January 31, 2011

Strike Two for Obamacare

Judge Roger Vinson's opinion in the Florida case striking down the Obama health care law is a far more serious problem for the Democrats than the previous district court ruling in Virginia reaching the same result. No doubt the case of McCollum vs. Dept. of Health & Human Services was helped along by the forum shopping available to state actions. The Florida Attorney General chose Pensacola, in the Redneck Riviera, as the venue and probably hoped that Judge Vinson, a Reagan appointee, would wind up with the case. All of this went according to plan.

McCollum (wasn't he one of the lawyers who appeared on TV regularly during the Gore-Bush Florida thing?) was joined by 25 other states in challenging the constitutionality of the law. Most of those states are among the group you would expect to join Florida, but there were a few surprises, such as Maine and Washington. The challenges to the law were fairly sophisticated; in addition to the Zen-like question framed in the Virginia case, is the not doing of something an "activity?", a second argument, which I think is actually more compelling, was involved in the plaintiffs' complaint. Namely, if you force the states to expand Medicaid (as the act does) by expanding the boundaries of poverty to include those not currently eligible for Medicaid, but do not provide the funding for the expansion, is Congress engaging in unconstitutional coercion of the states in violation of the Tenth Amendment (the "states' rights" Amendment). I wondered about that myself. Bush's No Child Left Behind program suffered from the same problem - a massive mandate from Congress impinging on local budgetary decisions about schools with no earthly way to pay for it all.

Judge Vinson essentially passed on the "coercion" argument and stated that at the present time it's not possible to tell whether the states will ultimately benefit from Obamacare or go broke trying to comply. Since he was ruling on a Motion for Summary Judgment (a proceeding without a formal evidentiary trial), he gave that one to the DHS on a TKO.

As to the Zen koan, however, Judge Vinson was much more thorough and scholarly than the earlier Virginia judge, and cited numerous Commerce Clause cases which dealt with the "activity-nonactivity" dichotomy involved in Congressional authority to regulate. Essentially, as I read his long, 78-page opinion, Vinson essentially forced the DHS and the U.S. Government to admit (and remember, the U.S. team is ultimately headed up by Eric "Place" Holder, perhaps the most passive Attorney General in the history of the Republic) that there are no cases where Congress regulated what is so clearly a "non-activity" or a "non-decision," and he did a very good job (bordering on masterful) of making ridiculous the DHS's strained efforts to demonstrate that not buying health insurance is an "activity," or that the "activity" can be supplied by Congress fining or penalizing someone who chooses not to buy health insurance. Vinson pointed out that if the second criterion worked under the Commerce Clause, then Congress could regulate anything so long as they attached a penalty to not doing it. Touche, with or without the accent.

Since Judge Vinson found that the plan can't work at all without the individual mandate to buy insurance, he declared the entire law unconstitutional (nonseverable, in law-speak). This again is an extension of the previous ruling against the DHS.

I would say that in some ways the ruling opened my eyes. I did not realize on what shaky Constitutional grounds those hacks in the Democratic Party were operating on in coming up with this massive gift to the insurance industry, the individual mandate requiring the purchase of a private commercial product from a private corporation on pain of a federal penalty. It turns out they were venturing into the unknown in their craven desperation to avoid confronting the real and obvious solution: a single-payer system where you just get rid of this whole merciless, stupid idea of profiting from the illnesses of American citizens.

As I said before, who knows what the Supreme Court will do with this thing? Scalia is a "strict Constructionist" so he might favor a narrow reading of the Commerce Clause. Chief Justice Roberts and Justice Alito are corporate stooges who probably like the idea of an expanded market for their friends in the insurance industry. Thomas will do what Scalia does. The rest will probably be pro-government, except not necessarily Justice Anthony Kennedy, who will decide the fate of Obamacare, as he decides the fate of every big decision divided along partisan lines. It all depends on what he has for breakfast the day the case is decided.

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