FAIL: Another Judge Finds ObamaCare Unconstitutional
On September 13th, Judge Christopher C. Conner of the federal district court for the Middle District of Pennsylvania in Goudy-Bachman et al v. HHS held the mandatory medical insurance provisions of ObamaCare to be beyond the powers of the Congress under the Commerce Clause, Article I Section 8 of the Constitution. Somehow, it just didn’t work out too well.
It’s a lot of work and often there is lots of pressure to get things done right now. However, perhaps the members of Congress should have read it before passing it.
As an introductory matter, Judge Conner noted,
I emphasize, as Judge Vinson emphasized in Florida v. U.S. Department of Health & Human Services, that this case is not about whether the Health Care Act merely treats the symptoms or cures the disease which has so clearly afflicted our health care system. Nor is it about the exhaustive efforts of Congress to document and to project the increasing costs of health care services or to pinpoint discriminatory practices associated with preexisting conditions. Rather, this case concerns the precise parameters of Congress’s enumerated authority under the Commerce Clause of the United States Constitution. Specifically, the issue is whether Congress can invoke its Commerce Clause power to compel individuals to buy insurance as a condition of lawful citizenship or residency. The court concludes that it cannot. The power to regulate interstate commerce does not subsume the power to dictate a lifetime financial commitment to health insurance coverage. Without judicially enforceable limits, the constitutional blessing of the minimum coverage provision would effectively sanction Congress’s exercise of police power under the auspices of the Commerce Clause, jeopardizing the integrity of our dual sovereignty conditions. (internal citations here and in other quotations generally omitted)
The judge applied the traditionally rigorous standard in evaluating a facial challenge to a statute in the posture of ObamaCare, viz, that the plaintiffs “must establish that ‘no set of circumstances exist under which the Act would be valid.’” He reviewed relevant Supreme Court precedent and the split in federal court decisions on the matter and summarized his agreements and disagreements with the recent holdings by the Fourth, Sixth, and Eleventh Circuits.
The Fourth Circuit had dismissed challenges to ObamaCare on procedural grounds. However, Judge Conner noted that a concurring judge there had opined,
Both parties have cited extensively to previous Supreme Court opinions defining the scope of the Commerce Clause. Economic mandates such as the one contained in the Act are so unprecedented, however, that the government has been unable . . . to point this Court to Supreme Court precedent that addresses their constitutionality. . . . What the Court has never done is interpret the Commerce Clause to allow Congress to dictate the financial decision of Americans through an economic mandate.
The Sixth Circuit had found no viable distinction for Commerce Clause purposes as between economic activity and inactivity and, finding that nearly everyone at some time or other uses health care, a market with “few if any” parallels, it upheld the individual mandate.
On many occasions,
I have asked progressives whether they support any limits to the government’s ability to regulate and control the economy. What legal or constitutional restraints, I ask them, prevent the U.S. from devolving into a total command economy in the style of the U.S.S.R. or North Korea?
The only answer I’ve ever gotten (and even that answer is rare) is that each situation must be decided on its merits on a case by case basis. IOW, they don’t see any way to oppose communism on principle–at least not on any principle that’s clear enough to be codified in law.
Quite revealing. Try this line of questioning out on your own progressive friends.
Why bother? “I am a liberal” is semantically equivalent to “I have no principles; I worship power.”
I have never, ever heard a liberal take a firm position against any assertion of government power, with one exception: abortion. Let that sink in for a moment.
Not sure it’s that simple. Liberals relationship to power is summed up in their other name: Progressive. To them, no exercise of power is excessive or unnecessary IF it leads to the “improvement” of society. It’s not power, it’s the power to “do good” that they worship. The power to “solve big problems.” In my opinion, they are people who would worship Hitler if he made the trains run on time.
Another reason they love power: Despite their claim to “nuanced” thinking and morality, they appreciate the simplicity of power. They prefer a morally-certain President or Congress saying “Make it so” to a heterogeneous rabble working out a deal that might involve compromise. When you’re clearly right, they think, you shouldn’t have to negotiate – you should simply get to do what you want. When your opponents are clearly wrong, they should STFU and stay out of your way. You can see this in their accusations of Republican “obstructionism” in Congress.
In Obama, I think the liberals thought they had finally acquired a leader who, with a Democrat-dominated Congress, would be able to rule by fiat. No more questioning, no more criticism, no difference of opinion, nothing to stand in the way of the Progressive march to Utopia. Fortunately, they are being proved wrong.
Francis, aren’t you forgetting the Bush years (and the Reagan years and the [insert Republican here] ________ years) where ANY exercise of government power was vilified out of hand? I agree that leftists (you call them liberals) worship government power, but it’s only when they are at the helm.
‘The only answer I’ve ever gotten (and even that answer is rare) is that each situation must be decided on its merits on a case by case basis.’
In other words progressives want to overturn the Rule of Law. They claim that government authority cannot confine itself to providing opportunities for unknown people to make whatever use of them they like, within the law. Instead, progressives claim that government must provide for the actual needs of people and then choose deliberately between them. These decisions cannot be based on formal principles or settled for long periods in advance. The government, represented by bureaucrats, depends on the circumstances of the moment and is forced to balance one against the other the interests of various persons and groups. In the progressive world, case by case assessments, decisions and choices made by bureaucrats are superior to the Rule of Law.
This is opposite of the Rule of Law under which the government in all its actions would be bound by rules fixed and announced beforehand.
Correct. I think this is the “positive liberty” vs. “negative liberty” thing. It’s not enough to give people liberty. You have to make sure everyone can exercise that liberty equally. Opportunity is not enough if you don’t have the wherewithal to exploit it. We may ensure that everyone equal opportunity, but a rich man is able to do more with his opportunity than a poor man. You can have all the liberty in the world, but if you were born poor and live in a slum, you’ll spend most of your time struggling to stay alive rather than pursuing investment opportunities or choosing a college for your kids. Therefore, say the Progressives, the government must give the poor man the means to use his opportunity in as many different ways as the rich man can. Progressives believe, quite literally, that this is what the Founders meant by “liberty” and what the American Dream is all about. Unless everyone has equal means to exercise their liberty, then all talk of liberty in this county is just a hollow boast.
There’s a perverse kind of logic in what they say. Unfortunately, I think it’s a case of government overreach. Like the old saying: “The government that can give you everything you want can take away everything you have.” Is the government really the proper instrument for achieving the kind of equality Progressives envision? Government is made up of people, none of them perfectly idealistic, some of them not very nice.
What you are talking about is fascism, even though it is so often peddled under the guise of “anti-fascism”.
I don’t think I would call it fascism, as much as a reversion to idealized feudal paternalism. Of course the feudal world was brutal and anarchic. But that is not the way that the organic conservatives portrayed it, and many Progressive statists have substituted the rule of bureaucrats for that of the imagined Good King of the Middle Ages. I tried to write about that fantasy of “exalted freedom” here, just in time for Constitution Day. See http://clarespark.com/2011/09/17/edmund-burkes-tantrum/.
This is all well and good, but it still is all going to come down to one vote on the Supreme Court. I don’t know which way this is going to go, even though I desperately want this law to be found unconstitutional. We’ll probably have our answer in the spring of next year, just in time for the elections. I think, deep down, the justices on the Supreme Court know this is not only unconstitutional, but it’s also wrong, too. The government shouldn’t be able to force you to buy anything. What’s next? Are we all going to be forced to buy a Chevy Volt? God help us!
– made it clear yesterday in San Francisco how she will vote, but no surprise.
Just wondering – what’s the difference between this and the government forcing us to buy auto insurance as a condition of operating a motor vehicle. In my state you either insure your car or you pay the government an “uninsured driver” fee. Sounds like the current billk: either you get private health insurance or you sign up for Obamacare – or you pay a fine.
The difference?
You don’t have to own a car.
You do need to live.
– to serve this ship.
…Row well, and live.
The difference is that the states can do things the federal government can’t because the federal government’s authority is set forth in the U.S. Constitution; that’s where it derives its authority to regulate interstate commerce (as relied on by ObamaCare) and that authority has, thus far at least, never been held by the Supreme Court to authorize a mandate to buy something from a private company. The states’ authority derives from their individual constitutions, different in many respects from the U.S. Constitution. Judge Conner was unwilling to extend the authority of the Commerce Clause to cover the individual mandate of ObamaCare and expressed the view that the Supreme Court would decline to do so.
When you purchase auto insurance it potentially aids every person on the planet from results of your actions but you, health insurance only aids you. Requiring every tax payer to aid you when you are not willing to aid yourself… is selfish.
In NYC, quite a few people do not drive or own a car. They are not required to buy insurance.
With Obamacare, private citizens would be required to apply for insurance from a private company. That means they would be forced to reveal personal information to that private company, then pay the company for a product they may not want– and they would have to do it for the rest of their life.
Additionally, bureaucrats would determine what the insurance must cover or cannot cover. The argument that everyone must participate in order to reduce costs is not only specious, it is a frightening abuse of power. Such an argument, if upheld, will absolutely lead to more and more government intrusion and control of our lives.
Bugs –
Watch. The. Cartoon.
Your explanation comes in around the 1:00 mark.
Thanks! I confess I did not watch the cartoon.
Buy a big enough property and you can you drive without insurance. Drive on public property then the insurance is to make sure you are financially responsible for any damages you cause to another party and indemnify the state from being sued.
One does NOT need to buy insurance in order to drive. That is a fallacy. One may post a bond of a specified amount. IOW, if you yourself have the money to indemnify society for any mistake you make on the road, you can skip buying insurance. You can opt to self-insure.
ObamaCare takes away your ability to self-finance your health care. If you are young and healthy, you have better things to spend your money on, because your risk is so low. If you are rich, you do not need insurance at all, although you might buy catastrophic coverage.
You do not need to have insurance in NH to drive, but if you cause a wreck you have to pay.
The difference is that auto insurance requirements are individual state laws, not a federal law. The federal government has very clealrly defined (and heavily restricted) powers.
If states want to pass healthcare laws, that is perfectly constitutional.
Also, states mandate insurance coverage, not the federal government. The federal government has specific, enumerated powers granted to it by the People, via the Constitution. Anything not specifically allowed by said document is left to the People or the States, respectively.
Having a Driver’s License and owning a Car are choices.
One is not forced to have either.
Of course the sheeples have been sold on the American Dream that Automobiles are the ticket to Freedom…NOT
Until OBAMA HIMSELF is found UNCONSTITUTIONAL, what difference does it make?
He’s created more race wars; He’s violated his Oath of Office; He’s pledged to violate OUR CONSTITUTION; He’s at war with America’s business.
HOW MUCH HYPOCRISY AND CORRUPTION IS ENOUGH?
Maybe the video provided here and others like it will take him down a peg or three. Satire is the most effective attack.
Re the cartoon at the end of this piece. Once again the comparison has been made beteen mandatory health insurance and auto insurance, and the only arguement put against it is a federalist one, i.e. the states can do things the federal government cannot do. But an equally strong, or even better arguement against it is that health insurance is in no way comparable to auto insurance. That is because the auto insurance mandated by states is LIABILITY insurance. Government does have an interest in assuring that car owner using the public highway can be responsible for the damages they may do to other, innocent users. There might be a valid comparison between health insurance and automobile collision insurance, but states do not mandate the latter. So the defenders of obamacare are using a false comparison. I have never seen anyone point this out.
The biggest difference is that nobody has to buy auto insurance. It is only required if you want to operate a motor vehicle on the state’s roads and, as you point out, mandatory auto insurance is about protecting others– not yourself.
Just a couple of weeks ago the feds at one agency or another were reported to be considering the requirement that all operators of farm equipment or heavy equipment of any kind be required to have a commercial drivers license (CDL) even if the equipment is operated on private land. In other words, the federal bureaucrats can’t stand the notion that farmer Jones is allowed to work his fields without proper licensing from the federal government. The quest for authority has no end.
– can tax and tell you what to do with what you grow, but it cannot make you plant or grow crops, be it wheat or hemp.
Until the Supreme Court interprets the commerce power to permit these anticipatory mandates, I am bound by stare decisis to conclude that Section 5000A is unconstitutional.
So if the SCOTUS gets packed with enough progressives/liberals over time, then fascism will be ok ?
Once these judges can cite precedent, their reasoning, logic and common sense can be thrown out ? Their consciences will be clear if it has happened before ?
It was, after all, the Supreme Court that ultimately allowed the city of New London Conn. to throw Suzanne Kelo off her property. Property which, to this day, sits vacant and undeveloped.
After the decision in Kelo, many states passed legislation to protect their own citizens’ property rights and stop such a potentiality happening on their turf.
Judge Conner also said he did not think the Supreme Court would do it. The way to keep the Court from being packed with Libruls is to kick President Obama out of office in 2012. The prospects for that seem to be getting better.
Yep. Elections matter. Pretty much in the top five of things that matter.
Too many Americans think the Presidency is some sort of toy they can play with. Today it’s red, tomorrow it’s blue.
“Let’s give Obama a try.”
Aack!
And this…
“The Obama administration restructured a half-billion dollar federal loan to a troubled solar energy company in such a way that private investors — including a fundraiser for President Barack Obama — moved ahead of taxpayers for repayment in case of a default, government records show.”
Shades of Light Squared, shield the democrat donor.
Chickens coming home to roost
Not to mention how can the “interstate commerce” clause can be used to interfere with an undertaking (i.e., the insurnace business) that, by definition and federal law restricting it to the states, DOESN’T cross state lines…
If you do cross a State line and end up in a hospital, interstate commerce applies.. just saying..
That’s the only time. Then the only right to dictate for the feds would be what happens when you cross and need the coverage. As long as you stay in your own state this is none of the federal government’s business and they should BUTT OUT!
I agree..
Actually, if you cross state lines and end up in a hospital, the hospital will be governed by the laws of the state you crossed into, not the state you came from. You crossed the boundary, commerce didn’t.
Now if a hospital crosses state lines – then you have a point.
I have always found the “free rider” argument to be mystifying. The only reason there are “free riders” is the because of the Federal Law that mandates that anyone who shows up at an emergency room of a hospital must be treated, regardless of whether they are whining about something as trivial as the pain of an ingrown toenail.
If you want to do away with “free riders” just repeal that law. But that would mean less government, and the Progs would never settle for that.
People on welfare, medicare and other programs like section eight housing are free riders also. lets cut them lose as well.
That’s an excellent idea. All federal welfare programs are unconstitutional anyway. There is no clause anywhere in the constitution giving the federal government the right to take your money and give it to me just because I need it.
Absolutely true. The argument about free riders is only because the government REQUIRED hospital ER’s to treat people with life-threatening conditions, and women in active labor (the EMTALA act.) That opened the door to free riders and accelerated the problem of cost shifting. If EMTALA were repealed as part of releaing Obamacare, we could restore incentives for people to purchase health insurance, at least catastrophic insurance. Major Medical insurance would need to become available again, and we need would to restrict the states from mandating coverage requirements that make many policies very expensive in order to cover services people may not want to pay for. Allowing insurance to be purchased across state lines would also help accelerate that trend as well.
One must be a memory expert to remember all the corrupt actions Obama has taken since being elected.
It’s time for him to resign.
If he refuses, it’s time the FBI led the bum out of the White House in handcuffs.
You think Osama Bin Ladin hated America? The anointed one has him beat by a mile.
America has our own little big eared style Hitler right under our noses. He’s the mole in the White House; the most Marxist leaning miscreant ever to be elected. America can’t survive another year of Obama’s lies and machinations. The little pipsqueak deserves to be tossed out with the trash.
I’m sorry, but what is that “FAIL” picture used at the top of the page by PJM of, exactly? I’ve stared at it, and I simply cannot figure it out.
That’s another of the annoyances of PJM — thumbnails that don’t enlarge.
I think the pic is a slice of American cheese on a fat kitteh’s head.
Put Hussein’s head under a hot grill until the cheese is well melted.
Something that irritates me highly is the idea that “Precedence” makes any difference whatsoever to whether or not something is constitutional.
IT DOESN’T!
They need to ignore precedent and make all decisions based strictly on the constitutionality of the item up for question at the time. Refer to the writings of the authors of the constitution to see what they said about it if there is something that is unclear.
Given how the federal courts are structured, a federal district court judge or circuit court panel must follow U.S. Supreme Court precedent. To do otherwise is to court a summary reversal. It makes more sense for a lower court to lay out its views of why the USSC should depart from existing precedent, while following that precedent with explicit reluctance. The USSC does not have to follow such precedent, although under the principle of stare decisis, it is supposed to give its own precedents some weight and to think hard about putting them aside.
USSC = SCOTUS
The unlimited sovereign government can require you to buy anything. Everyone keeps mentioning broccoli.
King Henry the (?) required that every male purchase an immensely shoddily made, incredibly ugly hat: a Monmouth Cap. The one extant example is knit at 7 stitches per inch. This is very coarse- the Soviet crap car of knitting. At this time, in Europe- knits were being done to 20 stitches per inch- very fine gauge- more fine than most knits now. Every male in England was required to buy one of these- to support a town’s industry.
So, yes, an unlimited sovereign government can require you to purchase near anything- it already has, in times past.
For that matter, the state can crush nascent industries. Hungary invented three wheel cars, built in factories. This display of initiative and industry was crushed- cars were supposed to be built elsewhere, designed by other minds. I don’t know why O has taken to making the NLRB a soviet clone, but he has. Among the fine Hungarian minds at work – a Mr Rubik, father of the inventor of the Rubik’s Cube. As you can see- fine minds, crushed, blunted, kept from productivity and creativity.
ari
First of all, many states’ constitutions prohibit government entities from competing with private businesses, so as long as private insurance companies offer heathcare insurance, states cannot get involved.
My view of government on any level is that government should not do anything that the market can do. It is government restrictions on the freedom to contract and limiting competition, that is the main problem with healthcare now.
Congress has means available within already established power to remedy the health-care problem. The progressives knew that Obamacare would open the door to unlimited power, as every market is unique and some bs justification can be found for any mandate. The law is so broad that the courts will have no say over its application.
Obamacare is the progressives standing up and loudly announcing to the country that they have established a dictatorship. That is what Nancy Pelosi has been saying all along….laughing at the constitution….pass it to see what is in it…..
Now we see what is in it; ultimate totalitarianism.
Please see Federalist No. 62 (attributed to Madison, four paragraphs from the end) –”It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they canot be understood….
Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising and the moneyed few over the…mass of the people….This is a state of things in which it may be said with some truth that laws are made for the few [italicized], not for the many [italicized].”
Obamacare, the Stealth Abomination
A Democrat friend, (yes, I do have a few of them), said to me yesterday, “Well, I’ll at least be able to keep my own insurance when Obamacare kicks in, right?”
Her question demonstrated what is one of the slickest aspects of the intentionally-mislabeled Patient Protection and Affordable Care Act of 2010 which few in Congress read before voting on it and passing it: Few Americans outside Congress know what’s in it, either.
The very questionable constitutionality of the PPACA will, hopefully, soon be settled by the United States Supreme Court. The issues on SCOTUS’ docket include but are not limited to whether our federal government can legally–forget morally–order citizens to purchase health insurance or be subjected to financial penalties.
Constitutionality aside, assuming Associate Justice Elena Kagan fails to recuse herself in the proceedings and the Court decides in favor of President Barack Hussein’s signature statute designed to seize control over one-sixth of the nation’s economy, another issue becomes almost as significant, my friend’s and millions of others’ ignorance of PPACA’s provisions.
Justice Kagan has as little integrity as the president and despite having labored on behalf of Obamacare during her employment as Solicitor General is unlikely to choose honor over Democrat loyalty by recusing herself.
To bolster her anticipated non-recusal and the unethical Obama administration, Democrats launched a smokescreen pre-emptive attack on the financial ethics of the lone African-American (conservative) member of the Supremes, Clarence Thomas, but that’s a whole other story.
Back to my friend.
She’s not a stupid person, despite being a Democrat . . . (Read more at http://www.genelalor.com/blog1/?p=5621.)
Obamacare’s Selective Waivers and Exemptions
There are hundreds, thousands, of problems with the Patient Protection and Affordable Health Care Act, hundreds of millions of problems, in fact, depending on America’s population at the moment.
Passed on Christmas Eve, 2009 by the Democrat Senate and by Democrats in the House on March 21, 2010 with zero Republican support in either body and signed by President Barack Hussein Obama two days later, Obamacare, as it has unaffectionately become known, was acclaimed by Vice President Joe Biden as “a big f*cking deal.”
With or without the asterisk Biden didn’t use, it was “a big f*cking deal,” and more.
Assuming the Supreme Court decrees PPACA constitutional, when it is fully implemented by 2014, Obamacare will be an even bigger deal as its tentacles reach into the lives of millions of Americans, into their homes, businessess, doctors, and hospitals with government bureaucrats sometimes literally making life or death decisions for most of us.
That’s the bad news. The good news for many is that Obamacare will have little if any impact on their lives or deaths.
Those lucking out? Democrat loyalists, principally labor unions but also certain health care providers and other entities who supported the passage of PPACA. They have been generously rewarded for their unwavering support with waivers, meaning they could maintain their own health plans and not be subject to the vagaries of Obamacare.
Understandably, the Obama administration has sought to minimize publicity surrounding those payoffs, totalling almost 1400 at last count.
The DailyCaller.com reported in June that the waiver-spigot was scheduled to be turned off by the Department of Health and Human Services as of September 22nd and speculated that low-key Friday afternoon announcement was intended to squelch the waiver controversy and protests against their inequities.
Based on how this administration operates, the waiver spigot is probably still dripping.
Unfortunately, political payoffs, aka bribery, have been a facet of politics since ancient Greek and Roman pols granted favors or slipped a few coppers into the grubby hands of commoners. With Obamacare waivers, Obamians greatly expanded and refined the corruption.
However, in the case of one particular group, bribes weren’t necessary. . . (Read more at http://www.genelalor.com/blog1/?p=5790.)
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