Judge Henry Hudson

Eleventh Circuit Court Of Appeals: ObamaCare's Individual Mandate Is Unconstitutional

Funny how August, supposedly the slowest of all months for news, can gobsmack you in the face with a flying hammer full of headlines, and on a Friday of all things. In fact, there is a fair amount of state news today, as well as our open house last night, that we wanted to write about today. But that will wait to next week. For now, it's all about ObamaCare and the Eleventh Circuit Court of Appeals' ruling today that the linchpin of ObamaCare — the individual mandate (i.e., the government forcing citizens to buy a product) — is unconstitutional, and some observations. Here's a good first look analysis by Bryan Preston of Pajamas Media.com. » The court seems to indicate that the rest of the law is constitutional. However, without the funding the forced purchases and penalties provide, there is no way the law can be funded (unless President Obama takes us trillions further in debt). But as far as the mandate, the court used phrases such as "unbounded assertion of congressional authority" and called its reach "breathtaking in scope," going further even than opponents had in their arguments.

» It's interesting that the 11th Circuit came to its decision this quickly: The 4th Circuit, known as the "Rocket Docket," heard the Virginia challenge earlier and still has not released its decision.

»The 11th Circuit's 2-1, 304-page decision apparently says the individual mandate is unconstitutional but the other parts may be constitutional. Judge Roger Vinson, the Federal District Court Judge in Florida, on whose opinion the appeal was based, ruled the entire law was unconstitutional. After all, the law has no severability clause which stipulates that if any part of a bill is ruled unconstitutional, then the remaining parts will remain in place. Without that clause, once the 11th Circuit ruled the individual mandate unconstitutional, the entire law must be ruled unconstitutional. But, we'll take this major decision for now.

» The three judge panel was made up of one Bill Clinton appointee, one George W. Bush appointee, and one Clinton appointee who was appointed to the Federal District bench by Ronald Reagan.

» Here is a key sentence from Judge Vinson that the 11th Circuit upheld today:

The individual mandate exceeds Congress’ commerce power, as it is understood, defined, and applied in the existing Supreme Court case law.

» Where are Eliot Spitzer and all the liberals who mocked the intelligence of all state Attorneys General for filing suit against ObamaCare, saying that they had no chance and it clearly is constitutional? This is now at least the third federal court to rule it unconstitutional, including the Federal District Court for Eastern Virginia (Judge Henry Hudson). Where are all the leftist activists who yelled that these legal actions were "a waste of time and tax dollars"? Isn't it nice to stay quiet and let them eat crow when the time comes?

» Kyle Wingfield of the Atlanta Journal-Constitution has good information on the decision and is updating it frequently. He provides this nugget from the 304-page ruling,as legal analysts continue to pour through the lengthy document.

It cannot be denied that the individual mandate is an unprecedented exercise of congressional power. … Never before has Congress sought to regulate commerce by compelling non-market participants to enter into commerce so that Congress may regulate them. The statutory language of the mandate is not tied to health care consumption — past, present, or in the future. Rather, the mandate is to buy insurance now and forever. The individual mandate does not wait for market entry.

» David Rivkin, the attorney hired by the more than two dozen attorneys general to argue — and who won — the multi-state lawsuit in Federal District Court in Florida, issued this news release. The former Reagan administration attorney, and one of America's top legal minds on a myriad of disciplines, said the ruling is a major victory for ObamaCare opponents and that the court's decision confirms almost verbatim his original argument in a series of editorials dating from August of 2009. He has been correct on this matter consistently, and recently laid out on SCOTUSBlog.com how and why ObamaCare will get struck down in the U.S. Supreme Court. From his release:

The Court has made clear that it will vindicate federalism against encroachment by either the federal government or the state. [It] has consistently held that there must be some areas of life, even where there may be some remote economic impact, that constitutionally remain within the States’ regulatory authority alone.

» Governor Bob McDonnell issued this statement:

I am pleased by today’s decision. The 11th Circuit Court of Appeals has correctly determined that the Commerce Clause provides no constitutional basis for a mandate that citizens must purchase a specific commercial product or face a penalty. The individual mandate provision . . . represents an unprecedented expansion of federal authority. In issuing their ruling, the court's majority wrote that, "the individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and cannot be sustained as an exercise of Congress's power under the Taxing and Spending Clause." It is clearly in direct contrast to the limited powers granted to our national government by the Constitution.

The decision by the 11th Circuit is similar to the prior district court ruling on Virginia's challenge to the federal healthcare law. ... this issue must be heard in an expedited manner by the Supreme Court of the United States. The Department of Justice has resisted all prior requests to fast track this issue to the nation's highest court. That is disappointing and I again urge the Department of Justice to call for expedited review. This law will impact every American. Regardless of where one stands on the policy and constitutional questions at hand, all should at least be able to agree on the need for certainty, finality and uniform application of the law throughout the country.

» Attorney General Ken Cuccinelli issued this statement:

I am pleased that the Eleventh Circuit Court of Appeals found the individual insurance mandate and penalty unconstitutional. The court determined that the power to force one citizen to purchase a good or service from another is outside the established outer limits of both the Commerce Clause and the Necessary and Proper Clause. The court also ruled that although the president and Congress want to now call the penalty a tax to make it pass constitutional muster, the penalty cannot be sustained under the federal government's taxing authority because the penalty is clearly not a tax.

I congratulate our fellow attorneys general in this major victory, and although this court is not in our circuit, I am pleased that the judges ruled in favor of the two key arguments that are present in our Virginia suit.

Health Care Lawsuit Appeal Hearing Tomorrow, Complete Coverage Here!

Tomorrow morning at 9:30, in the U.S. Fourth Circuit Court of Appeals, the Obama administration's appeal of Judge Henry Hudson's ruling that the federal health care law is unconstitutional will be heard. As we have been at every step of the way, from the motion to dismiss to Judge Hudson's decision, we will be there to cover it and will have video of Attorney General Ken Cuccinelli's entire post hearing news conference. We are the only Internet site has posted the entirety of each of his ObamaCare news conferences. Be sure to check back here for coverage of this history-making lawsuit which will play a significant role in the direction of our country.

McDonnell To Appear On "Meet The Press" Sunday

Governor Bob McDonnell, no stranger to the television political talk shows since his 2009 landslide election, will appear on the granddaddy of them all Sunday with an appearance on NBC's Meet the Press. He'll have some atypical company in fellow guests left-winger David Axelrod, one of President Barack Obama's closest and most trusted confidants, and Democrat-Turned-RINO-turned-independent left wing New York Mayor Michael Bloomberg. Topics include the 2012 presidential race and the economy. Expect host David Gregory to ask Governor McDonnell, the vice chairman of the Republican Governors Association, about his interest in the 2012 GOP vice presidential nomination. The governor also has been vocal about the U.S. Supreme Court's consideration and eventual refusal to expedite the hearing of Virginia's legal challenge to the federal health care takeover (see statement). Late last year, Federal Judge Henry Hudson ruled the law unconstitutional (as has a federal judge in Florida). The Fourth U.S. Circuit Court of Appeals is scheduled to hear the federal government's appeal in Richmond next week. Check your local listings for the Meet the Press broadcast. Check back here for ObamaCare coverage next week.

Federal Judge In Florida: Obamacare Unconstitutional

Today, a second federal judge in as many months ruled Obamacare unconstitutional (see Avik Roy at The Apothecary blog at Forbes.com). That's two lawsuits involving 27 states against the federal government's healthcare takeover and two rulings that it is unconsitutional. Perhaps the most devastating aspect of Judge Roger Vinson's decision is that he ruled the entire law is unconstitutional because the offending portion — the individual mandate that forces Americans, for the first time in history, to buy a product — is not severable. In other words, when the law was drafted, in its legislative sloppiness, the U.S. Senate did not include a clause that declared if any part of it was ruled unconstitutional, the remainder of the law remained in effect. Even Judge Henry Hudson, of the Eastern District of Virginia, who was the first judge to rule Obamacare unconstitutional, refused to go that far. But Judge Vinson did not enjoin the law (see 21StateLawSuit.com), either.

Much like Judge Hudson's opinion, however, Judge Vinson said the law goes well beyond the limits of the Commerce Clause and any High Court precedent. He wrote:

The individual mandate exceeds Congress’ commerce power, as it is understood, defined, and applied in the existing Supreme Court case law.

Here is Attorney General Ken Cuccinelli's reaction: 

I am heartened by the fact that another federal judge has found that the individual mandate forcing citizens to buy private health insurance is unconstitutional. The judge also found that the individual mandate could not be severed from the remainder of the law, so he declared the entire act invalid.

Constitutional principles have scored another victory today. Liberty has scored another victory today.

I congratulate Florida Attorney General Bondi, former Attorney General McCollum, and the attorneys general and governors who joined the Florida suit, on their victory.

Here is Governor Bob McDonnell's reaction:

Judge Vinson's ruling is yet another strike against the individual mandate specifically, and the entire federal health care law generally. For the second time in as many months, a federal judge has found that Congress exceeded its constitutional authority by mandating that citizens of this nation purchase a commercial product or else face a penalty.

Judge Henry Hudson reached a similar conclusion in his December ruling on the Commonwealth's challenge to the Act. However, Judge Vinson's decision goes one step further. The Judge also ruled that the individual mandate component is not severable from the overall Act in which it is contained, meaning that this one unconstitutional provision renders the entire bill void.

I agree with both Judge Vinson and Judge Hudson that the individual mandate is clearly unconstitutional. However, this matter is far from settled. Today's decision adds to the growing uncertainty surrounding federal health care reform. That uncertainty is leaving states, businesses and individuals unable to properly plan for 2014 and the scheduled implementation of this new law.

For this reason I reiterate my request that the Department of Justice join with the states to request fast tracking the challenges to the Patient Protection and Affordable Care Act to the Supreme Court of the United States, where the final decision regarding its constitutionality will ultimately be determined. All parties involved, no matter where they stand on this measure, should support moving this issue to its final stage, and bringing finality to a complicated matter that will have an impact on every state, employer and citizen of this nation.

Exceeding Commerce Clause Powers

Although it is the first of many court decisions he faces, Attorney General Ken Cuccinelli this week became the first person to successfully challenge President Obama's federal health insurance scheme. U.S. District Court Judge Henry Hudson ruled a key component of the plan — the "individual mandate" — unconstitutional. In his opinion, Judge Hudson concluded:

Neither the Supreme Court nor any federal court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter a stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I.

He added that the individual mandate "is neither within the letter nor the spirit of the U.S. Constitution." That letter meaning this: "Regulate" during the days of the constitution's adoption meant, "to make regular." Far from taking over entire industries, the federal government instead was to ensure that states didn't discriminate against businesses from one state to the advantage of one from another.

The Obama administration argued that the constitution's Commerce Clause gives the government broad authority to order Americans to purchase health insurance because not doing so adversely affects commerce. Of course, this unprecedented attempt to force Americans to purchase a product was predicated on labeling inactivity (not buying insurance) "interstate commerce." Stranger than fiction, we know.

While the Obama administration will appeal Monday's decision to the U.S. Fourth Circuit Court of Appeals, Attorney General Cuccinelli would prefer an expedited appeal directly to the U.S. Supreme Court. He was in talks with the Department of Justice about a joint motion to that affect, but it now appears DOJ wants no part of it (better to delay until more and more parts of the law go into affect). However, Mr. Cuccinelli told Fox New Channel's Greta Van Susteren Monday night he may go forward on that by himself and also may appeal Judge Hudson's refusal to place an injunction on the health care law (see video). He has 30 days from last Monday to make that appeal. Regardless of how or when, ultimately Obamacare's fate will be determined by the U.S. Supreme Court.

While there are dozens of reasons to oppose Obamacare (see Obamacare411), the provision that requires otherwise free Americans to purchase health insurance or face penalties is the most egregious — but it is also the financial linchpin of the entire law. Without the mandate, much of the rest of the law is untenable.

Earlier this year, The Family Foundation supported the Virginia Health Care Freedom Act, the basis for the Commonwealth's lawsuit against the federal government. It protects Virginia citizens from being compelled to buy insurance against their will. We applaud the Attorney General and his staff for their commitment to protecting the freedom of Virginians. For a great perspective on the hearing and Judge Hudson's ruling, view Mr. Cuccinelli's post-decision news conference (click here). We are the only news or Internet site that recorded and posted the entire news conference.

Cantor's Take On Obamacare Ruling: Go Straight To Supreme Court, Vote On Repeal

Incoming U.S. House Majority Leader Eric Cantor (R-Va.) blasted this out:

Obamacare Unconstitutional!

U.S. District Court Judge Henry Hudson today ruled in the Eastern District of Virginia that President Obama's signature health care law, Obamacare, was an unconstitutional mandate forcing people to purchase health insurance that they might not want, need or be able to afford.

Following the decision, Congressman Cantor called for the case to move directly to the U.S. Supreme Court so the issue could be resolved immediately.

Congressman Cantor further stated that when Republicans assume control of the House in January they would pass a clean repeal of Obamacare.

In a second e-mail, perhaps to hammer home his commitment to repeal to his critics on his right, he wrote this:

Today's ruling is a clear affirmation that President Obama’s health care law is unconstitutional. The efforts of Governor McDonnell and Attorney General Cuccinelli have raised legitimate concerns and ensured the people of the Commonwealth will have their rights protected against this unconstitutional law. Ultimately, we must ensure that no American will be forced by the federal government to purchase health insurance they may not need, want, or be able to afford.

Breaking: Virginia Wins Round One In HC Legal Challenge!

Federal District Court Judge Henry Hudson, of the Eastern District of Virginia, ruled within the last few minutes that the individual mandate provision of the new federal health care law is unconstitutional. News leaked out at noon, when Attorney General Ken Cuccinelli sent a tweet that claimed:

HC ruling is in. Va won this round.

He followed that up with an e-mail about 17 minutes later:

Today, a federal judge in Richmond ruled the individual mandate of the federal health care law UNCONSTITUTIONAL!

In other words — we won!

This won't be the final round, as this will ultimately be decided by the Supreme Court, but today is a critical milestone in the protection of the Constitution.

I am still fully digesting the court's ruling, so I'll get back to you again later with more details, but I wanted you to hear the good news right away.

Thank so many of you for your support to become the Attorney General of Virginia, and your support since then. Today is a day to celebrate those same first principles that our founding fathers articulated over 200 years ago.

We are proud to defend their work and the same first principles today in the 21st century.

Stay tuned — and thank you for your support.

To Judge Hudson's decision. Here are pertinent quotes from his 42 page opinion (see here):

Page 24:

Neither the Supreme Court nor any federal court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter a stream of commerce by purchasing a commodity in the private market. In doing so, enactment of the Minimum Essential Coverage Provision exceeds the Commerce Clause powers vested in Congress under Article I. ...

Page 37-38:

The absence of a constitutionally viable exercise of this enumerated power is fatal to the accompanying sanction for noncompliance. ...

A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce or role in a global regulatory scheme. The unchecked expansion of congressional power to the limits suggested by the Minimal Essential Coverage Provision would invite unbridled exercise of federal police powers (emphasis added). At its core, this dispute is not simply about regulating the business of insurance — or crafting a scheme of universal health insurance coverage — it's about an individual's right to choose to participate.

Article 1, Section 8 of the Constitution confers upon Congress only discrete enumerated governmental powers. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states, respectively, or to the people.

On careful review, this Court must conclude that section 1501 of the Patient Protection and Affordable Care Act — specifically the Minimum Essential Coverage Provision — exceeds the constitutional boundaries of congressional power.

Judge Hudson, however, did not do two things the Commonwealth asked: He did not place an injunction on the law, stating the individual mandate won't take affect for three more years while acknowledging his decision will be appealed. However, he cited precedent stating that "declaratory judgment is the functional equivalent of an injunction," and noted the Commonwealth conceded the administration is duty-bound to honor the decision. 

He also did not invalidate the entire law, saying there were more than 400 provisions unrelated to the specific provision challenged. That, however, gives an idea as to how obnoxiously crafted the legislation was.

Virginia Obamacare Law Suit To Be Heard Monday Morning

Virginia's law suit against the new health care law — known officially as "Commonwealth of Virginia, Ex Rel. Kenneth T. Cuccinelli, II vs. Kathleen Sebelius, Civil No. 3:10CV188, Motion Hearing" — will proceed Monday morning at 9:00 in Judge Henry Hudson's Richmond courtroom. The hearing is on the heels of yesterday's decision by Federal District Judge Roger Vinson in Florida to allow the 20 State Law Suit to proceed as well (21StateLawsuit.com). While that case is behind the Eastern District of Virginia's famous "Rocket Docket," and is where the Virginia case stood about a month ago, the fact that the weight of 21 states now are at full trial over the constitutionality of Obamacare was welcome news to Attoreny General Cuccinelli (Washington Post Virginia Politics Blog). We will be there in the courtroom Monday (or, most likely, in a satellite room with a video feed), and provide our impressions later in the day (electronic equipment is not permitted in the courtroom). So please check in with us. We also hope to be at any post hearing news conference the attorney general may hold, just as we were after the hearing on the federal government's motion to dismiss in July. We were the only media anywhere to post video of the entire news conference (see it here, as relevant points to Monday's hearing were discussed).

We expect Attorney General Cuccinelli will be on several television interview shows throughout Monday afternoon and evening, so there will be plenty of opportunity to hear straight from the source. In the meantime, here's a video of a speech he made at a freedom rally in D.C. last month:

Getting his day in court. More precisely, the people getting their day in court against the government's unprecedented power grab over individual liberty.

A Few Concluding Words From The Health Care Ruling

Upon further review, here is a telling paragraph toward the conclussion of Federal District Judge Henry Hudson's ruling today that allows Virginia's law suit against against the federal government's ObamaCare health care law to proceed: (see entire ruling here):

While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate — and tax — a citizen's decision not to participate in interstate commerce. Neither the U.S. Supreme Court nor any circuit of appeals has squarely addressed this issue. No reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce. Given the presence of some authority arguably supporting the theory underlying each side's position, this court cannot conclude at this stage that the complaint fails to state a cause of action. (Emphasis added.)

The secretary's motion to dismiss will therefore be denied. Resolution of the controlling issues in this case must await a hearing on the merits.

Virginia, Cuccinelli Win Round One Against ObamaCare!

As we were one of the first to report this morning, Virginia, through Attorney General Ken Cuccinelli (see news release), and despite what almost every liberal pundit and legislator has prognosticated, won round one in his lawsuit against the constitutionality of the new federal health care takeover law. Federal District Court Judge Henry Hudson, of the Eastern District of Virginia, in Richmond, ruled against the Department of Justice's motion to dismiss the case because Virginia, it alleged on several fronts, has no standing. Judge Hudson rejected those arguments and the case now will go to full trial, on October 18 in Richmond (see Washington Post Virginia Politics Blog). In his 32-page ruling (see here) Judge Hudson wrote:

Although this lawsuit has the collateral effect of protecting the individual interests of the citizens of the Commonwealth of Virginia, its primary articulated objective is to defend the Virginia Health Care Freedom Act from the conflicting effect of an allegedly unconstitutional federal law. Despite its declaratory nature, it is a lawfully-enacted part of the laws of Virginia. The purported transparent legislative intent underlying its enactment is irrelevant. The mere existence of the lawfully-enacted [Virginia] statute is sufficient to trigger the duty of the Attorney General of Virginia to defend the law and the associated sovereign power to enact it.

Ouch! Quite smackdown to the feds' several arguments as well as to left-wing pundits and activists who repeatedly said Attorney General Cuccinelli had no standing, no right, no business and no chance in filing this suit. Judge Hudson's opinion, boiled down, is exactly what the AG has said all along: That he took an oath to defend not only the U.S. Constitution, but the Virginia Constitution and the laws of the commonwealth. Judge Hudson also found that even though the federal insurance mandate doesn't take effect until 2014, the case is "ripe" because a conflict of state and federal laws is certain to occur. All are obvious reasons to proceed to trial to anyone with commonsense, regardless of political persuasion, except the hyper left.

At issue at the trial on October 18 is whether the federal government can order individuals to buy something (in this case, health insurance) in contradiction to Virginia law, the Virginia Health Care Freedom Act (see text). Then, it will be the AG on the offensive, asking for summary judgment. In the hearing to dismiss on July 1, the Department of Justice said it was not invoking the Commerce Clause of the U.S. Constitution, as Congress itself said it was, but rather its taxing authority, which made for some pretty humorous and pretzel twisting arguments from the government's lawyers.

For what it's worth: At the conclusion of the hearing on the feds' motion to dismiss, Judge Hudson promised a decision by the last week of July. When it didn't come last week, it was widely expected to come this morning. We were notified of the ruling around 10:30. One tip that something was up was a promo last night on the Fox News Channel that the AG would be on On The Record with Greta Van Susteran (hear her commentary) tonight at 10:00. Odds are that it won't be the only show upon which he will appear.

In the meantime, we were the only media, new or old, to have Attorney General Cuccinelli's entire July 1 post-hearing news conference. To see it, and hear more of his legal reasoning behind the case, click here.  

As we said from the early days of this past General Assembly session, what Virginia was doing with the Health Care Freedom Act was historic. Today was another new chapter which, most likely, will have several more written.

Blogosphere Exclusive: Attorney General Ken Cuccinelli's Post-Hearing News Conference!

It's been a full day, not the type you plan for when trying to ease into a holiday weekend. First, it was two hours in a federal courthouse waiting for, and then sitting through, arguments by the Department of Justice and the Office of Attorney General as to why Virginia's lawsuit against the federal health care law should be, respectively, dismissed and go forward to trial (see the Washington Post's Virginia Politics Blog). More on that later (lots of legalese to sort through before a long weekend). But we wanted to be the first (and perhaps only) blog (or any media) in Virginia to provide video of Attorney General Ken Cuccinelli's entire post-hearing news conference (see AG's news center for news release). At least we didn't see any other bloggers with cameras in attendance and television stations typically don't post entire events online.  By the way, there was a fairly large contingent of media assembled for this. At the time of this post, there are 200-plus articles on it per a Google search (state and national publications), highly unusual for a hearing on a motion to dismiss. Imagine what it will be like in October of the case proceeds. Judge Henry Hudson (who presided over the Michael Vick dog fighting trial)said in court today that his decision on that matter will come within 30 days.

Because of YouTube criteria, we broke the news conference into three parts (see our YouTube channel). Please share it with others (it can be viewed on mobile devices as well). The attorney general opens with a statement outlining the constitutional principles behind the lawsuit and summarizes the arguments from both sides at the hearing. He then takes questions from the media about three minutes into part 2.

Part 1 (9:25):

This lawsuit is not about health care. It is about liberty. ... Today we were protecting the U.S. Constitution and Virginia statutes as my oath of office calls for. 

Part 2 (9:37):

Since 1819. ... A penalty for inaction is not a tax of any kind known in our constitutional history.

Part 3 (8:53)

The state is a separate sovereign entity in our constitutional system. It was set up by The Founders to the benefit of all our citizens. I was very clear in my campaign that if the federal government overstepped it's proper boundaries that Virginia would fight back.