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ObamaCare Loses In Court
The Wall Street Journal
says that only a few months ago, the White House and its allies on
the legal left dismissed the constitutional challenges to ObamaCare as
frivolous, futile and politically motivated. So much for that.
Yesterday, a federal district court judge in Virginia ruled that the
health law breaches the Constitution's limits on government power.
In a careful 42-page ruling, Judge Henry Hudson declared that
ObamaCare's core enforcement mechanism known as the individual mandate
-- the regulation that requires everyone to purchase health insurance or
else pay a penalty -- exceeds Congress's authority to regulate the lives
"The unchecked expansion of congressional power to
the limits suggested by the Minimum Essential Coverage Provision [the
individual mandate] would invite unbridled exercise of federal police
powers," Judge Hudson writes. "At its core, this dispute is not
simply about regulating the business of insurance -- or crafting a
scheme of universal health insurance coverage -- it's about an
individual's right to choose to participate."
So the issue is
joined, and no doubt with historic consequences for American liberty.
For most of the last century, the U.S. Supreme Court interpreted the
Constitution's Commerce Clause as so elastic as to allow any regulation
desired by a Congressional majority. Only with the William
Rehnquist Court did the Justices begin to rediscover that the Commerce
Clause has some limits, as in the Lopez (1995) and Morrison (2000)
The courts up through the Supremes will now decide if
government can order individuals to buy a private product or be
penalized for not doing so. If government can punish citizens for
in essence doing nothing, then what is left of the core Constitutional
principle of limited and enumerated government powers?
Hudson's opinion is particularly valuable because it dispatches the
White House's carousel of rationalizations for its unprecedented
intrusions. The Justice Department argued that the mandate is
justified by the Commerce Clause because the decision not to purchase
insurance has a substantial effect on interstate commerce because
everybody needs medical care eventually. And if not that, then
it's permissible under the broader taxing power for the general welfare;
and if not that, then it's viable under the Necessary and Proper clause;
and if not that, well, it's needed to make the overall regulatory scheme
But as Judge Hudson argues, the nut of the case is the
Commerce Clause. Justice can't now claim that the mandate is
"really" a tax when the bill itself imposes what it calls a "penalty"
for failing to buy insurance and says the power to impose the mandate is
vested in interstate commerce. Recall that Obama went on national
television during the ObamaCare debate to angrily assert that the
mandate "is absolutely not a tax increase."
Hudson says that no court has ever "extended Commerce Clause powers to
compel an individual to involuntarily enter the stream of commerce by
purchasing a commodity in the private market."
attacking Judge Hudson because he was appointed by George W. Bush, but
his ruling is relatively narrow. He didn't strike down the rest of
ObamaCare even though it lacked a severability clause, and he didn't
enjoin the law's implementation pending appeal. His opinion also
doesn't touch Virginia Attorney General Ken Cuccinelli's long-shot claim
that his state's "health freedom" law can nullify an act of Congress. In
fact, federal laws that are constitutional are supreme under the 10th
Yesterday liberals were crowing that even if the
mandate is eventually declared illegal, it's no big deal because the
rest of ObamaCare's new system would remain intact. Yet they've
argued for years that the mandate is essential to health reform, because
the mandate is at the heart of the regulatory machine. ObamaCare
without a mandate would mean individuals wouldn't have to pay into a
system until they were sick, driving up costs even faster and ruining
what's left of health insurance markets.
While Judge Hudson's
ruling is the first to declare part of the law unconstitutional, more
than 20 state attorneys general and the National Federation of
Independent Business are also suing in Florida. Oral arguments
will be heard on Thursday in that case, which we think is the strongest
constitutional challenge to the law.
As the Virginia case shows,
ObamaCare really does stretch the Commerce Clause to the breaking point.
The core issue is whether the federal government can order individuals
to do anything the political class decides it wants them to do.
The stakes couldn't be higher for our constitutional order.
Repealing ObamaCare Would Save $540 Billion
says the Congressional Budget Office, in an email to Capitol Hill
staffers obtained by the Spectator, has said that repealing the national
health care law would reduce net spending by $540 billion in the ten
year period from 2012 through 2021. That number represents the
cost of the new provisions, minus Medicare cuts. Repealing the
bill would also eliminate $770 billion in taxes. It's the tax
hikes in the health care law (along with the Medicare cuts) which
accounts for the $230 billion in deficit reduction.
Edward "Sandy" Davis, CBO's Associate Director for Legislative Affairs:
To interested Hill staff:
CBO and the
staff of the Joint Committee on Taxation (JCT) have not yet
developed a detailed estimate of the budgetary impact of H.R. 2, the
Repealing the Job-Killing Health Care Law Act, which would repeal
the major health care legislation enacted in March 2010.
Yesterday, we released a preliminary analysis of that legislation
indicating that, over the 2012-2021 period, the effect of enacting
H.R. 2 on the federal budget as a result of changes in direct
spending and revenues is likely to be an increase in deficits in the
vicinity of $230 billion, plus or minus the effects of forthcoming
technical and economic changes to CBO's and JCT's projections for
We have been asked to provide the revenue and
direct spending components of that total. Extrapolating the
estimated budgetary effects of the original health care legislation
and accounting for the effects of subsequent legislation, CBO
anticipates that enacting H.R. 2 would probably yield, for the
2012-2021 period, a reduction in revenues in the neighborhood of
$770 billion and a reduction in outlays in the vicinity of $540
billion, plus or minus the effects of forthcoming technical and
economic changes to CBO's and JCT's projections.
post a Director's blog with this information on the CBO website
shortly. Please let me know if you have any questions.
Edward "Sandy" Davis Associate Director for
Legislative Affairs Congressional Budget Office
Related:House Votes to Pass Key Hurdle
to Repealing ObamaCare, 236-181.
Related:Oklahoma Says It Will File Lawsuit Challenging
U.S. Chamber Of Commerce Calls For Repeal
says Tom Donohue, CEO and president of the U.S. Chamber of Commerce,
said, during his annual State of American Business address that the
health care bill signed into law last year by Barack Obama should be
"Last year, while strongly advocating health
care reform, the Chamber was a leader in the fight against this
particular bill, and thus we support legislation in the House to
repeal it." ... "We see the upcoming House vote as an opportunity
for everyone to take a fresh look at health care reform and to
replace unworkable approaches with more effective measures that will
lower costs, expand access, and improve quality."
Donohue prefaced his announcement that the Chamber
supports repealing what has come to be known as ObamaCare by stating
that government regulations should be reined in and the regulatory
process needs to be reformed.
"First, we must rein in excessive
regulations and reform the regulatory process." ... "At the federal
level alone, regulations already fill 150,000 pages of fine-print
text and cost Americans $1.7 trillion a year."
Donohue included the health care bill in what he
called a "regulatory tsunami."
"For example, the new health care law
creates 159 new agencies, commissions, panels, and other bodies."
... "It grants extraordinary powers to the Department of Health and
Human Services to redefine health care as we know it. When the
bill passed, Americans were promised that it would lower costs and
allow anyone who liked their existing coverage to keep it.
Instead, costs are rising and health plans are being forced to
Donohue said the cost of the bill has already
increased and it has created problems for Medicare coverage and that a
growing number of businesses are considering ending employer-based
insurance plans because of cost.
He also called the bill
"By mid-December, HHS had already granted
222 waivers to the law -- a revealing acknowledgement that the law
is unworkable." ... "And, with key provisions under challenge in the
courts by states and others, itís time to go back to the drawing
Related:Judicial Watch Sues HHS to
Obtain ObamaCare Waiver Documents
House To Resume Push To Repeal ObamaCare
Donna Smith and Thomas Ferraro are reporting
that the U.S. House of Representatives will resume action next week on
repealing Barack Obama's landmark healthcare overhaul, a House
Republican spokesman said on Thursday.
The House had been
expected to act this week on the repeal bill, but the vote was postponed
after the tragedy in Tucson.
"As the White House noted, it is
important for Congress to get back to work, and to that end we will
resume thoughtful consideration of the health care bill next week," said
Brad Dayspring, a spokesman for House Majority Leader Eric Cantor.
"Americans have legitimate concerns about the cost of the new
healthcare law and its effect on the ability to grow jobs in our
country," he added.
The vote is set for Wednesday, said another
Republican aide who asked not to be identified.
The repeal vote
would fulfill a campaign promise of Republicans who won control of the
House in November elections. But the measure will likely die in
the Senate, where Democrats remain in control.
Even if repeal
were to pass the Congress, Obama would veto it, the White House has
says that in a ruling out of the U.S. District Court in Pensacola,
Justice Roger Vinson has declared that the primary mechanism whereby the
health reform achieves universal insurance coverage -- the individual
mandate -- is unconstitutional.
With this ruling, and a similar
one in December by Judge Henry Hudson in Virgina, itís likely that the
U.S. Surpreme Court will be the final arbiter of whether ObamaCare
stands. (Two other lawsuits -- one in Michigan and one in Virginia --
were thrown out by other federal district judges last year who disagreed
with the constitutional challenge.)
Henry Hudson, the Virginia
judge who ruled in favor of that stateís legal challenge, focused on
whether Congress has the ability, via the Commerce Clause, to force
uninsured people to buy insurance. He concluded that it does not.
Vinson, on the other hand, signaled in an earlier ruling that he was
interested in whether the federal fine for not buying insurance is a tax
or a penalty. If itís a penalty, the legislation relies on a broad
Commerce Clause interpretation. If itís a tax, itís much more
difficult to make a constitutional claim against it.
ruling he writes: "Because the individual mandate is unconstitutional
and not severable, the entire Act must be declared
void. This has been a difficult decision to reach, and I am aware
that it will have indeterminable implications."
Related:Federal Judge Roger Vinson used
ObamaĎs own position from the 2008 campaign against him
federal judge in Florida says the Obama administrationís health overhaul
is unconstitutional, siding with 26 states that had sued to block it.
U.S. District Judge Roger Vinson on Monday accepted without trial the
statesí argument that the new law violates peopleís rights by forcing
them to buy health insurance by 2014 or face penalties.
Attorneys for the administration had argued that the states did not have
standing to challenge the law and that the case should be dismissed.
The case is likely to go to the U.S. Supreme Court. Two other
federal judges have upheld the insurance requirement, but a federal
judge in Virginia also ruled the insurance requirement unconstitutional.
See? The system works. That is to say, the one set up by
the U.S. Constitution. You remember the U.S. Constitution, right?
And, well, when 26 States all say that a law passed by Congress and
signed by Obama is unconstitutional, the chances are it is.
you combine that with the House of Representativesí call for its repeal,
even Democrat Senators (particularly those facing reelection in 2012)
are going to think twice about voting against repeal when it gets to the
Obama is just two years into his first and last
term, looking more and more like Jimmy Carter every day, courtesy of the
mobs in the streets of Cairo.
For two years he threw trillions
of OUR dollars at "stimulus" legislation to generate jobs and failed.
Now the most central piece of legislation for him, former Speaker
Pelosi, and Harry Reid has been ruled unconstitutional.
no way Obama can breath life into that horrid overhaul of Medicare that
pulled trillions out of it while adding millions more Americans to it.
No where in the Constitution does it say that the government can require
you to buy insurance, a hamburger, or even a lottery ticket.
Moreover, as various entities examined ObamaCare, it became increasingly
clear that it was a monstrosity filled with mandates that would end up
killing people who didnít have months to wait around for an operation or
waiting to see the increasingly fewer physicians it would force to leave
the profession for lack of adequate compensation.
It is now clear
to everyone that Obama was and is totally unsuited and unprepared for
the job. Now watch the issue of his real place of birth move to
the center of the stage.
The U.S. could survive a "President
Biden," but Obama should never have been let anywhere near the Oval
Not a good day for the Democratic Party. A really
awful day for Barack Hussein Obama.
"We Have An Increasingly Lawless President"
says radio host Rush
Limbaugh is warning that the Obama administration might continue to
force implementation of its health-care law that was ruled
unconstitutional yesterday, saying, "We have an increasingly lawless
"We do know that this regime violated and ignored a
federal court order on their drilling moratorium in the Gulf of Mexico.
So we have an increasingly lawless president," Limbaugh said on his
program this afternoon.
Asking himself rhetorically if he meant
to say that, he repeated himself, saying that yes, he does:
"We have an increasingly lawless
Limbaugh said the Obama administration is "saying
they'll continue to implement this law. For the gazillionth time,
the judge did not say that they can continue to implement it while it's
"I think there is abject panic over this ruling," he
continued. "This is the linchpin. This is the foundation of
the new America. They were hoping to sneak in this ability [that]
the federal government mandate people have something."
see is a lawless, statist mentality, in this case unconstitutional
behavior if the regime does not comply with the court, plain and simple.
They cannot. This law has been voided. It has been ruled
In a blog post on the White House website,
Assistant to the President and Deputy Senior Adviser Stephanie Cutter
wrote that the case is "is a plain case of judicial overreaching."
"We don't believe this kind of judicial activism will be upheld and
we are confident that the Affordable Care Act will ultimately be
declared constitutional by the courts," she added.
Related:White House vows to implement
health care reform, despite judgeís ruling
ObamaCare Will Cost 800,000 Jobs
says Congressional Budget Office (CBO) Director Doug Elmendorf,
testifying yesterday before the House Budget Committee, confirmed that
ObamaCare is expected to reduce the number of jobs in the labor market
by an estimated 800,000. Here are excerpts from the exchange:
Chairman [Paul] Ryan: "[I]t's been
argued...that the new health care law will create jobs and increase
labor force participation. But if I recall from your analysis, it
was quite the opposite. Is that not the case?"
[Douglas] Elmendorf: "Yes."...
Campbell: Thank you, Mr. Chairman, we'll -- and Dr. Elmendorf
-- and we'll continue this conversation right now. First on
health care, before I get to -- before I get to broader issues, you
just mentioned that you believe -- or that in your estimate, that
the health care law would reduce the labor used in the economy by
about 1/2 of 1 percent, given that, I believe you say, there's 160
million full-time people working in '20-'21. That means that,
in your estimation, the health care law would reduce employment by
800,000 in '20-'21. Is that correct?
Elmendorf: Yes. The way I would put it is that we do
estimate, as you said, that...employment will be about 160 million
by the end of the decade. Half a percent of that is 800,000.
real number be 783,500? After all, ObamaCare will also
give us 16,500 additional IRS agents.
CBO: Repealing ObamaCare Would Save
Philip Klein says repealing the new national
health care law would result in gross savings of $1.4 trillion, a new
report by the Congressional Budget Office finds.
health care debate, Democrats were hard pressed to keep up with
President Obama's promise that the legislation would cost "around $900
billion." So they employed the gimmick of delaying the major spending
provisions until 2014 to make the legislation appear cheaper within the
CBO's ten-year budget window, then 2010 through 2019. At the time, I
calculated that this tactic deferred 98 percent of the spending to the
last six years of that period. Well, now two years have passed, and the
CBO's budget window has shifted to 2012 through 2021 -- and voliŗ -- the
estimate that was $940 billion at the time of passage has suddenly gone
up to $1.4 trillion. Keep in mind that this estimate still includes two
years (2012 and 2013) prior to full implementation. Clearly, the actual
10-year cost of the major coverage provisions is going to be even higher
-- likely something closer to $1.8 trillion.
Of course, Democrats
are going to focus on the CBO's other finding -- that repealing the
health care law would add $210 billion to deficits over this period. But
let's break that down. It's true that the law also includes $732 billion
in spending cuts (primarily for Medicare). Right now, we're engaged in a
bitter debate over how to wring savings out of the federal budget so we
can reduce the debt. Well, if the $732 billion in cuts had not been used
to pay for a new entitlement, they'd still be available for deficit
Even so, when all the cuts are taken into account,
net spending still goes up by $604 billion under the health care law.
The way it achieves deficit reduction is through $813 billion in tax
hikes. In other words, the law "saves" money only if you think alll
money is government property to begin with -- it certainly doesn't save
the taxpayers who are coughing up the additional $813 billion.