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Key Challenge to ObamaCare’s Constitutionality Advances

The Obama administration is now batting 1-for-3 in its efforts to get constitutional challenges to ObamaCare dismissed.

by
Jeffrey H. Anderson

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October 15, 2010 - 11:00 am
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In Florida, a federal judge has ruled that a high-profile challenge to ObamaCare’s constitutionality — filed by the state of Florida, 20 others states, and the National Federation of Independent Business — will be allowed to proceed. The Obama administration had attempted to block the challenge, but District Court Judge Roger Vinson has ruled that the plaintiffs have standing, their claims have merit, and the case can advance.

Judge Vinson also ruled that the penalty associated with ObamaCare’s highly unpopular individual mandate — the mandate that citizens obtain federally approved health insurance — isn’t a tax. Thus, the judge wrote, “The defendants may not rely on Congress’s taxing authority under the General Welfare Clause to try and justify the penalty after-the-fact,” but rather must rely on “the Commerce Clause power.”

Replying to the Obama administration’s fallback request that the case be dismissed on the grounds that Congress clearly has the power under the Commerce Clause to issue the mandate (or so the administration claims), Judge Vinson wrote, “At this stage in the litigation, this is not even a close call”; there are clearly grounds to proceed. Vinson explained that “the Commerce Clause and Necessary and Proper Clause have never been applied in such a manner before.” He added, “The power that the individual mandate seeks to harness is simply without prior precedent.”

Thus, the Obama administration is now batting 1-for-3 in its efforts to get constitutional challenges to ObamaCare dismissed. In August, a federal judge ruled that a suit by the state of Virginia could proceed. Last week, a federal judge in Michigan ruled that another suit, by private parties, could not. In the Michigan case, the New York Times reports, “The judge wrote that the challenge … ‘arguably presents an issue of first impression,’ meaning it would be the first time the courts had considered it.” Yet the judge, somewhat inexplicably, saw no reason why the courts should consider it further.

Beyond the challenge to the individual mandate’s constitutionality, another part of the Florida case will go forward as well: the claim that ObamaCare “coerces and commandeers the states with respect to Medicaid.” Judging by the opinion, however, this claim seemingly advanced by the skin of its teeth and has far less chance of future success. In addition, four claims made by the plaintiffs were denied, including one rather disturbing one: that the individual mandate violates the Fifth Amendment guarantee that no one shall “be deprived of life, liberty, or property, without due process of law.” Whatever one thinks of ObamaCare’s substance (and few think less of it than I do), nothing about the fundamental process of law was violated by its passage (despite the exceptional level of unseemly deal-cutting involved) — and as Judge Vinson rightly noted, in quoting from Ferguson v. Skrupa (1963), judges have no business holding laws unconstitutional simply because “they believe the legislature has acted unwisely.”

In keeping with the typical wordiness of modern judicial pronouncements, the Florida opinion spans 65 pages. The Marshall Court (1801-35), led by the great chief justice and Revolutionary War veteran John Marshall, never issued a 65-page opinion in its entire 35-year run. Then again, the Marshall Court never had to confront a 2,700-page “law.”

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