The S&P Case-Shiller home price data for the first quarter of 2011 are so dreadful that nearly everyone agrees that the U.S. housing market is in the midst of a “double dip.” Curiously absent from many of these analyses is the role played by the federal government in helping to engineer a double-dip with its ill-devised homebuyer tax credit. Originally aimed only at first-time homebuyers and set to expire at the end of November 2009, the tax credit was later extended through the end of June 2010 and expanded to all homebuyers below certain income levels. The extension and expansion was attributed to the early “success” of the program, evidence for which consisted of nothing more than households’ willingness to accept free money from the government.
And these are the people who want to run the health care system. What possibly could go wrong?
Additional point, new Obama campaign slogan:
"Yes you can accept free money from the government."
One can certainly raise serious questions about whether the Republican plan is adequately funded and, over time, would shift too much of the financial burden to beneficiaries. One could also question whether the elderly would be eager to navigate different choices for their health-care coverage, compared to the much simpler system that now exists. There are certainly details in the GOP plan, which has not been drafted as actual legislation, that need to be addressed. But Wasserman Schultz is jumping to conclusions — not to mention scaremongering metaphors — to describe provisions in the GOP Medicare plan that just do not exist.
Several readers wrote to me asking me to post on this. It certainly is worth noting, because Elena Kagan's involvement or not in whatever Obamacare appeals make their way to the Supreme Court could make a difference.
Justice Kagan did not recuse herself from consideration of Virginia's request for the Supreme Court to take Virginia's case before the 4th Circuit ruled, leading many to conclude that Kagan perceived no conflict which would require her to recuse herself from the case. By contrast, Kagan did not participate in the decision yesterday involving the Arizona E-Verify law, because of her prior involvement in the issue when she worked as Solicitor General for Obama.
Judicial Watch, however, has uncovered e-mails which show that Kagan was involved at some level with the framing of Obama's legal strategy on Obamacare:
According to a January 8, 2010, email from Neal Katyal, former Deputy Solicitor General (and current Acting Solicitor General) to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan was involved in the strategy to defend Obamacare from the very beginning:
Subject: Re: Health Care Defense:
Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues…we will bring in Elena as needed. [The “set of issues” refers to another email calling for assembling a group to figure out “how to defend against the…health care proposals that are pending.”]
On March 21, 2010, Katyal urged Kagan to attend a health care litigation meeting that was evidently organized by the Obama White House: “This is the first I’ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”
In another email exchange that took place on January 8, 2010, Katyal’s Department of Justice colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to Obamacare. “Could you figure out the right person or people for that?” Hauck asked. “Absolutely right on. Let’s crush them,” Katyal responded. “I’ll speak with Elena and designate someone.”
Kagan needs to step aside from consideration of any matters involving Obamacare. Unlike the hyper-ventilated accusations against Clarence Thomas because of his wife's political activities, the conduct here involves Kagan personally and the subject matter of the litigation.
The impact of having Kagan recused is important, but only really comes into play if Anthony Kennedy votes with the liberals, or there is not a typical conservative-liberal split. Assuming the usual 4-4 with Kennedy casting the winning vote, Kagan's absence will not matter if Kennedy votes to strike down the Obamacare mandate.
But, if Kennedy voted to uphold the mandate, and Kagan were recused, there would be a 4-4 split, which means that the lower court holding would prevail. Since we don't know how the appeals courts will rule, this does not result in a predictable outcome on the merits.
Beyond the end result, it is important for Kagan to recuse herself because while the nation does not have to agree with Supreme Court decisions, it is important that the decisions not be seen as tainted by prior activities of one of the Justices with regard to the subject matter of the decision.
Unlike the children who run the Democratic Party, Clinton recognizes that Medicare and other entitlements must be reformed, and that the Democratic Party is harming the country by making "do nothing" the main focus of Democratic Party campaign strategy:
But ABC News was behind the scenes with the Wisconsin Congressman and GOP Budget Committee Chairman when he got some words of encouragement none other than former President Bill Clinton.
"So anyway, I told them before you got here, I said I’m glad we won this race in New York," Clinton told Ryan, when the two met backstage at a forum on the national debt held by the Pete Peterson Foundation. But he added, “I hope Democrats don't use this as an excuse to do nothing.”
Ryan told Clinton he fears that now nothing will get done in Washington.
“My guess is it’s going to sink into paralysis is what’s going to happen. And you know the math. It’s just, I mean, we knew we were putting ourselves out there. You gotta start this. You gotta get out there. You gotta get this thing moving,” Ryan said.
Clinton told Ryan that if he ever wanted to talk about it, he should “give me a call.” Ryan said he would.
This analysis by Nate Silver of how Republicans may reach a "tipping point" on the Ryan budget as there begins a trickle of defections, and how damaging Scott Brown's Politico op-ed was (emphasis mine):
More recently, Senator Scott Brown, the Massachusetts Republican who faces an intrinsically tough re-election battle next year despite his strong personal popularity, made a show of coming out against the bill with a long commentary in Politico yesterday. I don’t know why Mr. Brown chose that particular forum; it is among the most important reads of the morning for thought leaders on Capitol Hill, but is less important for the voters who will actually decide his race next year. (For some reason, candidates seem compelled to draw attention to their most challenging decisions — another example is Blanche Lincoln and her health care vote.) Even so, Mr. Brown’s announcement will make some Republican chiefs of staff very nervous.
In an editorial, the Washington Examiner notes that Brown has joined a Republican circular firing squad:
Of the three men's criticisms, Brown's are the most disappointing. They sound less like genuine objections than excuses for a "no" vote that Brown believes to be politically expedient.
I cannot emphasize enough that the issue is not that Brown will vote against the Ryan budget. As Silver and the Washington Examiner note, the problem for Republicans is the way in which it was done, in a very a public shot fired across the bow of fellow Republicans.
While I doubt that Brown's op-ed itself influenced the loss in NY-26, it fits a false narrative that we can muddle along with just a few tweaks to the current system, and that the changes proposed by Republicans put seniors more at risk.
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President Barack Obama's main idea for getting quality health care at less cost was in jeopardy Wednesday after key medical providers called his administration's initial blueprint so complex it's unworkable.
Just over a month ago, the administration released long-awaited draft regulations for "accountable care organizations," networks of doctors and hospitals that would collaborate to keep Medicare patients healthier and share in the savings with taxpayers. Obama's health care overhaul law envisioned quickly setting up hundreds of such networks around the county to lead a bottom-up reform of America's bloated health care system.
But in an unusual rebuke, an umbrella group representing premier organizations such as the Mayo Clinic wrote the administration Wednesday saying that more than 90 percent of its members would not participate, because the rules as written are so onerous it would be nearly impossible for them to succeed.
Further, if ACOs are not successful, we are concerned that the only alternative to future delivery system "reform" will be draconian cuts across the provider spectrum.
[And now I anxiously await the "oh yes he does" comments.]
Update [part of original post]:SoccerDad reminds me that there is a chart which makes it all clear:
ScotusBlog is reporting that the U.S. Supreme Court, without any dissents noted, has passed on the application of the State of Virginia for expedited review of the case now on appeal to the 4th Circuit. The District Court in Virginia had ruled the health care mandate unconstitutional.
I very much would have liked the Supreme Court to take the case because politically a relatively prompt resolution is important, but from a legal and case management perspectives, I understand why the high court might want to wait.
First, the Virginia case is not the only case, and not even the case with the most states involved. To take one case, while others are pending elsewhere, might not make sense.
Second, while there has been a split of opinion at the trial court level, no appeals court has yet ruled. If the appeals courts resolve the issue uniformly (unlikely in my view), the Supreme Court may not need to get involved.
Third, the mandate is not yet in effect, and will not take effect until 2014, so there is time for the Supreme Court to see how things play out.
Fourth, depending upon what happens in the political sphere, the mandate may become moot.
Again, I wish the Court had taken the case and expedited appeals of other pending cases. I view this decision to pass on the case as the Supreme Court not wanting to preempt the political process, unless and until the issue cannot be avoided constitutionally.
You think dealing with insurance companies is hard, at least you have choices, for now.
Once government takes over, you get what you get, just like at the airports now. And fighting with an insurance company may land you in court, but fighting with the government may land you in jail.
"Government continues to struggle with the most mundane of tasks, including counting votes. Yet many people want it to take on vastly more sophisticated projects, like running health care."
Washington, D.C. is shocked to find that AARP may have had a financial incentive to push Obamacare:
"The report also details the Democrats’ health care law’s significant cuts to Medicare Advantage (MA) and how the interplay in the marketplace between MA and Medigap will increase Medigap sales. This will have a direct, significant, and positive impact on future profits at AARP. Also troubling is the report’s central finding: The Democrats’ health care law, which AARP strongly endorsed, could result in a windfall for AARP that exceeds over $1 billion during the next 10 years."
But you knew that, because I posted about it on September 30, 2009, AARP Shills for Kennedy:
The role of AARP in supporting Democratic party proposals has received some attention, but not nearly enough. AARP presents itself as a neutral organization interested in the welfare of seniors, but in fact, AARP has extensive financial interests in promoting its affiliate insurance plans.
ARP only nominally is a senior citizen interest group. In fact, it is a product-selling machine, and among the many products it offers through marketing deals are insurance plans. Much like Consumers Union, which has shilled for the Democratic Party's proposals, AARP is a financial conglomerate which misuses its purported non-partisan stature to its own financial benefit.
The AARP and AMA statements are political statements, divorced from any reality as to what is in these bills. The AARP and AMA have made Democratic friends on Capitol Hill, but at the cost of selling out their own members and the American people.
Congratulations Senior Citizens. Your self-appointed advocate, AARP, has intervened again in favor of Democratic health care restructuring proposals ... In the meantime, read my prior posts on the insidious roles played by tax-exempt organizations, such as AARP and Consumers Union, in raising taxes on the rest of us.
It is time to hold all institutions -- not just for-profit corporations -- which helped pass Obamacare to account for what they did. AARP, Consumers Union, and the AMA would be a good start.
I appeared yesterday as a guest of Mark Carbonaro of KION 1460 in Monterey, California, to talk about the March 3, 2011 decision of Judge Roger Vinson in Florida granting a stay of his prior health care ruling which had held the health care mandate to be unconstitutional. Judge Vinson conditioned the stay on the government seeking an expedited appeal. Here is the audio (includes commercial breaks):
That seems to be the import of the ruling by federal Judge Gladys Kessler in upholding the Obamacare mandate in a suit brought by a group of private plaintiffs in Mead v. Holder (pg. 45, emphasis mine):
As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress’s power....However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.
Our thoughts are now actions. There literally is nothing the federal government cannot regulate provided there is even a hypothetical connection to the economy, even if the connection at most is in the future.
Our thoughts are now actions. Whoops, I already said that. I just can't get over it. The following sentence has now become a justification for regulating decision-making even where the decision is just to do nothing:
The Congress shall have power.... To regulate commerce with foreign Nations, and among the several States, and with the Indian tribes;
I think I'm going to be ill. Which of course, is now subject to regulations to be promulgated by the Secretary of Health and Human Services.
More analysis by Aaron Worthing at Patterico, where Patrick Frey has decided to take a short break from blogging, which means he has decided not to engage in economic activity and thereby subjected himself to federal regulation.
And even more analysis at Volokh Conspiracy, where Orin Kerr has decided not to take a break from blogging, and thereby subjected himself to federal regulation.
Alternative post title: "Damned if you do, damned if you don't."
Another alternative post title: "Sometimes I sits and thinks and sometimes I just sits. (Not anymore, get up, that's an order.)"
Update 2-24-2011 - Reader David e-mailed to point out that as I originally quoted the Commerce Clause, I neglected to put an initial capitalization on "States" which he believes has significance in the text. The quote has been corrected.
We have seen the future of the health care system, and it is the doctors on the streets of Madison, Wisconsin, handing out free sick notes to public sector union members so they can fraudulently collect their pay for missing work.
Boy, oh boy, I can't wait for Obamacare. Politicized medicine, massive fraud in the name of progressive politics, and a callous disregard for the law free from fear of prosecution for those aligned with the Democrats.
Jennifer Rubin makes the argument that Mitt Romney was the big loser at CPAC because Romney failed to address Romneycare, contributing to the narrative that Romney has no politically good explanation.
Romney has a huge problem that a wide array of Tea Partyers, Republican activists and officials, and conservative operatives think he can't overcome: RomneyCare. He leads in polls a year before the first primary because of name recognition. So did Rudy Giuliani at the same point in the 2008 election cycle....
However, if there is one point of consensus among plugged-in Republicans on the 2012 field, it is that Romney can't win unless he does a mea culpa on RomneyCare. Since he didn't and he won't do that, he's not going to be the nominee. Other than Romney admirers (and even some of them!) it's hard to find serious Republican players who disagree with that.
NiceDeb has a video and summary of Romney's speech at CPAC, and gives the speech good reviews:
"Is it time to take another look at Mitt? He had mojo this morning at CPAC…He was loose and relaxed, and won the crowd over with great speech with many memorable lines...."
I met Romney once, when I was in law school and he was recruiting for Bain. The guy was tremendously impressive, and I think he has the potential to be tremendously impressive in a campaign. I want to like him as a candidate and to be able to support him (depending upon who else is running, of course).
But there is this elephant in the room that he doesn't seem to want to address in a manner that will appeal to voters or faces reality.
Regardless of what else Romney says, he needs to address the Romneycare issue with more than nuanced constitutional arguments about how it is one thing for states to experiment and another thing for the federal government to overstep its authority. I agree! But ....
We like people who admit they were wrong. Everybody is wrong eventually, and politicians doubly so. Romneycare can be forgiven if it is acknowledged to have been a mistake from which lessons have been learned.
I made this suggestion on December 1, that Romney become the Responsibility Candidate with a speech similar to the following:
"To err is human. I had what at the time seemed like a good idea as to how to expand health care coverage, but it turned out wrong. I'll take part of the blame, but others who acted beyond my control also share in the blame. The key thing is to learn from mistakes, not to compound them. That is a lesson I have learned."
"Unfortunately, the Obama administration does not learn from its mistakes. Stimulus, health care, debt, deficits, spending out of control. The response is a refusal to learn from mistakes or to accept responsibility, at all."
"You have a choice in this election. Elect a President who learns from mistakes and accepts responsibility, or re-elect a President who is incapable of learning from mistakes or accepting responsibility. The choice is yours."
The readers took a dim view of such an approach two months ago, mostly because they had a dim view of Romney.
Regardless of whether you support Romney or not, wouldn't it be better for him just to acknowledge the error? And doesn't it become more of an issue the longer it is not acknowledged?
Obama ran for office on opposition to the individual mandate, then made it the centerpiece of his signature legislative initiative. Perhaps this should have been "lie of the year." At PolitiFact.com, it wasn't even a runner-up.
The current Democratic House bill on health care includes fines to force people to purchase health insurance, which is consistent with Barack Obama's current position on mandates. This type of coercion, however, was criticized by Obama during the campaign, when he attacked Hillary Clinton's health insurance plan because Hillary's plan mandated universal coverage through fines and other mechanisms which forced people to buy coverage ..."
And again in March 2010, as the House was approaching its vote on the Senate Obamacare bill, Obama's Mandate Head Fake:
There is no more pernicious aspect of the pending health care bills (Senate, House and Obama "proposal") than the mandate....
There was a time when Obama was against a mandate. That was when he was running against Hillary Clinton, who supported mandates.
Here is the videotape of Obama hammering Hillary not only over the mandate but also over the use of fines to enforce the mandate:
This video is one of the most damning pieces of evidence of the deception of the Obama campaign.
The thing about Hillary was that you could disagree with her, but you knew where she stood. Hillary didn't try to fool anyone during the campaign.
If Hillary were President and we had a mandate, at least she would not have lied us into it.
Everyone is all excited because some South Dakota legislators have proposed a mandate requiring each citizen to own a gun (h/t reader Brian):
Five South Dakota lawmakers have introduced legislation that would require any adult 21 or older to buy a firearm “sufficient to provide for their ordinary self-defense.”
The bill, which would take effect Jan. 1, 2012, would give people six months to acquire a firearm after turning 21. The provision does not apply to people who are barred from owning a firearm.
Nor does the measure specify what type of firearm. Instead, residents would pick one “suitable to their temperament, physical capacity, and preference.”
The measure is known as an act “to provide for an individual mandate to adult citizens to provide for the self defense of themselves and others.”
They have left out one thing, which was proposed here by a reader10 months ago, a Guns and Tobacco Mandate:
Mandate that all US citizens must annually purchase one handgun, rifle, or shotgun.
While we're at it, everyone should be required to purchase 2 packs of cigarettes a week. Smoking them, of course, will be illegal.
The Guns & Tobacco proposal was subjected to a constitutional analysis here using the approach of Obamacare supporters to court challenges to thehealth care mandate, with the conclusion that if the Obamacare supporters were right, the Guns & Tobacco Mandate was constitutional:
Under the legal reasoning of the supporters of the health care mandate, I believe the Guns & Tobacco Mandate would pass constitutional muster.
The right to keep and bear arms specifically is protected by the Second Amendment to the Constitution. Since firearms are manufactured using metals and other materials shipped in interstate commerce, and are shipped across state lines, the federal government has a legitimate interest in regulating such activities, consistent with the Second Amendment. The mandated purchase of firearms would help maintain a well-functioning national weapons manufacturing and sales market, and thereby would further a legitimate governmental purpose.
As to tobacco, the fertilizer used to grow the tobacco is shipped in interstate commerce, as are the leaves for processing and manufactured end product. The ban on smoking the product once purchased also would be constitutional, since smoking contributes to health care costs which are assumed or subsidized by the federal government. Since heavy taxes are levied on tobacco, including taxes used to fund health care services, the government has a legitimate purpose in maintaining a steady flow of purchases and making sure the cancer sticks were not smoked.
Although not stated in [the reader's] proposal, I believe it is implicit that in the event a citizen or alien lawfully present in the United States failed to make such purchases, there would be a tax imposed based upon how evil the person was, as expressed numerically by his or her adjusted gross income.
Hence, the Guns & Tobacco Mandate really is just a tax, so it's all good.
Fortunately, based on Judge Vinson's ruling yesterday, the Obamacare supporters are not right; so mandating the purchase of health insurance, guns or tobacco remains beyond the power of the federal government. For now.
Federal Judge Roger Vinson of the Northern District of Florida, in a lawsuit by 26 state attorney generals, has held that Obamacare is unconstitutional. Judge Vinson first found that the mandate was unconstitutional, and then found that the mandate could not be severed from the rest of the law, requiring that the entire law be deemed unconstitutional.
Judge Vinson found that there was no need for an injunction, since the declaratory judgment that the entire law was invalid was sufficient. In effect, there is nothing left to enjoin, since no part of the law survived. By contrast, in the ruling in Virginia last year invalidating the mandate, the Judge severed the mandate from the rest of the law (but denied an injunction preventing the rest of the law from taking effect).
Here is the key language from the Order showing that Judge Vinson expects the federal government to obey the declaration that the law is unenforceable in its entirety:
"...there is a long-standing presumption “that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction.” See Comm. on Judiciary of U.S. House of Representatives v. Miers, 542 F.3d 909, 911 (D.C. Cir. 2008); accord Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 n.8 (D.C. Cir. 1985) (“declaratory judgment is, in a context such as this where federal officers are defendants, the practical equivalent of specific relief such as an injunction . . . since it must be presumed that federal officers will adhere to the law as declared by the court”) (Scalia, J.) (emphasis added).
There is no reason to conclude that this presumption should not apply here. Thus, the award of declaratory relief is adequate and separate injunctive relief is not necessary."
In this sense, this decision is far more sweeping than the Virginia case, and presents a greater problem for the Obama administration which arguably does not have authority to implement any aspect of Obamacare.
Here is the conclusion of the Order (emphasis mine):
"The existing problems in our national health care system are recognized by everyone in this case. There is widespread sentiment for positive improvements that will reduce costs, improve the quality of care, and expand availability in a way that the nation can afford. This is obviously a very difficult task. Regardless of how laudable its attempts may have been to accomplish these goals in passing the Act, Congress must operate within the bounds established by the Constitution. Again, this case is not about whether the Act is wise or unwise legislation. It is about the Constitutional role of the federal government.
For the reasons stated, I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate. That is not to say, of course, that Congress is without power to address the problems and inequities in our health care system. The health care market is more than one sixth of the national economy, and without doubt Congress has the power to reform and regulate this market. That has not been disputed in this case. The principal dispute has been about how Congress chose to exercise that power here.
Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void. This has been a difficult decision to reach, and I am aware that it will have indeterminable implications. At a time when there is virtually unanimous agreement that health care reform is needed in this country, it is hard to invalidate and strike down a statute titled “The Patient Protection and Affordable Care Act.” ...
In closing, I will simply observe, once again, that my conclusion in this case is based on an application of the Commerce Clause law as it exists pursuant to the Supreme Court’s current interpretation and definition. Only the Supreme Court (or a Constitutional amendment) can expand that.
For all the reasons stated above and pursuant to Rule 56 of the Federal Rules of Civil Procedure, the plaintiffs’ motion for summary judgment (doc. 80) is hereby GRANTED as to its request for declaratory relief on Count I of the Second Amended Complaint, and DENIED as to its request for injunctive relief; and the defendants’ motion for summary judgment (doc. 82) is hereby GRANTED on Count IV of the Second Amended Complaint. The respective cross-motions are each DENIED.
In accordance with Rule 57 of the Federal Rules of Civil Procedure and Title 28, United States Code, Section 2201(a), a Declaratory Judgment shall be entered separately, declaring “The Patient Protection and Affordable Care Act” unconstitutional."
Judge Vinson rejected the argument that the mandate was a tax (footnote 4 of the Order): :
"I previously rejected the defendants’ argument that this penalty was really a tax, and that any challenge thereto was barred by the Anti-Injunction Act. My earlier ruling on the defendants’ tax argument is incorporated into this order and, significantly, has the effect of focusing the issue of the individual mandate on whether it is authorized by the Commerce Clause. To date, every court to consider this issue (even those that have ruled in favor of the federal government) have also rejected the tax and/or Anti-Injunction arguments."
While granting the States' claims as to the mandate, Judge Vinson rejected the claim that the expansion of Medicaid was unconstitutional:
For this claim, the state plaintiffs object to the fundamental and “massive” changes in the nature and scope of the Medicaid program that the Act will bring about. They contend that the Act violates the Spending Clause [U.S. Const. art. I, § 8, cl. 1] as it significantly expands and alters the Medicaid program to such an extent they cannot afford the newly-imposed costs and burdens. They insist that they have no choice but to remain in Medicaid as amended by the Act, which will eventually require them to “run their budgets off a cliff.” This is alleged to violate the Constitutional spending principles set forth in South Dakota v. Dole, 483 U.S. 203, 107 S. Ct. 2793, 97 L. Ed. 2d 171 (1987), and in other cases....
In considering this issue at the motion to dismiss stage, I noted that state participation in the Medicaid program under the Act is --- as it always has been --- voluntary. This is a fundamental binary element: it either is voluntary, or it is not.
While the state plaintiffs insist that their participation is involuntary, and that they cannot exit the program, the claim is contrary to the judicial findings in numerous other Medicaid cases...
In short, while the plaintiffs’ coercion theory claim was plausible enough to survive dismissal, upon full consideration of the relevant law and the Constitutionalprinciples involved, and in light of the numerous disputed facts alluded to above, I must conclude that this claim cannot succeed and that the defendants are entitled to judgment as a matter of law."
As to the mandate, Judge Vinson focused on the issue of activity versus inactivity, finding the Commerce Clause did not extent to regulation of inactivity (i.e., the failure to purchase insurance):
"Furthermore, there is a simple and rather obvious reason why the Supreme Court has never distinguished between activity and inactivity before: it has not been called upon to consider the issue because, until now, Congress had never attempted to exercise its Commerce Clause power in such a way before....
It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel in otherwise passive individual into a commercial transaction with a third party merely by asserting --- as was done in the Act --- that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation
which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain ..."
Judge Vinson rejected each of the arguments -- such as that everyone eventually gets sick -- used to try to justify the regulation of inactivity, finding that it was speculative and piling inference upon inference to try to tie a particular person's failure to have insurance to the overall regulation of health care.
As to severability, Judge Vinson found the mandate could not be severed, and place some weigh on the fact that there was no severability clause in the legislation:
"The lack of a severability clause in this case is significant because one had been included in an earlier version of the Act, but it was removed in the bill that subsequently became law. In other words, the severability clause was intentionally left out of the Act. The absence of a severability clause is further significant because the individual mandate was controversial all during the progress of the legislation and Congress was undoubtedly well aware that legal challenges were coming. Indeed, as noted earlier, even before the Act became law, several states had passed statutes declaring the individual mandate unconstitutional and purporting to exempt their residents from it; and Congress’ own attorneys in the CRS had basically advised that the challenges might well have legal merit as it was “unclear” if the individual mandate had “solid constitutional foundation.” ...
In light of the foregoing, Congress’ failure to include a severability clause in the Act (or, more accurately, its decision to not include one that had been included earlier) can be viewed as strong evidence that Congress recognized the Act could not operate as intended without the individual mandate.
Moreover, the defendants have conceded that the Act’s health insurance reforms cannot survive without the individual mandate, which is extremely significant because the various insurance provisions, in turn, are the very heart of the Act itself..."
In case you were wondering, all opinions and views expressed on this blog are my own, and do not represent the views of any employer or other organization.
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