Obamacare : Unconstitutional or Unconstitutional--There Is No Question!
65It's About Time
Finally! Obama's Health Care Deformed finally ran headlong into a brick wall in the form of a federal judge who actually reads the Constitution instead of shredding it on the fly! Remember how Obama and his Zombies have--from Day One--claimed they had authority to do pretty much anything they felt like doing under the Commerce Clause? You do? Cool!
'Cause this afternoon, on December 13, 2010, Judge Henry E. Hudson of Federal District Court in Richmond, Virginia, declared, "Nuh-uh! You can't neither!"
Or words to that effect.
Of course, he took 42 pages to clarify his ruling, but man, did the Honorable Judge ever do a bangup job of creating a glass through which, on a clear day, you could see forever. Sure, Eric "Damn Arizona" Holder will appeal (duh!), but the Fourth Circuit Court of Appeals--which will be hearing that appeal--is not the Blue Baby liberal bastion we see selling fairy tales in San Francisco's Ninth Circuit. (That would explain a lot, you know, if it turned out that every judge in in the Ninth Circuit had been severely deprived of oxygen at birth.) No, the Fourth Circuit is known to be a pretty conservative bunch. Clinton couldn't even pack that one during his time in office.
This means what? Hey, this means that We the People are now very likely to see one of the anti-Obamacare lawsuits kick Obamacare's butt from Ground Zero right on through to a favorable Supreme Court decision without losing a single decision along the way. Obama won't admit this, of course--(again, duh!)--but this ruling that his signature piece of legislation really is going to fail (and fail magnificently) has undoubtedly got him needing a second constitutional for the day, looking around for the Charmin that dang bear swiped when he ran off to the woods in Sarah Palin's Alaska.
Details
What precisely did Judge Hudson consider unconstitutional in the health care law? Leaving out my "abridged version" (as used above) and going to the actual wording used by the Judge, we find (extracted from 42 pages!) the following (the numbering system and parenthetical comments are mine):
1. The Court's attention is focused solely on the constitutionality of the enactment. [p. 2] (Yes!)
2. (All issues raised in the lawsuit by the Commonwealth of Virginia) ...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. [p. 3] (Hudson goes on to specify that no higher court has ever addressed this issue, so there's no precedent.)
3. ...there do not appear to be any material facts genuinely at issue. The case turns solely on issues of law. [pp. 10-11]
4. Congressional findings, no matter how extensive, are insufficient to enlarge the Commerce Clause powers of Congress. [p. 21] (As those who've followed this issue from Day One well realize, those favoring Obamacare claim that forcing you to get off your couch and empty your kid's piggy bank to buy health insurance is under the purview of Congress in their authority to regulate Interstate Commerce. Those of us who scream bloody murder on the issue disagree.)
5. (No higher court) ...has extended Commerce Clause powers to compel an individual to involuntarily enter the steam 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. [p. 24] (Here we have the point of the entire exercise.)
6. ...the Necessary and Proper Clause does not provide a safe sanctuary...(as)...this authority may be constitutionally deployed (only) when tethered to a lawful exercise of an enumerated power. [p. 24] (This means Obama and his Zombies can't sneak in through the back door, either.)
7. The Minimum Essential Coverage Provision is neither within the letter nor the spirit of the Constitution. Therefore, the Necessary and Proper Clause may not be employed to implement this affirmative duty to engage in private commerce. [p. 24] (Exactly!)
8. (The penalty for not buying insurance) ...is a penalty and not a tax. [p. 36] (The arguments by the Commonwealth on this issue are particularly compelling and worth reading a couple of times.)
9. On careful review, this Court must conclude that Section 1501 of the Patient Protection and Affordable Care Act--specifically the Minimum Essential Coverage Provision--exceeds the constitutional boundaries of congressional power. [p. 38] (No kidding!)
10. ...the bill embraces far more than health care reform. It is laden with provisions and riders patently extraneous to health care--more than 400 in all. [p.38] (Which is what we on the right were telling America even before Nasty Pelosi's infamous "pass it to find out what's in it" comment.)
Judge Hudson wrapped up by deciding to say those 400+ "extraneous" provisions could be severed from the individual mandate he had just ruled unconstitutional. He further declined to grant any injunction against implementation of Obamacare, pointing out that there was still time for higher courts to Get 'R' Done before the 2014 buy-it-or-we'll-bop-you deadline.
An in-depth review of his 42-page decision (which I just completed) would seem to be grounds for a whole bunch of optimism. The Judge didn't just make his call out of thin air. Not by a long shot. Instead, he really studied the cases both sides (Commonwealth of Virginia vs. Health & Human Services) presented--and both sides did one helluva job. Fortunately, to use Hudson's own words, the administration held the "weaker hand" in this card game. Commonwealth attorneys really did their homework, and it shows. Judge Henry E. Hudson did his homework as well, and that also shows. I believe his decision will stand.
It will also make the leap into law school textbooks for generations to come, betcha betcha.
If you have a few hours to spare, you might consider reading the decision's actual wording to see if you agree. (Wall Street Journal has a link that'll take you to a PDF file, and I'll add a link here whenever one turns up that will embed properly.)
Merry Christmas, America!
CommentsLoading...
Thanks, Pop. Reading the entire decision did make one thing obvious: EVERYBODY in this case (Feds, State, Judge) REALLY did their homework. Which is the way it needs to be (obviously) when the case may stand as legal precedent for national public policy in the decades to come...though we don't see it nearly often enough.
In fact, this decision is so well done that it reminded me sharply WHY I once (during my college years) seriously considered switching my major from psychology to pre-law.
Voted up, awesome, useful and hoping this makes it to page 1 oogaly googlaly. Needs to be read by all of America....STUPENDOUS JOB...You have made it very easy for all to understand without the "jargonese" Thanks for writing this!!
Aw-w-w-w...you made me blush! (Not really; I'm far too shameless for that.)
Seriously, your comment is appreciated. It's not until feedback rolls in that you really know (as a writer) whether you've done what you set out to do in producing a piece...or not.
My guess is the good Judge Hudson took the time to read the 42 pages of his decision. Now if we can just get our lawmakers to read their laws before they pass them, or even better, read the Constitution.
Not sure about the rest of the country, but here in Virginia we actually have organizations that teach the Constitution, most notably the Center for the Constitution at Montpelier (center.montpelier.org), James Madisons home. There is a survey there that can serve as a refresher after it is filled out, if any feel the urge.
Merry Christmas, for sure! Great summary. Thanks for reading the ruling and providing this summary for us :)
Jim, his decision makes it pretty clear that he not only read his own stuff--but he actually dug into the nitty gritty and did his own research along the way. He cites numerous cases that bear directly on Obama's power grab attempt, and every one of them can be seen as pertinent to this issue by even a relative layman (i.e. me).
Good to hear about the Center for the Constitution. Not surprising about its location; if there's true constitutional bedrock anywhere in America, it's in Virginia.
Ms Dee: Thanks. When I reread the hub late this a.m., I did find a tiny (but significant) error in the way I'd worded a couple of sentences (late in the hub), and of course corrected those. Hopefully it's "clean" now.
Yet many are getting free healthcare by just going to the ER. Something is wrong here.
Keep on hubbing!
You bet, Eovery--something is definitely wrong.
One example (on the topic of ER visits): A few years back, when Pam and I were still living in Anaconda, Montana, her health issues were even trickier than they are today. One Saturday evening about 8:00 p.m., I had to run her to our local ER (her doc was long since off duty for the weekend) because it seemed her uterus had prolapsed. Turned out to be not the uterus but the bladder, but either way, it was trying to fall out of her body and needed attention.
Fortunately, by the time the doc on duty at the ER (one doc; it's a small town) took a look, said bladder had about halfway "gone home" and needed only a gentle nudge from the fickle finger of Fender (that was the doctor's name) to take care of things.
HOWEVER, we had one DEVIL of a time with Fender at first. It turned out to be nearly IMPOSSIBLE to convince him that she hadn't come in with the goal of squeezing PAIN PILLS out of Mr. M.D.
Turns out the reason his little pea brain was so hard to penetrate...wasn't entirely his fault. See, way over 50% of those who show at that ER after hours ARE looking for Hydrocodone or whatever, will come up with all manner of ailments to help them meet that goal.
He literally couldn't PROCESS Pam's insistence that she did NOT want a pain med prescription.
However, seems to me that's more of a drug problem than a health care problem. Not that they don't interact.
I'm torn on this one. On one hand, I say: no one can force ANYONE to purchase a particular product (even if it IS insurance) if he/she doesn't want to. But on the other, maybe coverage SHOULD be mandatory. Why should I pay your bills for you if you choose NOT to buy any health insurance coverage?
Tara, that's a good question...and I actually have an answer.
You SHOULDN't pay my bills for me. And you DON'T. I pay my own way, cash on the barrelhead. If I were to contract something inordinately expensive and couldn't pay for it--which would be the basis of your deepest concern here, one would think--I would NOT stick other taxpayers with the bill. If it were, say, terminal cancer (just for example), I would refuse conventional treatment. Period.
In other words, I'm my own personal (not governmental) death panel. If it's my time, it's my time, and I'm not about to try to shift my personal karma to others via the artificial mechanism we know as insurance.
Additionally, this also applies to my wife. She's very ill with countless disabilities and does use numerous prescription medications. When we met, 15 years ago, she was on SSI (disability check) and Medicaid--and yeah, the taxpayers, including both you and me, were footing the bill.
But there came a point in time, as we decided to hook up, that we told her federal caseworker that we were getting married, and they could keep their money from then on.
You could hear the shock right over the phone.
From that day forward, since Pam would love to work but can't, EVERY penny of her medical care costs have come from my pocket. I've worked 70 hour night shift weeks to pay for that at times, driving trucks on back country winter roads in Colorado, and scrambled mightily in other ways as well to Get 'R' Done. Plus, we've gotten free-choice assistance from her current doctor (who charges her a very low rate per visit) and from her pharmacist (who has found ways to keep medication costs as low as possible).
But we've NOT taken one penny out of your pocket, nor will we.
Fair enough?
"...those favoring Obamacare claim that forcing you to get off your couch and empty your kid's piggy bank to buy health insurance is under the purview of Congress in their AUTHORITY TO REGULATE INTERSTATE COMMERCE..."
That is one point I sincerely do not understand... on the one hand, you are not allowed to purchase your health insurance OUT of state... yet somehow they have the right to force this on us via the "Interstate"... as in accross state borders... commerce clause?
Obviously, I'm missing something. Wouldn't health insurance be considered "inTRAstate"... as in, you're not allowed to cross state borders to buy it. Soooo... that falls under the Federal "inTERstate commerce clause"... how... exactly?
...sorry, got so excited doing the third grader jumping up and down screaming, "teacher, teacher!" look at me cuz I have a point to make thing, I almost forgot:
Great hub! Thank you for posting and trying to help others (myself included) attain a better grasp of what's going on.
You've touched on two somewhat separate--but highly interconnected--topics...with at least 5 parts:
1. You're absolutely correct about having to buy insurance (if you do choose to buy it at all) INTRASTATE ONLY.
2. Republicans want to change that as a part of LOGICAL insurance reform. That is, they want to revise the law to allow you to buy your insurance in any doggoned state you like.
3. When Obama and his Zombies decided to ram this monster through, they might have been able to argue that no matter where you bought insurance, it was still Interstate Commerce...because the insurance company did business in more than one state.
4. The approach the Hell Care architects DID use, however, had nothing to do with Interstate Commerce as we know it--because NEVER has ANY court case seen "doing nothing" (refusing to buy insurance) as "doing something". In other words, commerce = action, but certainly not inaction.
5. Judge Hudson agrees: This is a raw power grab by Congress, NOT a "right to regulate" EVER granted to the legislators.
Clear as mud?
Clear as mud? Yeah, that about sums it up, lol. But, I guess I shouldn't feel too bad, seeing as how it was apparantly about as clear as CONCRETE to Pelosi and her ilk, yet they jumped all over it like it was the greatest thing since sliced bread just the same.
By the way, did you notice we're neighbors? We've been gone for two years, but lived off of Ramsey before, and now we're back in S.V., lol. Anyways, cheers to you, Sir, and thanks for the... ehem... "clarification", lol.
Yep, I did indeed notice we're neighbors. Read your profile. Particularly like the line about your two "midgets".
Pam (wife) raised her kids on Cavalry, just a bit off of Moson. Her ex is still there. When I "brought her back home" in April of '09, we landed a couple miles south of the Brite Spot.
I'm scratching my head, trying to figure out how to phrase that "clarification" a little better...but so far all I'm getting is a scratched head.
Naw... you are not at fault for the "lack of clarity", you obviously understand all this B.S. better than I do, but you've done as well or better than anyone could be expected to in order to try and clarify it for us "laymans".
My point is that, to me, it seems pretty cut and dry. Unless Obama and his cronies are going to side with the Republicans and allow people to shop around (out of state) for their insurance, I don't, nor will I ever, see how they can justify regulating an inTRAstate purchase utilizing their inTERstate commerce clause.
To me, that, and that alone, negates the need for any other argument on the issue. Not that there aren't about as many OTHER arguments as there are dollars in our Federal budget deficit that could legitimately be made... just that that's the first, simplist, and most effective one to prove "nObamacare" is UNconstitutional... and therefore, illegal.
Oh, and my wife thinks she might have met you at a bike rally this summer, do you ride a trike, by chance?
Huh. I'd LIKE to have a trike, but don't. No 2-wheel scoot, either. Sold our last one when Pam got too busted up to straddle the back seat, and it didn't feel right riding when she couldn't.
Haven't been to a Rally since we LIVED in Sturgis in the late 1990s.
Yeah, we probably don't need to worry much about Obama turning into a Republican-buddy. And you've got the main point: It's illegal.
Not that the Obamanation cares about legality. Overwhelming force is the only language understood there!
breakfastpop Level 8 Commenter 17 months ago
Bravo to the judge and to you for writing a timely terrific hub. Voted up and awesome!