January 31, 2011
Here's A Win For Attorney General McKenna

Among many others.

A second federal judge ruled on Monday that it was unconstitutional for Congress to enact a health care law that requires Americans to obtain commercial insurance, evening the score at two-to-two in the lower courts as the conflicting opinions begin their path to the Supreme Court.

Judge Roger Vinson of Federal District Court in Pensacola, Fla., ruled that the law will remain in effect until all appeals are concluded, a process that could take two years.  However, Judge Vinson determined that the entire law should fall if appellate courts agree with his opinion that the insurance requirement is invalid.
. . .
In a 78-page opinion, Judge Vinson held that the insurance requirement exceeds the regulatory powers granted to Congress under the Commerce Clause of the Constitution.  Judge Vinson wrote that the provision could not be rescued by an associated clause in Article I that gives Congress broad authority to make laws "necessary and proper" to carrying out its designated responsibilities.

"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," Judge Vinson wrote.

It's a preliminary win, but it's still a win.

(Here's the opinion for those who want to read the whole thing.)

Posted by Jim Miller at January 31, 2011 12:36 PM | Email This
Comments
1. Hard to believe they are still arguing the commerce clause. I agree Health care is interstate but Health care insurance certainly is not. The last I looked it was illegal to sell insurance across state lines. Which means the insurance portion is not interstate commerce.

Posted by: J. Lock on January 31, 2011 01:55 PM
2. It's a clear cut case of violating the Commerce clause of the constitution. Note that Liberal prorgressives basically throw out the constitution, read the Bill of Rights and selected amendments to conform to their progressive leftist ideology (i.e. anarchy) of a "living document" ugh ! There are enough robes who read and pay attention to the constitution to prevent constitutional anarchy in a plurality of cases.

However, the final decision will be political.

Posted by: KDS on January 31, 2011 02:06 PM
3. Yes!!!

Posted by: Michele on January 31, 2011 03:23 PM
4. "...If a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house."

THAT, my friends, are Obama's own words. Which were parroted by the judge to essentially chide this legislation.

OUCH!!

Posted by: Michele on January 31, 2011 03:26 PM
5. One of my favorite quotes in the opinion:

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.

This is the best analogy I've seen that shows what's wrong with the mandate.

Posted by: DoppioLover on January 31, 2011 03:54 PM
6. From today's decision:

"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.""

From Bush v. Gore decision:

The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

Emphasis mine.

Don't expect the peanut gallery to get it, nor expect you to fathom what it means when court rulings begin with throwing out stare decisis - even when the beginning comes at the end.

Who was it that said "Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right."?
Nah, nevermind.

Posted by: MikeBoyScout on January 31, 2011 04:05 PM
7. Massive amount of cricket chirp from the moronic leftist "experts" who claimed that McKenna's actions and the suit were "merit less."

Yet, they all were so quick to call the reporters and grab the mics when he announced he was going to, quite rightfully, join the efforts to protect us from fringe left, unconstitutional tyranny.

Posted by: Hinton on January 31, 2011 04:07 PM
8. @5 DoppioLover on January 31, 2011 03:54 PM said:

This is the best analogy I've seen that shows what's wrong with the mandate.

Right on! This judge understands the original intent of our beloved Founding Fathers!

Because "No taxation without representation" had very little to do with the Boston Tea Party. Everyone knows the American Revolution was about monopolies or the threat of Woodrow Wilsonistic soshuleesem.

Also too, the Constitution is chock full of references to the monopolistic East India Company.

Screwy liberals don't even read the Constitution!

Posted by: MikeBoyScout on January 31, 2011 04:24 PM
9. Seems Mike BS is coming a little unhinged, especially when he goes back in and references Bush V. Gore. Hilarious.

Today's decision was a win for those who cherish and respect the US Constitution. It will go to the SCOTUS and be upheld 5-4 with Kennedy being the deciding vote (the usual liberal jurists will be voting their politics and not the law of course, but what else is new?). At that time, Mike BS will have to be put on suicide watch as he will be beside himself with anger. As for me, I'll take the buttered popcorn and a comfortable seat.

Posted by: Rick D. on January 31, 2011 05:28 PM
10. 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.

For people who don't really understand the original Boston Tea Party, it was not so much about the tax itself -- in fact, the price of tea was less because of the British government's actions -- but the fact that an industry was being given a monopoly and all other potential competitors were being forced out of the market.

That is to say, the Tea Party was less about taxes and more about government control that picked winners and losers. While this analogy is not totally inapt, it works even better when looking at things like the bailouts, the GM purchase, and all the "stimulus" money (and other monies over the many years) that went to specific companies.

Posted by: pudge on January 31, 2011 06:24 PM
11. MikeBS: Because "No taxation without representation" had very little to do with the Boston Tea Party. Everyone knows the American Revolution was about monopolies or the threat of Woodrow Wilsonistic soshuleesem.

Actually, the former is mostly correct, yes: it was almost entirely about government-mandated monopolies. Again: the British actions LOWERED the price of tea. But it came at a stiff cost: loss of business for many companies and merchants and middlemen (since under the new law, the East India Company could sell tea directly, whereas before they were required to go through others to sell their tea).

While I won't shed a tear for the middlemen who lost THEIR work -- since government shouldn't have been mandating such middlemen in the first place, kinda like today's alcohol resellers in WA -- but the rest had legitimate grievances, and it's what led primarily to the Boston Tea Party. It's true that the revolt could not have happened without existing unrest over taxes, but at the end of the day, it was all about CONTROL, much moreso than taxes.

Funny that MikeBS is trying to mock the judge, when MikeBS himself is the one who is clueless.

Well, only a little funny: it is, of course, too expected to be very funny.

As to his idiotic whining about court decisions ... neither this decision, nor Bush v. Gore, threw out any precedents (which is what stare decisis means), so he's just, as usual, talking about things he doesn't understand. Furthermore, even if precedent had been tossed out ... when you argue precedent against a clear and unambiguous reading of the Constitution, the Constitution wins, almost every time. There are exceptions, but they center around maintaining order: for example, we would not throw out Social Security, despite its unconstitutionality, because it would cause too much disruption across the nation. However, trying to make that argument with a bill that's mostly been unimplemented is a terribly weak case to make.

(But again, there's no precedent involved here, so that's really beside the point.)

Posted by: pudge on January 31, 2011 06:31 PM
12. BTW, I looked for claims that this decision violated precedent. Without fail EVERY claim of violating precedent was a complete and total lie: they all concluded that the "precedent" that was violated was that Congress has broad power to regulate interstate commerce. But there is no such precedent that such broad power is unlimited, which is what the claims of "violated precedent" must rely upon: either that, or the view that this act -- forcing all Americans to buy a particular product -- is itself either precedented (which we all know is false) or not substantially unlike all other precedented actions (which we all know is false, because it forces all Americans to buy a particular product).

If someone has an example of a violated precedent here, other than this one, I'd like to see it. But this one is obvious crap.

Posted by: pudge on January 31, 2011 06:45 PM
13. @10 pudge on January 31, 2011 06:24 PM,

"the Tea Party was less about taxes and more about government control that picked winners and losers"

Not to unfairly target you, but just where do you get that?
Is it something you read? Citation???

Because what I know is that the actual Boston Tea Party was organized and carried out in 1773 by the Sons of Liberty.
The cause of the Sons of Liberty was "No Taxation Without Representation!" and protested the Tea Act which was levied (along with other taxes) on loyal colonists who were denied representation in Parliament.

Can you find and cite one document from famous and prolific Sons of Liberty members like Samuel Adams, Paul Revere, Patrick Henry, John Hancock or John Adams that speaks of opposition to governments picking winners and losers?

No, I didn't think so.

Posted by: MikeBoyScout on January 31, 2011 06:46 PM
14. MikeBS: Not to unfairly target you, but just where do you get that?

History. Books. A lifetime of knowledge and understanding.


Is it something you read? Citation???

Well, here's a nice summary, and you can do more research yourself if you like: "The protest movement that culminated with the Boston Tea Party was not a dispute about high taxes. The price of legally imported tea was actually reduced by the Tea Act of 1773. Protestors were instead concerned with a variety of other issues. The familiar "no taxation without representation" argument, along with the question of the extent of Parliament's authority in the colonies, remained prominent. ... Colonial merchants, some of them smugglers, played a significant role in the protests. Because the Tea Act made legally imported tea cheaper, it threatened to put smugglers of Dutch tea out of business. Legitimate tea importers who had not been named as consignees by the East India Company were also threatened with financial ruin by the Tea Act. Another major concern for merchants was that the Tea Act gave the East India Company a monopoly on the tea trade, and it was feared that this government-created monopoly might be extended in the future to include other goods."


Because what I know is that the actual Boston Tea Party was organized and carried out in 1773 by the Sons of Liberty.

Who were ... ? Mostly merchants. That should give you a clue.

What really makes me laugh is when people say the new Tea Party is unlike the Boston Tea Party because the current one is "astroturf," as if the original one wasn't pushed primarily by business interests.


The cause of the Sons of Liberty was "No Taxation Without Representation!"

No, that was a slogan that was used. And it predated the particular act in question, by at least 10 (and up to 20 or more) years. It was a nice rallying cry, and it generally summed up the views of the movement, but it had little to do with the particular government act that led to the Tea Party.

The original Tea Party is much more like today's Tea Party than most people, on either side, really understand. Both movements were about distant government control and special interests having more of a say over various aspects of their lives than they themselves had; about high taxes; about business opportunities; about government force; about many things that were all interrelated, and often they got mingled together into an unrecognizable mess.

With our media today, it's often hard to pick out exactly what the "movement" is saying; much moreso in the couple decades starting the second half of the 18th century, so it's easy to understand how the British Parliament misunderstood the movement: they thought -- as Obama did when he gave us a tiny little tax cut -- that the colonists would be appeased by the passage of the Tea Act, since it lowered the cost of tea. But as Obama did, the British misread the public mood, thinking it was more about money than about control over their own lives.

the Tea Act which was levied (along with other taxes) on loyal colonists who were denied representation in Parliament.

Yeah, except, AGAIN, as I ALREADY NOTED, the Act lowered the price of tea.

Posted by: pudge on January 31, 2011 07:00 PM
15. @12 pudge on January 31, 2011 06:45 PM,

Not to unfairly target you, but neither I nor anyone else on this thread has claimed that Judge Vinson violated precedent in today's ruling.

What I was pointing out is that in his ruling, Vinson, like the majority opinion in Bush v Gore, goes out of his way to explain that the applicable rule of law he bases his decision on is not to be applied generally going forward.

Is the reason you don't get an education in the practice of law because you can't get accepted to a law school?
Or just what is the reason you seem so frequently compelled to comment with false authority on the subject and practice of law about which you demonstrably know next to nothing?

Posted by: MikeBoyScout on January 31, 2011 07:03 PM
16. MikeBS: neither I nor anyone else on this thread has claimed that Judge Vinson violated precedent in today's ruling

Um. Apparently you don't know -- even though I already pointed it out -- that "stare decisis" means "follow precedent." You DID claim that Vinson "beg[a]n with throwing out stare decisis." Therefore, you claimed that he violated precedent.


comment with false authority

I have never, once, commented with ANY authority. Unlike you, I comment based on facts in evidence.


law about which you demonstrably know next to nothing?

Feel free to demonstrate it. But you first might want to look up what "stare decisis" means.

Posted by: pudge on January 31, 2011 07:10 PM
17. @14 pudge on January 31, 2011 07:00 PM,

Not to unfairly target you, but you cannot find anything written by any member of the Sons of Liberty regarding opposition to "government control that picked winners and losers"?

What about the actual US Constitution adopted on September 17, 1787 which as amended picked some as winners with the right to vote and others as losers with no right to vote?
Or do you subscribe to the Michelle Bachman, House tea party caucus leader, view that our Founding Fathers worked tirelessly until slavery was no more in the United States?

"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."

:-D

Posted by: MikeBoyScout on January 31, 2011 07:23 PM
18. "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.""

What I was pointing out is that in his ruling, Vinson, like the majority opinion in Bush v Gore, goes out of his way to explain that the applicable rule of law he bases his decision on is not to be applied generally going forward.

I read this to mean that Vinson figures Congress probably wouldn't be so stupid as to not add a severability clause to bills in the future, therefore, he doesn't expect it to come up again.

Posted by: SouthernRoots on January 31, 2011 07:28 PM
19. Not surprising that this careless and overreaching POS legislation did not have a severability clause. I had heard that earlier and Judge Vinson nailed it. Congress was not only corrupt and IMO unconstitutional, but strikingly incompetent.

"We have to pass this bill in order to see what is in it "
-Nancy Pelosi -D

@17 What does"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons." have to do with the topic at hand ? Nothing, except an attempt at obfuscation and an opportunity to dig at Rep. Bachmann that has nothing to do with this post. How about sticking to the topic even if you like the rest of the liberal progressives don't like the outcome ?

Posted by: KDS on January 31, 2011 07:58 PM
20. The whole thing's a political snow job. Everybody's covering their collective butts on this thing. America is now officially a corporate ruling class state and when this snow job is done and the supreme court affirms the American people be they cigarette smokers or hand gun owners won't have a legal leg to stand on. The only items left on Bill Clinton's todo list are the destruction and dismemberment of Iran and Russia. WW3 on Russia starts this spring and NAU is just a little ways down the road...LOL you blue collar honkies. Hillary Clinton's "hand guns for the rich" has arrived.

Posted by: donnyess on January 31, 2011 08:05 PM
21. donnyess: wow. You're not all there, are you? Nothing you said made any sense.

Posted by: pudge on January 31, 2011 08:16 PM
22. Last night on Robert Mak's show he re-ran some footage of a very indignant Christine Gregoire saying of McKenna's suit: "I don't know who he represents...."

Well, honey, HE represents ME. And millions of others. There, answered your own question for ya'.

Posted by: Michele on January 31, 2011 08:25 PM
23. I might be totally wrong but...at this stage of events I'm looking around for the betting window because I'm feeling fairly confident.

Posted by: donnyess on January 31, 2011 08:33 PM
24. Only an idiot would go to law school.

Posted by: Jeff B. on January 31, 2011 10:11 PM
25. Gotta remember, pudge, that Mike-Boy was probably public-schooled after the left re-wrote the history books.

And we'd all better pray for the good health and safety of Justices Roberts, Scalia, Thomas, Alioto and Kennedy. Hope they have plenty of security, noting that unrepentent Bill Ayers and Bernadine Dohrn are still running aound lose.

Posted by: Saltherring on February 1, 2011 06:32 AM
26. Smackdown.

MikeBS is awfully quiet now. Thanks, pudge!

Posted by: yaddacubed on February 1, 2011 09:15 AM
27. I assume MBS has been reading Ezra Klein to get his talking points. Ezra Klein shouldn't be relied on for anything, much less legal analysis which he isn't at all qualified to provide. Read this MBS, especially the latter part about Klein's "article" which mirrors your comments.

Posted by: Palouse on February 1, 2011 10:41 AM
28. From the WaPO op-ed today by Jennifer Rubin -

"To be sure, the words "protection" and "affordable" in the title of the Act itself are inextricably tied to the health insurance reform provisions (and the individual mandate in particular), as the defendants have emphasized throughout the course of this litigation

Ezra Klein cherry picks one line from the case ("This is not a situation that is likely to be repeated") as evidence the court is doing something untoward. But a cursory reading of the the preceding pages explains why this outcome is not likely to be repeated. Congress in removing the severability clause, the Obama lawyers in repeatedly arguing the individual mandate was essential to the statute and, finally, the interlocking pieces of the statute itself are such that it's hard to imagine a similar case arising.

The only thing "odd" about the ruling is the left's response. The cheerleaders for ObamaCare better hope the Obama legal team has some better arguments in the upcoming rounds of litigation."

To Klein and his progressive neo-com brethren, the constitution is a living-breathing document and constitutional anarchy is their goal...

Posted by: KDS on February 1, 2011 10:46 AM
29. Mike @17:

You mentioned Rep. Bachman talking about the Founding Fathers. She mentioned them, and then went on to speak of the Forebears. Chris Matthews, when ranting on the comment, conveniently left that part out. If you ever have the time, and the inclination, you might want to find what the "founding fathers" actually thought about slavery by reading what they themselves wrote about the subject - as opposed to what someone else has written about them. It's up to you, of course.

As to the "three fifths of all other persons": I am sure you are aware of the history behind this, but just in case... read what you posted again, please. The three fifths concerned apportionment - how many representatives were in Congress. The slave-holding states wanted slaves counted as a whole person, even though they were property and had no rights. That would have put the slave-free states at a distinct disadvantage. The slave-free states wanted the slaves to not count at all, putting more pressure on the slave-holding states. The slave-holding states threatened to form their own country - where slavery would be legal forever - so the slave-free states compromised, knowing that eventually they could change things. Unfortunately, it took almost 100 years and a civil war to do so.

Posted by: Douglas Aldrich on February 1, 2011 10:51 AM
30. Thank you Judge Vinson. It appears there is still some rule of law and belief in the Constitution.

Posted by: Harry on February 1, 2011 11:08 AM
31. Wow. Klein is far dumber than I ever knew.

Posted by: pudge on February 1, 2011 11:25 AM
32. John Lewis just blasted the ruling by giving the lib line that health insurance (care?) is a "right", not a privilege.

How many other rights do we have in which the government forces us to participate?

If we do not participate in other rights, how many garner a fine, tax, or penalty?

If the government can penalize you for nonparticipation, is it really a "right"?

Posted by: SouthernRoots on February 1, 2011 12:00 PM
33. Lets see if healthcare is a right and we must be compelled to buy it, then shouldn't everyone be required to have a gun as well?

Posted by: Mike336 on February 1, 2011 01:27 PM
35. When one compares this court's opinion to the VA court's, you see where this judge committed a problem in his decision. The VA court found that the mandate was unconstitutional, but that rest of the health law was (basically). This judge bought the defendant's (Government's) position that the mandate was integral to the rest of the bill and thus the whole bill had to be rejected. The problem with this is a dilemma for both sides, which is why I feel this decision will be considered in error and successfully heard at the appeals level. If there judge did not commit an error, I am not sure the GA appeals court could hear the case. I believe the Supreme court could still hear the cases in the fact that different courts in different regions decided differently. Do we know whether the VA court and FL court report to the same appeals court?

Getting back to the possible problem area. For the government, they could appeal one of two ways: (1) that the FL judge ruled that the mandate was important and thus it is important to commerce activity and he decided wrong to reject the clause (there stance going in), or (2) that the FL judge ruled wrong that the mandate was related to the commerce activity that is clear in the rest of the bill and thus decided wrong on this basis (i.e., the VA court was correct).

Bottom line is, this won't be over until the Supreme Court rules between the differences between the decisions at the lower courts. You have a few (three I believe) ruling that the law was constitutional, the VA court ruling that the mandate was unconstitutional, and the FL court ruling the whole thing was unconstitutional because a portion was unconstitutional.

I know what the peanut gallery here thinks, so don't bother arguing about whether you think it is constitutional or not. What I would be interested in would be what is the next steps in the process (assuming the Government appeals, which it basically has to given the differing opinions)? If I had money bet on it, I would say the Supreme Court will take the easy route and say the VA court's decision is the correct one (given the numbers on the court). It depends on Kennedy. I would think Scalia and Thomas (possibly Alito) may consider the FL court, but I can't see Roberts and Kennedy siding with the FL court's decision.

Posted by: tc on February 1, 2011 03:56 PM
36. One other thought on my post: When (assuming it will) the cases reach the Supreme court, wouldn't Kagan have to recuse herself? If so, would there be a possibility of a tie (4-4) decision, which means appeals court decision stands, but if there are different appeals court's decisions (e.g., VA case goes through one appeals court, FL through another, etc.) and these decisions conflict (say VA case's appeal court sides with VA court decision, GA appeals court rejects FL case, the appeals courts for the other cases, decides in favor of them), how does a tie get broken? Or, can you have conflicting appeals court's decisions stand in conflict?

This may not be the case, since if the VA case makes it through, it will probably be the case decided at the Supreme Court level. I think it will have a better chance than the FL case not being overturned by the Appeals Court. Which case does the peanut gallery think will make it through first, and will Kagan have to recuse herself?

Posted by: tc on February 1, 2011 04:19 PM
37. Ragnar @ 34:

Now THAT'S a mandate I can support!

Posted by: bastiat fan on February 1, 2011 04:34 PM
38. As Washington's 17th Attorney General, McKenna manages the largest public law office in the state with over 1,200 employees and offices in 12 cities statewide: Bellingham, Port Angeles, Everett, Seattle, Tacoma, Olympia, Wenatchee, Spokane, Yakima, Kennewick, Vancouver, and Pullman

Posted by: Force Factor on February 1, 2011 08:57 PM
39. When (assuming it will) the cases reach the Supreme court, wouldn't Kagan have to recuse herself?

She would if she had a lick of personal and intellectual integrity, which leads to the most likely answer to your question: No, she will not recuse herself from this ruling.

Posted by: Rick D. on February 1, 2011 09:36 PM
40. tc: The VA court found that the mandate was unconstitutional, but that rest of the health law was (basically). This judge bought the defendant's (Government's) position that the mandate was integral to the rest of the bill and thus the whole bill had to be rejected. The problem with this is a dilemma for both sides, which is why I feel this decision will be considered in error and successfully heard at the appeals level.

The judge's reasoning is quite sound. If a severance clause is left out a judge can try to guess at whether it can be severed; but when it was originally put in, and then removed, that very strongly implies that the legislators did not consider it to be severable. This, coupled with the testimony from the government that they do not consider it to be severable ... frankly, it's hard to see how anyone could really argue that it's severable at this point.


I believe the Supreme court could still hear the cases in the fact that different courts in different regions decided differently.

Sure. Or even if they didn't, if they felt like it.


they could appeal one of two ways: (1) that the FL judge ruled that the mandate was important and thus it is important to commerce activity and he decided wrong to reject the clause

It doesn't matter if it is "important to commerce activity." What matters is whether it is a valid exercise of the power to regulate interstate commerce. It can be the most important law about commerce ever written, and still be an invalid exercise of that power. Its importance is irrelevant.


(2) that the FL judge ruled wrong that the mandate was related to the commerce activity that is clear in the rest of the bill and thus decided wrong on this basis

Again, it can be related to commerce activity but still be an invalid exercise of that power. Whether it is related is almost entirely irrelevant. Of course it has to be related to commerce, and few people claim it is not, but that doesn't itself make it constitutional.

But yes, at the end of the day, the only real question is whether this is a valid exercise of the power to regulate interstate commerce. It's clear that it is not, but it is hard to tell that to people, like Gregoire and Obama and many other Democrats, who simply don't care: they think it is important, and therefore whether it is legal is irrelevant.

Posted by: pudge on February 1, 2011 10:39 PM
41. Pudge,
Thanks for the civil response and sticking to what I had questions about.

I read yesterday (haven't verified, however) that the Appeals court (assuming it gets the case) will basically decide two questions in relation to the FL case. First, the court will decide whether the FL Judge decided correctly if the mandate is unconstitutional or not. Second, if it decides that the mandate is unconstitutional, the court will determine if its invalidates the entire law.

The court is made up of nine judges, of which, three will be picked to hear the appeals. It was unclear whether all nine can join in the decision or if it is just the three picked. The court is mixed as far as political leanings (i.e., not as conservative as the FL judge, but not overly liberal either). One other tidbit, in a healthcare related case before the same FL judge involving VA benefits. The same FL judge decided against the government, and this decision was overturned at the Appeals court level. I haven't seen any statistics on the how many cases before this judge have been successful or unsuccessful upon appeal. It would be an interesting statistic that may factor in.

I also read that timing will "suck" as far as Romney is concerned. That one of these cases will most likely hit the Supreme Court around February 2012. Rove is right on this count. Romney is going to have to fall on his sword if he wants to win the Republican nomination, especially if this topic will not be going away and will be a major discussion point in the Republican primaries.

Posted by: tc on February 2, 2011 07:44 AM
42. Rick D.
I beginning to believe that Kagan doesn't make a difference either way. It will come down to Kennedy and Roberts and what they decide. If the appeals court overturns the invalidation of entire law part, but keeps the mandate part as unconstitutional, I can't see either of them ruling the whole law is unconstitutional. If the appeals throws out both conditions (i.e., mandate is constitutional), I can still envision either a 5-3 or 4-4 decision, with Kagan recused. This would mean the Appeals court decision stands. Therefore, IMO, Kagan (and the rest of the left side of the court) is irrelevant to the decision.

Posted by: tc on February 2, 2011 07:57 AM
43. I was going to write more about severability here, but instead I wrote a new post.

Posted by: pudge on February 2, 2011 08:16 AM
44. tc: Thanks for the civil response and sticking to what I had questions about.

I always reply to civil on-topic comments with civil on-topicness. Did you expect otherwise?


First, the court will decide whether the FL Judge decided correctly if the mandate is unconstitutional or not. Second, if it decides that the mandate is unconstitutional, the court will determine if its invalidates the entire law.

Essentially, yes, as I understand it. I didn't read the whole decision, but I believe those are the only two questions.

Although it really doesn't matter how they rule, frankly. It will go to the Supremes anyway, and I can't see their decision on keeping all or part of the law resting on what the appeals court does (unless that isn't a part of the appeal, perhaps).


I also read that timing will "suck" as far as Romney is concerned.

Well, it depends on how this is framed, and how the public sees it. The fact is that the way in which "ObamaCare" has been ruled unconstitutional has absolutely nothing whatsoever to do with "RomneyCare." There are ways to rule them both unconstitutional in the same way, but so far, that hasn't happened: basically, the decisions have focused on whether the federal government has certain powers, the implication being that the state still does, or may, have that same power even if the feds don't. Personally, I would like a decision that says NO government may force ANYONE to do ANYTHING as a consequence of being alive and in the country, but that's unlikely to happen.

So if this is framed (in law and in perception) solely in terms of federal power, it won't affect Romney. If it is framed largely in terms of economics and liberty, it will significantly hurt Romney.

It will significantly hurt Romney.

Months ago I'd all but given up hope that he has a serious chance, just because of this one issue.

(Note that when I in the YouTube/CNN debate in November 2007, I had made two other videos, for individual candidates, before I did the song. One of those was asking Romney how he justified the mandate, what I called a "tax on living." So yeah, contrary to the dishonest Democratic talking point that we are only against mandates when it's a Democrat, many of us have been against it even when it's a Republican, since well before Obama was elected.)

Posted by: pudge on February 2, 2011 08:53 AM
45. So nice to have Mikeyboyscout back. I haven't laughed so hard in quite some time.

Re post #13 - that whole things about "life, liberty and pursuit of happiness" can just about cover whether the government can pick winners and losers. By default, if the government picks losers, they are preventing pursuit of happiness.

(A bit of a stretch I'll admit, but less of a stretch than the "found" rights of miranda warnings, abortions paid for with our tax dollars, etc. that the left hold so sacred.)

Keep ranting Mikey! Every time we here you whine and complain, I feel just a little bit better about all the money I send to political groups and Tim Eyeman every year.

Posted by: johnny on February 2, 2011 08:54 AM
46. I['m] beginning to believe that Kagan doesn't make a difference either way.~tc

But you agree that she should recuse herself from this case when it reaches the high court, correct?

Posted by: Rick D. on February 2, 2011 09:50 AM
47. johnny: A bit of a stretch I'll admit

I don't think so. The point of "pursuit of happiness" is that you get to do whatever the hell you want to do with your life and liberty, as long as you don't harm someone else. Government directly preventing you from doing something, or giving help to your competitor which makes it harder for you to do business, does directly harm your right to the pursuit of happiness, in one of the very ways Jefferson intended that phrase to mean.

Posted by: pudge on February 2, 2011 09:51 AM
48. @46 - I'll bet that Kagan does not recuse herself because this case is too political and the White House would rebuke her if she did and I doubt she would have the integrity to do so, unless forced by Chief Justice Roberts.

Of course, it would be nice if I were wrong. So goes Obamacare, so goes his presidency down the toilet.

Posted by: KDS on February 3, 2011 11:32 AM
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