We Have Ourselves A Circuit Split

Now it gets interesting.

President Barack Obama’s signature healthcare law suffered a setback on Friday when an appeals court ruled that it was unconstitutional to require all Americans to buy insurance or face a penalty.

The U.S. Appeals Court for the 11th Circuit, based in Atlanta, ruled 2 to 1 that Congress exceeded its authority by requiring Americans to buy coverage, but it unanimously reversed a lower court decision that threw out the entire law.

The problem for Obama and the other Democrats is that, without the individual mandate even their screwy math doesn’t work.  The law was never going to deliver anything but increased costs and diminished quality.  But without the mandate, it just collapses. 

 Next stop, the Supreme Court.  It was always going there anyway, but the circuit split (the 6th concluded it was constitutional) seals it.

Published in: on August 12, 2011 at 3:33 pm  Leave a Comment  

Make The Dems Vote For It, Early And Often

Most excellent.  The Senate Republicans promised a vote on the repeal of ObamaCare, and they appear to have delivered.  Hot Air reports that Senate leaders from both parties have agreed to have a vote on repeal legislation, perhaps as early as Tuesday or Wednesday next week.

It is essential for the Republicans to keep the pressure on, especially in the wake of this week’s order holding that ObamaCare is unconstitutional.  They should also demand a complete cessation of all implementation until the constitutionality question is resolved by the U.S. Supreme Court, push legislation allowing states to opt out, and try to pass legislation banning the kind of discretionary opt-outs the Administration have given over 700 favored constituents.

Published in: on February 1, 2011 at 9:57 pm  Leave a Comment  

Liberals Remain Incapable Of Answering The Fundamental Question Underlying The Constitutionality Of ObamaCare

After the decision on Monday by U.S. District Judge Roger Vinson of the Northern District of Florida, which held that the ObamaCare law is unconstitutional, an anonymous White House official gave what so far appears to be the official Administration response:

Judge Vinson hypothesized that, under the Obama administration‘s legal theory, the government could mandate that all citizens eat broccoli.

White House officials said that sort of “surpassingly curious reading” called into question Judge Vinson‘s entire ruling.

“There’s something thoroughly odd and unconventional about the analysis,” said a White House official who briefed reporters late Monday afternoon, speaking on the condition of anonymity.

If that is the best they can do, then the Administration really has failed to take seriously, or to seriously consider, the fundamental constitutional question underlying the individual mandate.

For months, conservative writers have been asking a simple question — if the individual mandate to buy insurance under ObamaCare is constitutional, what are the limits of federal power over the U.S. citizenry.  I asked a few questions along these lines here. I have not seen a single serious response from ObamaCare’s supporters.

Instead, we have someone who is not even willing to go on the record saying the question itself is “surpassingly curious” and “odd and unconventional.”  In what way?  Vinson was doing exactly the kind of analysis you do when considering fundamental questions of constitutional law — If position X is correct, what implications does that have for A, B, and C? 

Or instead we get Adam Serwer jumping back into the fray (I responded to Serwer’s earlier defense of the individual mandate here) to declare that

If there’s one thing that’s clear from Florida Judge Roger Vinson’s polemical ruling against health-care reform, it’s that the fight over the Affordable Care Act is more a political battle than a legal one.

 Actually, all Serwer can do is make a straw man caricature of Vinson’s legal arguments in order to misconstrue them as political, such as:

Vinson provides other explicit nods to his partisan inclinations. He winks at President Obama’s most visible public opposition, citing the original Boston Tea Party, and pulls out his originalist ouija board, declaring that James Madison and Alexander Hamilton would have opposed ratification of the Constitution had they known the individual mandate might someday become law. This tracks closely with conservative arguments that the individual mandate, once touted by the “far left” Heritage Foundation, reflects the sinister, un-American perversions of the liberal influence on public discourse rather than liberals scuttling their own policy instincts and adopting a conservative route to ensuring universal coverage.

That doesn’t really address the central question, does it?  So Serwer tries on a few other analogies that don’t get the job done:

[U]sing the tax code to manipulate public behavior is nothing new. As libertarian writer Tim Lee wrote weeks ago, if courts want to overrule the individual mandate, they have to explain why “coercing people to buy health insurance is more objectionable than coercing them to have children, pay tuition, take out a mortgage, or install solar panels on their house.” Who knew we’d already been living in a tyrannical dystopia?

Each of the activities Serwer lists has economic impacts of the same sort as a decision not to buy health insurance:

Demand for consumer goods goes up if there are more consumers.  Not having children results in fewer consumers.  Therefore, the decision not to have children has economic consequences. 

Demand for housing goes up if there are more home buyers.  Renting results in fewer home buyers.  Therefore, the decision not to buy a home has economic consequences. 

Demand for fossil-fuel electricty goes down, and demand for solar panels goes up, if more people buy solar panels.  Not buying solar panels results in less use of fossil-fuel energy and less demand for solar panels.  Therefore, the decision not to buy solar panels has economic consequences. 

The difference between Serwer’s tax incentive examples and the individual mandate, of course, is that in each of his examples the tax code is being used (I would say misused for most of them) to provide an incentive to encourage conduct; it does not mandate that people engage in conduct under threat of a penalty. 

All that courts who want to “overrule the individual mandate” have to do is explain that the current tax code does not mandate that people must have children, mandate that people must go to college or pay college tuition, mandate that people must buy a house or take out a mortgage, or mandate that people must buy and install solar panels on their houses. 

That is the difference — ObamaCare mandates that people must buy health insurance.  Indeed, we already give tax incentives to employer-provided health insurance, and no one is arguing that such incentives are unconstitutional.

Finally, Serwer concedes the essential problem facing his side of the argument:

But Vinson’s partisanship doesn’t obscure or change the very real problem liberals have in offering a concise response to concerns that their interpretation of the Commerce Clause gives the government limitless power. The individual examples of apocalyptic “mandates” are easily dispatched one at a time [Where has Serwer done that?], but collectively the slippery slope argument has power. . . .  Simply dismissing the “broccoli mandate” as silly or citing legal precedent won’t be enough to win that argument — liberals need to find a concise way to articulate both why the individual mandate is constitutional and why it doesn’t simply open the door to limitless government abuse, and thus far, they haven’t found one.

And so the question remains — if the individual mandate to buy insurance under ObamaCare is constitutional, what are the limits of federal power?  It is increasingly clear that ObamaCare’s supporters do not have an answer.

Via the Volokh Conspiracy.

Published in: on February 1, 2011 at 1:46 pm  Leave a Comment  

The Obama Administration Threatens To Sue States Over Laws Guaranteeing Secret Ballots In Union Elections

Lovely.  The National Labor Relations Board has threatened to sue Arizona, South Carolina, South Dakota and Utah over amendments to their state constitutions guaranteeing the right to secret ballot union elections.  The letters are available here.

According to the Obama Administration, the amendments conflict with federal law that allows employers to recognize a union if a majority of employees sign cards that support unionization.  I don’t see that happening often, but why should employers be allowed (under pressure from regulators, no doubt) to sign away rights guaranteed to employees under state constitutions?  They shouldn’t be, and the federal government has no business forcing the issue. 

This appears to be yet another attempt by the Obama Administration to achieve through regulation what it cannot achieve through legislation, which again illustrates the danger of a vast and powerful regulatory state that is not subject to direct control or accountability through the democratic process.  Our new Republican-controlled House of Representatives should now force the card-check issue by passing a bill specifically guaranteeing the secret ballot in union elections.

Meanwhile, the targeted states should fight for the rights of their citizens and the constitutional amendments they enacted.  I am no labor lawyer (thankfully), but I am not sure there is sufficient conflict to warrant preemption after a quick review of the primary authority cited in the NLRB letters.

Published in: on January 14, 2011 at 2:59 pm  Leave a Comment  

Elite Arrogance And Failure

Victor David Hansen has a great post up called ‘The New Sophists” at NRO Online.  In one fell swoop, VDH hits global warmists, unrepentant Keynesians, and constitutional scofflaws.  A taste to entice you to read the whole thing:

One constant here is equating wisdom with a certificate of graduation from a prestigious school. If, in the fashion of the sophist Protagoras, someone writes that record cold proves record heat, or that record borrowing and printing of money will create jobs and sustained economic growth, or that a 223-year-old Constitution is 100 years old and largely irrelevant, then credibility can be claimed only in the title or the credentials — but not the logic — of the writer.

America is huge and diverse, but the world of our credentialed experts is quite small, warped, and monotonous — circumscribed largely by the prestigious university and an office in the incestuous Washington–New York corridor. There are plenty of prizes, honors, and degrees among our policy-setters and experts, but very little experience in running a business in Oklahoma, raising a large family in Kansas, or working on an assembly line in Michigan, a military base in Texas, a boat in Alaska, or a ranch in Idaho.

This is the latest installment of what is turning into a common theme on the right side of the blog world — questioning the wisdom of our certificated betters from prestigious institutions that have dubious merit in the real world. 

This is nothing really new, but it has been highlighted to an extraordinary degree by the current inhabitants of the White House.  With nary a business owner or background in private enterprise among them, the credentialed gang that couldn’t shoot straight has set about reforming our economy in their image.  Reality has a nasty way of screwing up theory, as you would think sustained unemployment of nearly 10% and anemic growth would teach them.  Alas, it hasn’t.

Published in: on January 6, 2011 at 3:58 pm  Leave a Comment  

Dumbed-Down Talk About The Constitution

Professor Jacobson notes some more “dumbed-down talk about the Constitution from . . . liberal columnists, this time Amanda Terkel (formerly of Think Progress) writing at HuffPo with the headline: Scalia: Women Don’t Have Constitutional Protection Against Discrimination.”  As the professor notes,

Scalia’s point is the fairly standard view that the 14th Amendment does not broadly apply to prohibit all forms of discrimination on the basis of sex.

Jacobson then briefly demonstrates that Scalia is both correct in this view and has no problem with anti-discrimination legislation, he just doesn’t think, correctly, that discrimination on the basis of gender — either gender — is barred by the Constitution.

Jacobson closes his post by saying that “I wish these people would stop dumbing-down the Constitution.”  So do I, but here’s the problem.  In many ways, the modern American liberal philosophy requires dumbing-down the Constitution. 

Thus the lament about the First Amendment commonly heard when conservatives suggest that the federal government should not subsidize odious art under the NEA, or that the federal government should not be funding liberal news outlets PBS and NPR. 

Thus the deer in the headlights look from liberal politicians when asked what constitutional authority they have for the ObamaCare individual mandate. 

Thus the liberal shock upon learning that the words “the right of the people to keep and bear Arms, shall not be infringed” means that the right of the people to keep and bear arms shall not be infringed.

Much of the modern liberal agenda — which seeks to impose its will through federal legislation, federal regulation, or by federal judicial fiat — would NOT withstand a rigorous application of the fundamental principle in the Constitution of a federal government granted defined and limited powers.

Published in: on January 4, 2011 at 10:22 am  Leave a Comment  

The Weak Liberal Case For The Individual Mandate

Although I remain skeptical of the chances of lawsuits challenging the Obamacare individual mandate under the Commerce Clause, one compelling question is gaining traction among the commentariat.  As Jennifer Rubin frames it: “If the government can force you to buy insurance, is there any limit to its power?”  Or as Megan McArdle put it: “On a reading of the commerce clause that allows the government to force you to buy insurance from a private company, what can’t the government force you to do?”  I asked it myself here.

I have been looking for the liberal answer to this question without much luck, until today.  Writing at The American Prospect, Adam Serwer notes that when “[a]sked about the constitutional basis for the individual mandate, some liberals mumble quietly about legal precedent before making the compelling policy argument that without the mandate, you can’t preserve the private insurance market and ensure affordable universal coverage,” then takes a crack at it himself.  Actually, Serwer further illustrates the conundrum by not being able to make a meaningful rejoinder.

Instead, Serwer simply declares health care to be a federal problem begging for a federal solution:

Without some kind of federal mechanism, you can’t preserve the private insurance market and ensure affordable universal coverage. States that impose mandates will bear the costs of providing insurance for those that don’t. This is why Hudson’s argument that the commerce clause doesn’t give the government the authority to regulate economic “inactivity” in this context rings hollow — you can’t actually choose not to participate in the health-insurance market, because deciding not to buy health insurance drastically affects everyone else.

This is not correct.  We have a private insurance market and no federal mandate now.  What you cannot have without the mandate is a new kind of market — one that Serwer undoubtably prefers — that requires insurers to take on new insureds who have pre-existing conditions.  But that does not mean that in every instance “choos[ing] not to participate in the health-insurance market . . . drastically affects everyone else.”

Moreover, the same can be said about everything.  More demand or less supply in a market economy impacts the prices everyone else pays.  It is called the law of supply and demand.  Look it up.  So that cannot be the basis for Commerce Clause authority, or Congress would have authority over everything.

Serwer then moves on to, essentially, the penumbra of the Commerce Clause, citing Yale law professor Jack Balkin:

“The Founders’ logic was that the enumerated powers are to map on to areas where you need a federal solution,” Balkin says. “You couldn’t do this with cars, you couldn’t do this with cell phones, you couldn’t do this with Cuisinarts. [Health] insurance is special.” Conservatives worried about a “food mandate” might remember that unlike health insurance, the price of food doesn’t go up dramatically when someone waits until they’re starving to eat.

Ah, health insurance “is special.”  That is not much of an argument. 

And in any event, the previously mentioned law regarding supply and demand means that the price of food does go up dramatically when many want to eat it and supply is limited.  Or, for example, when they use corn as fuel for cars.

Again, Serwer must assume one part of Obamacare to support the second part — if you require insurers to take on new insureds who have pre-existing conditions, then you need to get everyone into the pool or the system will go bankrupt.   But a problem created by Congress cannot be used as a bootstrap to expand Congress’ power over citizens.  The power has to be in the Constitution.  Where is it, and what limits are there if it allows the individual mandate?  Serwer still has not answered the question he set out to address.

So he retreats back to policy arguments and chest thumping about how darn nice liberals are:

The real difference between liberals and conservatives is that liberals admit that in the pursuit of a fairer and more equitable society, they make judgment calls about the balance between freedom and providing for the general welfare. 

I disagree with the notion that liberals alone “make judgment calls about the balance between freedom and providing for the general welfare.”  But let’s stick to the question at hand.  If the government can force you to buy insurance, is there any limit to its power? 

That question will remain unanswered.  Serwer instead falls back behind Professor Balkin, who more or less handwaves about tea partiers, general welfare, and taxes:

“Liberals should take a page from the Tea Partiers and wave their pocket Constitutions around and ask, what part of regulating commerce between the states don’t you understand?” Balkin says. “What part of tax and provide for the general welfare don’t you understand?”

The problem, of course, is that the Congress is attempting to regulate non-participation in intrastate commerce.  And the individual mandate is not a tax.  President Obama himself said so, rather emphatically.  What part of “it’s not a tax” don’t you understand, Professor?

It seems the real difference between liberals and conservatives (at least on this question) is that conservatives think the Constitution imposes limits on government power, and we should adhere to them.

Published in: on December 17, 2010 at 4:38 pm  Comments (1)  

David Bernstein’s Commerce Clause Analysis Is Just Sad; But Probably Right

At the law professor group blog Volokh Conspiracy, David Bernstein has some depressing thoughts that are ostensibly about Obamacare and the Commerce Clause, but are really a terrible indictment of the Supreme Court:

Here’s my take: What the opponents of the individual mandate had to do was provide plausible arguments that the individual mandate is distinguishable from precedents like Wickard v. Filburn and Gonzales v. Raich. Whether or not the best interpretation of those precedents supports the individual mandate or not is almost entirely irrelevant.

The modern Supreme Court is reluctant to directly overrule precedents, especially well-entrenched precedents, but is not at all reluctant to distinguish precedents, even when the distinctions in question are quite strained. I could present many examples, but just consider, for example, how Boy Scouts of America v. Dole turned out not to be governed by Roberts v. United States Jaycees; the Court distinguished Matthews v. Eldridge from Goldberg v. Kelly; or how the Court has gone back and forth between relying on Mulligan and Quirin in detainee cases without overruling either one of them, or really explaining how they don’t contradict each other.

So now that the opponents of the individual mandate have manged to make arguments that pass the laugh test, the Supreme Court’s ultimate decision will involve such factors as: (1) How popular will the individual mandate, and health care reform more generally, be when the Court takes up the issue?; (2) How popular will President Obama be at that time? (3) The Republicans on the Court will undoubtedly be less likely to support a law passed with only Democratic support; (4) Will Justice Kennedy be more in the mood to be susceptible to the “Greenhouse Effect,” or to cement his conservative credentials, which in part will depend on, “How close to retirement is he?” (5) Does Justice Scalia think that invalidating the individual mandate will somehow hurt the cause of ultimately overruling Roe v. Wade, . . . .

In other words, it’s all politics and no Constitution.  Sadly, I can nibble at the edges — and would say that the indictment primarily covers the lefties and not principled folk such as Thomas, Alito, Roberts, and mostly Scalia — but the math is close enough for government work.

There is the glimmer of hope:

If the liberals on the Court, like the dissenters in Lopez, are unable to articular a limiting principle that would prevent their decision from giving the federal government an essentially plenary police power to regulate virtually all human activity and inactivity, the individual mandate is doomed. The conservative majority simply will not accept a doctrine that suggests that federal power is not one of limited and enumerated powers.

And how, exactly, would a decision supporting the individual mandate allow a “limiting principle”?  I cannot think of one.  But then, I didn’t go to Harvard or Yale, so I guess I’m not smart enough to divine it.

Published in: on December 16, 2010 at 10:57 am  Leave a Comment  

If Obamacare’s Individual Mandate Is Constitutional, What Limits Are There On Congress’ Power?

Glenn Reynolds has posted ”[a]n honest question for lefties” from Radley Balko that I think is really important to consider as we continue the discussion of Obamacare and the Commerce Clause:  “If your answer is no, that is, that the Constitution puts no real restraints on the federal government at all, why do you suppose they bothered writing and passing one in the first place?”

I would also ask a slightly different question as well:  

If Obamacare’s individual mandate is constitutional, what limits are there on Congress’ power to compel Americans to act, or to refrain from acting?

  • Can Congress prohibit a woodworker from building bookshelves for his own use in his own home?  
  • Can Congress prohibit a woodworker from building bookshelves to give to his neighbor, for free, for use in her home?
  • Can Congress require Americans to purchase an apple a day, to keep the doctor away? 
  • Can Congress prohibit Americans from growing their own apples, to protect apple growers?
  • Can Congress prohibit Americans who grow their own apples from giving extras away to friends and neighbors?
  • Can Congress require all Americans to participate in 30 minutes of cardiovascular exercise per day?
  • Can Congress require all Americans to buy a bicycle, to foster good health?

If Obamacare’s individual mandate is constitutional, I believe that the answer to each of these questions is yes.  And if the answer to these questions is yes, we no longer live in a country with a constitutionally limited government.

Published in: on December 15, 2010 at 11:03 am  Comments (3)  

More Thoughts On The Commerce Clause And Obamacare

Josh Marshall, writing at Talking Points Memo, has a really weak post up about the Virginia court’s opinion holding that the Obamacare legislation’s individual mandate is unconstitutional. 

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to “economic activity” seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia — that the federal health care mandate is unconstitutional — is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

Marshall, of course, is mistaken about the fact that “no one took seriously the idea that a federal health care mandate was unconstitutional.”  Lots of people who take the quaint constitutional notion of limited government and the actual words of the Constitution seriously also took seriously the idea that forcing people to buy something they don’t want goes beyond regulating interstate commerce.

But this statement really caught my eye: “[T]he idea that buying health care coverage does not amount to ‘economic activity’ seems preposterous on its face.”  Actually, what strikes many as preposterous is the idea that not buying health care coverage is an “economic activity.”

For example, when I am sitting at my kitchen table, not buying anything, not negotiating any purchases, and not contemplating any interaction with a vendor of any kind in the near future, most people would say that I am not engaging in any economic activity.  But under the Obamacare legislation, I would be compelled to initiate economic activity and go out and buy health insurance.  It is nonparticipation in the market that Congress would purport to regulate under the Commerce Clause. 

If Marshall is right, then Congress could decide that my not buying anything on Ebay this week threatens its viability and that Ebay’s continued prosperity is in the national interest.  Therefore, under pain of tax penalties, Congress could require that I stop blogging right now and go buy something on Ebay.   Or it could require me to buy a Chevy Volt, regardless of whether I want or need a car.  Or it could require me to buy some other thing I don’t want — perhaps a kaleidoscope — every second Tuesday.  Rather than regulating voluntary commercial activity, the individual mandate penalizes the decision not to participate in economic activity.

I happen to agree with Marshall that the individual mandate is likely to be found to be constitutional.  But that is not because it is consistent with Congress’ enumerated powers under the actual Constitution.  It is only because a handful of members of the Supreme Court over the years have determined to gut the Commerce Clause as a check on congressional powers.  As a result, we have decisions such as Wickard v. Filburn, 317 U.S. 111 (1942), in which the Supreme Court allowed Congress to penalize farmers who harvested wheat in excess of government quotas, even if it is grown and harvested solely for the farmers use in baking bread or feeding his livestock.

Published in: on December 14, 2010 at 1:19 pm  Leave a Comment  

UPDATE — Virginia Federal Judge Rules Obamacare Mandate Unconstitutional

Via Ace of Spades HQ, the decision is here.

The court frames the issue as follows: “While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate-and tax-a citizen’s decision not to participate in interstate commerce.” 

It then addresses whether the individual mandate and affiliated tax penalty (1) are beyond the outer limits of the Commerce Clause and associated Necessary and Proper Clause, or (2) are a legitimate exercise of the congressional power of taxation under the General Welfare Clause.  Having held that the mandate is not constitutional, the court determined that the clause is “severable,” leaving intact the remainder of the legislation.

Commerce Clause

As with previous decisions by other courts, the Virginia court focuses on the third traditional “strand” of Commerce Clause analysis, which looks at whether the act is a legitimate exercise of Congress’s power to regulate activities that substantially affect interstate commerce.  According to the government:

Both the Secretary’s argument in defense of the Provision and the apparent underlying rationale of Congress are premised on the facially logical assumption that every individual at some point in life will need some form of health care. “No person can guarantee that he will divorce himself entirely from the market for heath care services.”  “[N]o person can guarantee that he will never incur a sudden, unanticipated need for expensive care; and very few persons, absent insurance, can guarantee that they will not shift the cost of that care to the rest of society.” (Citations omitted.)

The argument is that this cost shift which increases the cost of healthcare services and therefore has a substantial effect on interstate commerce, allowing Congress to require people to buy insurance and prevent them from causing that cost shift.

In response, Virginia argued that, unlike the parties challenging Congressional power to regulate in prior Supreme Court cases who made conscious decisions that placed them in the stream of interstate commerce  — by growing wheat or marijuana — the individual mandate compels an unwilling person to perform an involuntary act — buying insurance they don’t want.  In short, Virginia argued that a decision not to purchase a product is not economic activity.

The court ultimately accepts the state’s argument:

In surveying the legal landscape, several operative elements are commonly encountered in Commerce Clause decisions. First, to survive a constitutional challenge the subject matter must be economic in nature and affect interstate commerce, and second, it must involve activity. Every application of Commerce Clause power found to be constitutionally sound by the Supreme Court involved some form of action, transaction, or deed placed in motion by an individual or legal entity. The constitutional viability of the Minimum Essential Coverage Provision in this case turns on whether or not a person’s decision to refuse to purchase health care insurance is such an activity.

* * *

But these regulatory powers are triggered by some type of self-initiated action. Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.  In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I.  (Footnote omitted.)

I wrote a while back that the Commerce Clause, as currently “interpreted” by Supreme Court precedent, would likely allow the individual mandate to stand, and I stand by that analysis.   Under those cases, which I vehemently disagree with, I just don’t see enough of an economic activity/inactivity distinction. 

I hope to be proven wrong, however.  Even better would be some overruling of the previous authority that has all but neutered the Commerce Clause as a check on congressional power.

General Welfare Clause

As to congressional taxation power, the court leads by noting that the government has taken inconsistent positions on the issue: 

Despite pre-enactment representations to the contrary by the Executive and Legislative branches, the Secretary now argues that the Minimum Essential Coverage Provision is, in essence, a “tax penalty.” The Secretary notes that the Provision is codified in the Internal Revenue Code and the penalty, if applicable, is reported and paid as a part of an individual’s annual tax return.

As an advocate, that kind of hole is never a good place to begin your argument, and the court ultimately found “the notion that the generation of revenue was a significant legislative objective [to be] a transparent afterthought.”

The legislative purpose underlying this provision was purely regulation of what Congress misperceived to be economic activity. The only revenue generated under the Provision is incidental to a citizen’s failure to obey the law by requiring the minimum level of insurance coverage.  The resulting revenue is “extraneous to any tax need.”

“This Court is therefore unpersuaded that Section 1501(b)(1) is a bona fide revenue raising measure enacted under the taxing power of Congress.”


The severability discussion is kind of amusing, or it would be if it were not so sad.   Basically, the court holds that because the Obamacare legislation was so larded up with junk that is “patently extraneous to health care,” and since “the 2,700 page bill was rushed to the floor for a Christmas Eve vote,” it would be impossible to figure out whether the legislation would have passed without the individual mandate. 

So the court takes a cautious approach and holds that only the mandate and directly related provisions should be stricken down.

It is truly pathetic that the legislation as a whole would survive in large part because of the pork-laden bribes it contains and the ridiculously rushed process that crammed it down the throats of the public.


Finally, the court agrees with everyone else that the matter is headed to a higher court, and since the mandate doesn’t kick in for a while, the court declines to issue an injunction barring implementation of the mandate.

Published in: on December 13, 2010 at 12:09 pm  Comments (1)  

Obamacare And Commerce Clause Insanity

On November 30, 2010, District Judge Norman Moon of the United States District Court for the Western District of Virginia issued a decision granting the government’s motion to dismiss claims challenging the constitutionality of the Obamacare requirement that individuals and/or employers purchase healthcare insurance, i.e. the individual mandate.  The case is Liberty Univ., Inc. v. Geitner, Case No. 6:10-cv-00015-nkm.  Peter Suderman links and discusses it at Reason‘s blog here.

It is an interesting decision that, along with all the other challenges, is almost certainly headed to the United States Supreme Court in due time.  Reading it reminds me of just how far from the framers’ intent and the Constitution’s words the Commerce Clause has been “interpreted.” 

As many have forgotten, the framers intended the Constitution to provide enumerated power to the federal government, with the States and the People reserving all others.   The Tenth Amendment provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  Thus, Congress requires a delegation of authority under the Constitution to act.

The Liberty University case relies on the Commerce Clause to determine that the individual mandate is within the scope of Congress’s delegated powers.  While I think that conclusion is insane, and the framers would be spinning like dreidels (in honor of Hanukkah) in their graves at the thought, it is also probably correct under existing Supreme Court cases, which the district court was bound to follow. 

The Commerce Clause is a simple declarative statement:  “The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”  A normal person would read that sentence and conclude that one must be engaged in interstate or international commerce, or commerce with the Indian Tribes, for their conduct to be regulated.  A normal person might also conclude that only conduct within the course of that trade could be regulated.

Thus, a normal person would be forgiven for having the simplistic notion that, for example, transactions conducted face-to-face at a farmers market involving locally grown vegetables are beyond the reach of Congress.  A normal person might also think that Congress cannot regulate their growing tomatoes in the backyard, or building bookshelves in the garage, for use in their own home.

But our Supreme Court is not staffed by normal people.  It is staffed with people from Harvard and Yale.  And at times, a majority of them have scoffed at the simplicity seen in declarative sentences by simpletons such as normal people, i.e. people not from Harvard or Yale.

Two examples are the majorities in the cases the court relied upon in Liberty University.

In Wickard v. Filburn, 317 U.S. 111 (1942), the Supreme Court upheld a federal statute penalizing farmers who harvested wheat in excess of quotas established by the Department of Agriculture, including wheat that the farmer might harvest for his own farm needs.

But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce….

317 U.S. at 128-29.  The Court therefore dismissed the plaintiff’s argument that, by forcing farmers into the market to purchase wheat that they could otherwise grow for themselves, Congress exceeded its powers under the Commerce Clause.

In Gonzales v. Raich, 545 U.S. 1 (U.S. 2005), five Justices reaffirmed this expansion of the reach of the Commerce Clause.  In Raich, the Court held that “Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally,” even when the drugs — medicinal marijuana — were produced and consumed by one person with no commercial transaction.  All the Court required was a “rational basis for concluding that leaving home-consumed marijuana outside federal control would . . . affect price and market conditions” in the actual market.  5 U.S. at 19.

It is hard to argue, under this formulation, that the decision not to participate in the insurance market might “affect price and market conditions” in the insurance market.  Shoving 30 million people into the insurance market very likely would have some sort of impact.

Moreover, the Raich and Wickard decisions each determined that the fact that “regulation ensnares some purely intrastate activity is of no moment. As we have done many times before, we refuse to excise individual components of that larger scheme.”  In other words, Congress can pretty much do whatever the hell it pleases so long as something might conceivably impact a market it wants to regulate. 

As I said, it does appear that current precedent would permit the latest unconstitutional power-grab by Congress.  It would also permit Congress to require everyone in the United States to buy a Chevy Volt, to ban the handyman’s production of bookshelves for his own use in the home, to ban the growing of tomatoes in backyard gardens, or to mandate that everyone eat nothing but Ho Hos during months with an R in them.

The Supreme Court would do the cause of freedom and adherence the rule of law — the actual Constitution — by overruling Raich and Wickard and reimposing some limits on the rapacious grasp of Congress.

Published in: on December 2, 2010 at 1:45 pm  Comments (1)  

The Jesus Blowjob Art Ruckus Takes A Crazy Turn

A woman from Montana took a crowbar to the Jesus blowjob “art” that was on display in a Loveland museum:

“We were just coming in and were standing at the door and I heard a large – like a thump, and somebody yelled, ‘Oh no!’ And I looked up and I saw this lady with a nail-puller-type crowbar slamming the Plexiglas case several times until she broke it. And I ran over there and by the time I got there she had reached in and grabbed the print and was ripping it up so I pulled her away from the print and put her in the corner,” [a witness] said, “and then the police came.”

No great loss to the art world, and a publicly-funded museum has no business spending public resources displaying such stuff, but people like the crow-bar wielder need to calm down.  The display was distasteful and stupid, but that’s all it was.

Published in: on October 7, 2010 at 12:19 pm  Leave a Comment  

Great Idea — A Constitutional Amendment Allowing States To Repeal Federal Laws And Regulations

At the Volokh Conspiracy, Professor Randy Barnett links to an oped he co-wrote with William Howell, the Speaker of the Virginia House of Delegates, regarding a proposed Repeal Amendment that would proved for the repeal of any federal law or regulation on a vote of 2/3 of the state legislatures.  The proposed text is as follows:

Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.

As of now, the only route available to the states for overturning federal laws and regulations is a constitutional amendment.  This is not only very difficult; it also requires more or less permanent changes to the text of the Constitution.  Given the manner in which some Judges and Justices interpret the Constitution, text changes can easily lead to unpredictable results.  Moreover, fighting about language is likely to make passing of most proposed textual amendments all but impossible, especially given the likelihood that certain Judges and Justices can be expected to interpret the new text in a manner unforseen by its proponents.

Getting two-thirds of state legislatures to overturn a federal law would not be easy, but it would be easier than getting agreement on new language to be forever enshrined in the Constitution.  Moreover, with a 2/3 disapproval requirement, the power would only be exercised if a law or regulation is very unpopular among a broad swath of states.  That would provide a check on federal power — especially expansions of power, such as the Obamacare takeover and individual mandate — without unduly undermining the general supremacy of federal law.

This Repeal Amendment is really an excellent idea.  It would return to the states some small measure of the power that has been taken from them by federal encroachments over the past several decades.  As the authors note:

The Repeal Amendment would help restore the ability of states to protect the powers “reserved to the states” noted in the 10th Amendment. And it would provide citizens another political avenue to protect the “rights . . . retained by the people” to which the Ninth Amendment refers. In short, the amendment provides a new political check on the threat to American liberties posed by a runaway federal government. And checking abuses of power is what the written Constitution is all about.

Amen to that.

Published in: on September 16, 2010 at 1:18 pm  Leave a Comment  

Proposed Amendment 63 To The Colorado Constitution Challenges ObamaCare

The Independence Institute has gathered enough signatures to place its “Right to Health Care Choice” citizens amendment to the Colorado Constitution on the ballot for the November election.  If Amendment 63 is passed, Article II of the Constitution of the State of Colorado would be amended by the addition of a new Section 32 to read as follows:

(1) All persons shall have the right to health care choice. No statute, regulation, resolution, or policy adopted or enforced by the State of Colorado, its departments and agencies, independently or at the instance of the United States shall:

     (a) require any person directly or indirectly to participate in any public or private health insurance plan, health coverage plan, health benefit plan, or similar plan; or

     (b) deny, restrict, or penalize the right or ability of any person to make or receive direct payments for lawful health care services.

(2) This section shall not apply to, affect, or prohibit: (A) emergency medical treatment required by law to be provided or performed by hospitals, health facilities, or other health care providers; or (B) health benefits provided in connection with workers’ compensation or similar insurance.

(3) “Lawful Health Care Services” means any service or treatment permitted or not prohibited by any provision of Colorado law.

(4) This section is intended to reflect and affirm the powers reserved to the State by U.S. Const., Amend. X, and to implement the powers reserved to the People by Section I of Article V of this Constitution.

(5) This section shall become effective upon proclamation by the Governor, shall be self implementing in all respects, and shall supersede any provision to the contrary in the Constitution of the State of Colorado or any other provision of law.

(6) If any provision of this section or the application thereof to any person, entity, or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this section that can be given effect without the invalid provision or application, and to this end the provisions of this section are declared severable.

This looks like a well-drafted Amendment, and it would send a powerful message to Washington if passed.  It is also very difficult to argue against in the current political environment.   I expect and hope that Amendment 63 will pass in November.

Published in: on August 30, 2010 at 3:18 pm  Leave a Comment