January 31, 2011

Some beautiful language

A Florida Judge declared that Obamacare was unconstitutional and that, even though the US Government will probably appeal this decision, the US Government has an injunction to stop any action toward implementing Obamacare until it is ruled on by the Supreme Court. This will really test the honesty of this current administration. The language is beautiful -- Judge Vinson could be a novelist or poet. On the Commerce Clause -- page 42:
It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting --- as was done in the Act --- that compelling the actual transaction is itself �commercial and economic in nature, and substantially affects interstate commerce� [see Act � 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted.
From the summary - page 73:
In the final analysis, this Act has been analogized to a finely crafted watch, and that seems to fit. It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. It cannot function as originally designed. There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions --- which, as noted, were the chief engines that drove the entire legislative effort --- for me to try and dissect out the proper from the improper, and the able-to-stand-alone from the unable-to-stand-alone. Such a quasi-legislative undertaking would be particularly inappropriate in light of the fact that any statute that might conceivably be left over after this analysis is complete would plainly not serve Congress� main purpose and primary objective in passing the Act. The statute is, after all, called �The Patient Protection and Affordable Care Act,� not �The Abstinence Education and Bone Marrow Density Testing Act.� The Act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker. If Congress intends to implement health care reform --- and there would appear to be widespread agreement across the political spectrum that reform is needed --- it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not. It is Congress that should consider and decide these quintessentially legislative questions, and not the courts. In sum, notwithstanding the fact that many of the provisions in the Act can stand independently without the individual mandate (as a technical and practical matter), it is reasonably �evident,� as I have discussed above, that the individual mandate was an essential and indispensable part of the health reform efforts, and that Congress did not believe other parts of the Act could (or it would want them to) survive independently. I must conclude that the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit. The individual mandate cannot be severed. This conclusion is reached with full appreciation for the �normal rule� that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute, but non-severability is required based on the unique facts of this case and the particular aspects of the Act. This is not a situation that is likely to be repeated.
I am not a lawyer (nor do I play one on TV) but this is beautiful and clear writing. Judge Vinson eviscerates Obamacare, beats it to the ground and steals its lunch money... Posted by DaveH at January 31, 2011 8:43 PM
Post a comment

Remember personal info?