[Twenty-seven] states/state attorneys general file lawsuit on health care bill

[Soul Crusher]

The far left communist shit bags in this country will DO ANYTHING to prop up Obamadoff and everything and anything he does, regardless of how disgusting and traitorous it is.   

[Dos Equis]

Already some networks are trying to discredit the judge by saying he was appointed by Reagan. An attack on the person but not the logic of his decision. It would be ideal if the argument was whether his decision was correct or not. Not on who appointed him.

I think it's a legitimate question to ask (who appointed him), but at the end of the day we still have to look at the merits of his decision.  He got it right. 

[Soul Crusher]

I think it's a legitimate question to ask (who appointed him), but at the end of the day we still have to look at the merits of his decision.  He got it right. 

The only legitimate analysis is his ruling and how it comports with the law and const. precedent.    Mandating private insurance under penalty of jail and fine is tyranny. 

Whoever supports this idea that the govt can mandate private insurance as a matter of living themselves is a tyrant and should jump off a tall building while wearing thier Obama 2008 gear.   


     

[240 is Back]

I like the decision - I just think he sure made it political/ partisan by "owning" obama with his own campaign slogans.

let the media pundits and 2012 contenders do that.  For a judge to play political 'gotcha' just reeks of his own personal motive - not a strict interpretation of the law. 

[MCWAY]

I like the decision - I just think he sure made it political/ partisan by "owning" obama with his own campaign slogans.

let the media pundits and 2012 contenders do that.  For a judge to play political 'gotcha' just reeks of his own personal motive - not a strict interpretation of the law. 

That doesn't necessarily make it political. It makes no sense for Obama to blast the mandate one minute than have it in his own law the next.

[Skip8282]

The only legitimate analysis is his ruling and how it comports with the law and const. precedent.    Mandating private insurance under penalty of jail and fine is tyranny. 

Whoever supports this idea that the govt can mandate private insurance as a matter of living themselves is a tyrant and should jump off a tall building while wearing thier Obama 2008 gear.   


     

We know this is going for appeal, so my question to you and GW is what about the issue of standing.  I've been hearing a lot that the States don't have standing when it comes to suing for the individual mandate.

Have you two heard this?  Any merit to the argument?

[Soul Crusher]

I like the decision - I just think he sure made it political/ partisan by "owning" obama with his own campaign slogans.

let the media pundits and 2012 contenders do that.  For a judge to play political 'gotcha' just reeks of his own personal motive - not a strict interpretation of the law. 

   


No, he stuck it up the ass of the supposed con law genius who tried to push something even he himself knew, or should have known was known was as tyrannical as they get legal wise.

and yes, I am lad he used Obama's own words to own him like the little Ayatollah Obama desires to be.    

[Soul Crusher]

We know this is going for appeal, so my question to you and GW is what about the issue of standing.  I've been hearing a lot that the States don't have standing when it comes to suing for the individual mandate.

Have you two heard this?  Any merit to the argument?

The states have standing on many aspects of this crap bill:

1.  The mandates on states to provide more medicaid coverage.

2.  The prohibition of states from curtailing existing medicaid coverages within the states themselves. 

3.   The mandatory "minimum plan" ObamaCare forced every carrier to provide within each state.   This touches directly upon 10th Amend issues. 

4.  The State AG's have standing to represent the citizens of each state on the mandate provision.  Think of it as a proxy.   Problem is that the mandate provision has not really taken effect as of yet, so there might be an issue there.     



Basically, this crap sandwich known as ObamaCare is held together by the equivalent of duct tape.   Its quickly unraveling as people become more informed as to the horrific nature of this piece of shit.                 

[240 is Back]

  


No, he stuck it up the ass of the supposed con law genius who tried to push something even he himself knew, or should have known was known was as tyrannical as they get legal wise.

and yes, I am lad he used Obama's own words to own him like the little Ayatollah Obama desires to be.   

Sorry.  Political one-upping doesn't belong in decisions like that.  You agree with the judge, so you're cool with it.  But if it was some judge releasing Palin's governor emails (May 2011) and he was so verbal and smug and quick to point out contradictions, you'd consider him to be an embarassment to the bench.

leave the politics at home, judge.  Strike down a shitty law, and do it without playing GOp grab ass.  Give them less grounds for appeal at the next level.

[Soul Crusher]

Sorry.  Political one-upping doesn't belong in decisions like that.  You agree with the judge, so you're cool with it.  But if it was some judge releasing Palin's governor emails (May 2011) and he was so verbal and smug and quick to point out contradictions, you'd consider him to be an embarassment to the bench.

leave the politics at home, judge.  Strike down a shitty law, and do it without playing GOp grab ass.  Give them less grounds for appeal at the next level.

No, he struck down the mandate provision as being unconstitutional and tyrannical.   

The rest was just gravy.    

[Soul Crusher]

Opinion: Obamacare Is in Critical Condition With the Courts
Feb 1, 2011 – 10:09 AM
John S. Baker Jr.
 

Special to AOL News The aphorism "Act in haste, repent at leisure" never applied more aptly than it does to Obamacare.

Nancy Pelosi rushed through Obamacare, without allowing time to read the bill, by explaining: "We have to pass the bill so that you can find out what is in it." Reading the bill produced last November's angry electorate.

Obamacare Is in Critical Condition With the Courts -- John S. Baker Jr., Louisiana State University law professor.
On Monday, a Florida federal court delivered the latest blow to Obamacare, ruling that the statute is unconstitutional. It follows a similar decision from a Virginia federal court and the House of Representatives' vote to repeal the law. Monday's decision stretches out the negative news for a monumental piece of legislation hailed just a year ago as a great triumph.

Obamacare supporters should now appreciate the virtue of the Constitution's design to slow legislative changes. The Constitution is intended to create stability through reasoned deliberation. The process generally results in compromise and consensus. To the frustration of many, the structure of our constitutional democracy necessarily makes changing legislation much more difficult than it would be in a pure democracy.

The Constitution's framers anticipated that Congress and the president would sometimes thwart the Constitution's design for forcing deliberation. They therefore provided federal courts as a further protection against the power hungry. With this second federal court ruling against Obamacare, it increasingly seems that the health law may not survive when it reaches the Supreme Court.
One thing federal judges always do -- even if members of Congress do not -- is read the legislation brought before them.

Obamacare supporters will say the judicial score is tied: Two federal courts have upheld Obamacare, and two have declared part of it constitutional. But two against two among federal district courts is not a tie.

District judges, whether state or federal, are risk-averse when interpreting the law. District judges preside over trial courts. They normally apply established law to the facts before them. Deciding questions of law is primarily the work of appellate courts.

Federal district judges, in particular, do not like being reversed by appellate judges. Frequent reversals are not good for one's ego or the reputation. Federal district judges naturally know, without consulting statistics, that very few federal statutes are declared unconstitutional.

So given the probabilities, it's much safer and easier for a lone federal district judge to declare federal statutes constitutional. Just leave it to the panel of three appellate judges to consider more carefully whether a statute is unconstitutional. That's what appellate judges are paid to do.

Because of this, the two decisions against Obamacare are much more significant than the two that upheld the legislation.

For a judge to declare a federal statute unconstitutional, his or her opinion better be extremely well reasoned within existing case law. Predictably, many who disagree with the result in controversial cases will charge that the decision is a political one. Therefore, judicial opinions in highly scrutinized cases must necessarily go to great lengths to persuade readers that the decision is based on established constitutional principles. That usually requires quite a lengthy written opinion.

Monday's decision was long (78 pages) and very carefully reasoned. It needed to be, given its widespread consequences. Usually, a decision against a federal statute by a district court will have an immediate effect only within the particular federal district.


In this case, however, 26 states, some individuals and the National Federation of Independent Business were plaintiffs. All get the benefit of the declaratory judgment, even without an injunction. That means that until an appellate court decides otherwise, Obamacare is not applicable in 26 states, nor apparently to members of the NFIB in other states.

It will be quite some time before Obamacare supporters know whether they really achieved a victory last year.

John S. Baker Jr. is the Dale E. Bennett professor of law at Louisiana State University.


________________________ ________________________ ______

ObamaCare is going down like Monica.   

[240 is Back]

No, he struck down the mandate provision as being unconstitutional and tyrannical.   

The rest was just gravy.    

I don't like gravy from judges.  Cause some anti-gun gravy or pro-cap/trade gravy won't taste so good.

[Soul Crusher]

I don't like gravy from judges.  Cause some anti-gun gravy or pro-cap/trade gravy won't taste so good.

    


TBH - we all knew this was going to end up in the SC, but if one or two district courts could get a few kicks in while Bama is down, I'm cool with that   

[Soul Crusher]

OPINION
FEBRUARY 2, 2011.The Nuts and Bolts of the ObamaCare Ruling

According to the government's theory, wrote Judge Vinson, 'the more harm the statute does, the more power Congress could assume for itself under the Necessary and Proper Clause.'.

By RANDY E. BARNETT AND ELIZABETH PRICE FOLEY


For months, progressives smugly labeled the legal challenges to ObamaCare as "silly" or even "frivolous." Today their confidence must be severely shaken.

Late Monday afternoon in Pensacola, Fla., U.S. District Court Judge Roger Vinson delivered the second major judgment that the centerpiece of the Patient Protection and Affordable Care Act—the "individual mandate" that forces Americans to buy health insurance whether or not they want it—is unconstitutional.

In December, District Court Judge Henry Hudson ruled against the mandate in a separate lawsuit brought by the state of Virginia. But Judge Vinson's sweeping and powerfully reasoned decision this week went much further, striking down the entire health-reform law on the grounds that the individual mandate was not severable from the rest of the statute. And the plaintiffs in Judge Vinson's courtroom included the attorneys general of 26 states, not just one. His opinion thus casts a dark shadow over ObamaCare until the Supreme Court issues a final ruling on the matter.

Consider the problems posed by the insurance mandate. The Obama administration argued that it was supported by the Commerce Clause, which gives Congress the power to regulate interstate commerce. True enough, insurance is commerce, but not buying insurance is the antithesis of commerce. Commerce has always been understood as requiring economic activity. This was the rationale Judge Hudson adopted in striking down the individual mandate in the Virginia case.

The government's lawyers in the Florida case insisted that not buying health insurance was somehow different from a failure to buy other products like clothes or food. They said health insurance was "unique" because, eventually, everyone will seek and obtain health care. And if they aren't insured, the costs will be shifted onto others, thus substantially affecting commerce.

View Full Image

Associated Press
 
U.S. District Court Judge Roger Vinson
.Judge Vinson rejected this argument, recognizing that "not consuming" other products, such as food, is also unavoidable and can have substantial effects on other commercial markets. "There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort," he wrote. "The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that—when aggregated with similar economic decisions—affect the price of that particular product or service and have a substantial effect on interstate commerce."

Recognizing the vulnerability of relying on the Commerce Clause alone, the Obama administration in the Florida case shifted its emphasis to the Necessary and Proper Clause of the Constitution. That clause empowers Congress to enact "all Laws which shall be necessary and proper for carrying into Execution" its enumerated powers. As the Supreme Court has repeatedly explained, the Necessary and Proper Clause does not expand the scope of Congress's enumerated powers. Instead, it gives Congress the ability to select among various means of exercising them—for example, the enumerated power to "establish post offices" necessarily and properly includes a power to print stamps.

The Obama administration claimed that the individual mandate is a necessary and proper means of carrying out its reforms in the health-insurance market. These reforms include requiring insurers to offer coverage to those with pre- existing conditions, to extend coverage to dependents up to age 26, and to eliminate lifetime coverage caps. Because these reforms make health insurance more expensive, the government's lawyers claim that unless everyone is forced to buy health insurance, too many healthy people will sit on the market sidelines as "free riders" until they become ill. So in order to make the "reformed" health-insurance market work, it's necessary and proper to force everyone to buy insurance.

Judge Vinson flatly rejected the administration's attempt to escape the restrictions of the Commerce Clause by appealing to the Necessary and Proper Clause. His decision acknowledges that, while reforming an insurance market is a regulation of commerce, Congress cannot artificially create its own "free rider" crisis in the insurance market and then use that crisis to justify an otherwise unconstitutional mandate as "necessary and proper" to save the market from collapse.

This novel use of the Necessary and Proper Clause, if allowed to stand, would fundamentally transform our constitutional scheme from limited to unlimited federal power, narrowing the scope of individual liberty. In Judge Vinson's words, "the more harm the statute does, the more power Congress could assume for itself under the Necessary and Proper Clause. This result would, of course, expand the Necessary and Proper Clause far beyond its original meaning, and allow Congress to exceed the powers specifically enumerated in Article I."

 Rep. Marsha Blackburn on the health-care ruling.
.One crucial difference between the Florida and Virginia decisions relates to the breadth of the remedy. While both courts agreed that the individual mandate was unconstitutional, the Virginia decision merely declared the mandate alone to be unconstitutional—the rest of ObamaCare was unaffected. But Judge Vinson concluded that the individual mandate could not be "severed" from the rest of the law, and so the entire law must be struck down.

The judge had little choice: The Obama administration itself argued that the individual mandate was inextricably intertwined with the rest of ObamaCare. So if the mandate fell, the whole scheme was doomed to collapse as a legal matter. "There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions," he held, "for me to try and dissect out the proper from the improper, and the able-to-stand-alone from the unable-to-stand-alone."

The Obama administration attempted to cloak an unprecedented and unsupportable exercise of federal power in the guise of a run-of-the-mill Commerce Clause regulation. When the weakness of that theory was exposed, it retreated to the Necessary and Proper Clause and the taxing power. Judge Vinson's decisive rejection of all these theories is another significant victory for individual liberty—the ultimate purpose of federalism—and it lays the intellectual groundwork for every decision on the mandate yet to come.

Mr. Barnett is a professor of constitutional law at Georgetown University Law Center. Ms. Foley is a professor of constitutional and health care law at Florida International University College of Law.


________________________ ________________________ ______-


Can't wait til this piece of shit goes does in flames where it belongs.   

[Soul Crusher]

Judge's health care ruling reverberates; Florida gives back money to implement law
St. Petersburg Times ^ | February 2, 2011 | Janet Zink




Reverberations of a Florida judge's ruling that the federal health care law is unconstitutional are spreading throughout the country, with supporters and opponents of the overhaul using the decision to draw their lines in the sand.

In Washington, Republican senators called the ruling a "second stake in ObamaCare" and immediately introduced repeal legislation with plans for a vote today. Nationwide, attorneys general, governors and consumer groups debated the impact of the ruling on changes that have already taken place and those in the works.

Florida officials made their direction clear: We will not move forward to implement this law.

Insurance Commissioner Kevin McCarty on Tuesday gave back a $1 million federal grant awarded to the state to assist with reforms. The money would have paid for a system to provide information to consumers on the rates of large-group insurers.

And Florida Gov. Rick Scott said the state will wait until the U.S. Supreme Court weighs in on the case before it plans for pieces of the legislation that haven't gone into effect.

"We are not going to spend a lot of time and money with regard to trying to get ready to implement it," he said.

In the Florida-led lawsuit representing 26 states, U.S. District Judge Roger Vinson ruled Monday that the law's provision requiring people to buy health insurance or face a tax penalty is unconstitutional. He ruled the so-called "individual mandate" unconstitutional, and had to strike the law down entirely.

Vinson declined to issue an injunction against the federal law, but said he believed the federal government would treat his ruling as one.

That's how Florida Attorney General Pam Bondi sees it.

"What he's saying is, they need to follow the law. This is the law as he's ruled. They need to do the right thing," she said in a news conference shortly after the ruling was released.

In Wisconsin, Attorney General J.B. Van Hollen agreed: "For Wisconsin, the federal health care law is dead — unless and until it is revived by an appellate court. Effectively, Wisconsin was relieved of any obligations or duties that were created under terms of the federal health care law. What that means in a practical sense is a discussion I'll have in confidence with Gov. (Scott) Walker, as the state's counsel."

But at least one insurance industry group plans to continue abiding by the new federal rules.

"Health plans will, of course, continue to meet their obligation to implement the new law on behalf of the more than 200 million people we serve," said Robert Zirkelbach, spokesman for the Washington, D.C.-based America's Health Insurance Plans, which represents nearly 1,300 health plans.

That includes covering pre-existing conditions and allowing children as old as 26 to remain on their parents' policies.

Still, Zirkelbach emphasized that throughout the health care debate, the insurance industry has argued that the individual mandate was critical to making sure health care companies could cover the costs of providing services to people regardless of pre-existing conditions and other risk factors.

"States that have implemented these laws without covering everyone have seen a rise in insurance premiums, a reduction of individual insurance enrollment and no significant decrease in the number of uninsured," he said.

Another push for repeal

In the nation's capital, Senate Republicans on Tuesday seized on attention given to the Florida ruling to push their effort to repeal the law.

GOP leader Mitch McConnell offered a repeal amendment to an aviation bill and encouraged Democrats to come on board.

"What we have today is an opportunity ... to take another path," McConnell said.

The Republican-led House has already passed the repeal.

As the debate heated up, phones started ringing in Democratic offices across Capitol Hill, including Florida Sen. Bill Nelson's, with callers urging support of the repeal.

The effort was organized by FreedomWorks, a Republican group that provided organizational support to the tea party. Nelson has said provisions can be tweaked but does not favor wholesale repeal.

One certain change: Eliminating a requirement that businesses file a tax form for purchases of goods or services of more than $600. Both parties agree it is onerous.

But Democrats were refusing to budge on bigger changes, noting that Republicans have not offered specific replacements.

Scott's stance criticized

Gov. Scott promised that if the country's high court ultimately backs the overhaul, Florida will have plenty of time to prepare.

"The state won't be caught flat-footed," he said. "We'll be ready."

The stance taken by Scott, who before he ran for governor founded the nonprofit Conservatives for Patients' Rights to fight the legislation, prompted vitriol.

"I fear that what began as his own personal vendetta against the president's health care initiative has morphed into a personal war using the governor's office as his launching pad," said Florida Sen. Nan Rich, D-Weston.

Ethan Rome, executive director of Health Care for America Now, said Scott's position was to be expected, given he is the former CEO of the Columbia/HCA hospital chain.

"It doesn't surprise me that Gov. Scott would take the side of the insurance industry and say, 'I want them to make more profits and make more money and that's more important to me than protecting the citizens of my state from the abuses of the insurance industry,' " Rome said.

He noted that Vinson is "one of four judges of equal rank" that ruled on the law, and two of the judges upheld it.

"States need to move forward with implementation of the law in a responsible and quick way and do right by the people in their states," Rome said. "This decision doesn't change that one bit."

[James]

Mark Levin - Federal Judge Obamacare Unconstitutional And Can Not Be implemented

[/youtube]

[Soul Crusher]

Great clip.   

How anyone supports ObamaCare and the idea that the federal govt can force you into a private transaction with a private business as a condition of living is beyond my comprehension.   

But then again - we are dealing ith marxists/progressives/socialists/liberals etc, so I guess anything is to be expected.   

[Dos Equis]

Mark Levin - Federal Judge Obamacare Unconstitutional And Can Not Be implemented

[/youtube]

I like it. 

[Soul Crusher]

Lawrence O'Donnell: Democrats Made Huge Mistake Not Putting Severability In ObamaCare
By Noel Sheppard | February 02, 2011 | 10:28

 
In the wake of Monday's ruling by a Florida judge to toss out ObamaCare as a result of the individual mandate, MSNBC's Lawrence O'Donnell asked liberal constitutional lawyer Jonathan Turley Tuesday if the Democrats made a mistake not writing a severability clause into the law.

Turley surprisingly answered, "It was a colossal mistake" (video follows with transcript and commentary):



LAWRENCE O’DONNELL, HOST: Joining me now is Jonathan Turley, professor of constitutional law at George Washington University.
Jonathan, thanks for joining us tonight.

JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY: Hi, Lawrence.

O’DONNELL: Jonathan, the Democrats made a mistake of not writing into the law that the bill is what they call "severable," meaning if courts find bits of it unconstitutional, they can simply sever those bits from the rest of the law. Democrats insist that severability is implicit in this kind of law. Who’s right?

TURLEY: Well, first of all, it was a colossal mistake not to have a severability clause in this legislation. It’s a standard clause in bills. It is not clear why it was kept out. Some people say it was a blunder. Other suggests and I know you know, there’s some suspicion that it might be a sort of game of chicken, that they wanted to make clear, if you take out the individual mandate, you are risking the entire bill to sort of give these judges a bit of sticker shock.

But either way, it was a mistake. It opened the door to allow a judge like Judge Vinson to strike the entire act. Now, it is certainly true that you do not need a severability clause for a judge to sever provision. And, in fact, that’s exactly what Judge Hudson did in the Virginia. He was encouraged to strike down the entire law of Virginia and he chose not to. I agree with that decision. I think he did the right thing there.

But, the Democrats really laid themselves open in how they drafted this act. Judge Vinson is not, you know, totally out of line in saying that severability was put at issue when they did not include the clause. The interesting thing is the severability clause was in an earlier draft of the legislation and was removed.

Something that Judge Vinson notes in his opinion.

O’DONNELL: I can tell you, Jonathan, that’s exactly the kind of mistake that occurs at the staff level when they are in these panic writings, last-minute writings of the legislative language of these bills - - things that they intend to be in there like a severability clause can easily slip out in the word processing.

Fascinating to see two liberals point fingers at Democrats, don't you agree?

Despite them both being correct, they omitted - conveniently or ignorantly - that this is the inherent problem of creating a several thousand page bill that no one reads.

O'Donnell blamed it on the word processing, but how about pointing fingers at all the Democrats in both chambers of Congress as well as in the adminstration that missed this oversight likely because no one read the darned thing? Was it so lengthy and comprehensive that it was impossible for anyone to know what was really there?

Makes you giggle now when you think about House Speaker Nancy Pelosi (D-Calif.) arrogantly claiming people would love the bill once they learned what was in it. You think she had any idea that there was no severability clause and that this could end up spelling the doom of the entire law?

Think she's lovin' it now? I sincerely doubt the Speaker is humming the McDonald's theme song at the moment.

This all becomes more important depending on the timetable of when the Supreme Court will hear this case. Hot Air's Ed Morrissey noted Tuesday that SCOTUS could end up deciding the 2012 elections:

A Supreme Court ruling that supports the mandate still leaves President Obama and his Democratic allies with an unpopular bill under political siege in the Republican-controlled House, no worse or better off than before a final court ruling. Such a ruling might even provide more motivation to the opposition to gain control of the Senate and White House to reverse the PPACA entirely through legislative action.

An adverse ruling by the Supreme Court before the 2012 election would be an unequivocal disaster, however. President Obama and his fellow Democrats spent almost half of the 111th congressional session fiddling on health care while the economy burned, which destroyed their credibility in the midterm elections last fall. They insisted that their work would pass constitutional muster even as the mandate fueled the rise of the Tea Party and came to embody all of the arrogance and elitism of big government, nanny state. A ruling that overturns even just the mandate means that they tossed away their House majority and all of their political momentum for nothing.

What’s more, it will increase the prestige and the credibility of those who fought the passage of the PPACA and who later vowed to repeal it entirely and start reform over from scratch. And that could come just as President Obama runs for re-election and Democrats desperately try to preserve their Senate majority as they defend 13 more seats than Republicans. Not only would their work be discredited, so would their entire approach to governance.

The question of severability in the legal sense will play an important part of the appeals process, up to the Supreme Court sooner or later. The bigger question will be whether President Obama and his party will have any political severability from Obamacare if the Supreme Court overturns it on an expedited review. Voters will give the final judgment on that point, but given Democrats' lack of accomplishment over the past few years, don't bet on it.

This makes the severability omission larger than O'Donnell and Turley cared to admit. As Morrissey noted Wednesday, the Democrats are now in a real bind no matter what happens with SCOTUS:

• ne has to presume under the circumstances that the chance to head off a long, contradictory trek through different appellate circuits will appeal to at least the conservative end of the bench, especially since there is zero chance of avoiding the case in the long run anyway. On the other hand, after Bush v Gore, the court may not be terribly anxious to get to that end game and be seen as conducting a political intervention.

If they decide to tackle the inevitable sooner rather than later, the White House and its Democratic allies will face two outcomes: either a fired-up electorate like in 2010, or massive egg on their faces and … a fired-up electorate. There will be no severability from ObamaCare either way.

I don't agree on the Bush v. Gore point, as Obama injected himself into the Court's politics when he foolishly decided to admonish them during his 2010 State of the Union address. As a result, Justice Samuel Alito joined Justices Antonin Scalia and Clarence Thomas in not attending this year's SOTU.

As all you need are four Justices to hear the case, it seems almost a metaphysical certitude one of the remaining six will join Alito, Scalia and Thomas especially as this is going to be a political issue whenever the Court chooses to hear it.

And, no matter what their decision, the 2012 elections look certainly to be a referendum on ObamaCare, for if SCOTUS rules for it, the Center and Right will mobilize like never before to get Democrats out of the White House and the Congress in order to legislatively stop this catastrophe before it's fully implemented in 2014.

If SCOTUS finds the bill un-Constitutional as I expect, the Center and the Right will similarly mobilize against Democrats to toss the bums out that wasted so much of the nation's time during a recession on an issue that wasn't anywhere near as important to the citizenry as the economy and jobs.

This deliciously means that Pelosi was kind of right with her love it claim, for conservatives are all humming the McDonald's theme song now having found out what's not in the bill.

Colossal mistake indeed.


Read more: http://newsbusters.org/blogs/noel-sheppard/2011/02/02/lawrence-odonnell-democrats-made-huge-mistake-not-writing-severabilit#ixzz1Cq67EAnx

[blacken700]

[Soul Crusher]

White House Wants Obamacare on Slow Legal Track
Friday, 04 Feb 2011 01:43 PM Article Font Size     

A U.S. Supreme Court showdown over President Barack Obama’s health-care overhaul may be inevitable. His administration is in no rush for the court to get involved.

The Justice Department yesterday said it will oppose Virginia Attorney General Ken Cuccinelli’s request that the court immediately review the law, which a federal trial judge said was unconstitutional. The administration said the high court should follow its usual practice and first let an appeals court rule on Cuccinelli’s challenge.

The government’s approach would give it a chance to rack up lower court victories and perhaps build popular support for the law before the justices take up the case. It might also set the stage for a Supreme Court ruling only months before the 2012 presidential election.

“Litigating through the courts of appeals in the normal course suggests confidence in the government’s case,” said Christopher J. Wright, a lawyer with Wiltshire & Grannis LLP in Washington who has argued 28 Supreme Court cases and isn’t involved in the health-care fight. “In this particular case, it may produce unanimous judgments from appeals courts upholding the law.”

Cuccinelli said in an interview that states and businesses need to know whether the law is constitutional as soon as possible in light of rulings in Virginia and Florida against the administration.

Guidance for States
“What really matters now is getting this decided for the people of this country so we can move on both with health care reform and just economically knowing how we’re going to have to operate,” he said.

The Supreme Court has taken the step being sought by Cuccinelli, known as certiorari before judgment, only a handful of times in the past half century and generally only when the justices are simultaneously considering a related case that has cleared the appellate level.

The chances of the court agreeing to hear the case in the face of government opposition are “zero,” said Carter Phillips, a lawyer in Washington at Sidley Austin LLP who has argued 71 Supreme Court cases.

“I do not think the court will be inclined to decide this question without the benefit of having the views of at least one and probably more than one court of appeals on a very difficult question of constitutional law,” Phillips said.

Final Resolution
Justice Department spokeswoman Tracy Schmaler said in a statement that certiorari before judgment would do little to expedite a final resolution. Cuccinelli said he isn’t explicitly asking the court to hear the case in its current term, which is scheduled to end in late June.

The 4th U.S. Circuit Court of Appeals in Richmond is scheduled to review the Virginia challenge in May -- alongside an appeal of a different judge’s decision upholding the law. A ruling by that court this year would give the losing side time to seek Supreme Court review during its 2011-12 term, which begins in October.

Schmaler also said the provision at the center of the court fight -- the requirement that people either buy insurance or pay a penalty -- doesn’t take effect until 2014.

“There is more than sufficient time for the case to proceed first in the court of appeals,” Schmaler said in the statement. She declined to comment further on the government’s motivations.

Judges Split
Four trial judges around the country have split 2-2 on the law’s constitutionality. In the Virginia case, U.S. District Judge Henry Hudson said in December that the insurance mandate was beyond Congress’s power to regulate interstate commerce.

Several appellate experts said they expect the government to fare better at the next level.

“They are more likely to get favorable decisions out of the courts of appeals,” said John Elwood, a partner at Vinson & Elkins LLP in Washington who served as a law clerk for Justice Anthony Kennedy, the potential swing vote on the nine-member Supreme Court.

The Justice Department might find an especially receptive audience at the 4th Circuit. Although that court developed a reputation as a conservative bastion in the 1990s and 2000s, it may now lean in the other direction. Of the court’s 14 active judges, eight were appointed by Democratic presidents and a ninth, Roger Gregory, was nominated first by Democratic President Bill Clinton and then by Republican George W. Bush.

Party Affiliation
Party affiliation has made the difference so far with health care. The two trial judges who declared the law unconstitutional -- Hudson and Florida’s Roger Vinson -- are both Republican appointees. The judges who upheld the law -- Norman Moon of Virginia and George Caram Steeh of Michigan -- were appointed by Democratic presidents.

The two other appeals courts set to consider the law have a more Republican flavor. The Cincinnati-based 6th Circuit, which will hear the Michigan case later this year, has four Democratic and 10 Republican appointees among its active members. The Atlanta-based 11th Circuit, which would hear an appeal in the Florida case, has five Democratic and six Republican selections.

Appeals courts generally assign cases first to a three- judge panel. Should the government lose at that stage, it could seek review by the full appeals court, perhaps pushing Supreme Court involvement back to the 2012-13 term. And should the government win, it could even urge the Supreme Court not to review the law at all.

Public Support
Delay of any length gives the administration time to win more public support for the law, a factor that some lawyers said might subtly influence the nine justices. Some provisions have already taken effect, including a requirement that young adults be allowed to stay on their parents’ insurance plans until they turn 26.

The administration likely wants “the law to be on the books as long as possible and have people get used to it,” Elwood said. “If it has a feel of familiarity to it, the less likely they are to strike it down.”

Appellate consideration would help the courts home in on the central legal issues, said Drew S. Days III, a professor at Yale Law School and solicitor general under President Bill Clinton. After appeals court consideration, “all the arguments have been played out fully and unwound and elaborated in ways that I think will be helpful to the justices,” Days said.

Cuccinelli said the case involves a “very pure legal argument” and wouldn’t benefit from appeals court rulings. “They’re really just kind of a warm-up for the Supreme Court,” he said.






© Copyright 2010 Bloomberg News. All rights reserved.



Read more on Newsmax.com: White House Wants Obamacare on Slow Legal Track
Important: Do You Support Pres. Obama's Re-Election? Vote Here Now!




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Gee I wonder why       

[Soul Crusher]

Great Op-Ed - of course Team Kneepad knows more than this guy.   

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OPINION
FEBRUARY 7, 2011.
An ObamaCare Appeal From the States

Twenty-one governors representing more than 115 million Americans have written to Kathleen Sebelius asking for more flexibility on health-care reform..Article Video Comments (284) more in Opinion ».

By MITCH DANIELS

Unless you're in favor of a fully nationalized health-care system, the president's health-care reform law is a massive mistake. It will amplify all the big drivers of overconsumption and excessive pricing: "Why not, it's free?" reimbursement; "The more I do, the more I get" provider payment; and all the defensive medicine the trial bar's ingenuity can generate.

All claims made for it were false. It will add trillions to the federal deficit. It will lead to a de facto government takeover of health care faster than most people realize, and as millions of Americans are added to the Medicaid rolls and millions more employees (including, watch for this, workers of bankrupt state governments) are dumped into the new exchanges.

Many of us governors are hoping for either a judicial or legislative rescue from this impending disaster, and recent court decisions suggest there's a chance of that. But we can't count on a miracle—that's only permitted in Washington policy making. We have no choice but to prepare for the very real possibility that the law takes effect in 2014.

For state governments, the bill presents huge new costs, as we are required to enroll 15 million to 20 million more people in our Medicaid systems. In Indiana, our independent actuaries have pegged the price to state taxpayers at $2.6 billion to $3 billion over the next 10 years. This is a huge burden for our state, and yet another incremental expenditure the law's authors declined to account for truthfully.

Perhaps worse, the law expects to conscript the states as its agents in its takeover of health care. It assumes that we will set up and operate its new insurance "exchanges" for it, using our current welfare apparatuses to do the numbingly complex work of figuring out who is eligible for its subsidies, how much each person or family is eligible for, redetermining this eligibility regularly, and more. Then, we are supposed to oversee all the insurance plans in the exchanges for compliance with Washington's dictates about terms and prices.


 .The default option if any state declines to participate is for the federal government to operate an exchange directly. Which got me thinking: If the new law is not repealed by 2013, what could be done to reshape it in the direction of freedom and genuine cost control?

I have written to Kathleen Sebelius, secretary of Health and Services (HHS), saying that if her department wants Indiana to run its program for it, we will do so under the following conditions:

• We are given the flexibility to decide which insurers are permitted to offer their products.

• All the law's expensive benefit mandates are waived, so that our citizens aren't forced to buy benefits they don't need and have a range of choice that includes more affordable plans.

• The law's provisions discriminating against consumer-driven plans, such as health savings accounts, are waived.

• We are given the freedom to move Medicaid beneficiaries into the exchange, or to utilize new approaches to the traditional program, instead of herding hundreds of thousands more people into today's broken Medicaid system.

• Our state is reimbursed the true, full cost of the administrative burden to be imposed upon us, based on the estimate of an auditor independent of HHS.

• A trustworthy projection is commissioned, by a research organization independent of the department, of how many people are likely to wind up in the exchange, given the large incentives for employers to save money by off-loading their workers.

 Today's Rasmussen poll finds that Americans still favor repeal of the President's health-care reform. Senior editorial writer Joseph Rago has the latest. Also, Opinionjournal.com columnist John Fund on the unanswered questions about the Gipper.
.Obviously, this is a very different system than the one the legislation intends. Health care would be much more affordable, minus all the mandates, and plus the consumer consciousness that comes with health savings accounts and their kin. Customer choice would be dramatically enhanced by the state's ability to allow more insurers to participate and offer consumer-driven plans. Through greater flexibility in the management of Medicaid, the state might be able to reduce substantially the hidden tax increase that forced expansion of the program will impose.

Most fundamentally, the system we are proposing requires Washington to abandon most of the command-and-control aspects of the law as written. It steers away from nanny-state paternalism by assuming, recognizing and reinforcing the dignity of all our citizens and their right to make health care's highly personal decisions for themselves.

So why would Ms. Sebelius and HHS agree to this de facto rewrite of their treasured accomplishment? A glance at the recent fiasco of high-risk pools provides the answer. When a majority of states, including Indiana, declined to participate in setting up these pools, which cover those with high-cost, existing conditions, the task fell to HHS. As widely reported, it went poorly, with costs far above predictions and only a tiny fraction of the expected population signing up.

If the feds can't manage this little project, what should we expect if they attempt it on a scale hundreds of times larger and more complex? If it were only Indiana asking, I have no doubt that HHS would ignore us. But Indiana is not alone. So far, 21 states—including Pennsylvania, Texas and Louisiana—have signed the same letter. We represent more than 115 million Americans. Washington's attempt to set up eligibility and exchange bureaucracies in all these places would invite a first-rate operational catastrophe.

If there's to be a train wreck, we governors would rather be spectators than conductors. But if the federal government is willing to reroute the train to a different, more productive track, we are here to help.

Mr. Daniels, a Republican, is the governor of Indiana.

[Soul Crusher]

A new Dem threat to health care law
Politico ^ | 02/08/11 | Manu Raju

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A handful of moderate Senate Democrats are looking for ways to roll back the highly contentious individual mandate — the pillar of President Barack Obama’s health care law — a sign that red-state senators are prepared to assert their independence ahead of the 2012 elections.

They haven’t decided whether to propose legislation, but any effort by moderate Democrats that takes aim at the individual mandate could embarrass Obama and embolden Republicans who are still maneuvering to take down the health care law.

And it’s not just health care. The senators are prepared to break with the White House on a wide range of issues: embracing deeper spending cuts, scaling back business regulations and overhauling environmental rules. The moderates most likely to buck their party include Sens. Joe Manchin of West Virginia, Ben Nelson of Nebraska, Claire McCaskill of Missouri and Jon Tester of Montana — all of whom are up for reelection in 2012 and represent states Obama lost in 2008.

The goal is to lay down a record of bipartisan compromises with Republicans, but it could also put Obama at odds with key centrists, right at the moment the president himself is looking to forge a more centrist path.

And their efforts could put Majority Leader Harry Reid (D-Nev.) at a potential disadvantage on key votes. The Senate leader has to protect 23 Democratic seats next year, giving moderates and swing-state Democrats plenty of leeway to prove their independence, but he also has to worry about keeping a unified front for the party ahead of the presidential election. With only 53 Democrats leading the thin Senate majority, if three or four break away on any key issue, Minority Leader Mitch McConnell (R-Ky.) could in some cases claim a simple majority.

The Democratic moderates said they’re not concerned about how their positioning will affect their party’s overarching political strategy.

“I’m not worried about the politics of this; I’m worried about the substance of it,” McCaskill said. “My goal has always been pretty simple: affordable, accessible, private-market insurance for people in America who want insurance. The politics of this are hard; it’s just easier to stay focused on the substance because that’s what matters.”

Texas Sen. John Cornyn, who chairs the National Republican Senatorial Committee, said Democrats face a “dilemma.”

But there’s a political complication for Republican leaders as well. Some in GOP circles fear that by teaming up with Democratic moderates, they could give these Democrats bipartisan cover that would help them in 2012.

Some Republicans are quietly warning colleagues not to work with vulnerable Democrats in the first place. This comes after Sen. Bob Corker (R-Tenn.) teamed up with McCaskill to back a proposal that would dramatically cut spending over the next decade and Sen. Mike Johanns (R-Neb.) worked with Manchin to repeal a small-business reporting provision in the health care law.

“It would be one thing if they were collaborating with Democrats on issues [for] which they’ve long shared an alliance,” a senior GOP aide said. “But there needs to be a recognition that this is not about principle for these vulnerable Senate Democrats. It’s all about election cycle gamesmanship, and our side shouldn’t be handing them political cover.”

The Democratic moderates strongly refuted suggestions that their positioning is being influenced by electoral politics.

“I truly believe all bills need to be bipartisan,” said Manchin, a freshman who won the late Democratic Sen. Robert Byrd’s seat in a special election last year.

The individual mandate and efforts to overhaul it would certainly gain the most attention, especially if moderate Democrats teamed up with Republicans, something that would be a clear rebuke of the core of Obama’s health care law. For now, it’s unclear whether they’ll even offer a bill, but moderates are certainly open to it.

Democrats justify the provision by arguing that it’s meant to ensure that individuals don’t drain the health care system by waiting until they are sick to purchase coverage — particularly now that the new law prohibits insurers from discriminating against those with pre-existing conditions.

The provision has become one of the most controversial of an already-controversial law, especially in red states, where Republicans have seized on recent court rulings to characterize it as an unconstitutional federal power grab.

Nelson, who faces a tough road to win a third term next year, asked the Government Accountability Office and the Congressional Budget Office to outline alternatives to the mandate, potentially by bringing large numbers of people into insurance coverage through open and closed enrollment periods. He may offer legislation once the congressional scorekeepers report back to him.

“This is about making it better,” Nelson said. “I never thought the mandate was a particularly good way to do it.”

Nelson fired back at GOP critics who said he’s trying to distance himself from the law. “What’s their plan? Is their plan, 'hope you don’t get sick'?”

Last year in Missouri, voters approved a ballot measure to nullify the federal health care law — and McCaskill is well-aware of the unpopularity of the individual mandate in her state.

In an interview, McCaskill said she’d “love to” modify the mandate and is “looking at different ways to try to” extend coverage without a mandate.

“We’re running numbers to see how many new people we can get into the pool with something less than a mandate, something that would be more limited enrollment periods with severe financial penalties for not signing up.”

McCaskill added that an alternative “may not be workable; it may be that the mandate is the only way we can do it. But I think we should explore it.”

Tester said his Western rural state of Montana is “libertarian in nature,” which he said explains the unpopularity of the individual mandate. The first-term Democrat said he’d be “open” to overhauling that provision if there’s an alternative that makes access to health care more affordable.

Unlike the other three senators, Manchin wasn’t in Congress to cast a vote on the legislation, though he voted last week with the rest of his Democratic colleagues against GOP efforts to repeal the entire law. But he’s looking to make other changes to the law, including paring back the state Medicaid expansion that covers insurance costs for lower-income families.

Health care issues aren’t the only way some Democrats are looking to distinguish themselves. Manchin, for one, introduced a bill to rein in the Environmental Protection Agency’s recent ruling against mountaintop mining, and he’s won over two other Democrats, fellow West Virginian Sen. John Rockefeller and Louisiana Sen. Mary Landrieu.

With federal spending issues expected to dominate the early battles between the GOP House and the Democratic Senate, a number of senators up for reelection are staking out hawkish stances on the debt. In early December, Democrats wrote to Obama and congressional leaders and called for tougher steps to reduce the budget deficit, including several who are facing reelection next year, like McCaskill, Tester, Virginia Sen. Jim Webb, California Sen. Dianne Feinstein, Minnesota Sen. Amy Klobuchar and Delaware Sen. Tom Carper.

With bipartisan discussions led by Sens. Saxby Chambliss (R-Ga.) and Mark Warner (D-Va.) now under way, endangered Democrats could very well jump on board whatever proposal eventually emerges to slash the debt.

In the meantime, some Democrats — like Colorado Sen. Mark Udall — aren’t waiting for an upcoming election to get in front of the spending issue.

In recent weeks, Udall has co-sponsored a GOP constitutional amendment to force Congress to balance its budget, has taken a hawkish stand against earmarks, signed onto Arizona GOP Sen. John McCain’s plan to give the president line-item veto authority and is pushing for an up-or-down vote on the presidential deficit commission’s proposals. And he was the driving force behind the push for Democrats and Republicans to sit next to one another at last month’s State of the Union address.

Udall said his recent push has nothing to do with moderating his image ahead of his 2014 reelection effort.

“What I heard from the voters is to focus on jobs, get the debt [under] control and work together,” Udall said. “And what I’ve been doing the last month reflects what the voters said.”

[Dos Equis]

http://www.businessweek.com/magazine/content/11_08/b4216050263515.htm

Attack of the Commerce Clause
A new assault on regulation is gathering force—and it's deploying a constitutional weapon By Paul M. Barrett

 On the afternoon of Jan. 31, Richard A. Epstein was in his office at New York University Law School when a request came in from a conservative website called Ricochet.com. A federal district court judge in Florida had just struck down the Obama Administration's health-care overhaul, and the site wanted Epstein's reaction. Judge Roger Vinson had ruled that in passing the bill last year, Congress exceeded the authority granted it by the so-called Commerce Clause: Article I, Section 8, Clause 3 of the U.S. Constitution, which allows lawmakers "to regulate Commerce … among the several states." For Epstein, 67, a voluble and prolific scholar who for four decades has been arming conservatives with intellectual weaponry to attack regulation, it was an I-told-you-so moment. "The Commerce Clause challenge to Obamacare indeed has legs," he blogged. "The government played table stakes poker, and for the moment it has lost."

A central figure at the University of Chicago until he moved to NYU last year, Epstein has written over the years about a dizzying array of legal issues: zoning, banking, and job discrimination; product liability, patents, and pharmaceuticals; the environment, workers' comp, and taxation. Unifying his scholarship is a persistent theme: Government stifles capitalist ingenuity and generally screws things up. "It's amazingly consistent that way," he says amiably, ringed by a mountain range of papers in his Greenwich Village office.

The legal fight over health-care reform is likely to end up before the U.S. Supreme Court just in time for the 2012 Presidential race. (Federal appeals courts will have their say in coming months, making the issue a strong candidate for the justices' election-year docket.) Even with his cause riding high, though, Epstein isn't getting carried away with optimism. The high court lost its way on the topic of regulation back in the 1930s, he says. "We've been on the wrong track ever since."

For its first 150 years, the Supreme Court interpreted "among the several states" to mean that legislators could set rules only for trade that crossed state lines—via railroad, for example—and not for manufacturing, farming, or other business conducted exclusively within a state. In the face of the Great Depression's economic devastation and relentless political pressure from President Franklin D. Roosevelt, however, the court drastically shifted its understanding of the Commerce Clause (along with its view of a number of other parts of the Constitution). By 1942, in the landmark case of Wickard v. Filburn, the court upheld federal regulation of a farmer who grew wheat strictly for his own consumption. In a modern economy, the court reasoned, even subsistence crops affect demand in the national marketplace.

Does the logic of Wickard v. Filburn cover President Barack Obama's plan for health care, an industry responsible for 17 percent of the nation's gross domestic product? It's a dandy law school exam question. It's also the most important inquiry about the interplay of government and business percolating in the U.S. legal system. Two Republican-appointed federal judges—the one in Florida and another in Virginia—have answered "no," ruling that Congress exceeded its Commerce Clause authority when it imposed a requirement last year that all American adults obtain health insurance. Two Democratic judicial appointees—one in Michigan, another in Virginia—have disagreed, upholding the statute. When the battle reaches the high court, the fate of near-universal health care may hang on the swing vote of a single justice.

Take a step back, though, "and there's a much bigger fight here that goes way beyond health insurance," says Eric Lane, a liberal constitutional scholar at Hofstra Law School. It's a new assault on regulation being led by the ascendant Republican majority in the House of Representatives. Party leaders vow to use committee hearings and floor debates to make 2011 a year of misery for executive branch regulators. In Congress and the courts alike, skirmishes are under way over the Environmental Protection Agency's authority to limit greenhouse gas emissions and the legitimacy of last year's Wall Street reform legislation. And conservative legal tacticians who have rolled back government limits on campaign spending and gun ownership are seeking to extend those victories. Perhaps Professor Epstein should be in a more hopeful mood.

At the highest levels of the U.S. judiciary, there have always been jurists who sought to revisit America's long-settled understanding of the proper extent of congressional authority over economic affairs. The late Justice William H. Rehnquist kept the flame alive in a series of solo dissents in the 1970s and '80s, earning him the nickname "the Lone Ranger" before his elevation to Chief Justice in 1986 inclined him more toward cooperation. That year, President Ronald Reagan's Attorney General, Edwin Meese III, invited Epstein to make a presentation on the Commerce Clause at the Justice Dept. "The Reagan people knew me from Takings," Epstein explains, referring to a book he published in 1985 that laid out a controversial theory of the Fifth Amendment's Takings Clause. That clause states that private property can't be "taken for public use, without just compensation." Epstein maintains that any regulation reducing the value of private property—such as zoning—requires compensation of the owner.

Epstein's research on the Commerce Clause produced an article published in 1987 in the Virginia Law Review. "The idea that Congress can restrict pretty much any economic activity that has a 'substantial effect' on commerce—which the Supreme Court announced in 1942 in Wickard—was always wrong," Epstein says, summarizing his findings. "I'd say it was a giant fraud, and it has stifled economic liberty ever since."

He remains in a distinct minority on this point. Most constitutional scholars— and judges—see the expansion of federal power as a natural outgrowth of the vastly increased complexity of the American economy brought on by industrialization, modern transportation, and improvements in communication. "Congress's power to regulate 'interstate commerce' became, in effect, the power to regulate 'commerce' generally," David D. Cole, a liberal law professor at Georgetown University, wrote late last month in The New York Review of Books. "The court rejected as empty formalisms the distinctions it had previously drawn between local and interstate, between production and commerce, and between 'direct' and 'indirect' effects."

Despite a concerted program of issue-oriented litigation and conservative judicial appointments—one supported by the Federalist Society, a private network of right-leaning lawyers and scholars—the Reagan Administration had little success pushing Epstein's views in court. In 1995, Douglas H. Ginsburg, a Reagan appointee on the federal appeals court in Washington, publicly mourned what he called "the Constitution-in-exile": provisions such as the Commerce, Takings, and Contract Clauses, which he argued had been unwisely marginalized by the Supreme Court. "The memory of these ancient exiles, banished for standing in opposition to unlimited government," Ginsburg wrote in the journal Regulation, "is kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty—even if perhaps not in their own lifetimes."

Although the second coming has not occurred, the debate continues. In 1995 the Supreme Court struck down an obscure federal law prohibiting possession of a gun near a school. Without disturbing any precedent, Rehnquist wrote in U.S. v. Lopez that, under any definition, the mere possession of a firearm in a local school did not affect interstate commerce. The decision had little practical consequence, since gun infractions near schools were still covered by state laws. Still, Lopez caused a stir in legal circles because it marked the first time since the New Deal that the high court said the Commerce Clause did not accommodate something Congress wanted to do.

Justice Clarence Thomas, who sided with the Lopez majority, identified himself as the inheritor of Rehnquist's Lone Ranger hat. In a separate concurrence that echoed Epstein's 1987 Virginia Law Review article, Thomas wrote that the Supreme Court erred when it departed in the 1930s from 19th century legal doctrines that strictly limited federal regulatory power. In an open-ended invitation to litigants, Thomas wrote: "In a future case, we ought to temper our Commerce Clause jurisprudence in a manner that both makes sense of our more recent case law and is more faithful to the original understanding of that clause."

"What Justice Thomas was getting at—more aggressively than anyone else—was that the actual words of the Constitution don't say Congress can do whatever it wants in regulating the economy," says John Yoo, a constitutional law professor at the University of California at Berkeley. As a newly minted lawyer, Yoo was clerking for Thomas when Lopez was decided. "If the court wanted to get back to what the founders had in mind about commerce," he adds, "the text and history of the Constitution would support a big change in the doctrine." Thomas's presence on the country's top tribunal makes it more plausible for business interests and conservatives to argue in lower courts that one or another regulation deserves to be struck down.

Cass R. Sunstein, a Harvard law professor on leave while he runs Obama's Office of Information and Regulatory Affairs, takes the Thomas invitation seriously. In 2004 he warned about the return of what he called "Herbert Hoover's Constitution"—a liberal's derisive spin on Ginsburg's Constitution-in-exile. Under the Hoover Constitution, Sunstein wrote in Washington Monthly, "the powers of the national government were sharply limited." He accurately predicted that if fortified by second-term appointments by President George W. Bush, the Supreme Court might read the Second Amendment expansively to curb federal and state gun control laws. Led by Bush-nominated Chief Justice John G. Roberts, the court in 2008, and again last year, struck down firearm restrictions in Washington, D.C., and Chicago, declaring clearly for the first time an individual right to keep a handgun. Sunstein was also prescient in saying that a conservative majority might curtail campaign-finance regulation, as it did in 2010 in a ruling strengthening the First Amendment speech rights of corporate interests. On yet another front, Sunstein envisaged an assault on environmental regulations. That offensive is well under way as Texas spearheads litigation intended to hobble the EPA's ability to regulate carbon emissions.

The Hoover Constitution isn't likely to be restored in full, Sunstein acknowledged. "But don't be surprised if you see significant movement in its direction." A spokesman for Sunstein declined to comment.

The Supreme Court's more recent Commerce Clause pronouncements leave the fate of the health insurance mandate an open question. In 2000 the court said Congress exceeded its authority when it passed a law giving victims of gender-motivated violence a basis for suing attackers in federal court. Regardless of good intentions, the statute did not concern commerce, the majority concluded. Leaning in the opposite direction, the court ruled in 2005 that Congress could criminalize homegrown marijuana, even for medicinal use. "If the majority is to be taken seriously," Thomas wrote in dissent, "the federal government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 states."

Federal regulation of quilting bees isn't being litigated, but Obama's attempt to create a health insurance system covering all Americans surely is. David B. Rivkin Jr., a lawyer who served in the Reagan and George H.W. Bush administrations, has been bothered by the idea of mandated insurance for nearly two decades. In 1993 he took to the op-ed page of The Wall Street Journal to argue that Clinton Administration proposals for universal participation in a national health system would "draw the curtain on the Constitution of 1787," confirming "that there is nothing that Congress cannot do under the Commerce Clause." In the 1990s, as Rivkin noted, some Republicans in Congress also supported the idea of requiring everyone to participate in the health system, so that costs would be spread across the entire population. The issue became moot when Clinton-era health reform died on Capitol Hill.



When Obama revived the campaign for comprehensive health coverage in 2009, Rivkin returned to the ramparts, arguing its unconstitutionality in the Journal and venues sponsored by the Federalist Society. He also provided legal advice to GOP state officials skeptical of the Obama plan. The counseling grew into a paid post at Baker Hostetler, the corporate law firm in whose Washington office Rivkin is a partner. He and a team of colleagues represent a coalition of 26 states challenging the health-care bill in Florida.

Born in 1956 in a small village in the former Soviet Union, Rivkin brings an immigrant's patriotic zeal to defending his vision of the U.S. Constitution. A classical bust of George Washington greets a visitor to his office. With characteristic zest, he declares that "the Obama health reform law is the most profoundly unconstitutional statute in U.S. history." At the same time, he insists, he is not trying to alter Supreme Court jurisprudence. Instead, he says the justices have always assumed that the Commerce Clause authorizes regulation of economic "activity." The health insurance mandate, Rivkin contends, is unconstitutional because it regulates "inactivity"—namely, individuals' decision not to buy insurance. "Inactivity cannot be regulated under the Commerce Clause," he argued before U.S. District Judge Vinson in Pensacola, Fla., on Dec. 16. Vinson agreed, and the activity/inactivity distinction became central to his ruling.

The Obama Administration has called mandatory coverage the health plan's financial linchpin because without it, some people would refrain from acquiring insurance until they get sick, driving up costs. Ian H. Gershengorn, the senior Justice Dept. attorney defending health reform in the courts, told Judge Vinson in oral argument that those who don't buy health insurance are making an economic decision to pay later or shift the cost to others. Everyone, at some point, takes part in the health-care market. "The uninsured are not inactive," Gershengorn argued. Striking down the overhaul would amount to "a return to the 1930s," he said.

Judge Vinson didn't buy it. He said that he wasn't deciding on the wisdom of health reform, but on a more abstract principle. "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," he wrote in his 78-page Jan. 31 ruling. "We would have a Constitution in name only."

Epstein has nothing but admiration for Vinson's bold move. Like some other Supreme Court watchers, he expects a 5-4 resolution, with the conservative but sometimes unpredictable Justice Anthony M. Kennedy casting the deciding vote. If pressed, Epstein forecasts that Kennedy will vote to uphold the legislation "on the ground that the mandate is but one part of a comprehensive health-care whole, so that the mandate has to be judged, to borrow from John Donne, not as an island, but as a piece of the main." On the other hand, he adds, maybe Kennedy will pleasantly surprise him and turn the court in Epstein's direction. Says the professor: "I have been wrong before."

[Soul Crusher]

CMS Official Confirms That Four States Have Been Granted ObamaCare Waivers
American Spectator ^ | 2/16/11 | Philip Klein

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An Obama administration official on Wednesday confirmed that four states -- including Florida, Tennessee and Ohio -- have been granted waivers from the regulatory requirements of the national health care law.

Steve Larsen, director of the Center for Consumer Information and Insurance Oversight (CCIIO) at the Centers for Medicare and Medicaid Services, confirmed the news under questioning from Rep. Cliff Stearns at an oversight hearing for the House Energy and Commerce committee.


(Excerpt) Read more at spectator.org ...


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If ObamaCare is so great - why is everyone under the sun seeking to get out from under it?