Wednesday, December 15, 2010

Obamacare ruled unconstitutional

Obamacare is in legal trouble (Maverick2003)

In a welcome Christmas present to the majority of Americans who oppose President Obama’s health care reform law, a federal judge ruled the individual mandate to purchase health insurance unconstitutional this week.  US District Judge Henry Hudson declined to overturn the whole law, but said that requiring Americans to purchase health insurance “would invite unbridled exercise of federal police powers” as part of his 42-page ruling.

This is the third time that the health care law has had its day in court.  In October, a federal judge in Michigan ruled that a decision not to purchase health insurance was an activity that could “substantially affect interstate commerce” and could be regulated under the Constitution’s commerce clause.  In November, another judge in Virginia similarly found that the mandate was constitutional on the grounds that “Far from ‘inactivity,’ by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance.”  This meant that the commerce clause could be applied.

In contrast, Judge Hudson pointed out that the Democratic interpretation of the commerce clause was too broad.  “…  The same reasoning could apply to transportation, housing, or nutritional decisions.”  In other words, the government could solve the auto industry crisis by requiring everyone to buy a car, the homeless problem by requiring everyone to buy a house, and the obesity problem by requiring that everyone buy only healthy food.  If the government can force you to buy one product or service, there is no limit to what it can force you to do.

Additionally, Judge Hudson pointed out that requiring to Americans to engage in a private business transaction is unprecedented.  States require that drivers buy car insurance, but the health care mandate is different in several key points.  Auto insurance is not required for everyone; it is only required for people who want to operate vehicles on roads that are owned by the state.  Additionally, states are bound by their own constitutions and many of these do not have the same limitations of the US Constitution.

Judge Hudson also addressed the Administration’s claim that the individual mandate is constitutional under the government’s power to tax.  The mandate’s fine was clearly intended to be a punishment for not purchasing health insurance.  President Obama and other Democrats claimed before passage of the law that the fine was not a tax.  These claims were made in part because of President Obama’s promise not to raise taxes on middle and lower-income Americans.  Judge Hudson noted that the fine “lacks a bona fide intention to raise revenue” and therefore was not a tax.

There is yet another lawsuit winding its way through the courts as well.  In addition to Virginia’s suit, twenty states led by Florida are suing to overturn the law as well.  A federal judge in Florida had refused to throw out the case in October.  A hearing is scheduled for December 16.

Georgia is a party to the Florida lawsuit.  After (outgoing) Democratic Attorney-General Thurbert Baker refused to join the lawsuit, Republican Governor (also outgoing) Sonny Perdue was forced to appoint a Special AG to fight the law.

If the individual mandate is thrown out, then Obamacare will become unworkable.  The law’s mandates, such as not allowing insurance companies to turn away people who are already sick, would mean that health insurance would become either prohibitively expensive or unprofitable for insurance companies.  In the first case, people couldn’t afford it and there would be more uninsured.  In the second, there would soon be no insurance companies left to write policies.  Obamacare is already causing shortages of health insurance and rising health insurance premiums.  The government is already granting more and more exemptions from the health care law’s provisions.  It is becoming apparent that the law is an unpopular failure and a ruling against the mandate would speed its demise.

It is extremely likely that the case will eventually find its way to the Supreme Court.  A ruling there against Obamacare, while not assured, seems likely given the current makeup of the Court.  Interestingly, the recent rulings against Obamacare reflect a partisan bias by judges.  Both judges (George Steeh and Norman Moon) who upheld the law were appointed by President Clinton.  Both judges who ruled in favor of the challengers to the law were appointed by Republicans.  Roger Vinson was appointed by President Reagan and Judge Hudson was appointed by President George W. Bush.

This partisan divide underscores the key difference in judicial philosophy between Republicans and Democrats.  Democratic appointees typically favor activist judges who often rule the way they believe the law ought to be rather than how it is written.  In contrast, Republican appointees usually favor strict constructionists who rule based on actual wording of the law and the intent of Congress.  This means that Democratic appointees usually grant the government much more latitude to expand its control into American life.  It is yet another reason to consider party affiliation when voting.

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