Monday, February 14, 2011

Post-Constitution America, Day 14

Where is the appeal from the Obama administration? And why are the Attorneys General of the several States suing the federal government not pushing their advantage? ObamaCare is unconstitutional, yet the administration is silently implementing its plans.

Here is the relevant portion from Judge Vinson's opinion, and his conclusion:

(5) Injunction
The last issue to be resolved is the plaintiffs’ request for injunctive relief
enjoining implementation of the Act, which can be disposed of very quickly.
Injunctive relief is an “extraordinary” [Weinberger v. Romero-Barcelo, 456
U.S. 305, 312, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982)], and “drastic” remedy
[Aaron v. S.E.C., 446 U.S. 680, 703, 100 S. Ct. 1945, 64 L. Ed. 2d 611 (1980)
(Burger, J., concurring)]. It is even more so when the party to be enjoined is the
federal government, for there is a long-standing presumption “that officials of the
Executive Branch will adhere to the law as declared by the court. As a result, the
declaratory judgment is the functional equivalent of an injunction.” See Comm. on
Judiciary of U.S. House of Representatives v. Miers, 542 F.3d 909, 911 (D.C. Cir.
2008); accord Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 n.8 (D.C. Cir.
1985) (“declaratory judgment is, in a context such as this where federal officers
are defendants, the practical equivalent of specific relief such as an injunction . . .
since it must be presumed that federal officers will adhere to the law as declared
by the court”) (Scalia, J.) (emphasis added).
There is no reason to conclude that this presumption should not apply here.
Thus, the award of declaratory relief is adequate and separate injunctive relief is
not necessary.

The existing problems in our national health care system are recognized by
everyone in this case. There is widespread sentiment for positive improvements
that will reduce costs, improve the quality of care, and expand availability in a way
that the nation can afford. This is obviously a very difficult task. Regardless of how
laudable its attempts may have been to accomplish these goals in passing the Act,
Congress must operate within the bounds established by the Constitution. Again,
this case is not about whether the Act is wise or unwise legislation. It is about the
Constitutional role of the federal government.

For the reasons stated, I must reluctantly conclude that Congress exceeded
the bounds of its authority in passing the Act with the individual mandate. That is
not to say, of course, that Congress is without power to address the problems and
inequities in our health care system. The health care market is more than one sixth
of the national economy, and without doubt Congress has the power to reform and
regulate this market. That has not been disputed in this case. The principal dispute
has been about how Congress chose to exercise that power here.*(* On this point, it should be emphasized that while the individual mandate was clearly “necessary and essential” to the Act as drafted, it is not “necessary and essential” to health care reform in general. It is undisputed that there are various other (Constitutional) ways to accomplish what Congress wanted to do. Indeed, I note that in 2008, then-Senator Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that "if a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house.” See Interview on CNN’s American Morning, Feb. 5, 2008, transcript available at: In fact, he pointed
to the similar individual mandate in Massachusetts --- which was imposed under the
state’s police power, a power the federal government does not have --- and opined
that the mandate there left some residents “worse off” than they had been before.
See Christopher Lee, Simple Question Defines Complex Health Debate, Washington
Post, Feb. 24, 2008, at A10 (quoting Senator Obama as saying: "In some cases,
there are people [in Massachusetts] who are paying fines and still can't afford
[health insurance], so now they're worse off than they were . . . They don't have
health insurance, and they're paying a fine . . .”).

Because the individual mandate is unconstitutional and not severable, the
entire Act must be declared void. This has been a difficult decision to reach, and I
am aware that it will have indeterminable implications. At a time when there is
virtually unanimous agreement that health care reform is needed in this country, it
is hard to invalidate and strike down a statute titled “The Patient Protection and
Affordable Care Act.” As Judge Luttig wrote for an en banc Fourth Circuit in
striking down the “Violence Against Women Act” (before the case was appealed
and the Supreme Court did the same):

No less for judges than for politicians is the temptation to
affirm any statute so decorously titled. We live in a time
when the lines between law and politics have been
purposefully blurred to serve the ends of the latter. And,
when we, as courts, have not participated in this most
perniciously machiavellian of enterprises ourselves, we
have acquiesced in it by others, allowing opinions of law
to be dismissed as but pronouncements of personal
agreement or disagreement. The judicial decision making
contemplated by the Constitution, however, unlike at
least the politics of the moment, emphatically is not a
function of labels. If it were, the Supreme Court assuredly
would not have struck down the “Gun-Free School Zones
Act,” the “Religious Freedom Restoration Act,” the “Civil
Rights Act of 1871,” or the “Civil Rights Act of 1875.”
And if it ever becomes such, we will have ceased to be a
society of law, and all the codification of freedom in the
world will be to little avail.
Brzonkala, supra, 169 F.3d at 889.

In closing, I will simply observe, once again, that my conclusion in this case
is based on an application of the Commerce Clause law as it exists pursuant to the
Supreme Court’s current interpretation and definition. Only the Supreme Court (or a
Constitutional amendment) can expand that.

For all the reasons stated above and pursuant to Rule 56 of the Federal Rules
of Civil Procedure, the plaintiffs’ motion for summary judgment (doc. 80) is hereby
GRANTED as to its request for declaratory relief on Count I of the Second
Amended Complaint, and DENIED as to its request for injunctive relief; and the
defendants’ motion for summary judgment (doc. 82) is hereby GRANTED on Count
IV of the Second Amended Complaint. The respective cross-motions are each

In accordance with Rule 57 of the Federal Rules of Civil Procedure and Title
Case No.: 3:10-cv-91-RV/EMT
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11, 28, United States Code, Section 2201(a), a Declaratory Judgment shall be entered separately, declaring “The Patient Protection and Affordable Care Act” unconstitutional.

DONE and ORDERED this 31st day of January, 2011.
/s/ Roger Vinson
Senior United States District Judge

In other words, there is no severability of the individual mandated from the act. The whole act is therefore unconstitutional.

Statists love the courts, except when the courts don't love them back.

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