Monday, January 31, 2011

Whatever Happened to "No Legislating from the Bench"?

I guess when far right Republican appointed judges issue opinions that makes teabaggers jump for joy, it's A-O-K.

A federal district court judge in Florida ruled today that a key provision in the new health care law is unconstitutional, and that the entire law must be voided.

Roger Vinson, a Ronald Reagan appointee, agreed with the 26 state-government plaintiffs that Congress exceeded its authority by passing a law penalizing individuals who do not have health insurance.

"I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate," Vinson writes. "Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void."

Even if it has no real legal footing.

The judge has the chutzpah to cite McCollough v. Maryland:
[S]hould congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land. McCulloch, supra, 17 U.S. at 421, 423.
Is the individual mandate "prohibited" by the Constitution? Is it being use to accomplish an object not intrusted to the government? This citation is nonsensical. The judge argues:
[T[he means used to serve [the health bill's] end must be “appropriate,” “plainly adapted,” and not “prohibited” or inconsistent “with the letter and spirit of the constitution.” [.. .] The Necessary and Proper Clause cannot be utilized to “pass laws for the accomplishment of objects” that are not within Congress’ enumerated powers. As the previous analysis of the defendants’ Commerce Clause argument reveals, the individual mandate is neither within the letter nor the spirit of the Constitution.
This reasoning turns McCollough on its head. The issue is not whether the Constitution empowers Congress to enact an individual mandate, but rather whether the object of Congress' use of the individual mandate is a purpose permitted by the Constitution. The judge concedes the object is Constitutional and that the Constitution does not prohibit an individual mandate. Thus, the reasoning even this judge applies compels a finding that the individual mandate is in fact constitutional.
In the end, the judge bootstraps the individual mandate to declare the entire health bill unconstitutional because, the judge argues, the mandate is essential to the functioning of the entire scheme. How this squares with the mandate not being "necessary and proper" is beyond me.
The decision however, has a better chance of succeeding in higher courts precisely because of the non-severability decision. The insurance companies will be happy with this decision, as opposed to the Virginia decision which struck down the mandate but not the health bill.
That said, I doubt any of these decisions survive.

Believe it or not, there is precedent for this. In the past, hard-right conservative judges struck down the Voting Rights Act, Civil Rights Act, Minimum Wage, and even Social Security, only for The Supreme Court to later rule all these bills Constitutional and upheld them as law of the land.

And hopefully, this will come to pass again.

The [Commerce C]lause as written gives Congress the power to regulate economic decisions and there is a long line of Supreme Court cases that reinforce Congress’ broad power to enact laws that substantially affect prices, marketplaces, or other economic transactions. Health care comprises some 17 percent of the national economy and the failure to purchase health insurance — the very passivity that Vinson is referring to — is having a significant impact on national health care spending and growing costs.

But this too is an argument that he rejects. “If impact [of the uninsured] on interstate commerce were to be expressed and calculated mathematically, the status of being uninsured would necessarily be represented by zero. Of course, any other figure multiplied by zero is also zero. Consequently, the impact must be zero, and of no effect on interstate commerce.” Caring for the uninsured, in other words, is free and creates no cost shifts throughout the system.

That’s just not true (doctors and hospitals and treat the uninsured for free) and the argument unravels further when Vinson completely dismisses the Necessary and Proper Clause by arguing that it’s subservient to the Commerce Clause. That Clause, Vinson writes “is not really a separate inquiry, but rather is part and parcel of the Commerce Clause analysis as it augments that enumerated power by authorizing Congress ‘To make all Laws which shall be necessary and proper’ to regulate interstate commerce.”

This is the kind of distortion that really undermines the entire decision and sets Vinson apart as an activist who has decided that Congress has no power to regulate insurance companies, establish exchanges, extend drug discounts to seniors, and give small businesses tax credits to help purchase insurance are all unconstitutional. Conservatives should be outraged.

Isn't it funny how teabaggers often praise The Constitution... Except when they don't like it? The Commmerce Clause was included in Article I, Section 8, for a reason. Congress has the authority to make laws to ensure a fair and orderly marketplace. And in this case, Congress passed health care reform last year to make health care more affordable and accessible. There's really nothing in The Constitution making this "illegal", and teabaggers are really grasping at straws in hoping that these overtly political decisions from a small handful of "activist" conservative judges are somehow upheld.

Let's see what The Supreme Court Justices have to say when this case ends up in their hands.

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