Now that Florida Judge Vinson has declared O’Care unconstitutional, is O’Care essentially a ‘dead man walking’? At minimum, it’s bringing confusion to the health insurance industry. OTR’s Greta van Susteren encapsulates the situation perfectly in this post:

The states and insurance companies and individuals have begun making plans about health care in light of the national health care law…so now that the law is declared unconstitutional in Florida, should they stop? reverse? what if the US Supreme Court reverses the trial court? or upholds it???


Let’s get this decided ASAP!!! Everyone’s known for months that this will be settled in the Supreme Court. If President Obama’s Justice Department decides to string this out, it’s essentially saying it thinks its case is weak, at least with the current configuration of the Roberts court.

Here’s a key portion of Judge Vinson’s opinion:

“Because the individual mandate is unconstitutional and not severable, the entire act must be declared void. This has been a difficult decision to reach, and I am aware that it will have indeterminable implications,” Vinson wrote.

He was referring to a key provision in the Patient Protection and Affordable Care Act and sided with governors and attorneys general from 26 U.S. states, almost all of whom are Republicans, in declaring it unconstitutional. The issue will likely end up at the U.S. Supreme Court.

“Regardless of how laudable its attempts may have been to accomplish these goals in passing the Act, Congress must operate within the bounds established by the Constitution,” the judge ruled.

What’s especially harsh about this ruling is that Judge Vinson used President Obama’s words against him:

“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,’” Judge Vinson wrote in a footnote toward the end of the 78-page ruling Monday.

This is harsh but it isn’t the first time this type of thing has happened. In the Virginia ruling, Judge Hudson talked about how Obama administration officials argued on the Sunday morning talk shows that the penalty wasn’t a tax. President Obama even argued that with George Stephanopoulos. The Justice Department then argued in front of Judge Hudson that it was a tax.

Today’s opinion didn’t just weaken the Obama administration’s case. It cited President Obama’s opinion that mandates like what are in the O’Care legislation are unconstitutional.

The other key finding in this opinion is that the entire bill is unconstitutional:

Judge Vinson, a federal judge in the northern district of Florida, struck down the entire health care law as unconstitutional on Monday, though he is allowing the Obama administration to continue to implement and enforce it while the government appeals his ruling.

Predictably, the administration’s allies lashed out angrily at the ruling:

Ron Pollack, executive director of Families USA, an influential national advocacy group that pushed for the healthcare overhaul, called Vinson’s decision an example of “radical judicial activism run amok” and predicted it would be reversed on appeal.

“The decision flies in the face of three other decisions, contradicts decades of legal precedent, and could jeopardize families’ health care security,” he said in a statement.

Pollack’s statement is predictable but nonsense. In his ruling, Judge Hudson noted that he couldn’t find any precedents to base his ruling on, just his understanding of the Constitution. Pollack’s statement indicates that he’s willing to argue with Judge Hudson and his law clerks who’ve researched the case history on these types of issue before issuing his opinion.

Does Pollack really think that’s a fight he can win? Or is this just the best he can do while tap-dancing as fast as he can? I suspect it’s the latter.

Powerline’s John Hinderaker’s post is quite instructive:

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…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.

The key sentence in this part of the ruling is the part that says the government could compel individuals to do anything. The part that says “the enumeration of powers in the Constitution” would essentially say that the powers of the federal government are unlimited.

Again, I can’t state this emphatically enough: This isn’t just another ruling, one that evens the score at 2-2. This is setting the stage for ruling O’Care unconstitutional.

Obama’s allies’ claims notwithstanding, this isn’t judicial activism. This is about the proper application of the Constitution.

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