United States District Court Judge Roger Vinson has struck down the entirety of the National Health Care law (The Patient Protection and Affordable Care Act) as unconstitutional. What is most interesting is his decision that the entire act had to be struck down because of the individual mandate provision’s unconstitutionality. Vinson grants declaratory relief but declines to grant injunctive relief.
Joined by governors and attorneys general from 26 states, the Florida challenge was broader than the recent Virginia challenge — that led to the striking down of the individual mandate provision. I have previously written about my own concerns over the constitutionality of that provision.
The decision of Judge Vinson will only increase the already high likelihood that the Supreme Court will review the controversy. The two major decisions in Virginia and Florida will be reviewed by two different courts of appeal. Two other rulings (supporting the law) are also moving toward the Supreme Court.
The rule also represents a rejection of the Administration’s effort to avoid review by challenging the standing of the state attorneys general. Ironically, I reviewed the Bond v. U.S. (09-1227) case in my Supreme Court class today. That case involves a woman who challenged her conviction on federalism grounds. The Third Circuit ruled that only states and state officials could challenge federal laws on federalism grounds. The Obama Administration (correctly in my view) switched sides before the Court and ended up arguing for the Bond that she did have standing. This could prove an important term on standing doctrine. The conservatives justices have been generally hostile to standing and have gradually carved out individuals and groups who can seek review of some laws.
Judge Vinson ruled that he could not treat the individual mandate provision as severable and thus (after agreeing with Judge Hudson in Virginia that the provision is unconstitutional) he struck down the entire act. He stated: Judge Roger Vinson said as a result of the unconstitutionality of the “individual mandate” that requires people to buy insurance, the entire law must be thrown out:
“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.”
The court notes that Congress elected not to include a severability clause despite the fact that one was in an earlier version of the law — setting itself up for such a total rejection of the law.
The decision is a strong expression of federalism, starting with Madison’s famous statement from the Federalist Papers 51:
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal
controls on government would be necessary. In framing a government which is to be administered by men over
men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next
place oblige it to control itself.
The problem is the lack of a limiting principle in the arguments in favor of the law. Vinson notes:
The problem with this legal rationale, however, is it would essentially have unlimited application. There is quite literally no decision that, in the natural course
of events, does not have an economic impact of some sort. 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. To be sure, it is not difficult to identify an economic decision that has a cumulatively substantial effect on
interstate commerce; rather, the difficult task is to find a decision that does not.
He notes the political pressure in the case: “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.”
In rejecting an injunction, the court indicates that declaratory and injunctive relief should be essentially fungible:
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.
I doubt the Administration will view it that way. They have two decision upholding the law and two rejecting the law on the district level. They are not likely to view themselves constructively enjoined.
Here is the entire decision by Judge Vinson: Vinson
Jonathan Turley
Stamford Liberal,
I like the way you think; I like the way you write; I will stand by your side and fight the … who’s coming to get you again …never mind … they won’t get your name or address out of me … just don’t tell HenMan … he failed Withstanding Torture School
Lotta,
Notice how we are always up late … we got the whole site to ourselves … let’s toilet paper somebody!
Mike Spindell,
Falsehoods should be answered, hypocrisy exposed, bigotry condemned.
Perhaps I am just old and hardened and thus not easily shocked by strong words or strongly held opinions. I also take some of what people write here with a grain of salt knowing that emotions can bloom a flower or light a fuse, or both at the same time depending on the mood of the reader. Real free speech isn’t all that easy to handle.
I read your answers to Tootie without a thought for Tootie as your answers are chocked full of insight into Jewish traditions, Christian traditions, historical events, and political science colored with real life experience. This is valuable information that stimulates my thought processes, excites my curiosity, or answers questions I’ve long pondered. That answering a statement from Tootie may have been the cart used to carry the info means nothing to me for the information is the treasure I keep.
I, too, tried with Tootie but he/she didn’t want to play nice … which is okay. Not everybody wants to play with me.
But honestly, this statement from her on this thread in answer to one of your points simply blew me away:
“Well, I’m not ashamed of God. And I take his word at face value (unless it does not make sense to do so).”(Tootie)
No one in their right mind could leave that kind of hypocrisy just sitting out there flappin’ in the breeze.
Mike S, your voice has been calm, informative, compassionate, and not lost on me, ‘us’ if I may be so bold.
I have thought more than once while reading your postings that if, when I was dealing with the concepts of spirituality and its use as a framework for an ethical life, had I access to someone like you I might have ended up a lapsed Jew instead of a hostile ex-christian.
🙂
Gyges: “The Brain Show.”
Do you mean ‘Brian’? Zoe Brain got here so very recently and did a good posting…
Blouise: “People moving in and out of states …… I am laughing so hard my sides are hurting.”
—-
Actually, we need more info to test that hypothesis, we need someone trained in particle physics.
If you have a question about the Old Testament then ask a Jew.
If you have a question about transitions between states then ask a physicist.
🙂
(C’mon, stop groaning, it was funny… easy, but funny.)
Gyges, et al,
My critiques of Tootie are not about theology, though I use it to show the irony of her vitriol towards those she perceives as “libs” etc. I even have made attempts to reach out to her on some level, but it seems that only gives her license (in her mind) to make even more outrageous statements.
I say “outrageous” incidentally not because she doesn’t have the right to express her opinions, however, at what point does freedom of expression, unanswered, become license to practice bigotry?
I would never want her right to speak censored, but to allow her to make statements that I deem to be hurtful, malicious and ignorant, without some refutation only gives them credence and equivalence. This equivalence has been what the mainstream media has practiced. It has given a greater voice to movements like the teabaggers and demagogues like Sarah Palin, who polls show have far less adherence than one would expect given media coverage. It has assissted the Republican victory in the House by allowing this beknighted mythology to be accepted as true, without any effort to supply factual information, as the media are so quick to do with ideas and people who could roughly be called progressive.
Polling showed that the teabaggers tended to be more wealthy than the average Americans they were being portrayed as being.
Investigation also revealed that rather than a grass roots movement, teabaggers were funded by elite ultra-rightists like the Koch brothers. Yet media punditry portrayed the movement as it described itself, rather than informing as to who they were.
I agree that diatribes get boring very quickly and that does not help discourse on this blog. However, what is to be done when people like tootie and others monopolize the discussion?
Not only does ignoring them not work, it leaves their mis-statements and bigotry unanswered. We know that JT is a leading advocate of free speech, so banning of people is rightly used sparingly.
As far my use of theological arguments, that is a tactic that I utilize when bearers of bigotry use their purported piety to support their prejudice. Anyone who is familiar with my writing here knows that I’ve never pretended to be pious, but I hold deist beliefs and practice Jewish rituals because that is a comfort to me as meditation. Another part of that though, to bare my soul so to speak, is it puts me in contact in some way with my parents who died in my adolescence. If there is a creative force in the universe, in my judgment that force has no preference for any religion.
Gyges
Some are instigators and some lower the tone by responding to them with the same lack of courtesy which makes it a vicious cycle that brings the site down to a really uncomfortable and unproductive level.
But it’s JT’s site and if he is satisfied with the tone, it’s fine with me. Like you, I can go elsewhere as I’d done before I came here.
Stam:
The reason you call me a Taliban is because you know I am not dangerous. If I were the Taliban and you gave me your real name, you could not sleep at night.
This proves your characterization of me is stupid.
———————————————————-
Taliban Tootie:
No, the problem with you, Ms. bin Laden, is you ARE dangerous. You are a danger to yourself.
If you want my real name, you are more than welcome to it. Hell, for shits and giggles, I’ll even give you my address. You think I’m afraid of you? LMAO! There isn’t much that scares me. My daughter or my niece predeceasing me scares me. But, to be sure, if harm ever came to my daughter or niece, vengeance would be mine. I can make Sister Sarah’s “mama grizzly” look like something Willow made at a “Build a Bear” workshop. But me scared? No.
Even a militant, irrational and sociopathic Christians like you doesn’t scare me because you and your ilk do not have the courage of your convictions, nor do you have the courage to follow the true messages of your personal lord and savior. You justify your hatred, anger and militant and violent rhetoric by hiding behind a magical book; a book loaded with PAGAN stories that predate your religion by thousands of years.
You want to play, Taliban? – let’s go:
I HEREBY GIVE PERMISSION TO WHOMEVER HAS ACCESS TO MY CONFIDENTIAL EMAIL ADDRESS TO PLEASE PASS IT ON TO TALIBAN TOOTIE.
I look forward to hearing from you, Taliban Tootie.
Attack you on the streets, Tootie?
No.
More like point my finger and laugh.
Buckeye,
Let’s just say I can think of maybe 3 people who have been banned, and one of those was for pretending to be another poster. Another one was a well known white supremacist who used all the bigoted language you’d expect, plus that word that begins with F and rhymes with uck…
It’s really not a number limit, it’s more of a severity limit, combined how much time JT has to pay attention and how many people have complained sort of thing. JT has a love of free speech and always errs in favor of more rather than less. This actually is pretty far from as bad as I’ve seen it.
However, let me just say I’m probably going to take a week or so off from the blog because quite frankly I’m sick of having a choice of “The Tootie Show,” “The Chan Show,” or “The Brain Show.” To be clear, I think all involved have some responsibility, including myself. My week off is as much to get me to calm down as it is to give everyone else a chance to settle.
JT,
I apologize for any thing I may have said that crossed the line. I’m pretty sure I stayed within the bounds of civility, but I try not to get in food fights in other people’s dinning rooms.
Blouise
Our family has a rule to never discuss religion or politics when certian people are present. I hate to see almost every thread disintigrate when certain people are present because this is such a great site.
Buckeye,
You might be happier if you stick to threads like : Health Care and Federalism: A Response to Professor Charles Fried … there is much being discussed and no real “name-calling”.
Religion is a subject that often invites over-indulgence.
Lottakatz:
“Tootie, I have no conclusion left to me other than that you are mentally ill and not properly medicated.”
Nice. Real nice.
“You decry the “attacks” Stamford Yankee/Liberal makes against you but ignore your ubiquitous, casually delivered, unrestrained attacks on others.”
Stamford called me a pervert. I suppose that doesn’t warrant a charge of mental problems by YOU even though Stam was getting to the point where he could not converse with me without using terms referring to his or my body parts. I suppose in your world that is normal. Fine. Go for it.
“And a general and entertaining rationale’ for expanded, government funded health care from Zoe Brain which was not in any way rude to you, was answered with a string of insults to her culminating in “You are a freak and a fascist.”
Have you EVER heard in your life that it is true (let alone true because it was proven) that Americans are so profoundly unhealthy (or could be in the near future) that unless they get cradle to grave health care in perpetuity the country will not survive?
And you say I’m the one with questionable mental issues? Zoe’s argument is the epitome of mental confusion if ever there was one.
Look it up, a freak is merely an usual person. If Zoe isn’t unusual in trying to argue that nonsense, then I don’t know who is. I’ve never heard of such a bizarre argument about health care and why the government should control it. And that is all I referred to. I used a completely accurate term. On the other hand Stam calling me a pervert. And not only is it not accurate, it is a lie, and a true insult.
And what Zoe has in mind can only occur with a fascist form of government. There are lots of opinions about what fascism is and I don’t think I need anyone’s permission to choose from which definitions I might use. I think Robert O. Paxton’s opinion of fascism fits in neatly with Zoe’s argument:
Fascism:
“A form of political behavior marked by obsessive preoccupation with community decline, humiliation or victimhood and by compensatory cults of unity, energy and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion.”
We are not healthy enough and face utter ruin if we do not abandon our freedom to control our health care decisions to the government? And this will not be achieved but by gunpoint in collaboration with industry leaders? And no one is to escape from this scheme (unless they cheat and get a waiver from Obama? And, of course, the purpose isn’t to DEFEND America, it is to intervene in the internal affairs of sovereign nations overseas?
I’m sorry. I don’t see my being so off on this about the charge of fascism. And since Obamacare is already in place and of late we are getting some lame justifications for why it might be constitutional, I don’t see that there is any less reason for real and genuine fear and alarm just because Zoe is so utterly delightful.
All of a sudden, we have people saying unless we receive cradle to grave health care the nation may not survive. This is nuts. That is a mental problem if there is one. The first lady recently made a similar claim.
http://www.examiner.com/conservative-in-spokane/michelle-obama-on-child-nutrition-we-can-t-just-leave-it-up-to-the-parents
In that link it says the military is worried kids are too fat to join up. Okay, let’s think this through. It doesn’t take but a short time in the military to trim up fat people. Recruits have easily regulated diets and exercise and it doesn’t take long at all to make them fit. Certainly within the time period of boot camp.
So instead of the military making minor, cheap, simple, and easy adjustments to accommodate our chubby population through proper diet and exercise, some are advocating trillions of dollars be spent, a private industry destroyed, and all citizens be enslaved to state run health care?
I’m the nut?
I wish I could have found a better word than fascism but there was none. And until people hear what it is they are actually advocating they will never see it until it is too late. And if Zoe is going to be in the kitchen she is going to have to sweat or turn on a fan.
“And that was shortly after Mike S. pointed out your lack of manners.”
I plead guilty to bad manners.
I should be more polite.
I’ll remember that.
“Your behavior is out of control. The quality of your postings and behaviour has degenerated over the many months you have been visiting here. You are no longer fit for a normal discussion.”
Then why do people post to me? They are very interested in what I have to say if only to mock and deride it. They could ignore me. Clearly they get something from it. If it is so bad and they cannot help but respond, what does it say about them? And if you think BIL or Stam are fit for normal discussion, then you don’t know what normal is and your opinion about it is not to be believed or considered authoritative or enlightened.
“If you deal with people in 3D in the same manner as you do here then I strongly suggest you seek assistance with the internal rage and conflict that has begun to drive your interactons. They are no longer healthy in any accepted sense.’
If I wasn’t angry about a Marxist totalitarian police-state descending on me viz a viz fascism, viz a viz a French-style Jacobin Revolution, or authoritarianism, or whatever the Democrats can throw to get it to stick to the wall, then I really would be insane, mentally disturbed, and in need of medication.
When should I mind my manners anyway? AFTER the tanks start rolling down my street? Like, next week?
The truth is that if it weren’t for all the polite mannerly scholars and intellectuals here and among us in the seats of power crafting tyranny right before my eyes I wouldn’t need to make a damn fool of myself trying to convince them otherwise. I would be doing what I prefer to do and typing on the internet to evil doers isn’t it.
I dislike having to expose my flaws because those who easily hide their own flit about destroying a civilization. There isn’t much time left either.
“If you only behave this way here then you can expect little except similar abuse from those others that will interact with you. You invite abuse, that is not healthy.”
Oh please. That is absurd. These people started the attacks. They got offended when I referred to large groups of people (they associated themselves with) in unflattering terms, and they took it personally. They were offended by this because they are the type of people who love humanity and brotherhood until someone disagrees with them.
Then watch out. They want you destroyed. They love mankind, but hate Sarah Palin. Those types.
I’m the opposite. I love individuals and cannot stand humanity. I would give the shirt off my back to those in need. And I would do it for Stam, Mike S., and BIL.
BIL and Stam would likely be the types to attack me in the streets if worse came to worse like the Muslims did to Anderson Cooper. Their words suggest to me that they would.
The human race stinks, but I treat individuals with respect in “3D”. Nevertheless the leftists are and always shall be evil monsters and if they would like my opinion of them to change they are simply going to have to stop being evil monsters because my opinion of them is not going to change otherwise.
Nonetheless, will continue to treat them kindly in my daily life.
The reason things are so bad here is that being bad is allowed. And it was allowed before I got here. You just don’t like it that I’m contributing to it. It’s okay for the leftists to do it though.
This has more to do with that people don’t like the truth. Most hate it. Jesus was as kind as a human can be, and they murdered him. This is a very old story and has occurred throughout history. Time and again the sweet people are destroyed. I’m not saying I’m the sweet people. I’m saying the destroyers destroy no matter what: sweet or not.
This is not just about me being an ill-mannered, semi-illiterate snot. It is about well-mannered powerful people and intellectuals being evil and trying to get away clamping chains of slavery on my wrists and the next generations to come while they call me crazy for pointing it out.
Buckeye,
Rule One: JT makes the rules.
Rule Two: See Rule One.
I’m fairly new to this site (1 year) and am wondering what the general rules are about how many insults per comment is the limit before a poster will be banned.
I was told at first that name calling was frowned upon and excessive insults would not be tolerated. I’ve not found that to be true and am curious about who is monitoring the site, if anyone.
I can’t think the site will continue to be in the top 100 if this continues. Just sayin’
“The highest rates of divorce in the country exists in the so-called “Red (conservative)States.” The lowest divorce rates are in the so-called “Blue (liberal) States.” (Mike S.’s assertion)
Yes, I know about this dubious statistic. But this information is deceiving. The government could probably not get the real numbers because people move in and out of a state and cannot be tracked for as long a period as would be necessary.” (Tootie’s response)
=================================================
People moving in and out of states …… I am laughing so hard my sides are hurting.
“Well, I’m not ashamed of God. And I take his word at face value (unless it does not make sense to do so).”(Tootie)
ROTFLOL
Gyges,
Some things simply bear repeating.
This is not to be confused with a simply repeating bear.
(Insert your own bear fart joke here.)
Elaine,
“A Duraflame log is 42% beef!”
lol
Thanks, Elaine. I had missed that one. I really do love Lewis.