U.S. District Court Judge Vinson ruled today that Obamacare–the entire Act– is unconstitutional:
“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,” Vinson wrote.
The law does not contain a “severability clause”, which is standard in legislation and legal documents such as leases and contracts. Such a clause would simply say that if one part of the legislation is found to be unconstitutional, the rest can stand.Much has been written about this odd omission; this is apparently the kind of error you get when you are jamming legislation down the throats of the American people.
The result here is that if Judge Vinson’s ruling stands, the entire law is struck down instead of just the individual mandate. The defect in the mandate, in short, is that it gives Congress the power to regulate “inactivity” or to force the activity that it wants to regulate. Judge Vinson rejected the President’s argument that the Commerce Clause so empowers Congress. Congress has the power to regulate economic activity–not inactivity.
David Whelan at Forbes has provided an excellent summary of the two arguments advanced by Florida’s AG and 25 other states (that Medicare expansion is forced on states was dismissed) as well as the status of the cases brought around the country against Obamacare (we are 2-2 now) and where we go from here. His article contains a handy copy of Judge Vinson’s decision (this link has ads and may be choppy to scroll through). The entire opinion makes great reading but you may want to skip ahead to page 37 where the opinion gets to the Commerce Clause discussion as applied to this case.
Here is a great quote from 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. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power”[Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only.Surely this is not what the Founding Fathers could have intended.”
Here is the Commerce Clause and the Necessary and Proper Clause:
Article 1 Section 8: “The Congress shall have Power To….regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”