As I continue digesting Judge Vinson’s ruling, I notice two key things beyond the facts that the “individual mandate is unconstitutional”:
1. In performing his severability analysis — determining which parts of the overall legislation survive — the judge threw out all of Obamacare:
In sum, notwithstanding the fact that many of the provisions in the Act can stand independently without the individual mandate (as a technical and practical matter), it is reasonably “evident,” as I have discussed above, that the individual mandate was an essential and indispensable part of the health reform efforts, and that Congress did not believe other parts of the Act could (or it would want them to) survive independently. I must conclude that the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit. The individual mandate cannot be severed. 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.
2. In discussing whether to issue an injunction — a judicial command to do or refrain from doing something — the judge determined that his declaratory judgment in this context was the same as an injunction. That is, a federal court saying that a piece of legislation is unconstitutional is effectively the same as a decision mandating the government to act:
Declaratory judgment is, in a context such as this where federal officers are defendants, the practical equivalent of specific relief such as an injunction … since it must be presumed that federal officers will adhere to the law as declared by the court. [Quoting a D.C. Circuit opinion written by none other than then‐Judge Antonin Scalia]
In short, if I read the opinion (plus this final judgment) correctly — quite apart from both the lofty philosophical principles I applaud Judge Vinson for adopting and the nitty‐gritty technical details of his individual mandate analysis — Obamacare is dead in its tracks. Now, Judge Vinson himself or the Eleventh Circuit (or even the Supreme Court) may issue an emergency stay of this or any other part of the ruling, but as of right now, the federal government must stop implementing Obamacare.
NB: The New York Times and Washington Post report that Judge Vinson has already stayed his own ruling pending appeal, but this is an incorrect reading of the opinion, for the reasons stated above. Moreover, the court’s docket, which is now closed for the day, contains no such stay — nor has plaintiffs’ counsel received notice of one.
Update: For further developments on the practical effects of Judge Vinson’s ruling, see “ObamaCare After Judge Vinson’s Ruling” and “After Florida, What’s to Be Done about ObamaCare?”
POLITICO Arena asks a second question today:
How badly does today’s ruling hurt the Obama administration’s health reform efforts?
In finding Obamacare unconstitutional, Judge Roger Vinson hit a home run today for the Constitution. From the start, he made it clear that this case, brought by 26 states, two private citizens, and the National Federation of Independent Business, “is not really about our health care system at all. It is principally about our federalist system, and it raises very important issues regarding the Constitutional role of the federal government.”
The core of the opinion, as many of us have long argued, is whether Congress, under its power to regulate interstate commerce, can regulate “inactivity” by requiring individuals to buy health insurance or be fined. It cannot, Vinson ruled, citing a long line of opinions, legal and political, starting with James Madison, the principal author of the Constitution.
Moreover, because Obamacare contains no severability clause, the entire act must fall. Finally, because this is a declaratory judgment, further implementation of the act is enjoined, so a separate injunction is not needed. It’s a new day.
Update: Although there are reports that Judge Vinson has stayed the effect of his decision, which would mean that the administration could continue implementing ObamaCare, the court’s docket, which is now closed for the day, shows no such stay.
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…
The individual mandate is outside Congress’ Commerce Clause power, and it cannot be otherwise authorized by an assertion of power under the Necessary and Proper Clause. It is not Constitutional.
[O]n the unique facts of this particular case, the record seems to strongly indicate that Congress would not have passed the Act in its present form if it had not included the individual mandate. This is because the individual mandate was indisputably essential to what Congress was ultimately seeking to accomplish. It was, in fact, the keystone or lynchpin of the entire health reform effort…
Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.
What’s more, it appears that the Obama administration must seek intervention from a higher court if it wants to keep implementing ObamaCare. Even though Vinson declined to issue an injunction forbidding the administration to implement the law, he did so because of:
a long‐standing presumption “that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction”…“declaratory judgment is, in a context such as this where federal officers are defendants, the practical equivalent of specific relief such as an injunction”…Thus, the award of declaratory relief is adequate and separate injunctive relief is not necessary.
In other words, absent intervention from a higher court, HHS must now sit on its hands.
Today’s ruling vindicates the constitutional first principle that ours is a government of delegated, enumerated, and thus limited powers. Like Judge Hudson in the Virginia case, Judge Vinson recognized that the individual mandate represents an unprecedented and improper incursion beyond those powers: the federal government, under the guise of regulating commerce, cannot require that people engage in economic activity.
And this is as it should be: if the only limit on congressional power were Congress’ own assessment of the wisdom of each assertion of such power, the Constitution would be obsolete — as would any conception of checks and balances. James Madison, the author of the Federalist Paper (51) explaining how man’s non‐angelic nature requires explicit limits on those who govern, would spin in his grave. As even would Alexander Hamilton — perhaps the Framer most favorably disposed to strong central power — who cautioned that courts should not be in the business of evaluating the “more or less necessity” of a piece of legislation but rather define judicially administrable rules to guide (but also limit) Congress’s actions.
And so today’s ruling, in a lawsuit that now has 26 states as plaintiffs — with two others challenging the health care “reform” separately — represents the latest and most significant victory for federalism and individual liberty. This will not end until the Supreme Court has its say, but the tide is clearly running in freedom’s favor.
I will comment further once I’ve had a chance to read through the ruling.
Judge Vinson’s ruling today that Obamacare’s individual mandate is unconstitutional, following on the heels of Judge Hudson’s similar ruling in the Fourth Circuit, should give the new Congress all the confidence it needs to rescind this provision and more. Indeed, the idea that government could order a person to buy a product from a private vendor, or be fined for failing to do so, is so foreign to our Constitution for limited government that it’s a wonder that Congress ever imagined it had such a power to begin with.
The Congress that passed Obamacare is now gone. It will be an early test for members of the new Congress, including those many Senate Democrats up for reelection in 2012, whether they will study these well‐reasoned opinions and come to a better understanding of the constitutional limits on their power. There are far better, more constitutional ways to enable Americans to obtain health care than through the massive government intrusion into the healthcare market that Obamacare ordered. There is nothing quite like a little freedom to enable Americans to solve their own problems.
Since its beginning, one of the primary drivers behind public schooling — government schooling — has been a desire to compel belief, whether in “American” values, God, the primacy of science, or myriad other things that some people have thought it essential for all people to accept. The result has been constant conflict that, rather than uniting diverse people — a companion goal of public schooling — has divided them. And not only have crusades to force belief created ongoing conflicts, there’s generally been little evidence they’ve actually changed the targeted beliefs. So we’ve gotten all the downside of trying to force alterations to hearts and minds without actually changing them.
Case in point, the seemingly endless war over the teaching of human origins.
Despite decades of keeping religion out of the public schools, the latest polling shows that 40 percent of Americans believe that God created human beings in their present form about 10,000 years ago, while only 16 percent think that human beings evolved without the participation of God.
New research from a couple of Penn State political scientists elucidates one reason — besides simple, honest disagreement — that this is the case. While law can prohibit the teaching in public schools of such alternatives to evolution as creationism and intelligent design, it cannot actually make biology instructors teach evolution. And, it turns out, a major reason many teachers tiptoe around evolution is that they fear the backlash that would come from forcing a singular view on diverse people.
According to Michael Berkman and Eric Pultzer, roughly 60 percent of respondents in the National Survey of High School Biology Teachers reported that they either steer clear of evolution or dance around it not necessarily because they reject the theory, but because they don’t want trouble. “Our data show that these teachers understandably want to avoid controversy,” the researchers said. It’s a finding that confirms an anecdotal New York Times report from a few years ago, and that fits with other analyses of public schooling that conclude that often the easiest thing for public schools to do is simply avoid any disputed topic.
So what do we do?
For starters, stop making education policy based on the notion that some things are so important all people must be forced to believe in them. You simply cannot compel belief — at best, you’ll get the parroting back of what you want to hear, not true acceptance. Worse, you’ll very likely create a situation where no one gets what they want and everyone ends up with empty, incoherent, compromised curricula.
The ultimate solution is to let parents choose options for their children without first having to pay for the “one, best system,” and to let educators provide schooling tailored to the values and needs of whomever they wish to serve. Then everyone will be be able to access coherent curricula rather than being saddled with educational mush.
Of course, many people will choose to have their children learn things with which neither you nor I agree. We can make that clear to them by selecting different options for our own children and openly debating conflicting opinions. What we cannot do is continue to try to impose our beliefs on them: not only is it incompatible with a free nation and antithetical to social unity, it often ends up keeping everyone from getting what they believe is best for their children.
An article at HealthPolicySolutions.org (“a project of the Buechner Institute for Governance at the School of Public Affairs at the University of Colorado Denver”), about how ObamaCare is causing Colorado’s child‐only health insurance market to implode, contains this startling admission by the top lobbyist for Colorado’s health insurance companies:
“Requiring all the carriers to sell this sort of plan creates a level playing field,’’ said Ben Price, executive director of the Colorado Association of Health Plans. “This is one of those unusual situations where we’re asking for more competition. If everyone else is in the market, the risk is spread across the entire market. Each company can afford to take on more risk.”
Catch that? A lobbyist who admits that his job is to restrict competition, effectively stealing from consumers for the benefit of his clients! How refreshing!
Wait, it gets better.
The legislation he’s advocating would tell any carrier that wants to sell insurance directly to Colorado consumers that they must also sell child‐only coverage — despite the losses that ObamaCare’s price controls are likely to cause them in that sub‐market. The legislation would actually reduce competition in Colorado’s individual market, because it would place an additional (and costly) requirement on market entry.
In other words, this guy is so good at his job, he keeps lobbying for less competition even when says he isn’t. Bravo, sir. Bravo.