Next up for ObamaCare in Court: Florida

http://www.nationalreview.com/bench-memos/255518/summary-judgment-arguments-florida-obamacare-case-carrie-severino

Summary Judgment Arguments in the Florida Obamacare Case

December 17, 2010 2:28 P.M.

By Carrie Severino

Yesterday in Pensacola, Fla., Judge Roger Vinson heard oral arguments on the summary-judgments motions in the 20-state litigation challenging Obamacare. A few quick observations having heard the arguments and his questioning:

1. Judge Vinson seemed very amenable to the plaintiffs’ position on the Commerce Clause, recognizing the failure to purchase health care as inactivity rather than activity that is subject to regulation. He noted at one point that there is no case in which the Supreme Court has held that inactivity is activity. That goes quite a way toward victory on this point for the plaintiffs.
   
   Judge Vinson probed the DOJ lawyers as to what the logical stopping point would be of their theories, and did not, to my mind, get any satisfactory answer. Their argument seemed to boil down to “health care is unique and therefore this wouldn’t apply in other areas.” But when Judge Vinson asked how that market was different than the market for shoes or transportation, they simply retreated to their argument that, at least as a class, everyone is guaranteed to use health care, and this law does no more than regulate how to finance it.
   
2. Plaintiffs used about half of their argument time on their claim that the dramatic expansion of Medicare amounts to coercion and commandeering of the states. This is a claim that Judge Vinson telegraphed skepticism about in his opinion on the motion to dismiss, and he didn’t seem significantly more encouraging during these arguments. In particular, he seemed wary to decide the issue on summary judgment as the effect of the law on the states could be considered an issue of fact and not pure law.
   
3. Judge Vinson specifically asked the plaintiffs to discuss severability and the availability of injunctive relief, two issues that only would come into play if they win on at least one of their claims. This is a good sign for the plaintiffs. However, he also agreed with DOJ lawyers that deciding whether or not the law as a whole would have been passed absent the individual mandate was a highly speculative exercise, suggesting he would sever some provisions at least. Plaintiffs are arguing that the whole law stands or falls with the individual mandate, and DOJ has conceded that several important insurance regulations governing preexisting conditions and pricing of insurance would have to be stricken if the mandate is found unconstitutional — significantly more than was struck down with the mandate in the Virginia case decided Monday. That leaves a lot of the bill up in the air, including many provisions that seem more tangential to the law’s purpose and would likely be left to stand even without the mandate (which arguably would have provided their chief source of funding), and major insurance regulations and Medicaid changes that could go either way.
   
4. A couple memorable moments: First, Judge Vinson put the DOJ lawyer in a tough spot when he stated that, at times in his life, he hadn’t had health insurance. He did get health care during that time, but paid all his bills in full and therefore wasn’t the drag on the system that the government assumes all uninsured must be. Not something I would have wanted to hear were I in the lawyer’s shoes.
   
   Second, I found it amusing that the DOJ lawyer was concerned about the uninsured being unable to afford even “routine” medical care, like angioplasty. Angioplasty, apparently, is now routine. I guess the term “routine medical care” to me means something more like annual checkups, flu shots, mammograms, and the like, but perhaps times are changing.
   
   Judge Vinson didn’t give a time frame for deciding the case, but he did say he would have his decision out “as quickly as possible.” He handed down his decision on the motion to dismiss one month after arguments, but this time may take slightly longer, given the upcoming holidays. Opponents of Obamacare should be sanguine after these arguments, but regardless of the result, this case won’t ultimately be decided until the Supreme Court has its say. Still, another decision reaffirming constitutional limits on government would be a great way to start off 2011.

The Iraq War decision revisited

Why We Were Right to Take Out Saddam

December 13, 2010 2:00 P.M.

By Victor Davis Hanson

In a recent interview, Katie Couric asked Condoleezza Rice what were the reasons for removing Saddam Hussein if one were to take fear of weapons of mass destruction out of the argument. Rice reviewed the general pathologies of the Saddam regime, but did not cite the October 2002 joint congressional resolutions that listed over 20 writs justifying regime change, including Saddam’s bounties to terrorist bombers on the West Bank, genocide against the Kurds, attempts to kill George H. W. Bush, harboring of terrorists, and violation of the 1991 accords, the no-fly zones, and U.N. sanctions. So there were plenty of reasons, not counting fear of WMD, for Congress to have wanted to remove Saddam — and indeed a majority of Democratic senators, including Harry Reid, John Kerry, and Hillary Clinton, and sizable numbers of House Democrats voted for the resolutions. The administration erred in hyping one or two writs concerning WMD, and today the result is that we have completely forgotten the congressional authorizations in late 2002 and their rather long litany of Saddam’s transgressions — which had earlier led Bill Clinton to push through a regime-change authorization of his own (the Iraqi Liberation Act of 1998).

VA Judge Strikes down ObamaCare Mandate as Unconstitutional

This is a serious setback for ObamaCare & its constitutional law professor POTUS:

Great name for a judge also (Henry Hudson).

Here is the 42-page ruling: http://global.nationalreview.com/dest/2010/12/13/4f41b71ebfb74ab3c4fd5d896770b6c0.pdf

Judge Hudson’s opinion is particularly valuable because it dispatches the White House’s carousel of rationalizations for its unprecedented intrusions. The Justice Department argued that the mandate is justified by the Commerce Clause because the decision not to purchase insurance has a substantial effect on interstate commerce because everybody needs medical care eventually. And if not that, then it’s permissible under the broader taxing power for the general welfare; and if not that, then it’s viable under the Necessary and Proper clause; and if not that, well, it’s needed to make the overall regulatory scheme function.

But as Judge Hudson argues, the nut of the case is the Commerce Clause. Justice can’t now claim that the mandate is "really" a tax when the bill itself imposes what it calls a "penalty" for failing to buy insurance and says the power to impose the mandate is vested in interstate commerce. Recall that President Obama went on national television during the ObamaCare debate to angrily assert that the mandate "is absolutely not a tax increase."

Moreover, Judge Hudson says that no court has ever "extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market."

Liberals are attacking Judge Hudson because he was appointed by George W. Bush, but his ruling is relatively narrow. He didn’t strike down the rest of ObamaCare even though it lacked a severability clause, and he didn’t enjoin the law’s implementation pending appeal. His opinion also doesn’t touch Virginia Attorney General Ken Cuccinelli’s long-shot claim that his state’s "health freedom" law can nullify an act of Congress. In fact, federal laws that are constitutional are supreme under the 10th Amendment.
Yesterday liberals were crowing that even if the mandate is eventually declared illegal, it’s no big deal because the rest of ObamaCare’s new system would remain intact. Yet they’ve argued for years that the mandate is essential to health reform, because the mandate is at the heart of the regulatory machine. ObamaCare without a mandate would mean individuals wouldn’t have to pay into a system until they were sick, driving up costs even faster and ruining what’s left of health insurance markets.

While Judge Hudson’s ruling is the first to declare part of the law unconstitutional, more than 20 state attorneys general and the National Federation of Independent Business are also suing in Florida. Oral arguments will be heard on Thursday in that case, which we think is the strongest constitutional challenge to the law.

As the Virginia case shows, ObamaCare really does stretch the Commerce Clause to the breaking point. The core issue is whether the federal government can order individuals to do anything the political class decides it wants them to do. The stakes couldn’t be higher for our constitutional order.

http://online.wsj.com/article/SB10001424052748703727804576017672495623838.html?mod=googlenews_wsj