Necessary and Proper Clause

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.

The White House's Response To Virginia's Round One Health Care Win

Perusing liberal blogs today has been a hoot. The Left Wing is in hysterics (for example, see Blue Virginia). At least it uses a nice picture of Attorney General Ken Cuccinelli. More composed, of course, but no less disingenuous, is the White House itself. Stephanie Cutter, writing on its blog, posted the following:

Having failed in the legislative arena, opponents of reform are now turning to the courts in an attempt to overturn the work of the democratically elected branches of government.

The federal government believes this procedural ruling is in error and conflicts with long-standing and well-established legal precedents . . . designed to preserve the "judiciary’s proper role in our system of government" and to ensure that our courts do not become forums for political debates.

Now that this preliminary stage has ended, the government fully expects to prevail on the merits. The Affordable Care Act falls well within Congress’s power to regulate under the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause.

So little written, so much nonsense. Regarding activist courts, the Left Wing should know better. Much better. But they often prove not understand the U.S. Constitution — or purposefully misguide: The courts were put in place as a safeguard against government encroachment on individual liberty. So, when the government overreaches (especially when new requirements are established), individuals, localities and states have recourse. It is the check against the ruling class which, if not held back, could easily consolidate all power unto itself. By the White House's logic no law can be overturned as long as it is — by definition — passed by Congress and signed by the president. Absurd!

Real judicial activism is legislating from the bench, rather than undoing a law, or something not previously on the books. So the White House has it only half correct, but it is liberals who, over the decades, when failing to get legislation passed into law, have resorted to seeking decrees from courts to invent laws and "rights" nowhere to be found in the constitution. There was no more frank admission of this than the infamous remark by now-Justice Sonia Sotomayor where she said, "The court of appeals is where policy is made." (See YouTube.)

The White House also cities numerous clauses, a debate it assuredly doesn't want to have — at least not before it finishes debating itself. None of the clauses mentioned empower the government to force people to purchases something they may not use. Knowing this, the Justice Department argued at the hearing to dismiss on July 1 that the law comes under the taxing authority of the constitution. But at every turn, including his campaign and during the shambolic legislative process leading up to the health care vote, Barack Obama and Congressional liberals said it was not a tax bill.

As a candidate, Mr. Obama went so far as to oppose an individual mandate, opposition to which is the thrust of Attorney General Cuccinelli's argument (see news release). That the White House and its own DOJ are on separate pages tells us much and perhaps liberal bloggers need rant at them before taking aim on the attorney general. Even bloggers at the White House.

Statement From Attorney General Cuccinelli On Today's Health Care Lawsuit Hearing

Below is the news release issued by the Office of the Attorney General regarding today's hearing on the federal government's motion to dismiss Virginia's lawsuit against the health care law. Attorney General Ken Cuccinelli emphasized and elaborated on the quotes below at his post-hearing news conference, which you can see here.

Virginia defends health care lawsuit for first time in court this morning; Federal judge heard feds’ Motion to Dismiss

- Feds say individual insurance mandate is a tax -

Richmond (July 1, 2010) - Attorney General Ken Cuccinelli and his legal team made their first defense of Virginia’s lawsuit against the federal government’s new health care act this morning. Federal district court judge Henry E. Hudson listened to Virginia’s and the federal government’s arguments on U.S. Health and Human Services Secretary Kathleen Sebelius’s motion to dismiss the suit.

The federal government argued that Virginia lacks the standing to bring a suit, that the suit is premature, and that the federal government has the power under the U.S. Constitution’s Commerce Clause to mandate that citizens must be covered by health insurance or pay a civil penalty. The government also made alternative arguments based upon its taxing power and the Necessary and Proper Clause.

“If the government prevails and Congress may use the Commerce Clause to order Americans to buy private health insurance, then Congress will have been granted a virtually unlimited power to order you to buy anything. That would amount to the end of federalism and our more than 220 years of constitutional government,” Cuccinelli said following the hearing.

Part of the commonwealth’s argument in court was that “the government can’t draft an unwilling citizen into commerce just so it can regulate him under the Commerce Clause.” E. Duncan Getchell, Jr., Solicitor General of Virginia, argued on behalf of the Commonwealth.

When questioned by the judge whether the individual insurance mandate was a tax or a penalty, the attorney for the federal government said it was both, even though members of Congress specifically said they did not pass it as a tax, and President Obama has stated it was not a tax, to appear to keep the president’s promise not to raise taxes on the middle class.

“One mile from the U.S. courthouse where we just argued this case is St. John’s Church, where Patrick Henry gave his famous ‘Give me liberty or give me death’ speech. So it’s fitting that in that courtroom today, just one mile down the road, we were fighting the greatest erosion of our liberty since our country’s founding,” said the attorney general.