Yes! ObamaCare is unconstitutional

On Monday, U.S. District Court Judge Roger Vinson issued a 78-page ruling finding the Patient Protection and Affordable Care Act – more commonly known as “ObamaCare” – to be unconstitutional. His ruling goes beyond even that issued in December by Judge Henry Hudson in another suit challenging the law, brought by Virginia’s attorney general.  

One has to search long and hard before one finds a federal case declaring an act of Congress unconstitutional because it exceeded the so-called “commerce clause” powers afforded the Congress in Article I of the Constitution.  But this latest decision found this to have been precisely the case.  This is a welcome decision and one long overdue.  We can only hope that Judge Vinson’s sound constitutional analysis is upheld when the U.S. Supreme Court decides this matter, as it almost certainly will in the near future.  If it does, the constitutional principle of limited and enumerated federal government powers will have had some real life breathed back into it. 

Judge Vinson’s opinion was based on a lawsuit filed immediately after President Obama signed the legislation into law last spring, by Florida Attorney General Bill McCollum and attorneys general representing a dozen other states.  The essential thrust of the lawsuit was that the law’s so-called “individual mandate” requiring every American to maintain government-defined, minimum health insurance coverage or pay a punitive tax, was unconstitutional; in violation of the Commerce Clause found in Article I, Section 8 of the Constitution. By the time Vinson issued his ruling earlier this week, 13 more states joined the lawsuit – bringing the total to 26 states; more than half the country. 

Vinson laid out his ruling eloquently — masterfully deconstructing the Obama Administration’s arguments in support of the law one by one. He was careful to point out that his ruling was not about the health care policy implications of the law; but was based instead on the “very important issues regarding the Constitutional role of the federal government”; in a word, federalism. 

On the administration’s attempt to pass the individual mandate off as a reasonable use of the Commerce Clause, Vinson wrote, “Here, people have no choice but to buy insurance or be penalized. And their freedom is actually more restricted as they do not even have a choice as to the minimum level or type of insurance to buy because Congress established the floor. A single twenty-year old man or woman who only needs and wants major medical or catastrophic coverage, for example, is precluded from buying such a policy under the Act.” 

Vinson also noted in his ruling that Obama himself was dismissive of the individual mandate; pointing to comments Obama made in 2008 on CNN’s American Morning where he argued against the health care plan of his then-Democratic primary opponent, Hillary Clinton.  The plan Obama ridiculed at that time would have required all Americans to purchase health insurance. As Obama explained, “[I]f a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house.”  

Words once spoken have a nasty habit of finding their way back around to you when you later shift positions. 

Strangely, when it considered and passed the legislation last year, the Congress failed to include a severability clause in the legislation – language that would allow other sections to remain in effect if one or more provisions were found to be invalid.  This error came back to bite the law’s supporters hard.  Judge Vinson concluded that the unconstitutionality of the individual mandate was essential to the law, because it is “inextricably bound together in purpose and must stand or fall as a single unit.” In other words, the entire law is null and void; and the administration cannot continue implementation until a stay is ordered by the Eleventh Circuit Court of Appeals here in Atlanta. 

Not surprisingly, it appears the Obama Administration has no intention of complying with Judge Vinson’s ruling.  In this arrogant attitude, Obama is acting as did one of his predecessors — Andrew Jackson — who once thumbed his nose at the Supreme Court when it issued an opinion with which he disagreed; saying, “[Chief Justice] John Marshall has made his decision; now let him enforce it.” 

It remains unclear at this point whether the High Court will agree with Judge Vinson’s stellar ruling.  Some “conservative” justices on the Court, such as Antonin Scalia, for example, have in recent years declared government overreaching under the Commerce Clause to be appropriate in a number of highly questionable circumstances. 

But at least for now, those of us who believe in the Constitution, and in the limited system of federal power it constructed, can let out a rousing cheer for Judges Vinson and Hudson.

- by Bob Barr, The Barr Code

143 comments Add your comment

Stephen A. Land

February 2nd, 2011
5:29 am

This is another attempt to reverse all the holdings of all kinds of cases arising during and after the New Deal affirming the national government’s authority to regulate commerce among the States. It is salutary to remember that the “commerce clause” refers to commerce AMONG the states, not between them. It does not say interstate commerce. The Supreme Court did hold various attempts ny Congress to regulate commerce unconstitutional in the 1930’s, most famously the NRA. But there was a judicial revolution against that kind of thinking when one justice changed his vote and several acts were upheld, including the Fair Labor Standards Act (FLSA) and the Agricultural Adjustment Act (AAA). Justice Clarence Thomas has made comments that he would reverse all the cases settled in the 1930’s and 1940’s. He certainly is one of the worst justices ever to sit on the Court, but his opinion might be shared by Justice Scalia, whose legal principles seem to be governed by a political philosophy and not the law, just like th write of this article. Any Court that could come up with the Bush vs. Gore decision is to be feared.
I have been a lawyer for a long time and studied this issue in depth while in law school and afterward. Every time a case like this comes up everone should realize that the Supreme Court is a political institution that is not entitled to any more respect than the Congress or the presidency. The Court uses the Constitution to reach political, not legal decisions. If the public really understood this it might not permit it, and individual judges, to substitute their own opinions for those of their elected re4spresentatives. After all, there is nothing in the Constitution that expressly or impliedly gives any Court the right to hold an Act of Congress unconstitutional. That right was an act of judicial usurpation around two hundred years ago by Justice John Marshall. AS President F. D. Roosevelt said, the Constitution is not a frozen document but has to change with the times. We cannot go back to the horse and buggy days, however much the right wing prattles about small government. We do not have fifty economies but one.

[...] Gouverneur TimesFlorida, Other States Mull Next Step in Health Care LawsuitSunshine State NewsAtlanta Journal Constitution (blog) -TIME (blog) -New York Timesall 2,662 news [...]

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Tracy

February 2nd, 2011
6:08 am

Looking at this healthcare bill from a neutral clear headed point of view (something most people can not do because they’re too biased towards one Party platform)…

Your “barely” middle class person who couldn’t afford insurance before still won’t be able to afford it, but now they’ll get fined. So they’re actually worse off now.

Sure, there’s a chance their job might start providing it, but the fines for employers who meet the requirements to provide it are less than giving it, so odds are many will accept the fine. They might reduce hours or cut a few jobs to cover the extra charge though.

From a “getting people coverage” point of view, the only way I see this healthcare bill helping is if people exploit it. Expoit meaning…..once they can no longer deny any and can’t deny pre-existing conditions, someone needing an expensive medical procedure will buy one month, get fixed up, then drop the coverage. They’ll accept the fine for not having insurance the rest of the year.

It’s not that they’re doing this out of malice to screw the insurance company, but they’re in a situation where they can’t afford to stay covered year around, but need medical help.

This in turn will cause the average rates of insurance to increase, which will cause more people not to be able to afford it. Then they’ll take the fine, buy a month when needed, causing a nasty cycle of ever increasing insurance rates.

The upper class can afford insurance, the lower class can get free medical help. This healthcare bill does very little towards actually helping the middle class. It’ll help some, but it’ll also hurt many.

Even if you are in full support of healthcare reform and helping more people get access to medical help, this bill will not achieve that result.

Not many new people will get it through their jobs, the cost will go up, people will be fined. It’s just a failure of a bill.

[...] Will Supreme Court Rule On Health Care Law?NPRObamaCare and the Two KennedysWall Street JournalYes! ObamaCare is unconstitutionalAtlanta Journal Constitution (blog)New York Times -Sunshine State News -TIME (blog)all [...]

jorge

February 2nd, 2011
6:29 am

Mr. Land points out the oft repeated and tired line:

“AS President F. D. Roosevelt said, the Constitution is not a frozen document but has to change with the times. ”

Yes, that is correct. Mr. land is good at telling us what is not in the Constitution in his comment, however he fails at telling us what is in it that would assuage and satisfy his beckoning call to Roosevelt’s usurpation of Constitutional authority. Namely, that the founders were intelligent enough to know that the Constitution wasn’t “frozen in time” and that it may need to be changed or amended from time to time, hence Article 5 of the Constitution which allows such a change to take place. Maybe Mr. Land and his ilk find that process a bit onerous and lethargic, but if so, then he can no longer pretend to have any Constitutional support for his positions as it would become evident that his problems with it are more one of convenience and ideology than one of strict Constitutional fidelity.

[...] law, which requires people to buy health …How Will Supreme Court Rule On Health Care Law?NPRYes! ObamaCare is unconstitutionalAtlanta Journal Constitution (blog)Florida governor may stall Obama healthcare lawReutersNew York [...]

Independent

February 2nd, 2011
6:34 am

If the Supreme Court rules that the individual mandate is unconstitutional, the Congress will be forced to remove a very popular part of the Healthcare Bill: the stipulation that insurance companies cannot deny coverage based on previous conditions. To do otherwise would be a death sentence for insurance companies, since people would wait until they became ill and then buy insurance, so costs would spiral out of control and premiums would spiral out of control. Do the Republicans really want to go to the American people and say they removed the pre-existing condition clause? Also, if the individual mandate falls, if Congress had any gonads, they should repeal EMTALA and stipulate that any person who has not purchased insurance must pay for hospital care, IN CASH, UP FRONT, or care will be denied. That ought to scare some of the Free Riders into the folds of us who currently shoulder their bills. Be careful what you wish for, as the saying goes, sometimes you get it.

[...] law, which requires people to buy health …How Will Supreme Court Rule On Health Care Law?NPRYes! ObamaCare is unconstitutionalAtlanta Journal Constitution (blog)Florida governor may stall Obama healthcare lawReutersNew York [...]

Obama The Man

February 2nd, 2011
7:15 am

My biggest concern goes beyond healthcare. If the administration cam force to to purchase healthcare at the peril of a penalty “tax” on your tax return – based on the Interstate Commerce Clause – then what is to prevnt them from forcing me to purchase an electric car from GM/Ford? Or a made-in-America high capacity wash machine? Based on the ICC, where exactly does it end?

NO – a tax is a tax is a tax and this TAX is BAD!

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Al Gore/Kilgore

February 2nd, 2011
7:31 am

Mike Luckovich hit one out of the park today with Palin and Groundhog Day.

Bravo, sir. Greatness.

And thanx so much for the laugh.

Eureka

February 2nd, 2011
7:39 am

The worst thing about the healthcare reform bill is that it doesn’t go far enough. The worst thing about Bob Barr, are you kin to Roseanne, is that some days he sounds smart and some days, like today, he sounds like a raving lunatic.

Ragnar Danneskjöld

February 2nd, 2011
7:40 am

Good morning all, well-written Mr. Barr. I have not looked at the full ruling, but the extracts I have examined are impressive, like a treatise on “original meaning of the words.” The single line – “inactivity is not commerce” – is enough to persuade.

I respectfully disagree with an argument in Mr. Land’s essay “the Supreme Court is a political institution that is not entitled to any more respect than the Congress or the presidency. The Court uses the Constitution to reach political, not legal decisions.” I think that was substantially true under the Warren Court, but the court is now getting back to its origins.

Mr. Land also disparages the 7-2 ruling in Bush v Gore, and admittedly only five of those seven votes were on principle, the other two based on expediency. I offer a bold forecast, that Obamacare’s day in the Supreme Court will obtain a similar 7-2 ruling (or maybe 7-1), with only the Wise Latina and Lady Kaga (if she does not abstain on etihcal grounds) in dissent. The potentiality of allowing a republican Congress to mandate ownership of a working firearm, to cite the currently-popular bogeyman, may be sufficient to persuade the thinking leftists to support the court below.

Ragnar Danneskjöld

February 2nd, 2011
7:47 am

I neglected to argue my basis for disagreement with Mr. Land’s essay – insufficient coffee. The Supreme Court sells only one product, moral authority. The quality of that moral authority raises, or lowers, the court’s value. After debasing its value with a string of extra-Constitutional findings in the penumbra, among other places, the court has been more diligent in offering a rational interpretation of actual words in the Constitution. There have been outliers – Kennedy v Louisiana, Gonzales v Raich, Kelo v New London – and I think the court realizes that each of those was decided incorrectly.

BillyRob

February 2nd, 2011
7:57 am

Bob, the link to your editorial on the main page says is titled Obamacare is Constitutonal.

Ragnar Danneskjöld

February 2nd, 2011
8:02 am

Dear Independent @ 6:34, I respectfully disagree with a portion of your well-written essay, “If the Supreme Court rules that the individual mandate is unconstitutional, the Congress will be forced to remove a very popular part of the Healthcare Bill: the stipulation that insurance companies cannot deny coverage based on previous conditions.”

You fail to consider the obvious alternative, for Congress to borrow from the “suicide” clause normally used in life insurance policies – a two-year exclusion. If a health insurance company can be excused from coverage of “pre-existing” conditions for two years, the moral risk you cite is mitigated.

Another potential alternative would be to legislate particularly-expensive “pre-existing conditions” that will be covered exclusively by government, although that effectively funds ‘death panels.”

freethinker

February 2nd, 2011
8:02 am

Well Mr. Barr if you are correct, [lease explain what provision of the Constitution allowed Reagan to pass EMTALA which is the law that requires hospitals to treat everyone who makes it to an emergency room with no funding to support the mandate?Isn’t that pure socialism? or was Reagan having a senile moment? The Republicans are notorious for unfunded mandates and entitlements to buy votes. How can paying patients and hospitals be required to pay for nonpaying patients? How can a president create medicate part D -free drugs for the elderly with no source of funds to ensure his reelection in 2003?Why have the repubs not pushed these statutes through the courts to have them ruled unconstitutional?

Reality

February 2nd, 2011
8:08 am

On a slightly different topic…..

News from the ajc TODAY: Deal’s staff payroll up 30% compared to Perdue. Really? In this time of cut backs? When the State cannot pay classroom teachers?

Where is the outrage from the so-called “conservative” republicans? (cricket, cricket, cricket)

Really

February 2nd, 2011
8:31 am

“We can end the housing crisis right now by having the government mandate every American must buy a house” Do you believe that some idiot dimacrat actually said that? Guess who…… losers

ByteMe

February 2nd, 2011
8:36 am

Bob, the government called. They want you to give back your Medicare.

carlosgvv

February 2nd, 2011
8:37 am

I know we need a Supreme Court but knowing that five people will decide this issue which affects us all is disurbing to me.

hsn

February 2nd, 2011
8:47 am

“But at least for now, those of us who believe in the Constitution, and in the limited system of federal power it constructed, can let out a rousing cheer for Judges Vinson and Hudson”

Yea, you “believe” in the constitution, that is why you supported GW Bush in attacking Iraq — A country in which not ONE of its citizens had done anything to America. Thanks for the laughs!

The new healthcare law IS NOT GOING ANYWHERE. Stop wetting your pants pre-maturely over this “ruling.” You cons claim you want people to stop relying on government and provide for their own healthcare. Well, that is exactly what this law does. It requires everyone to buy their OWN healthcare.

hsn

Castro

February 2nd, 2011
9:03 am

CarlosGV…Come down to Cuba and one person will decide everything for you since you are such a moron

Mr. Plumber

February 2nd, 2011
9:05 am

AL Gore/Kilgore…I got an emergency call to go to your doublewide and fix a burst pipe…Mike Lukovich…oh sorry…I’m on the worng blog…duh

Jefferson

February 2nd, 2011
9:20 am

This activist judge will be overruled. Go back to counting your money.

[...] lumbers onThe Associated PressStates Diverge on How to Deal With Health Care RulingNew York TimesYes! ObamaCare is unconstitutionalAtlanta Journal Constitution (blog)Kaiser Health News -Indianapolis Business Journalall 595 [...]

ElephantWhip

February 2nd, 2011
9:28 am

I think it will be 5-4 for the bill, with Kennedy swinging left and the hold-outs being Scalia, Thomas, Alito and Roberts.

It may be polictical, but consider it pay-back for the judicial appointment of Bush II, which deprived Florida of its constitutional right to determine how to send its electoral votes to DC.

hryder

February 2nd, 2011
9:32 am

Far too many people neglect to understand that insurance is in reality a bet. Knowing that events occur, but not to whom, people with similar characteristics related to a specific event periodically pool funds to make individuals whole directly effected by that event. The amount from each individual being much less than that required to make the affected individual whole. When the event has taken place to an individual NOT a member of the pooled funding group no normal reasoning person would conclude that the funding group pay to make whole a nonmember.

Trapped in a Red state

February 2nd, 2011
9:40 am

Bob

Your are over your head on this one. Read Steven’s blog @ 5:49 for the insight you should have had before writing your ‘one sided’ article.

q1

February 2nd, 2011
9:50 am

Two federal judges have found unconstitutional a key provision-the “individual mandate” requiring all americans to buy health insurance. Unlike other judges, Judge Vinson said this unconstitutionality voided the entire act. The U.S. justice department will appeal.

Antonin Scalia has accepted an invitation to speak at a “Tea Party” convention.

Court scholars say the trend toward political activity by the highest court would lead to public doubts about the ability of judges to be impartial and above politics.

Justce Jackson said “are we infallible because we are final or final becuse we are infallible”.

wampum

February 2nd, 2011
9:57 am

Bet you righties would be all for the Feds requiring everyone to buy a firearm.

LA

February 2nd, 2011
10:05 am

“Yes! ObamaCare is unconstitutional”

Yep, and it’s great to see Bookman and Tucker in total denial of this.

LA

February 2nd, 2011
10:06 am

“Bet you righties would be all for the Feds requiring everyone to buy a firearm.’

Nope, not at all. I have no problem with law abiding citizens protecting themselves. Felons etc, not so much. Libs should never own guns because they usually end up shooting themselves in the foot.

LA

February 2nd, 2011
10:06 am

“Trapped in a Red state ”

Delta is ready when you are.

LA

February 2nd, 2011
10:07 am

“Where is the outrage from the so-called “conservative” republicans? ”

I voted for Karen Handel.

LA

February 2nd, 2011
10:08 am

“The worst thing about the healthcare reform bill is that it doesn’t go far enough.”

You obviously didn’t pass American History in middle school.

LA

February 2nd, 2011
10:09 am

“Mike Luckovich hit one out of the park today with Palin and Groundhog Day.”

Yeah, cause as we all know, Palin is president and holds high office. (sarcasm)

LA

February 2nd, 2011
10:10 am

Al Gore/Kilgore

How was the divorce? Did Tipper take your fleet of private 747’s?

Foster Grant

February 2nd, 2011
10:11 am

Bob Barr concludes that the Obama has no intention of complying with the Vinson decision and, using a right wing catch phrase, calls that “arrogant”. Thus, Mr. Barr makes it sound as if Judge Vinson’s ruling — that the Health Care Reform Act is unconstitutional in its entirety and null — is today the “law of the land.” It isn’t.

Former Congressman Barr is a graduate of Georgetown Law and is a former U.S. prosecutor. He should therefore know what the actual legal scope and current effect of the judge’s decision is. I assume that Mr. Barr does know, but he chooses not to say just to get as much political mileage out of the decision as he can — in this case, by slamming the Obama administration’s putative “arrogance.” Either that is Mr. Barr’s goal or it’s time Mr. Barr returned to law school.

As with all other decisions by district court judges in the U.S., a decision by Judge Vinson is effective only in the judicial district in which the judge sits. In Judge Vinson’s case, it’s the Northern District of Florida (Pensacola, Tallahassee, etc.) Unless and until stayed, adopted by another district, or appealed and upheld, Judge Vinson’s decision is the law only of his district.

Btw, if for some reason Judge Vinson’s decision isn’t either stayed — by himself or the 11th Circuit — or later reversed, y’all in Florida’s Northern District can say hello again to the Medicare drug benefit “donut hole”, which is what the Health Care Reform Act closed.

One last thing. The Act has been found to be constitutional by two other U.S. District Courts and unconstitutional only in part by another district court. So why, Mr. Barr, is President Obama being “arrogant” by not complying with the Vinson decision in particular? Riddle me that, sir.

Reality

February 2nd, 2011
10:17 am

@LA – seek professional help. Really. You need extra time on a doctors couch NOW!

Reality

February 2nd, 2011
10:20 am

If you are afraid that the Supreme Court will rule on the healthcare reform law, how did you feel when they decided our president (recall that they decided it was Bush)?

BigMac

February 2nd, 2011
11:02 am

@Independent & @Ragnar…

I’m no actuary, but is seems to me that the issue with pre-existing conditions applies mostly to people who have such a condition (or someone they cover does) and change jobs or lose their jobs because once they do, they can never get insurance again. So they stay where they are to keep their insurance or are prohibited from shopping around for cheaper policies.

If the pre-existing condition clause were removed, then wouldn’t (across the entire insured population) a “statistically equal” number of people with pre-existing conditions be leaving any particular insurance company as joining for a net zero sum gain? My assumption is that people with 100% debilitating conditions, will never change companies, but they could as well.

I guess I don’t see the issue (from an insurance company perspective). But then again, the only thing I trust less than insurance companies are politicians. I don’t believe Obamacare was ever about healthcare or insurance… It’s about the money the government would get (1/6th of the economy’s worth) to do with what they like, just like they did with Social Security and Medicare/Medicaide tax revenue, which is why they may both become insolvent.

carlosgvv

February 2nd, 2011
11:03 am

Castro

The next time the court decides 5 to 4 on something you intensley dislike, you might sing a different tune, you twit.

DawgDad

February 2nd, 2011
11:18 am

“Every time a case like this comes up everone should realize that the Supreme Court is a political institution that is not entitled to any more respect than the Congress or the presidency. ”

“We do not have fifty economies but one.”

Mr. Land, thank you for demonstrating why lawyers are generally held in such low esteem.

DawgDad

February 2nd, 2011
11:22 am

“Bet you righties would be all for the Feds requiring everyone to buy a firearm.”

Absolutely not. Why on earth would you think this? The Federal government has NO Constitutional basis for requiring everyone to buy a firearm. I’m sure virtually all conservatives would agree with this; some “righties” might disagree, but they would be off-base and likely a small minority.

DebbieDoRight

February 2nd, 2011
11:27 am

Insurance, in essence, is a scam. You pay month after month, year after year, and have no accidents nor a need to use it. The very istant that the “insurance” is needed, and the company that you’ve paid thousands to for years has to “pay out” to you, your insurance goes up, OR, like in the case of the elderly driver, you’re dropped. “Health” insurance uses the same scam — the minute you actually need it, they find a way not to pay you like they’ve promised.

DawgDad

February 2nd, 2011
11:28 am

freethinker: This is why there is a Tea Party. Republican does not necessarily mean conservative.

dom youngross

February 2nd, 2011
11:29 am

It wasn’t strange that Dems in Congress didn’t include a severability clause. They couldn’t. Had they, they would have watered down their legislative argument for a mandate to buy insurance. A severability clause would have suggested that the mandate — the part that stunk the most — was already considered to be optional. Remember, they were focused on ‘comprehensive’ health care reform, so they went for all the legislative marbles. Also, I think the lack of an explicit severability clause was an intentional dare to future judicial review, raising of the stakes so to speak, by implying that a judge would have to void the entire law to be logically consistent if the judge felt the mandate provision was unconstitutional. Vinson had the judicial courage to do so, so now it all comes full-circle back to bite them.

DebbieDoRight

February 2nd, 2011
11:30 am

Why I’ll never send any kind of mine to U of Ga, (the below is from DawgDad):

Mr. Land, thank you for demonstrating why lawyers are generally held in such low esteem.

Hope you never need a “Mr. Land” to help your sorry butt out of a crisis.