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Key Challenge to ObamaCare’s Constitutionality Advances

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.”

As Charles Kesler has observed, “Sometimes the most obvious derangements of our politics are staring us in the face but we don’t see them” — like “calling this voluminous monstrosity a bill.” He adds, “In the old days,” nearly 3,000 pages “would have constituted a whole code of laws.” Indeed, the entire text of the Judiciary Act of 1789 — the first line of which is, “An Act to establish the Judicial Courts of the United States” (the Constitution created only the Supreme Court and left it to Congress to decide the rest) — is only a little over 8,500 words. That’s about three words for every one page of ObamaCare. So perhaps Judge Vinson’s verbosity is largely justified.

A good portion of Vinson’s opinion deals with the question of whether the penalty for violating the individual mandate is a new fine or a new tax. President Obama has publicly and explicitly argued that the individual mandate penalty “is absolutely not a tax increase.” When asked on national television whether it was a tax increase, he replied, “I absolutely reject that notion.” But he has subsequently had his Justice Department argue in federal court that that’s exactly what it is: a new tax.

The question of whether the penalty is a tax (or merely a penalty) is important because Congress has, of course, been permitted to tax to fund Medicare and Medicaid, so the courts would almost certainly permit Congress to tax to fund ObamaCare. With that said, Thomas Jefferson and Marshall’s right-hand man, Justice Joseph Story — who often disagreed with one another — agreed that the power to tax is constitutionally limited to providing revenue to carry into effect one or more of the enumerated powers to follow, and cannot reasonably be read as a power to provide for the general welfare in ways that exceed those enumerated powers. Story approvingly quoted Jefferson, who wrote that to sever the power to tax from the enumerated powers to follow, “would render all the preceding and subsequent enumerations of power completely useless.”  But the Court has long upheld the broader reading to which Jefferson and Story objected, and that meaning, now firmly established as precedent, is not likely to be revisited.

However, if the penalty is not, in fact, a tax — as President Obama has publicly insisted — then the penalty’s (and hence the mandate’s) constitutional legitimacy couldn’t be upheld under the power to tax and would have to rely on Congress’s power to regulate interstate commerce. In addition to the question of whether compelling someone to buy health insurance is really a matter of interstate commerce, this begs the larger question, never decided prior to ObamaCare: Can Congress’s power to regulate commerce reasonably be read as a power to require commerce — and then to regulate the resulting compulsory commerce?

In his ruling, Judge Vinson doesn’t attempt to provide the answer to this question. He writes, “In this order, I have not attempted to determine whether the line between Constitutional and extraconstitutional government has been crossed. That will be decided on the basis of the parties’ expected motions for summary judgment.” Instead, he explains, “the plaintiffs have at least stated a plausible claim that the line has been crossed” — which is the standard that they needed to meet for the case to go forward.

Refreshingly, Judge Vinson (a Reagan appointee) adds, “For purposes of this case, it matters not whether the Act is wise or unwise, or whether it will positively or negatively impact healthcare and the economy. … My review of the statute is not to question or second guess the wisdom, motives, or methods of Congress. I am only charged with deciding if the Act is Constitutional.” He then favorably quotes Justice Stone’s dissent in U.S. v. Butler (1936): “For the removal of unwise laws from the statute books appeal lies, not to the courts, but to the ballot and to the processes of democratic government.”

In that vein, the latest Rasmussen poll shows that, as we approach the midterm elections, likely voters support repeal by a margin of 16 points (55 to 39 percent), independents support it by 20 points (56 to 36 percent), and even one-third of Democrats support it.

In other words, the courts aren’t the only ones who will soon be rendering a verdict on ObamaCare.

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