Legal Challenge to ObamaCare Passes First Hurdle
Judge Hudson of the United States District Court for the Eastern District of Virginia denied a motion by the federal government to dismiss a suit filed by Virginia challenging the mandatory health insurance provisions of the ObamaCare law. Similar motions to dismiss are pending in other district courts.
By virtue of its procedural posture, denial of the motion to dismiss Virginia’s action does not decide the case. However, it does provide tentative guidance as to how at least one federal judge may eventually rule on whether a federal requirement that individuals purchase health insurance is within the powers of the federal government.
In addition to the Commerce Clause, the federal government invoked its taxing powers under the Constitution — as it recently threatened to do despite President Obama’s earlier assertions that no tax was involved — arguing that its taxing powers are even more expansive than its powers under the Commerce Clause. It also claimed that its powers to promote the general welfare justify the mandatory health insurance requirement.
A number of arcane but important issues — like standing to sue, as the mandatory insurance requirement is not scheduled to go into effect until 2014, and others — are discussed in the decision, and were resolved favorably to Virginia. But according to Judge Hudson, the “centerpiece of the case” is whether the Congress has the authority “to regulate economic inactivity.” The mandatory health insurance requirements of the law present, for the very first time, a question of whether the Commerce Clause is sufficiently broad to permit the requirement to be imposed. Judge Hudson noted:
The congressional enactment under review — the Minimum Essential Coverage Provision — literally forges new ground and extends Commerce Clause powers beyond its current high water mark. Counsel for both sides have thoroughly mined relevant case law and offered well reasoned analyses. The result, however, has been insightful and illuminating but short of definitive. While this Court’s decision may set the initial judicial course of this case, it will certainly not be the final word.
Under the judge’s analysis of Commerce Clause cases, no clear precedent exists to support the federal government’s position. Even though the Commerce Clause has become a bloated catchall for everything the federal government wants to do having any tangential impact on interstate and intrastate commerce, it seems that the federal government may finally have overstepped its bounds.
Under the Supreme Court’s 2005 decision in Gonzales v Raich, 545 U.S. 1, involving the cultivation of marijuana for personal use only and not for sale:
[Our] case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. … When Congress decides that the “total incidence” of a practice poses a threat to a national market, it may regulate the entire class. … In this vein, we have reiterated that when “a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.
The federal government argued that Raich and its predecessor Wickard v. Filburn, 317 U.S. 111 (1942), involving the cultivation of wheat for a farmer’s own use and not for sale in commerce applied, since “without full market participation, the financial foundation supporting the health care system will fail, in effect causing the health care regime to implode.” The federal government relied principally on Wickard holding that (as noted by Judge Hudson):
[The] Commerce Clause provided federal power to regulate the personal cultivation and consumption of wheat on a private farm … [because] the “consumption of such non-commercially produced wheat reduced the amount of commercially produced wheat purchased and consumed nationally, thereby affecting interstate commerce.”
Virginia argued to the contrary:
[The cited cases] necessarily involved a voluntary decision to perform an act, such as growing wheat or cultivating marijuana. The Commonwealth argues that this critical element is absent in the regulatory mechanism established in the Minimum Essential Coverage Provision. This provision, the Commonwealth maintains, requires a person to perform an involuntary act and as a result, submit to Commerce Clause regulation. … [The] decision not to purchase a product such as health insurance, is not an economic activity. It is a virtual state of repose — or idleness — the converse of activity. (Emphasis added)
There is nothing “complex” about this case if considered from an originalist perspective. No clause of the Constitution can or should be interpreted as granting absolute authority over a free people. The statists have twisted the plain language of the Constitution to suit their totalitarian ends. If we can be forced to purchase a good or service, under any clause, then what can’t they force us to do or not to do? Will we all be forced to purchase a Chevy Volt? Why not? Can we be taxed if our body fat exceeds a certain percentage? Why not? What is the logical end to this perversion of our Comstitution if not slavery to the federal government?
Eric is 100% correct. I am a retired tax attorney and I have been ruminating the issue of whether the government can impose a tax on non-activity. There has never been a tax on not doing something to my knowledge. Any judge buying into the government’s dubious theory needs to think this through very thoroughly. As Eric suggests why not levy a tax on anybody who does not buy a GM or Chrysler car or does not take a vitamin pill every day?
Judge Hudson did not “buy into” the position of the Federal Government. He refused to grant the motion to dismiss the Virginia action. He advanced some pretty good reasons for refusing to do so.
A motion for summary judgment, filed by Virginia, should be decided later this year. If the judge thinks the mandatory health insurance purchase scheme is clearly unconstitutional as a matter of law, without the need to consider any factual evidence either way, he will probably grant Virginia’s motion for summary judgment. If he thinks that an evidentiary hearing is needed, he will deny the motion, or grant it in part and deny it in part. Or, he may just move on to the evidentiary aspects of the case, to diminish the chances of whatever decision he ultimately makes being remanded for an evidentiary hearing or otherwise overturned on appeal. Judges, quite properly, don’t like having their decisions overturned on appeal and that would be the safest way to proceed.
The wheels of justice usually move very slowly, but at least sometimes they “grind exceeding fine.”
Since the enactment of health reform legislation in March, several state Attorneys General have filed lawsuits challenging the constitutionality of the Affordable Care Act. Having failed in the legislative arena, opponents of reform are now turning to the courts in an attempt to overturn the work of the democratically elected branches of government. This is nothing new. We saw this with the Social Security Act, the Civil Rights Act, and the Voting Rights Act – constitutional challenges were brought to all three of these monumental pieces of legislation, and all of those challenges failed. So too will the challenge to health reform.
Translation: “Whhhaaaaaa! People don’t like our Socialist power grabs!! Whhaaaa!!!!”
“So too will the challenge to health reform.”
Keep dreaming, skippy. You paying attention to Missouri? Damn those activist voters!
Praetorian: Apt name for you – member of an elite guard picked from the populace by Roman politicians to bully their enemies and control the citizenry as they saw fit.
Your argument is disingenuous at best and more accurately fraudulent – as fraudulent as the bill itself and the process by which it was “passed”. There is a huge difference between voting rights or equal opportunity and forcing other people to pay for your health care. Besides, if it was really about making better, cheaper healthcare available to everyone, then the Progressives would have opted for some key non-political reforms coupled with a means tested voucher program so that those unable to pay could still enter the system as involved consumers. This whole thing is sickening and driven by people who are either stupid or intensely self-serving or both.
I’ve done lots of reading about this decision and the background. Not being a lawyer I have to break this down to understand it as a logic problem.
The government claims it has the power to do this for two reasons. First, because it has the enumerated power to regulate interstate commerce. Second, because the individual mandate is a necessary component of the system, it has the power under the Elastic Clause to make those laws and regulations needed to exercise it’s enumerated power to regulate interstate commerce.
The Commerce Clause power is their primary reason. Opponents argue that inactivity has to be logically excluded from this power because the power is to regulate activity. The government then argues that the mandate is a necessary to the successful execution of their entire edifice.
Here’s where it gets confusing for me. I think you could construct a hypothetical law that deprives citizens of an explicit right in the name of that deprivation being “necessary and proper” to the execution of a law. How does a court resolve that dilemma?
As Judge Hudson, properly I think, wrote, if the mandatory health insurance law “is not within the letter and spirit of the Constitution, then the [tax] penalty necessarily fails.” It fails despite the power to tax and the power to do what is “necessary and proper” because to be necessary and proper it has to be necessary and proper for some constitutionally permitted purpose.
To take a couple of absurd examples,
The pronouncement of the Honorable Mr. Stark, D. California, that “the federal government, yes, can do most anything in this country” is barking mad.
The Commerce Clause has become way too elastic. Its original intent was to give the Federal government the power to prevent states from imposing tariffs on products coming into the respective states (that being one of the failures of the Articles of Confederation). Now, it seems that the Commerce Clause has morphed into a monster, allowing the Federal government to do most anything it wants. The real answer here is to slay the beast and return the clause to its original meaning (and repealing the 16th amendment wouldn’t hurt either). Alas, as matters now stand, I think none of this will happen. Too many people have too many vested interests to allow the Federal government’s interference in our lives to be curbed.
In any event, one final thought. One of the Federal government’s arguments is based on the following: “The Commerce Clause provided federal power to regulate the personal cultivation and consumption of wheat on a private farm …” Would the Commerce Clause disallow non-cultivation and non-consumption? That is to say, had the farmer chosen to let his land go fallow, could the Federal government have forced him to cultivate wheat on it? Answer that and you have the answer to the question of whether you could force someone to buy health insurance.
Excellent example. If the government can penalize the farmer for growing wheat for private consumption under the Commerce Clause then by the same logic the farmer should also be compelled to grow wheat because his refusal to do so deprives the market of wheat thereby increasing the price of wheat and impacting commerce. The logical argumentation of the actual and hypothetical situations should result in the same conclusion; in the first and actual case the farmer was not allowed to grow for his own consumption and in the latter he should be forced to grow wheat.
I’ve hated the Wickard decision since I first learned about it. It has caused more mischief and misery than Roe v. Wade, and that says a lot.
The Feds can prevent someone from growing wheat for their own consumption on their own farm?!?! I am not a lawyer, but that decision utterly fails the smell test. It is a travesty of justice, and a clear example of “overreaching”, never mind Obamacare. It reduces us all to serfs. We can only grow food to feed ourselves with the permission of the Lord, and Obama forbid we should hunt in the Royal forest. At least black farmers can collect $50000 for their allegiance.
When intellectual twisting of the Constitution goes this contrary to common sense, *that* is when we need a “reset”.
The spirit is similar to Monsanto suing to prevent Canola farmers from growing non-GMO canola because their crop might have been contaminated with pollen from a nearby Monsanto canola farm.
This lawsuit, under the guise of the commerce clause, is a clear “line in the sand” for a Supreme Court decision on the extend of federal powers over state’s rights. Likewise, the Arizon immigration enforcement decision can become a defining moment for the depreciating 10th amendment.
Promoting the general welfare would be a barely adequate reason, if indeed, Obama-Care was a proven institute that did increase health and did lower the cost curve. The presumption of better health through better insurance, as the federal standard of argument is not unlike the presumption of racism with Arizona enforcing the borders. These and other exploits of this presidency and congress are progressively untested adventures in imaginary governance with open ended costs.
As a conservative I support a public option. Nixon did. It costs more to NOT have it than to have it. You are so worried about “nameless, faceless bureauos” but under the current rape and pillage system, we have private faceless nitwits who try hard to deny coverage, give half coverage, etc… Sure, we have the best doctors. But, we need a system to help people.Our country really cannot afford to be the only nation without it. Funny, so many of us conservatives screech about health care money but are mum in regards to the two inane wars.Bring the troops home, put most of them on the border, start rebuilding this damn nation, give us health care, kick out illegals. End.
I doubt seriously that any true conservative would support the public option, given how badly it’s performed in both Canada and the UK.
In other words, I am calling lefty sock puppet.
Whether or not a public option is a good idea from a practical standpoint, it nevertheless MUST be implemented in a constitutionally sound way. These state challenges to certain provisions of the reform bill will (I hope) ensure that we’re not making a devil’s (i.e., Progressive’s) bargain – trading our rights for a handful of government-supplied goodies. If the health care bill isn’t legally sound, it needs to be repealed.
Healthcare IS NOT A RIGHT. READ the complete CONSTITUTION OF THE US. When the government gives a right, it can take it away.
I’ve gone without healthcare during hard times and managed to find a way to pay my bill, so don’t go whining about how I don’t know what I’m saying.
Now I have help through insurance. My bills still create financial hardships at times, but I know that HEALTHCARE IS NOT MY RIGHT, I MUST WORK FOR THE GOODS I CONSUME.
Saying health care is a right is like saying having the sun shine on a Saturday is a right.
Sorry, maybe I didn’t write that clearly. When I said public health care “MUST be implemented in a constitutionally sound way,” I meant that IF it’s implemented AT ALL, it must be done legally and without damaging our constitutional rights. I DO NOT believe the current bill is constitutionally or legally sound. The states’ challenges to the bill will, hopefully, expose that fact to the voting public. Ideally, the whole thing would have to be repealed at some point. Then if the Dems really want to implement a public option, they’ll need to start over and build it on a firmer legal foundation – something better than “We’re in charge so we can do whatever we want.” I’m afraid the state challenges will only result in removing or altering certain specific provisions – like “mandatory” health insurance.
Nixon was a conservative? I voted for the guy and I wouldn’t characterize him that way.
Richard Wilson @ #5: I would rather deal with the private nitwits. At least I would always have the option of paying out of pocket. Not so with the public option which will swallow everything up. Take a look at Canada and the UK. And yes we can afford to be the only sane nation to do without a public option. Remember American exceptionalism. There was freedom here long before it was remotely fashionable in the rest of the world. Also, I would hardly look to Richard Nixon as a reason to support the public option. Richard Nixon gave us the EPA and it has wreaked untold damage on the American economy. It, too, lilke the Commerce Clause has morphed into a monster. If Congress won’t pass Cap and Trade the EPA has threatened to do it through the regulatory process. If you are the conservative you say you are, this kind of threat to Congress by a regulatory body should be abhorrent to you. Just remember who started it and for what purpose. Think as well of the monster the public option will morph into if allowed to live.
I’m not an attorney but the constitution was written “albeit using different verbage due to the time frame in history in which it was written” but it’s fairly clear since it was written and amended so the vast majority of the citizenry of the day could understand what the meaning was. The insane Clown Posse that bastardized the meaning of the Constitution with laws written in such a convoluted manner that they don’t even know what they put in them, therein lies the root of the problem.
The HCR Bill could have probably been written on 10% of the number of pages they ended up with and what did we get? It depends on who is reading it obviously. The problem is they write everything in this manner for a reason. They want us in the dark.
Queen Pelosi said in her own words, that we needed to pass the bill before we knew what was in it. That’s just insane and I’m sure a violation of her oath. That’s trial I fear we shall never have.
The Constitution gives the SCOTUS original jurisdiction – if they want it;
After acquiescing in the deliberate misreading of the Constitution for so
long, will they finally say ‘enough’ ?
Short answer is no. Justice Kennedy will write the majority opinion. But I wouldn’t be surprised if Roberts and Alito hopped on board too.
Many of you keep referring to Canada and the UK as the system by which HCR was modeled. This is incorrect. If you really want a correct comparison the system that has been put into place and I believe will stay in place is most similar to the system in Germany and France. Canada and the UK are true socialized systems. Germany and France are not. They are composed of numerous private entities that are regulated by the government, so that they provide a certain degree of services.
Germany and France have are among the top rated health care systems in the world in terms of results (people in France, for instance, live longer lives and are healthier.). In terms of industrialized nations France is number one and the U.S. is last. Overall, the United States rates 37, down there with third world countries. Moreover, we spend twice as much as France per person and are far less healthier for it. This is a fact. If your a conservative you must ask what it is we are wasting our money on and just what it is the French are doing far better for less money.
In France, if you have cancer you can get whatever drug your doctor determines you need no matter what it costs. They treat the sickest and feel the sickest should concentrate on getting well and not some private sector bean counter wondering if the shareholders will get to take that spa vacation if they pay for that expensive drug that might save your life. Private insurance companies have but one goal: they want to take in more money in premiums than they pay out in claims. If you die because of that process they could care less.
So, if you’re going to compare what Health Care Reform will look like when fully implemented look to Germany and France, not Canada and the UK. It is an incorrect comparison. See the NPR article.
http://www.npr.org/templates/story/story.php?storyId=92419273
You nearly convinced a lot of conservatives to consider the differences in Germany and France vs. UK and Canada. Until the last four words of your comment, unfortunately.
The NPR article isn’t stating anything that isn’t true. I know because I have relatives who live in France, so I know first hand what kind of coverage they have and how satisfied they are with it. Goodness, my grandmother lived to be 102 and walked to the market right up until the last year of her life. Some of it was genes, but a good deal of it was good preventive health care and lifestyle. You can find the same facts elsewhere. NPR wasn’t disclosing anything that isn’t known already.
Where this argument breaks down is in its complete disregard for the concept of nations and culture. No system can be successful in a nation unless that system is supported by the culture of that nation. The issue is not whether the French love their system. The issue is America is not France. It’s not Germany or Britain, or Canada. We have our own culture. Those systems won’t work here, because they don’t fit the American culture. Especially that part of our culture that spurns elitists imposing foreign systems on us.
Praetorian — Private insurance companies have but one goal: they want to take in more money in premiums than they pay out in claims. If you die because of that process they could care less.
You are right but how is that different than the Social Security Administration or Medicare?
Bill, if that is an open question, then my answer is that the private sector insurances and employees work towards profits and efficiency, while the government employees work towards their pensions, cost control and efficiency be damned. Both would like to avoid jail time, and the feds have better safeguards against that sort of embarrassment.
JED, that’s a pretty good explanation of the differences
‘So, if you’re going to compare what Health Care Reform will look like when fully implemented look to Germany and France, not Canada and the UK. It is an incorrect comparison.’
SO, Berwick is just kidding when he says he loves the UK NHS and just a joker when he alludes to rationing as a means to an end. I get it.
I am sure France and Germany (so does Japan from what I hear)have great health care, but I seriously doubt that is where our preening control-freak elites in congress want to take us.
Who can honestly say they want government involved in their health care decisions after taking one look the US Congress and the Obama Administration? (beyond those with a suicide wish, that is)
Such people are deluded by wishful thinking and willfully blind to our government’s institutionalized incompetence, glacial responsiveness, and chronic underperformance.
Amen to that. And the flip side is that the private sector will be as responsive and as price-reasonable as possible if the government would only stay out of things. Most of the perceived problems in health care result from government ignored litigation abuses, government forced mandates and other regulations that restrain competition. Private sector “abuses” can only exist in monopolistic situations and most often these are aided and abetted by government. Otherwise, a “non-abusive” provider will spring up and take the business away.
By trying to force the health care industry to provide more for less, you can only end up with one of two things: scarcity of providers or government take over. I have never heard a good rebuttal to this problem from a Progressive. Anyone who thinks government run health care is a good idea should hang out at the DMV or the post office and watch public service in action.
Medicare spending which exceeds 500 billion per year losses almost 20% of that to fraud – and that is by their own estimate after they admit that they don’t look hard enough. On the other hand, private health care ranks 85th among all industries in profitability – making less than 4% of revenue. So in rough terms, Obama vilifies the heath care companies for being greedy while the government is wasting tax dollars at over five times the rate of private profits.
Missouri overwhelmingly passed Proposition C yesterday, rejecting the federal mandate to purchase health insurance.
It does not matter that the people will vote down Obamacare all across the nation! Obama and his silent government will do just what they want to do. Regardless what our Congressmen and Senators say. Obama has made the separation of powers irrelevant with all his appointees and czars. If you think November elections are going to change things, I feel sorry for you all. The government will still just mock us and do what they want. Look at all the things people have vote for and just had some judge over turn what the people want.
According to the GOP, tort reform for the sake of mitigating frivolous health care lawsuits is step one of getting health care costs under control.
Enter the GOP to spew forth a whole buttload of frivolous lawsuits to attack a health care bill that a majority of Americans support.
Classic.
Doesn’t matter if it is in accordance with the constitution or not between “O” and “J” it will be rammed down our throats. The American people best roll over and accept it. Congress has already thrown in the towell and surrendered to “O” without a shot being fired.
The enforcement of Obamacare, is a pox upon 800 years of “common law” legal precedent
Under English “common law”, inherited and made part of US law, no fine or punishment can be imposed on a person except by a jury of his peers. This is the origin of “innocent until proven guilty”. You literally cannot be punished except by a jury.
This principle is enforced by the prohibition on “bills of attainder” in the US Constitution – Bills of Attainder are laws that punish without due process – which brings us back to a jury trial.
It is prohibited by the 14th Amendment – no person can be deprived of his property (fined) without due process – which also brings us back to a jury trial
It is prohibited by the “implied” due process right to “be accused” and the subsequent right to face your accuser, and to be able to bring forth all arguments in your favor, and to do so in front of a “jury of your peers” – that jury trial thing again.
Being forced to provide evidence against yuourself on a tax return is in violation of the legal principle that states “what cannot be done inside of a court can also not be be done outside of a court”. The compelled production of private papers to be used against ones self is a violation of both the 4th and 5th Amendments
From Boyd v United States
As, therefore, suits for penalties and forfeitures incurred by the commission of offences against the law are of this quasi-criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the Fourth Amendment of the Constitution, and of that portion of the Fifth Amendment which declares that no person shall be compelled in any criminal case to be a witness against himself, and we are further of opinion that a compulsory production of the private books and papers of the owner of goods sought to be forfeited in such a suit is compelling him to be a witness against himself within the meaning of the Fifth Amendment to the Constitution, and is the equivalent of a search and seizure — and an unreasonable search and seizure — within the meaning of the Fourth Amendment.
and lastly being forced to use your money, which is obviously your “property” violates your rights to that property. Namely your right to enjoy it as you see fit, your right to dispose it at the time of YOUR choosing or not to dispose of it at all, for that matter.
The Common law right to property consists of subsidiary rights listed by Blackstone in his Commentaries on the Laws of England. A work many of the Founding Fathers drew on heavily and which the US Supreme Court considers “gold”
Blackstone states: The third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.