The American Spectator : ObamaCare's Legal Setback

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ObamaCare’s Legal Setback

By Philip Klein on 12.14.10 @ 6:10AM

Virginia Attorney General Ken Cuccinelli talks about his victory for liberty, and the next steps in the Constitutional battle against national health care.

Nationwide protests were “Astroturf.” Polling was to get better once Congress passed a bill. And the new law was supposed to boost Democrats’ electoral chances in November. Throughout their campaign for national health care, liberals tried to convince us that opposition was a joke, only to be proven dramatically wrong each and every time.

This Monday, a federal judge punctured another liberal fantasy — that constitutional challenges to ObamaCare were frivolous exercises that would be laughed out of courtrooms.

In a 42-page decision, U.S District Court Judge Henry Hudson ruled that the health care law’s requirement that individuals purchase insurance “exceeds the constitutional boundaries of congressional power,” rejecting the Obama administration’s argument that the Commerce Clause gave it the authority to compel the purchase of coverage as part of a larger health care regulatory scheme.

“This case isn’t about health insurance, it isn’t about health care, it’s about liberty,” Virginia Attorney General Ken Cuccinelli, who was mocked by liberals in March when he launched a lawsuit against the law, told TAS in a phone interview Monday evening.

If courts ultimately uphold the individual mandate, Cuccinelli argued, it will give the federal government unprecedented power over Americans’ lives. The mandate is also being challenged in a separate lawsuit filed by 20 states led by Florida.

“If the feds win this case, they can do anything,” he said. “They can force people to buy cars, asparagus — the list goes on and is infinite…. It is no underestimation to say that it (would be) the end of federalism. That nothing the federal government does (would be) limited by enumerated powers.”

Given the uncertainty that is hanging over states as a result of the pending constitutional challenges, Cuccinelli is in talks with the U.S. Department of Justice to join together in urging the U.S. Supreme Court to expedite hearing the case. But the Obama administration is likely to appeal the decision to the Fourth Circuit.

While that court was once considered one of the most conservative appeals courts in the nation, three recent Obama appointees have tilted the balance, and Democratically appointed judges now outnumber Republican ones by an 8-to-5 margin. Typically, the court hears cases in three-judge panels, but it also has the option of hearing them as a whole, or en banc.

“My focus is on the end point,” Cuccinelli explained, asked about the composition of the Fourth Circuit. “I don’t mind losing everything except the last one.… One way or the other, it’s going to be tight. I think it’s going to be close at the Supreme Court as well.”

Unlike other types of lawsuits, this one doesn’t involve depositions, discovery and witnesses. “This is a pure legal debate,” he said. “And the universe of available legal argument is pretty well known at this point. We may reformulate it for different panels, for the Fourth Circuit. But the contours of the legal argument are pretty well settled at this point. Nobody is going to say, ‘Aha, I found the silver bullet case!’ That isn’t going to happen at this point. It’s a matter of how the judges along the way — by that I mean moving up the appellate chain — respond to the same type of arguments you saw in the District Court.”

While Hudson (a George W. Bush appointee) held that the individual mandate “exceeds the Commerce Clause powers vested in Congress under Article I,” two other district court judges (appointed by Bill Clinton) have upheld the individual mandate as constitutional, arguing that not purchasing health insurance is an “economic decision” and therefore fair game for regulation under the Commerce Clause.

Speaking of one of the decisions, by U.S. District Court Judge George Steeh of the Eastern District of Michigan, Cuccinelli said, “It adopts such a leap of logic and language, to reach the conclusions that judge reaches, that I hope other judges read it and go, ‘Whoa, this is what it takes for these guys to win? I don’t want to sign on to this.’”

Congressional power under the Commerce Clause has been greatly expanded by courts from its original meaning in the Constitution, but the individual mandate takes things to a whole new level by saying that it gives the federal government the right to compel the purchase of something. That’s why Cuccinelli believes that the mandate can be struck down without overturning prior Supreme Court rulings.

“It is quite an incredible leap to go from regulating actual voluntary activity that affects commerce, to say that doing nothing, and the accumulation of people doing nothing, affects commerce in the sense that if they did something, the market would look different,” he said.

Cuccinelli argued that those who may favor expanding federal power now because they support the health care law may one day find that it comes back to haunt them.

“How much would the folks who voted for this bill appreciate a mandate that every American buy a gun?” he asked, laughing heartily. “And not whatever you want, we’re going to have a government-approved list of guns. And they’re going to be ugly, mean-looking guns that normally these people would try to ban.”

Assuming that the case travels through the typical appeals process, Cuccinelli estimated that it would be roughly two years before the Supreme Court issues a decision. The individual mandate component of the law is scheduled to go into effect on January 1, 2014. For now, he says he’s “cautiously optimistic.”

About the Author

Philip Klein is The American Spectator’s Washington correspondent. You can follow him on Twitter at: http://twitter.com/Philipaklein

Letter to the Editor View all comments (75) | Leave a comment Leave a comment

Darin| 12.14.10 @ 7:01AM

To anyone who thinks it's OK for the government to mandate you purchase health insurance:

Wearing socks with your shoes is known to be a good thing. It protects your feet and reduces wear on the shoes. Therefore, using your logic about health care insurance, it's acceptable for the government to mandate everyone to wear socks with shoes. And only certain types of socks, from government-approved suppliers, will be authorized.

Ridiculous? Why? If it's OK for the government to require you to buy health insurance "because it's good for you," why is this any different?

Ken (Old Texican)| 12.14.10 @ 8:44AM

Mr. Klein
I had a thought I wanted to get in print,m before even reading your article or the comments.

I'm wondering if the communists, (pardon the shorthand), want to drag this case out and pray to the gods of hell that one or more of the conservative Supremes die before it comes to the Court.
We are right now one vote away from disaster....in a lot of decisions.

Dave | 12.14.10 @ 11:55AM

This Constitutional ruling by the federal judge is encouraging, but let's not get too excited ... yet. Never forget, grasshoppers, the U.S. Supreme Court has been repacked by Obama with the radical likes of Kagen and Sotomayor, plus the remaining leftists still sitting on that bench. Couple their numerical count with the unreliability of Anthony Kennedy and a final ruling as to whether you'll ultimately be required by an American socialist government to, as the sign on the liquor store says) "Buy a Healthcare Plan or Go to Prison" hangs in the balance.

It's going to be a long battle, but in my view -- it may all come down to who extends the grandest party invitations to Justice Kennedy. From what I've seen of some recent "rulings" -- Mr. Kennedy is one of the best Supreme Court justices money (and party invites) can buy.

That's my take and I'm stickin' to it. But we'll see.

Anthony| 12.14.10 @ 12:35PM

Dave, You are right about this one, and if the Court remains the same, this will be a 5/4 decision, with Kennedy as the pivotal vote, unfortunately for Obamacare.
Unfortunately, the S.C. has established precedent in commerse clause cases, in which the insane "logic" of non-participation in interstate commerse actually constitutes participation in interstate commerse,won out. The name of the case escapes me at the moment.
We can only hope Kennedy has finally seen the light.

amdriven| 12.14.10 @ 11:59AM

Extortion:
The crime of obtaining money or some other thing of value by the abuse of one's office or authority.
oppressive or illegal exaction, as of excessive price or interest
How would the mandate be different from mofia extortion that required purchase of pizzo~ 'protection money.'

Alan Brooks| 12.14.10 @ 11:54PM

You win on this and DREAM-- but not on DADT.
You can't win 'em all and WONT.

Appleby| 12.14.10 @ 7:02AM

Not only that, but they could mandate that we buy Chevrolets! After all, they OWN General Motors now!

Ned| 12.14.10 @ 11:59AM

I'll walk first...

Pelligrino| 12.14.10 @ 7:02AM

Thank you, Mr. Cucinelli and the MANY who have worked with him and supported this effort -- those in Virginia and throughout the land.

This is step 1, a baby step, in a long process ahead.

Thanks for getting it going. Thanks for remaining resolute.

Thanks for helping zero-in on what is really at stake, for clarifying the issue for so many real Americans who (yes, we do) mostly despise the legal profession -- as it currently manifests itself -- within our land.

Real citizens appear as doofuses and uncooth, when it comes to simple legal battles; this is a campaigns waged on the grand scale. Real citizens are baffled at our labyrinth legal process. Thus, we cannot even begin to fight because the elitists in the judiciaries (and teams of lawyers behind them) know how to run circles around us.

So we appreciate a state Attorney General who is smart, well-spoken, principled and yet still seems like a pretty normal guy.

Yet he is not so normal at all (ditto for his team doing all the heavy lifting) because he eagerly takes on Goliath.

(Please don't stop; there are many Philistines and their allies still on the battlefield!)

Thank you. From the heart. And the Heartland.

Occam's Tool| 12.14.10 @ 5:45PM

Mr. Pellegrino:

Amen.

canuckistani| 12.14.10 @ 8:11PM

...and then what?
I've read here zero solutions to the cost of healthcare, it's enormous drag on business competitiveness and the insane reasoning for paying insurance companies twice what other OECD countries pay for WORSE outcomes.

My gut feeling is that the Va ruling should be supported by proponents of a single-payer system, as it would ultimately bankrupt the insurance industry.
The other provisions are POPULAR and no GOPer will dare to try to eliminate them.

Be careful what you wish for. BHO is no dummy, and his long-con is just beginning.

Ret. Marine| 12.14.10 @ 7:19AM

The infestation of the Federal level appellate courts had long been known. This is not a matter of degree's but, reality. I don't get a good vibe out of this whole mess when one considers 2-1 in favor of something that's not even mentioned in the Constitution, " the government deciding who is responsible for their own concerns, so far. Notice how the progressive/marxist go along to get along bunch is in favor, yet the only federalist so far sees just how absurd this really is?. I am not one of their robots clinging to their version of a wishful utopia. I live in the "real world of aces and pains brought on by marxist revolutionaries with an attitude. Some people, as evidence of this mandate, seem to think I am for sale, not so fast. I may be sold without my consent, but, I'm not cheap. Nor do I come without some damage. That damage will cost the taxpayer some serious attitude adjustments in the form of my liberty, my freedom and my desire to have these punks let me alone without the real fear of retaliation of some sort.
We have an "impeachment" process available to our recourse, lets get started using it to the fullest extent of the Law least every federal judge be put on notice, your day will soon arrive for judgement. The cost of freedom is not negotiable.

Stephanie| 12.14.10 @ 12:43PM

Not being flip Ret. Marine, on what grounds would they bring forth impeachment proceedings? I wish to God they had the stones and the grounds to do so. He's killing our country.

Steve A| 12.14.10 @ 1:03PM

As far as I am concerned, any talk of impeachment is nonsense. Ain't gonna happen anyway so just drop it. The American Citizen had an unprecedented amount of information on who Obama was & is prior to the election. Anyone who remotely paid attention knew what this guy was going to do when & if he got in. So here we are. He is being true to himself & his stated vision. Get over it & work to vote him out in 2012.

canuckistani| 12.14.10 @ 8:18PM

Agreed.
People falling over their veiled racist tendencies has clouded their vision as to the real risk BHO has for entrenched interests.
He is not stupid, and his angling away from Pelosi is very smart - knowing Boehner does NOT have the chops to stick handle with him.
The 83 -15 vote should be enough evidence for observers here that battle victories are not a war victory.
The GOP has added to the debt in their FIRST deal. Boehners response? We'll cut 5% from congression budgets. About $30M, I think......heaven help us.

LiveFreeOrDie| 12.15.10 @ 11:23AM

Racist tendencies? Really? Do you honestly think the opposition would be vastly different if the big O had lighter colored skin?

I do agree Impeachment is a lost cause, not going to happen but I reject your liberal-like thinking and conclusion of racism.

Pelligrino| 12.14.10 @ 7:23AM

To follow-up with my above comment:

A Fourty-Two Page decision. 4 2 pages. Uuuggghhh!

These jerk legal beagles know that we normal citizenry can and will never even have the time of day to plow through that 'lightweight' document/reading.

I mean, that's just light breakfast reading in between pieces of toast, yes?

And these 42-pages (How many total for the preliminary work leading up to Judge Hudson's decision yesterday? Paper/pages total for all official documents related to this 13 December decision....how many?)

(Isn't this why we see Congress giving us legislation that exceeds the 2,780 pages mark?)

Overwhelm us with allegedly important info and you've already won half the contest, eh?

Particularly when you can put in legalese lingo (or trade specific wording/definitions) that you know the public school educated populace will never comprehend.

We The People are abused at every turn.

We are at the mercy of Legal Specialists at every turn.

(a fate worse than death -- perhaps)

Sid Vicious| 12.14.10 @ 5:04PM

I'd urge you to read it, Pell, even if it takes a few snatched moments this weekend to do so. It's nowhere near as daunting as its length suggests. I read the whole thing in about 20 minutes and found it to be a singular thing of beauty among legal opinions: The prose is uniformly clear, concise, logical and well thought out. Judge Hudson owes the law clerk who wrote it a big, fat raise for writing a memo that elucidates instead of obfuscates. Read it here.

Lullabys, Legends and Lies| 12.14.10 @ 7:26AM

I heard about the decision yesterday in my State mandated car-insurance covered Town Car, as I headed up to Raleigh, NC, on my way to the Apple Store, to partake in a little Commerce Clause transaction, and I let out a little cheer because of the decision (but I never removed my hands from the 10 & 2 positions). This fight has just begun, but Ken Cuccinelli and Judge Henry Hudson are my newest Right-Wing Heroes!!

Pelligrino| 12.14.10 @ 7:43AM

In my state, those hands must be deliberately at the 9 and 3 o'clock positions. (so beware when you cross state lines)

Sorry, can't chat anymore. Need to run. I need to do as you did yesterday. Go do a little Commerce Clause prior to what I do to earn for that Commerce Clause privilege....

Alice Moore| 12.14.10 @ 8:31AM

Whoa there about mandated car insurance. You are aware that driving, like voting, is a privilege. It is not a right. One can choose not to drive and not own a vehicle.

With the Health Insurance Mandate you must be breathing. This is at the heart of property rights. Of course many Liberals think breathing is also a privilege for us lumpenproles and a right for them.

Many on the Left are using that false analogy of Mandated Car Insurance=Mandated Health Insurance.

BTW iI usually agree with 99.9% of what you write.

Curly Smith| 12.14.10 @ 8:54AM

The car insurance mandate is vastly different from health insurance, and not because you can choose to not drive. Both products are financial instruments that insure against loss. However, your car liability insurance doesn't insure your car; it insures against the damage that you might cause to other people's assets. It insures that they won't suffer a financial loss because of your actions. Health insurance doesn't insure your health, it insures your financial assets against medical expenditures.

If you didn't have car insurance then you might harm other people. If you don't have health insurance then you might harm yourself. We frown on harming others but, while we might find your actions regrettable, we won't stop you from harming yourself.

Career Soldier| 12.14.10 @ 9:49AM

Yes, in Michigan, your car insurance does insure your car. We have what's called "no fault" mandated insurance. Mine pays for me, yours pays for you. And no it isn't required, unless you'd like to have MI license plates on your vehicle.

Yes, health insurance does insure your health. Hospitals, treatment centers, and clinics have long been known to refuse non-life threating care to people without insurance. Try calling doctors offices and asking for a new patient appointment and explain that you dont have insurance. See how soon you get one. Access to quality health care is directly proportional to the quality of your health care coverage. This can most certainly effect your health.

Pelligrino| 12.14.10 @ 10:47AM

Career Soldier, you might not be thinking straight. Or just might not be thinking of all the possibilities at your fingertips.

The problem/issue: You want to access heath care because of personal health issue/problem X or Y. Or both.

Okay. What dictates that you must have health insurance to be examined & treated?

You've got a checkbook, don't you? (a bank account) You can hit an ATM prior to showing up for the appointment, right? Get out the needed cash and pay cash, minutes before you depart the clinic after being treated.

(The good ole fashioned way. It still works.)

I have yet to find a doctor's office that won't take one of the major credit cards.

In fact, they usually get pretty excited when they see that you -- the customer -- is ready to pay on the spot.

Please tell me how paying for your health care of that of your wife or kid(s) is different than buying a laptop. Or a new refrigerator. Is it fundamentally different?

Fact: Most Americans pay for their dental care using one of the methods (cash, check, credit card) briefly mentioned above.

When you "access" healthcare, you are just engaging in obtaining a good or service. Or both.

Or what am I missing in my comprehension of the discussion?

Particularly during the younger years of your life (if you are living wisely), you need healthcare insurance like you need a hole in your head.

Plan, budget and prepare. Healthcare is expensive. But you don’t need someone holding your hand (and paying for you) to obtain it.

Curly Smith| 12.14.10 @ 1:23PM

Health insurance doesn't protect your health any more than fire insurance protects your home. Neither prevent negative events; both protect your financial interests against the consequences those events.

As has been stated, you can always pay cash or pay with a credit card. You can also post a surety bond - which is what Insurance represents. It says that the provider of services will get paid for agreed services. You don't need insurance to get treated but you do need to prove to the service provider's satisfaction that they'll get paid. After all, it's a bit difficult to repossess that transplanted heart.

YeloStalyn| 12.14.10 @ 9:59AM

If I didn't have car insurance I MIGHT harm people. Guilty until proven innocent.

I should not be FORCED to have insurance of any kind. If I wrong you, you can take me to court. That's what it's there for. Making me have insurance is akin to making me pay court costs and legal fees continuously in the off chance I need them.

The Feds have no authority to actually make me buy car insurance even if I can "opt out" by not driving. Commerce Clause is to maintain fair treatment of businesses and customers across state lines, NOT to control that commerce in any or all aspects. And if I don't ever drive across state lines, then they have even less ground to stand on in terms of making me get insuance on my car.

The STATES, however, can make me get insurance on my shoes in case I kick your door in. But, again, that's the STATES. They can do whatever they damn well please, by and large.

Ryan| 12.14.10 @ 10:29AM

What do I do, then, if you are at fault and have no money to pay?

Christopher| 12.14.10 @ 12:36PM

Your auto insurance should have coverage for Uninsured/underinsured . If you have an injury caused by an uninsured or underinsured motorist then your company will pay you, if you have a property damage then you should have collision coverage. Check your policy, ask your agent.

Steve A| 12.14.10 @ 10:55AM

Yelo, The mandate to carry "liability" insurance on your car is a State mandate, not Federal. The State could care less if you choose not to carry comp & or collision & financially damage yourself. It is concerned about you running into someone else, damaging their property & or health & the responsibility you have to compensate for harming another citizen directly by your fault. This concept is not even in the same zip code as a Federal mandate to buy health insurance on yourself.

If you hit me & have no coverage, my Uninsured Motorist will pick it up under my own policy. Some states allow me to waive UM coverage & gamble.

Under your theory, I would have to file a private suit to recover from you, who is likey a deadbeat with no assetts, pay a portion of what I recover to an attorney & likely collect nothing anyway.

YeloStalyn| 12.14.10 @ 4:30PM

I think we agree. I am saying that the STATE can (and does) mandate insurance. But, if it were just the fed, given the law (Constitution), I could not e compelled to have insurance.

The Fed is very limited in the things it can do... and mandating such a thing as having health insurance (or ANY insurance) is WAY out of bounds.

Padoux| 12.14.10 @ 12:20PM

I agree, but in addition, driving on public ways is licensed by the states and thus can be withheld for non purchasers of insurance. As to the broader issue, IF the Supremes uphold the mandate it will be interesting to see what, if any, language they will insert to limit the scope of such a ruling. For indeed, if allowed, what will be the limits if any? Will the court decide case by case what is a proper use of such great power. This would in effect have the court in the role of a legislature. Why not compel all to have life insurance, disability insurance to lessen the burden on social security? Nancy Pelosi's glib response to a question on this issue. "are you serious?" reflects a profound ignorance and/or disregard of the constitution and a supreme arrogance dangerous in any elected official, much less the House speaker.

Webster| 12.14.10 @ 7:54AM

I said this in first Clinton when he passed a retroactive tax--Are Demcrats going to be surprised when they're penalized for not having had a baby.

hardcard| 12.14.10 @ 8:16AM

Virginia the Heart of Liberty !!!!!!!!!

Booger | 12.14.10 @ 8:20AM

From the desk of President B. Hussein Obama,

To: The american people

Dear Citizens,

As you are probably aware by now, today a rogue federal judge in Virginia erroneously found My Great Health Care Initiative and Mandate to be unconstitutional. Not only did this rogue judge legislate from the bench in ruling against Me, he also issued an injunction against putting this Great Leap Forward into place while My administration appeals his ridiculous ruling. This action by Judge Henry Hudson has left me no choice but to move to Plan B for the implementation of my Health Care Initiative.

I have consulted with Attorney General Eric Holder and Treasury Secretary Timmy Geithner. Both of these experts have assured me that we can move forward regardless of the judge's ruling. A.G. Holder has assured me that I am in fact in charge of the executive branch, and it is therefore my privilege to enforce a law whether some judge likes it or not. Secretary Geithner has likewise informed me that the IRS is standing by to enforce the law as written by Congress, and that they are perfectly willing to do so no matter what some right-wing kook appointed by a Republican has to say about the matter.

I realize that some individuals have suggested that this will bring about a "constitutional crisis", but I assure you nothing of the sort will happen. Quite frankly, there has been too much talk of late about the constitution, and not enough consideration given to the needs of the people. When you get right down to it, what is the constitution but a bunch of laws written over two-hundred years ago by a bunch of white men who owned slaves? Why are we still letting them tell us what to do? We need My Great Health Care Initiative, and we need it now! This is not the time to let some racist, antiquated set of law books stop our great five-year plan!

So, I have decided the following: First of all, the IRS will still be enforcing the Great Health Care Initiative, regardless of what some court says about it. Secondly, no U.S. Marshal or other Federal Agent will enforce any court order contrary to the implementation of this Great Initiative. Furthermore, any individual or group suggesting that I should do otherwise will be subject to immediate prosecution under the Sedition Act of 2010, which I am putting into place via Executive Order.

In a related note, should any of my loyal followers out there like to get in touch with this power-grabbing judge and let him know what you think about his radical ruling, I think I can arrange for the U.S. Marshals who normally guard his courthouse to be busy somewhere else. Just let my people know the time and day, know what I mean? Sometimes the Chicago Way is the only way. Yeah, I'm giving you a shout out there Bill Ayers.

All right, that pretty much wraps it up. Remember, do right and pay that mandate fee now, and you won't have anything to worry about when you get sick.

Your President for Life,

B. Hussein Obama

http://beautifulletters-bls.blogspot.com/

Denver Todd| 12.14.10 @ 8:21AM

If the individual mandate is required to make Obamacare work, then other types of economic activity will be required as well to make Obamacare work. Think: helmet laws, and healthy foods. Eventually, someone will link every single activity to how it impacts our national health system, and your freedom will be gone.

stephanie| 12.14.10 @ 12:49PM

I've always thought the helmet law was dumb. If somebody is stupid enough to ride a bike without one, well then, let them. I doubt their head will damage my Suburban.

Redstateboy| 12.14.10 @ 12:59PM

You are just as effete and condescending as any Liber-ul - employing the same shameless logic as they do and I would guess you don't ride either.
Helmet laws restrict personal freedom. As a College educated Veteran who has ridden for years... I think I'm more qualified to determine on my own when and where and under what circumstances I should opt, independently of anyone, to chose to employ or not to employ a helmet.

justasimplepatriot| 12.14.10 @ 9:21AM

Anyone who scoffs at the "slippery slope" warning need to step back and examine society today versus 30 years ago. We are not approaching the slope, we are over the the edge and picking up speed.

It is time to toss out the anchor and halt this insanity.

Redstateboy| 12.14.10 @ 9:39AM

why in the hell should it make a bloody difference who the Judge was nominated by or of which party?? the Law is the LAW!! It says what it says.

Ned| 12.14.10 @ 12:14PM

Charming, but naive. The left figured out long ago that they cannot win on the "merits" of their incomprehensible "arguments"... they only way that they prevail is to invent law, ignore precident, and rule on emotion (theirs). The LAW is whatever the hell they say it is... or so they'd have you believe.

Steve A| 12.14.10 @ 9:48AM

Question for you left wingers / Eric Holder. If I pull up to a light & a hooker taps on my window & asks me for a date & I choose to decline, am I engaged in soliciting prostitution & or engaging in "commerce" by my inactivity. Please clarify for me as I am obviously not following your logic here. Thanks in advance.

Oldefarte| 12.14.10 @ 1:52PM

Not unless your vehicle is crossing the border between two intersecting states while approaching the light, and unless either your vehicle or some parts of yourself [upon viewing the hooker] are MOVING; would/could your actions evolve from passive to active and therefore be considered INTERSTATE COMMERCE [as opposed to INTRASTATE COMMERCE]. Also, you'd be wise to consider the SEVERABILITY CLAUSE of the hooker [who is possibly carrying a knife or other concealed weapon]!!!!!!!!!!!

Steve A| 12.14.10 @ 2:01PM

Olde, Thanks for the laugh. That was cool & illustrates the absurdity of the argument perfectly.

Petronius| 12.14.10 @ 10:01AM

There's trouble right here in River City. It is caused by an infantile electorate who refuse to do for themselves what is required by nature for sustenance. They want to be cared for by government that gladly supplants their parents granting them succor in exchange for votes and then sending the rest of us the bills. Today they may be getting sent away without their free physicals, but they have already swamped the system to the extent that they will get the one thing they really want in the end because no insurance company can remain viable under their onslaught; the end of fee for service medicine. And I dread that day, because the physicians who attend me will surrender their licenses and tell Obama's legions of parasites, "We quit."

A. C. Santore| 12.14.10 @ 10:20AM

Perhaps this is too fine a quibble, but I don't see the problem as a citizen making a decision to do nothing. I see it as the feds requiring a citizen to do something about which he is prohibited from making a decision, or be fined. There's a huge difference.

And after that Breyer interview yesterday, I fear for my freedoms even more. I'm sure he'll discover some "value" of some founder or other that means he wanted everyone to have state-mandated health insurance or pay a fine.

Just as he found a "value" that proves that "the right of the people to keep and bear Arms, shall not be infringed" means that the founders wanted us to have gun control.

Don't like it? "Move to Maryland."

335blues| 12.14.10 @ 10:40AM

If obama decides to appeal this to the fourth circuit, the states should decide not to participate. They should just say no. The American people are not in favor of this and the state representatives should tell the federal government that they (unlike obama) are following the will of the people like they were elected to do.

Carlos| 12.14.10 @ 11:06AM

"Democratically-appointed" judges? Dudes, you can say "The Democratic Party" if you really, really have to show how unbiased you are. The rest of the time, "Democrat" is a perfectly fine adjective.

George S| 12.14.10 @ 11:21AM

The 4th Circuit court is a testament to the Democrat Party. They drew the line in the sand with GW Bush and filibustered every one of his nominees to that court starting with Miguel Estrada. The Democrats knew that Bush could influence SCOTUS federal legislation jurisprudence cases for decades with an originalist 4th Circuit, since all challenges to Washington's power starts at that court.

Republicans were ready to change the Senate rules to allow a simple majority for judicial confirmations. Panicking, the Left stroked the McCain-Graham wing of the party to give us a "compromise" that would let the judicial filibuster stand. Those efforts paid off as the Democrats kept Bush at bay for 8 years. His SCOTUS nominations were only two -- an originalist replacing an originalist (Roberts for Rhenquist), and an originalist replacing a semi-originalist (Alito for O'Connor). So the Progressives dodged a bullet there. However, the 4th Circuit remained open and now Obama has filled a couple of those openings to give the Court its tilt. Now we face the real possibility that the 4th Circuit may reverse Hudson and SCOTUS refuses to hear (at worst) or takes it on and we breathlessly await which side of the bed Anthony Kennedy wakes up on (at best).

Thank you, again, Senator McCain. Your 2008 campaign was enough of a gift; we didn't deserve the Gang of 14. Really. Thank you.

MikeD| 12.14.10 @ 11:53AM

George S. Good comment. Just for chuckles and grins, check out what has happened to the RINOS in the "Gang of 14". The worst was McCain; but close behind was Mike DeWine of Ohio. He was actually a personal friend when he was Lt. Gov. of Ohio, and my wife and I worked hard for him to make it to the Senate. When he turned tail on the rest of us, I told him and his wife personally that he had just committed political suicide, and that every ounce of sweat we had shed and every cent we had given him would henceforth be devoted to getting anybody else in his place.

He became so politically toxic that, not only did he get blown out in his re-election bid, but his son, who had been running for congress went from 55% against FOUR opponents, ended up coming in LAST the next week in his primary. That happened the week his father turned traitor to his party, his State, his Country, and the people. Frankly, political destruction was too good for him. We will be paying for those 7 RINO's actions for years to come.

Redstateboy| 12.14.10 @ 11:35AM

A 10% Tanning bed tax that DISPROPORTIONATELY taxes one race of Americans over others doesn't sound legal.

MikeD| 12.14.10 @ 1:58PM

What would barry the muslim and his fellow thugs in the media and demoncrap party do if a white president introduced taxes on products that straightened hair of only Blacks, and any other products that were sold almost exclusively to Blacks??? How do you spell screams of RACISM!!?? Maybe we ought to tax skin lightening creams...

mames| 12.14.10 @ 11:53AM

Why is social security and Medicare any different than this lousy Obama care mandate? Are these not also demands to purchase? I don't remember anyone asking me if volunteered for FICA withdrawl.

Ned| 12.14.10 @ 12:19PM

Social Suck and Medi-crap fees aren't "purchases". They are taxes.

Oldefarte| 12.14.10 @ 1:56PM

Don't give the courts ideas, since if they're considered 'taxes' then they win [since the government has the legal right under the constitution to TAX in order to fund their operations]!!!!!!!!

Steve A| 12.14.10 @ 11:56AM

mames, It's for your own good as you are too stupid to do it for yourself. Obama & genius politicians know how better to invest your $$. get with the program.

Anthony| 12.14.10 @ 12:08PM

Congrats to A.G. Cuccinelli and Mark Levin, whose Landmark Legal Foundation filed an Amicus friend of the court brief in this case.
Our post partisan president, Obozo, just recently off his monumental ass kicking of Nov 2nd and recently calling 1/2 of all Americans "hostage takers", says he is "eager for a fight" on this issue.
This guy just loves getting pummeled doesn't he?Our punch-drunk Muslim president is so dazed he actually brought back the sociopath-in- chief, Bill Clinton to co-president with him. Chris Matthews' legs are tingling once again!!!
Well, while Obozo and 'summer of recovery" Biteme wander around the west wing with their thumbs up their arses, Slick Willy will have stolen the Oval Office right from underneath him.
Slick Willie did say about Obozo, during the primary, that " a few years ago, this guy (Obozo) would be bringing us our coffee".
Fortunately for Monica Lewinsky, ole Slick Willie has a new bitch.
" Hey Barack, hand me my coffee and the cigar box, like a good fella, will ya?"

Alert1201| 12.14.10 @ 12:30PM

One of home if this makes it to the SCOTUS from the Washington Post via American Thinker:

“…here’s the tricky part: Justice Elena Kagan, having served in the Obama Justice Department, is surely to recuse herself. With the “liberals” one judge down, even a Kennedy vote to uphold the individual mandate would presumably result in a 4-4 tie. And guess what? If there is a tie, the lower ruling stands. In other words, this is really?bad for ObamaCare advocates.”

Joli| 12.14.10 @ 6:19PM

I doubt that Elena Kagan has the integrity to recuse herself.

TrickleUpPolitics| 12.14.10 @ 12:42PM

If Kennedy is the deciding vote, we may be in good hands:
WASHINGTON – President Obama may get liberal Elena Kagan on the Supreme Court, but conservative swing-voter Anthony Kennedy says he’s not going anywhere anytime soon.
Justice Kennedy, who turns 74 this month, has told relatives and friends he plans to stay on the high court for at least three more years – through the end of Obama’s first term, sources said.
That means Kennedy will be around to provide a fifth vote for the court’s conservative bloc through the 2012 presidential election. If Obama loses, Kennedy could retire and expect a Republican President to choose a conservative justice.
Kennedy, appointed by President Ronald Reagan, has been on the court 22 years. He has become a bit of a political nemesis at the White House for his increasing tendency to side with the court’s four rock-ribbed conservative justices.

Seek| 12.14.10 @ 1:06PM

As a Virginian, I couldn't be prouder. Someone in these United States takes the Constitution seriously.

Ted Peters| 12.14.10 @ 1:12PM

I voted for George Bush for one reason... the Supreme Court. As things now stand with Obamacare in the judicial cross hairs, I feel vindicated in my choice. Had Gore or Kerry been elected, there would be no point in even taking the matter up. Legal realism is a bitch and elections do have consequences. It will be most satisfying that a Reagan appointee will probably cast the pivotal vote that reaffirms the limits of federal government power.

Perusha| 12.14.10 @ 1:21PM

We would be wise to thank our lucky stars that the dumbed-down American voters finally passed their final exam, by electing Obama.

Thomas Sowell, bless his truth-telling heart, nailed our future, when he predicted putting the One in the White House would be a catastrophe---as it is written, so it will be.

A basic rule of life, indeed, probably THE key one, is that in order to get real change, whether as an individual or a society, you NEED a crisis. We American “lobsters” have long been getting slowly cooked, but with BHO the chef with a degree in socialistic cooking, the temperature on the burner just went too high too fast, and we finally NOTICE the killing heat.

By trying to foist on every American the requirement to buy ANYTHING, even the dimmest citizens have been shaken at their core self defining nature---I am ME, and I am in charge of ME!

Even if the SCOTUS says Obamacare is “legal”, does anyone really believe that would be the end of it? There are MANY forks in the decision tree “road”, in the future!

Consider the past, and learn from it.

I had a relation who NEVER got a driver’s license or auto insurance! Of course, in the old days, with fewer cars on the roads, and no freeways, he was able to safely and consciously drive by FOLLOWING THE LAW, and never even encountered a cop.

I, myself, was too “smart”, too soon, about the game of insurance.

It is the ultimate “let Joe do it” form of socialism.

In Vietnam, I read “Pay Now, Die Later”, by an ex-insurance salesman, that proved to me that term life insurance was a rip off, especially for younger people. I’ve never had any form of life insurance.

Until state governments got up to speed, I rarely even had car insurance (I finally joined the “legal” society in 1997). Now, thus self-insured, I ALWAYS was totally careful to drive as safely and legally as I could, being super sensitive about keeping watch for any cars that got anywhere close to me.

I always drove a safe distance behind the car in front of me, AND constantly checked both the rear and side mirrors to be aware of any drivers too dangerously close to me. Actually, even when NOT driving a motorized vehicle or pumping a bicycle, or walking, or sitting, using the eyes and other senses to be aware of the bubble of one’s Being is a simple part of being responsible, anyway.

Of course, thus “self-insured”, I never caused an accident. One guy rear-ended my VW, years ago, and I had to take him to small claims court because he refused to pay. I actually used the money “won” to rebuild the engine, so it turned out to be my gain!

As an American overview, perhaps we could even see that this Obamacare imbroglio is simply the salient thrust of the growing sickness of American society---to wit: moral hazard.

Need I say I’ve never had health insurance, either? Imagine all the money I SAVED, that would have gone to pay for OTHER people’s bad luck or judgment, not to mention the cost of the insurance companies “paperwork” and profit!

Only twice have I needed medical services, and both times it was my fault, and I paid for it myself---then, and there. Oh, yeah---in 1986 or so, many years as a sitting worker, pounding away at a calculator as a controller, had resulted in a bad back.

So, I did spend around $2,000 to an excellent chiropractor who manipulated the spine with many moves that straightened it out.

Yes, moral hazard---let Joe do it---is THE prevailing conventional “wisdom” for the vast majority of “fat” Americans, these dark days---what a crisis!

An aside---this rant down memory lane just plucked what I consider THE key theme from that classic movie, “Catch 22”.

Remember when Yossarian is being grilled about not wanting to fly any more dangerous missions?

”What if everybody had the same attitude?” And, his answer---“I’d be a damn fool to think otherwise!”

Follow your Heart.

Steve A| 12.14.10 @ 2:51PM

Perusha, As for life insurance. Having personally handed many grieving spouses large checks to avoid financial catastrophe after an unexpected death, I can tell you that your theory may work for your individual case, but not for the majority of others who actually care what happens to their family when they are gone. Health insurance, fine, I agree, go for it. Just don't stick me with the bill. Auto insurance, you were lucky pal. What if you had a blowout or mechanical failure & ran over somebody?? How does your theory work out then. It ain't just about you there, pal.

How about Homeowners?? Do you own a home? Are you gambling with that one??

joli| 12.14.10 @ 6:32PM

Perusha, I'm glad your refusal to buy health insurance has worked for you. You should be glad you've never had a catastrophic health issue to deal with. In my case, I am thankful for our health insurance, as it paid for the $260,000 life-saving open heart surgery for my newborn son. The other alternative for those without health insurance who experience a catastrophic health issue is bankruptcy, which shifts the burden from a group of people voluntarily sharing risk (people in the same health insurance pool) to banks, creditors, etc, who will do their best to pass the cost on to other consumers who did not agree to be part of that risk pool.

Chas| 12.14.10 @ 1:44PM

The entire decision, while 42 pages long, is double-spaced and really (for a legal brief) a rather good read.

Recommended!

Oldefarte| 12.14.10 @ 2:13PM

Great editorial/comments, all; but surely [AND DON'T CALL ME SHIRLEY] the essential solution is with the 2012 elections [and not through the court system]. Lawyers/judges are mostly DEMOCRATS due to the facilitation of lawsuit protection legislation provided by same; and will protect this Democrat-sponsored bill with their rulings overall. If the 2012 elections remove El Chosen One and most of the remaining liberal Democrats, then successful congressional repeal legislation can be initiated and will not have to face the presidential veto roadblock. Let me also remind everyone that this healthcare legislation's purposeful intent was not so much improvement of health insurance in general, but simply to provide another form of WEALTH REDISTRIBUTION WELFARE to indigents. The current 30 million uninsured are mostly those unable to financially pay the premiums necessary to insure themselves and their families, and this was the sole reason why the president/Democrats ramned through this legislation. It was simply to forcebly require under threat of imprisonment that taxpayers pay for not only their own health insurance coverage, but for these 30 million uninsured presently as well. It's called WELFARE, folks!!!!!!

bert| 12.14.10 @ 2:13PM

Does Kagen needs to recuse herself on this case ?
Did this commie worked on the healthcare disaster with the Dems and WH ???

Driving a car is a Priviledge granted by the State and not a right and there is no Federal mandate to carry auto insurance .

Redstateboy| 12.14.10 @ 3:00PM

and if I don't own a car.. don't have any intention of owning a car.. then the State cannot force me to purchase auto insurance.

Dixie Pixie| 12.14.10 @ 4:10PM

Thirteenth Amendment to the US Constitution.
Section 1. Nether slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

So why is the ObamaCare mandate not unconstitutional under the Thirteenth Amendment????
After all ObamaCare is demanding everyone involuntary work for the insurgence companies.
That is the definition of involuntary servitude.

Curtis Rasmussen| 12.14.10 @ 5:20PM

Obama is already picking the winners and losers in private enterprise with the bailouts. Now he wants to close the loop on the new , budding fascist state by requiring us to pay for services that the liberals wants to eventually nationalize.

Dixie Pixie| 12.14.10 @ 6:33PM

Greetings Curtis
I think the problem goes deeper than that.

Is it my imagination, or are the words of the US Constitution routinely ignored.
The Thirteenth Amendment would seem to be very clear.
The government can not force you to work for anyone except as a punishment for a convected crime.
Yet ObamaCare states you must work for a private corporation as the price of existence.

Apparently, Obama's vision of America is a two caste society consisting of a governmental over-caste and a serf caste. The governmental caste owns all and allows the serf-worker caste only what the governmental caste thinks the serfs need. Naturally the public sector unions love this vision of America and will support Obama,Pelosi and Reid in implementing this vision.

It is if the TEA Party revolt never happened.
The Democrats are certainly ignoring the results of the last election.

Occam's Tool| 12.14.10 @ 5:52PM

There are a few things I know about: this is one of them. I have worked as a senior consultant in the New Zealand NHS 2006-2007, which is a system closely modelled on Britain's. Folks, you really do not want it.

My advice to everyone is to go to The New Zealand Herald website (a Liberal NZ paper, with the highest circulation on the Island, based out of Auckland) or the Wellington Dominion Post website (their equivalent of The Washington Post). Search "District Health Boards." Spend an hour or two doing this, and reading the articles that interest you. It will be a story of rationing and denial of basic care. That's all.

P.S. If you can let me know why Rugby is superior to American Football, let me know that, too. I don't think so.

yalam| 12.16.10 @ 12:51AM

Thank you, A.G. Cucinilli, for winning the healthcare litigation despite of Obama and his cronies threats and reprisal efforts to block the legal process. Finally, people of VA have won, and one again, we have defeated Obama and the Democratic machine. Now we need to focus on the 2012 to topple Obama and his opressive regime that has devastated our liberty and shredded the constitution for good.

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