Their confinement was supposed to end more than two years ago, but prison officials said there would be a risk of sexually violent conduct or child molestation if they were released.
It was a 7-2 ruling, and the two dissenters were Antonin Scalia and Clarence Thomas, who stated in a dissent authored by Thomas: