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Title: Breaking: Kenyancare is Unconstitutional
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URL Source: http://hotair.com/archives/2011/08/ ... care-mandate-unconstitutional/
Published: Aug 12, 2011
Author: Jazz Shaw
Post Date: 2011-08-12 15:30:17 by no gnu taxes
Keywords: None
Views: 4137
Comments: 13
Don’t expect this to be the last stop for the train, but during the next stage of the court challenge process, the individual mandate in Obamacare (not the entire law) has been found unconstitutional. A federal appeals court ruled Friday that a provision in President Obama’s health care law requiring citizens to buy health insurance is unconstitutional, but didn’t strike down the rest of the law. The decision is a major setback for the White House, which had appealed a ruling by a federal district judge who struck down the entire law in January. But the case is clearly headed to the Supreme Court, which will have the final say. On Friday, the divided three-judge panel of the 11th Circuit Court of Appeals sided with 26 states that filed a lawsuit to block Obama’s signature domestic initiative.The panel said that Congress exceeded its constitutional authority by requiring Americans to buy insurance or face penalties. One comment of note from the majority declared the mandate to be, “a wholly novel and potentially unbounded assertion of congressional authority.” This is pretty much in line with most of the well fleshed out complaints we’ve seen since the suit was originally begun. At United Liberty, George Scoville calls it a great day for liberty. There are a couple of things of important note packed into this ruling: * Federalists won today. This is another victory for constitutionalism and those who believe that government is best which governs least — that the U.S. Constitution created a limited government with specific enumerated powers. * It is now more likely that the U.S. Supreme Court will hear the case. While the high court’s docket has become hugely more selective in years past, the fact that the 11th Circuit and 6th Circuit are at odds with each other in their respective rulings increases the likelihood that SCOTUS will decide this issue. * The Court disappointed in its treatment of the non-severability issue. In fact, it overturned the lower court’s ruling, which held that, because the law lacked a severability clause, overturning any of the law’s provisions means necessarily an overturning of the entire law. Forbes predicted something along these lines back in June, though at the time some progressive critics were referring to it as wishful thinking. But the fact that the entire law wasn’t struck down will come as cold comfort to Obamacare supporters. Without the mandate the entire thing pretty much collapses in on itself and nothing is left but a few trillion dollars in new taxes, fees, and… and… Hey. Wait a minute. Update (AP): The court’s website is overloaded so I can’t download the opinion — which is just as well, as it’s over 300 pages. But here’s a key bit excerpted by Philip Klein: [T]he individual mandate contained in the Act exceeds Congress’s enumerated commerce power. This conclusion is limited in scope. The power that Congress has wielded via the Commerce Clause for the life of this country remains undiminished. Congress may regulate commercial actors. It may forbid certain commercial activity. It may enact hundreds of new laws and federally-funded programs, as it has elected to do in this massive 975- page Act. But what Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die. It cannot be denied that the individual mandate is an unprecedented exercise of congressional power. As the CBO observed, Congress “has never required people to buy any good or service as a condition of lawful residence in the United States.” CBO MANDATE MEMO, supra p.115, at 1. Never before has Congress sought to regulate commerce by compelling non-market participants to enter into commerce so that Congress may regulate them. The statutory language of the mandate is not tied to health care consumption—past, present, or in the future. Rather, the mandate is to buy insurance now and forever. The individual mandate does not wait for market entry. Elsewhere in the opinion, again via Klein, the court said the mandate “is unprecedented, lacks cognizable limits, and imperils our federalist structure.” In a word: Indeed. And the best part of today’s decision? One of the two judges in the majority was … a Clinton appointee. The unconstitutionality of the mandate is no longer a partisan position. The worst part of the decision is the severability ruling. If the Supreme Court rules that way too, it’ll mean the rest of ObamaCare will remain intact and good law even after the mandate is nuked. Which, actually, is a perverse outcome: The whole reason the mandate’s there in the first place is so that insurers have a big new pool of premiums flowing in to help offset the costs they’ll incur from now having to cover people with preexisting conditions, etc. If that pool disappears, the whole arrangement becomes financially unstable. Congress would have to go back to the drawing board and either scale back the other parts of the law so that it can function without a mandate or nuke the law in its entirety. Update: Another killer quote from the opinion via Politico. Philosophically, this is a total victory: The majority of the panel said they couldn’t uphold the mandate because there would be no limit to Congress’s powers if they did. Opponents of the law have frequently argued that if Congress can require people to buy insurance, they can force people to do anything else, such as buy broccoli or a gym membership for their health benefits… “We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers,” Dubina and Hull wrote. “’Uniqueness’ is not a constitutional principle in any antecedent Supreme Court decision.” Obama’s having some month, huh?
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#1. To: All (#0)
The Militia Act of 1792: That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes. ~~~~~~~~~~~~~~~~~~~~~ So, no, it's not the first time the Congress has required a class of citizens to purchase something. That said, I've long held that the individual mandate would be struck down because it was constitutionally dubious. What is significant here is that the other provisions of the law were allowed to stand.
America...My Kind Of Place... "I truly am not that concerned about [bin Laden]..." "THE MILITIA IS COMING!!! THE MILITIA IS COMING!!!" I lurk to see if someone other than Myst or Pookie posts anything...
I've said ever since the bill passed, Anthony Kennedy will decide whether or not the ACA is constitutional. Obama shot himself in the foot by not pushing for the public option.
Tagline for sale - inquire within
lots of things apply during those times that wouldn't normally apply
Obama has played at being a president while enjoying the perks … golf, insanely expensive vacations at tax-payer expense. He has ignored the responsibilities of the job; no plans, no budgets, no alternatives … just finger pointing; making him a complete failure as a president
Shot a lot of feet with that one if you recall.
America...My Kind Of Place... "I truly am not that concerned about [bin Laden]..." "THE MILITIA IS COMING!!! THE MILITIA IS COMING!!!" I lurk to see if someone other than Myst or Pookie posts anything...
Yep.
Still using that pic, that shows you to be sycophant of our Marxist-in-Chief, eh? Oh, and HE didn't kill bin Laden, but it's the ONLY thing he can take "credit" for... Putz.
The two sides in America are people who work for a living versus people who vote for their living.
My guess is if this stands the bill will have to go back to Congress to be revamped and revoted on..... because..... it was passed using the budget resolution route saying it would save money on healthcare or be budget neutral. (and as we all know that isn't true, it never was).... The mandate was a way to bring in funds to make the bill budget neutral so that it could be passed in the first place.. So if that is no longer true, ObozoCare could just very well be history in the next 6 mos or so......
When asked by a Liberal what I bought my Granddaughter for her 1st birthday I replied, "MORE AMMUNITION"!!!! -----------------------------"People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf."
It's a fantasy poster. He types with one hand while looking at it.
Obama has played at being a president while enjoying the perks … golf, insanely expensive vacations at tax-payer expense. He has ignored the responsibilities of the job; no plans, no budgets, no alternatives … just finger pointing; making him a complete failure as a president
The District Court had held that the mandate was unconstitutional and not severable. That holding struck down the entire act. The State appealed. The Appeals Court held the mandate unconstitutional, but reversed on the severability issue. If upheld in SCOTUS, the effect may be similar. All of the Act except the mandate would go into law. Absent the mandate, the government has argued that the Act will not work. [...] The plaintiffs are 26 states, private individuals Mary Brown and Kaj Ahlburg, and the National Federation of Independent Business (“NFIB”) (collectively the “plaintiffs”). [...] This opinion was written jointly by Judges Dubina and Hull. Cf. Waters v. Thomas, 46 F.3d 1506, 1509 (11th Cir. 1995) (authored by Anderson and Carnes, J.J.) (citing Peek v. Kemp, 784 F.2d 1479 (11th Cir.) (en banc) (authored by Vance and Anderson, J.J.), cert. denied, 479 U.S. 939, 107 S. Ct. 421 (1986)). [...] The 26 state plaintiffs are Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin, and Wyoming. [...] Legal issues concerning the constitutionality of a legislative act present important but difficult questions for the courts. Here, that importance and difficulty are heightened because (1) the Act itself is 975 pages in the format published in the Public Laws;5 (2) the district court, agreeing with the plaintiffs, held all of the Act was unconstitutional; and (3) on appeal, the government argues all of the Act is constitutional. [...] The individual mandate, however, can be severed from the remainder of the Act’s myriad reforms. The presumption of severability is rooted in notions of judicial restraint and respect for the separation of powers in our constitutional system. The Act’s other provisions remain legally operative after the mandate’s excision, and the high burden needed under Supreme Court precedent to rebut the presumption of severability has not been met. Accordingly, we affirm in part and reverse in part the judgment of the district court. AFFIRMED in part and REVERSED in part. Florida v DHHS, 11th Cir 11-11021 and 11-11067 OPINION (12aug2011)
FYI, in the District Court, Vinson opinion of January 31, 2011 at page 76, footnote 30: At 63 of the District Court opinion:
As opposed to a mere legislative act, the US Constitution requires an amendment process. Hence the current issue.
You know I did a little more thinking and why can't ObozoCare be repealed (or at least the major parts killed off) using the same method Budget reconcilliation (which is filibuster proof) it would only take 51 votes to do so....
When asked by a Liberal what I bought my Granddaughter for her 1st birthday I replied, "MORE AMMUNITION"!!!! -----------------------------"People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf."
Currently, they are exhausting the remedies offered in the circuit courts of appeal, necessary to get to SCOTUS. The administration wishes to have that court wordsmith around the Constitution and sprinkle legal pixie dust on the mandate. I believe it is UNconstitutional. There is room for SCOTUS to get creative.
As the CBO observed, Congress “has never required people to buy any good or service as a condition of lawful residence in the United States.”
--GW Bush
--Sarah Palin's version of "The Midnight Ride of Paul revere"
#2. To: no gnu taxes (#0)
#3. To: war (#1)
imminent invasion or insurrection.
#4. To: go65 (#2)
Obama shot himself in the foot by not pushing for the public option.
--GW Bush
--Sarah Palin's version of "The Midnight Ride of Paul revere"
#5. To: no gnu taxes (#0)
a provision in President Obama’s health care law requiring citizens to buy health insurance is unconstitutional
#6. To: war (#1)
#7. To: no gnu taxes (#0)
A federal appeals court ruled Friday that a provision in President Obama’s health care law requiring citizens to buy health insurance is unconstitutional, but didn’t strike down the rest of the law.
#8. To: Capitalist Eric (#6)
Still using that pic
#9. To: no gnu taxes (#0)
The government appeals the district court’s ruling that the individual mandate is unconstitutional and its severability holding.
#10. To: All (#9)
[30] On this point, it should be emphasized that while the individual mandate was clearly “necessary and essential” to the Act as drafted, it is not “necessary and essential” to health care reform in general. It is undisputed that there are various other (Constitutional) ways to accomplish what Congress wanted to do. Indeed, I note that in 2008, then-Senator Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that "if a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house.” See Interview on CNN’s American Morning, Feb. 5, 2008, transcript available at: http://transcripts.cnn.com/TRANSCRIPTS/0802/05/ltm.02.html. In fact, he pointed to the similar individual mandate in Massachusetts --- which was imposed under the state’s police power, a power the federal government does not have --- and opined that the mandate there left some residents “worse off” than they had been before. See Christopher Lee, Simple Question Defines Complex Health Debate, Washington Post, Feb. 24, 2008, at A10 (quoting Senator Obama as saying: "In some cases, there are people [in Massachusetts] who are paying fines and still can't afford [health insurance], so now they're worse off than they were . . . They don't have health insurance, and they're paying a fine . . .”).
The defendants have asserted again and again that the individual mandate is absolutely “necessary” and “essential” for the Act to operate as it was intended by Congress.
#11. To: nolu chan (#10)
#12. To: no gnu taxes (#0)
Don’t expect this to be the last stop for the train, but during the next stage of the court challenge process, the individual mandate in Obamacare (not the entire law) has been found unconstitutional.
#13. To: buckeroo (#11)
As opposed to a mere legislative act, the US Constitution requires an amendment process. Hence the current issue.
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