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The Spectacle Blog
Earlier this afternoon, I had the chance to speak with Georgetown University law professor Randy Barnett about the status of the legal fight to overturn the national health care law in the wake of Judge Roger Vinson’s decision to strike down the individual mandate and void the rest of the legislation as a result.
Barnett testified at a Tuesday Senate Judiciary Hearing on the constitutionality of the law and his work was cited in Vinson’s ruling.
“Step by step, incrementally, these cases develop,” Barnett said. “The (Judge Henry) Hudson decision (in Virginia) was a big step, and Vinson’s decision was another huge step.”
Hudson’s decision was significant because it rattled those who had laughed off legal challenges to the health care law that they assumed would be thrown out of court as frivolous. But these supporters quickly dismissed Hudson as a lone partisan judge, and attacked the thinness of his opinion.
Now, Barnett said, “They can no longer dismiss the Hudson ruling as a one off event.” In addition, the Vinson decision was “substantial, deep, thoughtful and meant to be influential to the appeals court.”
He noted that for all the attacks on Vinson’s partisanship, the same judge threw out the states’ challenge to the Medicaid expansion.
While critics are still dismissing this second ruling against the mandate, Barnett said, “they’re whistling past the graveyard.”
Vinson’s decision went further than Hudson’s by voiding the entire law, rather than severing the mandate from the rest of the legislation. Liberals attacked this as extremist, citing a ruling on a Supreme Court case about the Sarbanes-Oxley law in which the court struck down one provision, but left the rest of the law intact. Chief Justice John Roberts wrote the opinion, a fact that was used to help portray Vinson as out of the mainstream.
“It’s only relevant in that it’s a severability case,” Barnett said of the Sarbanes-Oxley ruling. “There’s a tremendous difference between that case, about how members of a commission get appointed, and this case, when the government argued that (the mandate) was essential to the law.”
One of the lingering questions from Vinson’s decision is whether states can now choose not to implement the health care law. While Vinson did not explicitly grant an injunction, he said voiding the law was effectively the same.
Barnett said that the states who were parties to the case have a reasonable argument that they don’t have to implement any of the law’s provisions until a higher court rules otherwise.
Given the uncertainty, even Democratic Sen. Bill Nelson of Florida has introduced a resolution to call on the Supreme Court to expedite a hearing on the constitutionality of the law. But Barnett says the idea of the Supreme Court reviewing this early is a “1000 to 1 shot.”
The Supreme Court likes to watch arguments get refined as they move up the judicial ladder, he explained, noting that Vinson’s decision was deeper than Hudson’s because he had more time to grapple with the issues.
“I think the Supreme Court would want to hear from the courts of appeals,” he said.
I asked him whether, moving forward, the government would be inclined to deemphasize their argument about the mandate being essential to the law, given that Vinson used those arguments as his basis for voiding the entire legislation. But Barnett said they have to maintain their current posture.
“They have no choice,” he said, since the government’s entire argument hinges on the mandate being essential to a broader regulatory scheme.
He also said that there have been a number of developments that affect what he calls the “atmospherics” surrounding the case. While the Supreme Court is often reticent to overturn acts of Congress, the underlying reason is that they don’t want to override the will of the people. “They are just human beings, “ he said of the justices, and they don’t want to do anything that would be considered “way out of line.”
However, the fact that 27 states are suing the federal government over the law, and that following an election, the House of Representatives voted to repeal it by a larger majority than had passed it, helps to convince justices that they wouldn’t be out of line by voting to overturn the law.
While, in the past, states have signed on to amicus briefs against the federal government, Barnett said, “I don’ think it’s ever been the case that this many states have sued the federal government over a major piece of legislation.”
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JPM| 2.3.11 @ 5:08PM
Professor Barnet is mostly right, but he is quite wrong that only the states party to the Florida case are now released from all legal obligation to comply with implementation of Obamacare. Judge Vinson's ruling means that the DOJ can't base any argument on Obamacare in any court and that leaves Pelosi's folly very nearly dead. The government litigated the question of its validity and they lost -- res judicata. That means they can't collect taxes or fees authorized by Obamacare and the courts won't help them mandate compliance with any of its terms. Nobody who is not so inclined, has to pay the slightest attention to that misbegotten legislation unless the DOJ is successful on appeal. For the next couple of years Obamacare will be shadow legislation without any practical consequence. Let's hope Congress and a new President don't kill it before we get a landmark Supreme Court case limiting the scope of congressional power under the Commerce Clause.
Rick| 2.3.11 @ 5:41PM
Your a rasist!
Lullabys, Legends and Lies| 2.3.11 @ 6:16PM
Rick: Did you mean "you're a racist"? I "never" get the chance to correct anybody's spelling or grammar around here, but come on now Rick, your sentence was only three words long, and you got two of them wrong!! WTF?
JPM| 2.3.11 @ 6:30PM
I'm guessing he was going for a play on the word "res" as in res judicata. The problem is that "resist" doesn't work, hence "rasist." There's no obvious excuse for the "your." I'm sure it was funnier before the keyboard messed it all up.
Thom| 2.3.11 @ 5:59PM
“He noted that for all the attacks on Vinson’s partisanship, the same judge threw out the states’ challenge to the Medicaid expansion.”
Might I point out that the Judge threw it out because he thought they had a “choice” to withdraw from Medicaid to avoid having to implement that part of it but it strikes me that is the same concept when you tell a condemned person that they have a “choice” to die by lethal injection, firing squad, hanging, electrocution or plastic shredder. I’m sure there is some legal term for the nonsense this represents here but it should be sufficient to say that there is only one “people” under the law and if the Federal government takes your money to pay for something you opt out of then all your participation was doing to getting some of your money back. If the “several states” opt out of Medicaid reimbursements their “people’s” money is just redirected to some other benefactor but the same “people” keep supporting that which they do not get benefit from. I think I can make a common sense argument that this kind of behavior in the private sector gets you jail time.
Technically the “several states” have a choice just like that condemned person above and it is moot to the outcome of the central question at hand here.
martin j smith| 2.3.11 @ 6:27PM
Will Obama Obey the Law ? That is the question. If not: Impeachment is appropriate.
Pammy Faye| 2.3.11 @ 8:51PM
Will Obama obey the law? hahahahahahahaha
JPM| 2.3.11 @ 6:37PM
Impeachment may be appropriate but it isn't going to happen on these grounds. There is very little the President he can do to implement Obamacare. It's just twisting in the wind. If the GOP in Congress tried to make an impeachment case out of such trivia they'd just look foolish. Now if the administration tries to put someone in jail for failure to pay the tanning tax, that would be a different story. They won't be that stupid
NObamaCare| 2.3.11 @ 8:10PM
If we increase our lead in the House and take the Senate in 2012, we have a great chance to put the final nail in ObamaCare's coffin.
Consertive View| 2.4.11 @ 8:22AM
"If we increase our lead in the House and take the Senate in 2012,---"
I am not sure that in and of itself will be enough to secure the freedom of Americans. Granted it will kill Obamma Care, but I believe it is safe to assume that other laws every bit as objectional are right around the corner. What is needed perhaps is for the States to "grow a set."
The problem centers around the commerce clause in the Constitution. One of two things must happen. Either we eliminate the clause altogether, or somehow redefine commerce within the Constitution so narrowly that it can no longer be used as a peg to hang laws like Obamma Care upon. This will take State action as there is no way in hell Congress will limit its' own powers.
Killing off Obamma Care is all well and good, and must be done. Killing off the next vampire law that sucks the wealth from our pockets before it rises up to bite us is what is needed, and that will take the States to band together and force the change in our Constitution.
Consertive View| 2.4.11 @ 8:24AM
Nails in the coffin are good and necessary, a steak through the heart is what is required
Patriot| 2.4.11 @ 3:15PM
I don't think a T-bone or Porterhouse will do the job.
Indiana Alex| 2.4.11 @ 9:50AM
I'm wondering if there is also a challenge to this law based on equal protection given all of the waivers that have been granted.
ncatty| 2.4.11 @ 10:28AM
Good thought.
JP| 2.4.11 @ 9:54AM
I think the WH has an excellent arguement for fast tracking this case to SCOTUS. First of all, the stakes are very high. Currently, not only are 50 state budgets kept in limbo, but so are hundreds of thousands of businesses. This isn't any old law. Trillions in taxpayers monies, not to mention the allocation of hundreds of billions of dollars in Medicare and Medicaid revenues at stake. Besides the constitutional questions, there are serious fiscal and financial issues kept in limbo.
However, the political question looms large, as the 2012 election season is about to begin. Justice Roberts may not wish to give the impression that he is playing politics; giving the Circuit Court of Appeals a say may be good jurisprudence, but if that's the case SOCTUS will be rendering a decision no earlier than late Spring of 2012. Heck, they could wait to render an opinion after the summer recess. In that case, it becomes highly political.
President Obama is caught in a Catch-22. If he allows the case to work its way up the appeals process, and the Appeals Court agrees with Vinson there is very little chance SCOTUS will over turn the lower court's decisions. In that case, ObamaCare is DOA. Even if SCOTUS agrees just uphold the lower court's ruling on the mandate (that it is unconstitutional), ObamaCare will be rendered dead. Yes, the Dems could go ahead and continue on; but, without the mandate the entire project becomes a $2 trillion black hole. This would force Reid and Boehner to come up with a fix. Reid and his Senate Dems would be politically exposed, as they would get nearly all of the blame (as ObamaCare is really Max Baccus's baby).
Stan Redmond| 2.4.11 @ 10:18AM
Be afraid. Be very afraid. Remember Kelo VS. Connecticut and McCane - Feingold.
SCOTUS isn't too concerned with liberty and property rights (our bodies as are controlled by Obamacare).
Lazy Jack| 2.4.11 @ 11:09AM
One has to wonder what the other 23 states are thinking. Is the political class in each of those states so venal they are willing to sacrifice the constitutional foundation of this country to protect this horrid legislation despite the rights it takes away from their home state citizens? Vinson's ruling shreds the mandate as unconstitutional.
The horrid Kelo decision is evidence that SCOTUS could get this wrong. It is hard to imagine, though, that even all the leftist judges would ignore Vinson's repudiation of this indenture of every man woman and child in the U.S.
But, of course, we live in a time when musty old documents are just to obscure to understand, right? Shouldn't we let Jon Stewart write a new constitition? Don't we need something fresh? It would be wicked cool if all those nusty foundational concepts were updated with ammendments like this:
"All citizens have the right to be excellent to each other."
Special thanks to Bill and Ted's excellent adventure and Barack Obama's quote:
We need to internalize this idea of excellence. Not many folks spend a lot of time trying to be excellent.
One can never have too much erudition.
Lazy Jack
www.thanksforthelaughs.wordpress.com
http://thanksforthelaughs.word.....eadership/