Judge's Rebuke To Obamacare Opens Door To States' Lawsuit

From Newsmax:

Judge's Rebuke to Obamacare Opens Door to States' Lawsuit


Thursday, 14 Oct 2010 03:18 PM Article Font Size

By: David A. Patten



Grass-roots conservatives and GOP leaders rejoiced Thursday following a federal judge's ruling that a multistate challenge to the constitutionality of Obamacare must be allowed to go forward.



The Obama administration had asked that the lawsuit be dismissed as groundless and tossed out of court. Thursday's rejection of those arguments sets up a Dec. 16 hearing on the merits of the case.



A similar challenge to Obamacare in Virginia is scheduled to go to trial on Monday.



The effort by some 20 state attorneys general to have Obamacare declared unconstitutional is shaping up as a major legal battle playing out on the eve of the November midterm elections. All sides agree that the case will ultimately be decided by the U.S. Supreme Court.



Story continues below video.





Federal Judge Roger Vinson on Thursday afternoon tossed out three of the states' six objections to Obamacare, and ruled another one moot.



But he gave the states and the National Federation of Independent Business, which has joined the lawsuit, permission to press forward on the two points most legal analysts say are their strongest:



That a federally mandated expansion of Medicaid will "run [state] budgets off a cliff."

That the individual mandate requiring people to have healthcare insurance exceeds the federal government's constitutional authority, under the Commerce Clause, to regulate interstate commerce.

Florida Attorney General Bill McCollum, who is leading the multistate lawsuit, issued a statement hailing the judge's decision as "a victory for the American people."



McCollum tells Newsmax he is "really pleased" with the judge's ruling.



"I was not surprised," he says, "but I was pleased. I thought that we had the best case [and] that we were going to win this. But it's always nice to hear the result."



Vinson, who was nominated to the bench by the late President Ronald Reagan, did not comment on how he might rule in his final decision. But he did not bother to conceal his strong skepticism regarding some of the government's arguments.



At one point in his 65-page order, he wrote that the administration was asking "that I divine hidden and unstated intentions, and despite considerable evidence to the contrary, conclude that Congress really meant to say one thing when it expressly said something else."



Elsewhere he charged Justice Department attorneys with making an "Alice in Wonderland" argument in maintaining the government had not overreached its constitutional authority.



"I'd say the tenor [of the order] is that we are dealing with a judge who is very favorably inclined to rule in our favor in the final decision he is going to render in a couple of months," McCollum tells Newsmax. … We still have to go argue the merits, [but] I believe he signaled to us that he's really leaning heavily our way, and the Justice Department is really going to have to come up with something to persuade him otherwise."



National Federation of Independent Business Executive Director Karen Harned praised the judge's ruling.



"We're thrilled of course," she tells Newsmax. "We're very happy that we're going to have our day in court on what we think is a very unconstitutional law.



"It was a very thoughtful opinion," she adds, "but we were encouraged by the fact that he recognizes what I think is rather obvious: That this individual mandate -- either forcing people to pay a fine or purchase health insurance -- really is unprecedented. We're hopeful that ultimately he will rule also that it's unconstitutional."



One reason grass-roots activists were so energized by the judge's ruling: The growing recognition that even if Republicans were to gain control of both chambers of Congress, President Barack Obama could still block any repeal with a stroke of his veto pen. But an adverse court ruling is not subject to presidential review. Moreover, because the Democratic reform legislation has no boilerplate severability clause, some legal analysts say a court finding that any part of it is illegal would negate the entire bill.



Matt Kibbe, the FreedomWorks leader and staunch ally of tea party organizations, suggests the ruling reflects the shaky legal basis for legislation that he says was only passed through "procedural chicanery" in the first place.



"I think it validates the argument that activists have been making from day one, that this was a huge overstep of the federal government's constitutional authority," he says. "The very idea that you can mandate that someone buy a certain product from a certain industry, simply because you live and breathe, you can't find that power in the Constitution."



In his order the judge cited several government documents that clearly indicated Congress knew the individual mandate was a major, possibly unconstitutional, expansion of federal powers long before the president signed the legislation into law.



"Unfortunately it's not surprising," Kibbe tells Newsmax. "Because they've shown great disdain for constitutional restraint all along."



Thursday's ruling marked the second time that a federal judge allowed a state-level lawsuit against healthcare reform to move forward.



The first lawsuit to pass muster occurred in Virginia, under the direction of Attorney General Ken Cuccinelli.



A third lawsuit brought by the Thomas Moore Law Center, which asked for a temporary injunction to block the law, was thrown out by a Michigan judge on Oct. 8.



That judge ruled that an individual's decision not to purchase healthcare insurance is a transaction that Congress can regulate under the Commerce Clause of the U.S. Constitution.



In the Michigan case, the judge's opinion stated: "The decision whether to purchase insurance or to attempt to pay for health care out of pocket is plainly economic. These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers and the insured population, who ultimately pay for the care provided to those who go without insurance"



Vinson in his Thursday ruling actually referenced part of the Michigan opinion that admitted the individual mandate's expansion of federal authority was without precedent.



The next step state case will occur Dec. 16, when the judge will hold a hearing for motion for summary judgment that both sides are now expected to file.



McCollum expects the hearing will also include the arguments for the lawsuit itself.



Whichever side wins, the ruling is sure to be appealed and ultimately to reach the Supreme Court, sources say.



The other lawsuit in Virginia is scheduled to begin Monday at 9 a.m. in Richmond, in Judge Henry E. Hudson's District Court for the Eastern District of Virginia.

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And, related, also from Newsmax:
 
Turning Back Obamacare


Monday, 04 Oct 2010 08:46 AM Article Font Size

By: Christopher Ruddy



In Greek mythology, the warrior Achilles had no rival. As depicted in Homer's "Iliad," he was universally feared as invincible.



That is, until a lone arrow struck his vulnerable heel. Achilles crashed to the ground and died.



Enter the Orwellian-named "Patient Protection and Affordable Care Act" — more commonly known as Obamacare.



These days, the chattering class is expending a lot of keystrokes to convince Americans that Obamacare is here to stay. Republicans, they say, could never get a repeal through Congress, even if they had majorities in the House and Senate.



To override a presidential veto, the GOP would have to muster votes of two-thirds from each chamber. But from where I sit, Obamacare has more than one Achilles’ heel.



With majorities in both Houses, the Republicans could force the president to revisit his healthcare plan and eliminate and modify the worst provisions.

Still, the best hope for repealing the whole law comes not from the legislative branch, but the judicial one.



In fact, 20 states have joined a Florida lawsuit challenging the constitutionality of the president's healthcare plan. A second state-level lawsuit against Obamacare is also moving forward in Virginia.



The driving force behind the legal challenge: Florida Attorney General Bill McCollum. McCollum, a former congressman, is well-known in the Sunshine State for defending conservative causes. His lawsuit to block Obamacare has brought him national attention.



McCollum claims that there is no constitutional basis for Obamacare’s "individual mandate" that forces the purchase of private healthcare coverage.

Already the Justice Department is responding to such claims, citing the Constitution’s Commerce Clause, which authorizes it to regulate the flow of business across state lines.



Recently, I spoke to McCollum, a man I admire, about his case. He explained to me that the individual mandate actually seeks to regulate non-commerce.



"The Justice Department argues — I think rather weakly — that you, as a person sitting in front of your TV set and doing nothing, are actually affecting healthcare costs in this country," says McCollum.



Think about it: If the federal government has the power to make you buy health insurance, what couldn't it require? Solar panels for your home, perhaps? A plug-in automobile? Unionized lawn-care services, maybe? And if the federal government were free under the Commerce Clause to require you to make a transaction you don't want, even when your state also opposes the mandate, would the federal system of governance envisioned by the Founders still exist?



In my experience, most citizens fear an unrestrained federal government. Wasn’t that the purpose of the Constitution after all, to protect our freedoms?



There’s more good news: McCollum says Obamacare harbors another hidden vulnerability, called severability.



Severability is the boilerplate language you'll find in almost any contract or legislation, stating that if the courts strike down one of its provisions, the others will remain in effect.



It turns out that while members of Congress and their legions of aides were busy crafting the massive 2,400 pages of the final Obamacare legislation, they neglected to include this severability clause.



McCollum tells me that if he's able to convince the courts that even one part of Obamacare is unconstitutional, the lack of a severability clause means the entire Affordable Care Act will be voided.



While McCollum’s case winds through the courts, I like a multipronged approach in thwarting Obamacare: fighting it in public opinion, in Congress, and in the courts.



Republicans should not simply be advocating for “repealing” Obamacare. Instead they should put forth positive alternatives, such as tort reform to reduce insurance costs.



They could also require that providers bill patients first, not insurance companies, adding a layer of accountability. And new incentives could propel medical savings accounts while taking down state barriers, allowing private insurance carriers to compete across state lines.



This way the Republicans are not seen as the party of no — but as a positive force. By 2012, Obama may discover his health legislation is indeed his Achilles’ heel.











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