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But the long twilight struggle with the forces of “reform” goes on.
On Friday, the Eleventh Circuit Court of Appeals ruled against the Obama administration in Florida v. HHS, declaring Obamacare’s individual mandate unconstitutional. This was good news, but not particularly surprising considering the tough questions with which the three-judge panel peppered the government’s lawyers during oral arguments last June. In that hearing, DOJ attorneys were repeatedly pressed about the mandate’s implications for limited government. One judge, for example, pointedly asked if there were “any limits” left on federal power. Its predictability notwithstanding, the decision did cross two new and important milestones: The 2 to 1 majority that struck down the mandate included a judge appointed by a Democrat president, and this is the first time an appeals-level court has ruled against Obamacare.
The former milestone robs Obamacare supporters of an important talking point. Since this lawsuit — whose plaintiffs now include officials from no fewer than 26 states — was filed in March of 2010, the law’s advocates have consistently insisted that it is politically motivated. As far back as April 2010, for example, the New York Times advised its readers that “experts… dismiss the Florida lawsuit as a politically motivated lark at taxpayer expense, and argue that the insurance mandate falls comfortably within Supreme Court precedents.” Few honest observers have taken this nonsense seriously. But, as long as only Republican appointees rendered adverse opinions, it was a useful line for the White House, congressional Democrats and their many allies in the “news” media.
That convenient meme was shot to pieces on Friday when Judge Frank Hull, who was nominated for the Appeals Court by none other than Bill Clinton, joined Republican appointee Joel Dubina in ruling against the mandate. And their opinion was by no means ambiguous: “This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives.” This speaks directly to issues raised during the oral arguments by Judge Hull, whose questions included a query concerning whether Congress could pass a similar law requiring Americans to buy certain types of cars.
The importance of this ruling goes far beyond depriving the White House of a mere talking point, of course. It also provides a bipartisan argument against congressional overreach: “Few powers, if any, could be more attractive to Congress than compelling the purchase of certain products. Yet even if we focus on the modern era, when congressional power under the Commerce Clause has been at its height, Congress still has not asserted this authority.” They go on to point out that even during unambiguous crises like World War II, “Congress never sought to require the purchase of wheat or require every American to purchase a more fuel efficient vehicle.” This reference to “fuel efficient vehicles” suggests that these two judges are concerned that the insurance mandate is an evil portent of things to come if it is allowed to stand.
The ruling wasn’t unanimous, however. Judge Stanley Marcus, whom Bill Clinton appointed to the Eleventh Circuit in 1997, wrote a rather querulous dissent. Marcus claims that the individual mandate regulates “quintessentially economic conduct,” but neglects to explain how not engaging in a transaction constitutes such activity. Like many supporters of the mandate, he sidesteps the Constitution and reverts to an economic argument involving “the shifting of substantial costs from those who do not pay to those who do.” In the end, however, Judge Marcus concedes he has no Supreme Court ruling upon which to hang his hat: “[I]t is surely true that there is no Supreme Court decision squarely on point dictating the result that the individual mandate is within the commerce power of Congress…”
This absence of a Supreme Court precedent for the mandate is one reason for the virtual unanimity among constitutional scholars that Obamacare’s ultimate fate will be decided by the high court. This consensus will be strengthened by Friday’s ruling because the Eleventh Circuit’s decision conflicts with a ruling by the Sixth Circuit Court of Appeals, which recently upheld the law’s constitutionality. Adding to the confusion, Judges Dubina and Hull chose not to strike down the entire law, despite its lack of a severability clause. Theoretically, the absence of language ensuring that Obamacare remains in force even if one of its provisions is ruled invalid requires the whole statute to be declared void if the mandate is found unconstitutional. So far, however, only U.S. District Judge Roger Vinson has had the courage to take that step.
It was Vinson’s ruling that the administration, after much stalling, appealed to the Eleventh Circuit. And, unfortunately, Friday’s decision will have little effect on the DOJ’s foot-dragging strategy. Hoping to buy Obamacare enough time to embed itself so deeply in the health care system that enormous disruption will ensue if the law is struck down, the Justice Department has employed every means possible to put off its date with the Supreme Court. And now that the presidential election looms, there is even more incentive to stall. As one legal scholar has pointed out, this ruling leaves the DOJ with several delay options: “seeking en banc review in the Eleventh Circuit, taking the full 90 days to file its certiorari petition, and seeking extensions to file its brief in opposition in Thomas More Law Center…”
Meanwhile, Obamacare continues its long march forward. On the very day the Eleventh Circuit issued its ruling, the Obama administration spewed forth yet another gusher of regulations dictating processes for enrolling in insurance plans, receiving federal subsidies and dealing with the new insurance exchanges. These latest fiats also change key rules relating to the mandate. In fact, they exempt selected families altogether from the onerous requirement to buy insurance. So, while there is no doubt that Friday’s bipartisan ruling by an important court on a crucial case constitutes a significant victory, the long twilight struggle continues. In the end, the decisive battle will be fought at the ballot box.
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