Obamacare Unconstitutional? Roger That!

Obamacare Unconstitutional? Roger That!
By David Catron on 2.1.11 @ 6:09AM

Ian Gershengorn, the government lawyer charged with defending ObamaCare in State of Florida v. U.S. Department Health and Human Services, probably knew he was in for a shellacking when in a December hearing Judge Roger Vinson started talking about broccoli. The basis of Florida's challenge to ObamaCare is its claim that the law's requirement that all Americans buy health insurance is unconstitutional because Congress has no legitimate power to impose such a mandate. Revealing some sympathy with this position, Judge Vinson asked the hapless DOJ attorney, "If they decided everybody needs to eat broccoli because broccoli makes us healthy, they could mandate that everybody has to eat broccoli each week?" Gershengorn lamely responded that the health care market has unique qualities that necessitate the mandate. "It is not shoes, it is not cars, it is not broccoli."

This answer was obviously not very convincing to the Judge. On Monday, Vinson found in favor of Florida and the twenty-five other states that have joined its lawsuit, ruling that the so-called individual mandate is unconstitutional. Moreover, he went further than U.S. District Judge Henry Hudson, who recently ruled against the Obama administration in a similar case filed by the Commonwealth of Virginia. Whereas Hudson was content to strike down only the mandate, allowing the remaining provisions of ObamaCare to stand, Judge Vinson refused to ignore the law's lack of a severability clause. He held that the absence of such language, which would protect the other provisions of PPACA if the mandate is declared invalid, required him to strike down the entire health care law: "Because the individual mandate is unconstitutional and not severable, the entire act must be declared void."

And the news gets even worse for President Obama and his health care bureaucrats. Vinson, following the example of Judge Hudson in Commonwealth of Virginia v. Sebelius, declined to grant the plaintiffs an outright injunction against ObamaCare. However, he did place a substantial speed bump in its path by awarding them "declaratory relief." This, as the judge phrased it, is the "functional equivalent of an injunction" because there is a presumption that "officials of the Executive Branch will adhere to the law as declared by the court." The administration will no doubt seek a stay from a higher court while the inevitable appeals progress through the courts. But Vinson's choice of words suggests that, until such a stay is granted, Kathleen Sebelius, Donald Berwick, and the rest of Obama's apparatchiks would do well to halt implementation of the "reform" law.

This and other plaintiff-friendly aspects of the ruling notwithstanding, Judge Vinson's decision did provide a significant disappointment for the twenty-six states participating in the case. These states joined Florida in this lawsuit primarily to fight the "coercion and commandeering" by the federal government pursuant to the Medicaid program. ObamaCare is projected to add 16 million Americans to the program, but does not provide enough funding to cover them. The Obama administration argues that states can pull out of the joint federal-state program if they don't like the expansion mandated by the law, and the judge agreed: "[Judge Vinson] dismissed the contention that states were being illegally coerced by the federal government. He said they always have the option, however impractical, to withdraw from Medicaid, a joint state and federal insurance program for those with low-incomes."

Beyond this faint silver lining, however, Monday's ruling was another in a growing list of disasters for the Obama administration and its signature domestic "achievement." The supporters of ObamaCare will, of course, loudly dismiss it as another "stray decision… by a conservative trial judge," and we should expect to see a lot of "news" stories about the fact that Judge Vinson bears the ultimate mark of Cain: he was appointed by Ronald Reagan. Indeed, the usual suspects have already labeled him the "Tea Party" judge. We have been here before, of course. This is the same playbook they used when Judge Henry Hudson issued his ruling in the Virginia case. The shrillness of their response, however, makes it clear that they are worried. The virtual certainty that the issue will eventually be decided by the Supreme Court obviously has them biting their nails. And well it should.

Even if some provisions of ObamaCare survive an encounter with the high court, the law's linchpin is probably a goner. The individual mandate would penalize individuals for not engaging in economic activity, and the Obama administration claims such penalties are permitted by the Constitution's interstate commerce clause. But, as Brooklyn Law School's Jason Mazzone recently wrote in the New York Times, the Supreme Court has never issued a ruling that supports such an Orwellian application of that much-abused passage: "All of the Supreme Court cases upholding Congress's power under the Constitution's interstate commerce clause have involved Congress regulating some kind of activity that is already occurring." This, as Mazzone goes on to point out, "provides a way for the justices to strike down the individual mandate without having to overturn any precedent."

While we wait for the Florida and Virginia cases to wind their way to their inevitable destination, try to imagine Ian Gershengorn and his DOJ colleagues poring over the 78 pages of Judge Vinson's ruling and hitting the following passage: "I note that in 2008, then-Senator Obama supported a health care reform proposal that did not include an individual mandate … stating that 'if a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house.'" Upon reading that passage, Gershengorn probably had the same sinking feeling he experienced when Judge Vinson began asking him questions about vegetables during last December's hearing.