Monday, January 31, 2011

Federal Judge to Nancy Pelosi: "Yeah, Lady, We're Quite Serious"

"Are you serious? Are you serious?" -- Speaker of the House Nancy Pelosi, when asked where the Constitution authorized Congress to order Americans to buy health insurance, October 22, 2009

A federal judge savaged the Democrat's health care reform bill today, ruling the contentious 'individual mandate' unconstitutional and invalidating the entire law.

A Florida federal judge on Monday ruled that a key plank of the health overhaul passed last March violates the Constitution, dealing a second judicial blow to the Obama administration's signature legislative achievement.

The case is considered the most high-profile of a series of federal lawsuits against the health overhaul. Attorneys general and governors from 20 states initially filed the lawsuit, and six more got behind it earlier this month. All but four of them are Republicans.

In his ruling, Judge Roger Vinson, a Republican appointee, said that the law's requirement to carry insurance or pay a fee "is outside Congress' Commerce Clause power, and it cannot be otherwise authorized by an assertion of power under the Necessary and Proper Clause. It is not constitutional."

The ruling also said that entire law "must be declared void," because the mandate to carry insurance is "not severable" from the rest of the law.

Pages 41 and 42 of the ruling make for especially good reading -- the Framers would be proud of Judge Vinson, who eviscerated the administration's argument six ways from Sunday.

...there is a simple and rather obvious reason why the Supreme Court has never distinguished between activity and inactivity before: it has not been called upon to consider the issue because, until now, Congress had never attempted to exercise its Commerce Clause power in such a way before. See CBO Analysis (advising Congress during the previous health care reform efforts in 1994 that “[t]he government has never required people to buy any good or service as a condition of lawful residence in the United States.”). In every Supreme Court case decided thus far, Congress was not seeking to regulate under its commerce power something that could even arguably be said to be “passive inactivity.”

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting --- as was done in the Act --- that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only.

Surely this is not what the Founding Fathers could have intended. See id. at 592 (quoting Hamilton at the New York Convention that there would be just cause to reject the Constitution if it would allow the federal government to “penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals”) If some type of already-existing activity or undertaking were not considered to be a prerequisite to the exercise of commerce power, we would go beyond the concern articulated in Lopez for it would be virtually impossible to posit anything that Congress would be without power to regulate.

Vinson's ruling lays out a brief history of the Commerce Clause and its abuse by the Supreme Court; his timeline illustrates the erosion of the Constitution's firewalls by activist judges focused on results, not adjudication.

The Framers meant what they said. And only a morally bankrupt judge could come to the conclusion that our highest law gave carte blanche to an all-powerful central government. Vinson's powerful ruling lays down an intellectual -- and a moral -- framework for pushing back against the Statist Democrats.


Jewish Odysseus said...

Them is indeed some beautiful words from Judge Vinson. Indeed!

Chris Taus said...

The momentum is slowly building; it may take a while longer, but our country will see the return of constitutional rule of law!