The American Spectator : The Spectacle Blog : Randy Barnett Says Court Decision Against ObamaCare is a Game Changer

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The Spectacle Blog

Randy Barnett Says Court Decision Against ObamaCare is a Game Changer

By Philip Klein on 12.13.10 @ 7:40PM

Georgetown Law Professor Randy Barnett, who has been a leading legal critic of the national health care law, said today's ruling against the individual mandate changes the dynamics of the effort to overturn the legislation.

“This was a huge day," Barnett told me in a phone interview. "The government needed to run the table on all of these cases to survive, and it failed. It basically needed all the judges to say it was constitutional, and as soon as they had one that said it wasn’t, then we have a different game.”

First, he said, "It changes the posture, because now this will go to the Court of Appeals, and the Court of Appeals is going to have to reverse this judge.”

But in the more immediate term, it will impact a similar suit against ObamaCare brought by 20 states led by Florida, he predicted. U.S. District Court Judge Roger Vinson, of the Northern District of Florida, is scheduled to hear arguments on Thursday.

Barnett explained that had today's decision gone the other way, the Obama administration would have been able to argue that three judges had upheld the law, but now the state of Florida can point to a case in which the law was ruled unconstitutional.

The ruling also gives more cover to Vinson. “Judge Vinson now is not going to be standing alone against Congress if he should decide it’s unconstitutional,” Barnett said.

Going forward, Barnett said, if one of the appeals' courts decides that the law in unconstitional, it's almost garunteed to go to the Supreme Court. If the law is upheld in appeal, then it would take four Supreme Court justices who want to weigh in on the issue to bring it before the court, which he believes is likely anyway.

But he doesn't expect the Supreme Court to weigh in on an expidited basis, bypassing the appeals' courts. He said as a case moves up the food chain, the quality of the arguments and analysis improves, so the Supreme Court tends to wait until wait for the appeals' court to have its say so that the case is more fully formed by the time it reaches the highest court. “I’d be surprised if they want to jump the gun on this," he said.

Barnett also emphasized that in his preliminary ruling on the Florida case, Vinson rejected the argument that Congress had the constitutional authority to impose a mandate under its taxing power. That argument was also rejected by Judge Henry Hudson in his decision today.

“Basically, every court has rejected the tax power argument," Barnett said. "I never thought that argument was going anywhere, and it hasn’t gone anywhere. This is another sign that this thing is going to have to rise or fall on the Commerce Clause and Necessary and Proper Clause. And the tax power thing is going to be gone.”

View all comments (15) | Leave a comment

nancy pelosi| 12.13.10 @ 8:16PM

i'm melting....mellllllting....

George S| 12.13.10 @ 10:02PM

A hundred years ago, anyone who argued that the commerce clause gave the Congress the power to force individuals into commerce against their will, they would have been hauled away for contempt of court. Today, not only is it taken seriously, but we hold our breath as we wonder how one judge will decide.

Super Dave| 12.13.10 @ 10:09PM

misspelled "guaranteed"

Super Dave| 12.13.10 @ 10:10PM

and "expedited"

Super Dave| 12.13.10 @ 10:14PM

and it's "appellate courts," not "appeals' courts."

*facepalm*

you guys need a better copy editor stat!

ds80| 12.14.10 @ 12:25AM

Super Dave ... aka Anal Retentive Man.

It's a blog you ding-dong.

Ender| 12.14.10 @ 10:28AM

It's called professionalism. Is it that difficult to spell, grammar, and fact check a story before mashing "teh butan?"

Nite| 12.13.10 @ 10:55PM

Obama and his cronies state that states require the purchase of car and house insurance. That is true, but it is a state right, not the federal government. The states regulate health insurance not the federal government. The federal government has overreached with the so called commerce clause. Someone needs to stop the federal government from infringement on states rights once and for all.

Elder-Geek| 12.14.10 @ 12:46AM

The State does not force car or home Insurance. You have other choices, you don't have to own a car. You can rent, board, stay in a tent. There are legal ways to live without car or home owners insurance.

The same is not true of State mandated health insurance. There is no legal way to live AND avoid that insurance.

Jeff Perren| 12.14.10 @ 11:16AM

The States are violating the Federal Constitution to force individuals to buy auto insurance, anyway. Even if they weren't they are violating the rights to individual sovereignty and free trade.

Also, the coercion to purchase auto insurance is limited; drivers can opt to post a bond instead to cover potential accidents (a kind of preemptive guilty charge, but never mind that now).

Timely Renewed| 12.14.10 @ 12:46AM

Judge Hudson's decision is good news, and we all hope that it will prevail when Obamacare finally reaches the Supreme Court two years from now. However, that is not certain, and there remain substantial political powers who regard this vast extension of federal power as acceptable based upon the Supreme Court's vast expansion of the interstate commerce clause since 1937. The only sure way to stop not only Obamacare, but the innumerable other ways in which the federal government has increased its power beyond the original scope of the Constitution, is to reverse those Supreme Court cases and restore the interstate commerce clause to its original meaning. Given how entrenched these Supreme Court precedents are, this will require a constitutional amendment restating the original, very limited scope of the interstate commerce clause. See http://www.timelyrenewed.com

philipdenis| 12.14.10 @ 3:15AM

You know what You guys should stop complaining because, one the health care we have now isnt as good as it was supposed to be. also the law has just been signed so give it some time. so if u want to say u have the right to choose tell that to ur congress men or state official. If you do not have insurance and need one You can find full medical coverage at the lowest price by searching online for "Wise Health Insurance" If you have health insurance and do not care about cost just be happy it and trust me you are not going to loose anything!

Endet| 12.14.10 @ 10:30AM

What is this? I don't even....

Ken (Old Texican)| 12.14.10 @ 10:04AM

Wow, philipdennis,

You certainly brought us all around with your brilliant riposte. Thank you.

Dale Cord| 12.14.10 @ 11:02AM

You people have already lost, you have allowed these "LAWBREAKERS" to continue to lead you around by the nose,and now your genitals.You need to find the land of OZ in your fantasy world, and ask for courage for you are just like the cowardly lion.Why, Dorthy had more courage than you cry baby whiny-butts.You have abdicated your right to be called an American! Now those 9 vermin who sit in their Black Robes will determine your fate once again. Black is such a fitting color for them,for it also represents the Grim Reaper.Gloom and Doom and the only future for stumbling cowardly bumpkins intoxicated with themselves. Those who made America great have gone down into their graves fighting for Her Freedoms,Reputation and survival "IN VAIN".For all that is left, is a bunch of baby's feeding off of their bottles, being held by a bunch of vermin they call their government. The Muslims will be changing your diapers soon enough, so stop crying.