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
Buckeye,
I enjoy having you around and would hate to see you leave. I would miss your prescient perspective. I began writing here after spending a while posting on Democrats.com. and Alternet. What bothered me at both those sites was that as a supporter of Israel, the posters couldn’t accept my progressive credentials. The fact that I oppose the current Israeli Government and highly dislike AIPAC, seemed to make no difference.
There are many here who also take a dim view of Israel’s role in the mid-East conflict, but present cogent, often persuasive to me, arguments for the positions they hold. Those at those other sites were primarily ideologues. While for the most part I hold views that are congruent with progressive thought, following any particular “party line” is not in my nature. That is what makes this blog such a positive experience in that so many of us are our own people, rather than being ideologues. In that context you would be missed and I hope you reconsider.
HenMan,
Oy Vey!
Lottakatz,
“Hot chocolate, extra whipped cream and a heavy shot of Bailey’s Irish Cream”
If you want to try another calorie-busting-but-to-die-for combination, try hot chocolate with Butterscotch Schnapps.
Blouise:
LOL – Thank you, and right back at ya 🙂
Blouise and Woosty’s still a Cat,
I re-read what I posted. Obviously, my emotions got the better of me, contributing to some of the toxicity present here. For that I apologize.
I think Mike S. said it best in that while saying it is better to ignore someone like Tootie, it can be difficult in allowing her hypocrisy and outrageousness to slide by. I also agree with him when he said that in today’s media, ignorance is applauded, while intelligence is demonized. This is something that, particularly in today’s environment, should not be tolerated. Especially when those who are called out attempt to portray themselves as the victim instead of accepting responsibility for their words and actions. For all the talk of personal responsibility, it’s high time those individuals buck up and take responsibility.
Having a 19 year-old daughter has taught me to pick and choose my battles wisely. I lose that distinction when it comes to those much older, those who claim to be something they obviously are not. I need to work on this in the knowledge that some adults are just as thick-headed and ignorant about the world and how it works as my “know it all” kid (but I still like her, think I’ll keep her!).
I have learned much here; I enjoy the topics and the debates. In future, I will do my best to keep my emotions in check and not allow Tootie the priviledge of playing the victim’s violin. But, to be sure, I’ll still call bullsh*t when I see it. 😉
Mike Spindell-
I know for a fact that you are neither schmuck, nor schmendrick, nor schlemiel. You are, indeed, a mensch in a world of schleppers. Not to mention, a hochem. (I had to look that one up).
Mazel tov!
Blouise
I agree with you on reading just Mike S.’s replies to Tootie. A great deal of information and food for thought can be gained.
Mike S.
I’m not sure Tootie is an “agent provocateur”, but she may be. She shows all the anger, pain, and frustration of the type of person she purports to be. And I feel some sympathy for her exasperation.
What I don’t enjoy on this, or any other site, is for the owner to accept as free speech an overabundance of vicious insults and snarky comments (and certainly not personal threats) either from Tootie or those who reply to her – at least for any length of time or in every thread.
I left a site that had no monitoring to come here where I understood monitoring was in place. I understand JT’s situation where time and inclination are limited. I’m also concerned for the site’s reputation in the wider blog world and beyond.
I understand that many posters here are lawyers and used to the adversarial response which is to convince rather than elucidate. That’s fine when used without insults, but less likely to explore and enlighten when used with them.
Perhaps those of us who are concerned should leave for a while and return if the problem is solved, though I’ll probably peek in as I still do with the other site.
P.S. Is your wife perhaps channeling Abigail Adams? She sounds like a real sweetheart.
“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.”
Blouise,
Thank you so much for your gracious comments. They would turn my head though, were it not for the fact that I know myself to be
just another adrift schmuck, trying to make sense of it all. Though I daren’t tell her this, besides the amazing support which has saved my life on three occasions, her loving me/my loving her, my wife performs me a most valuable service by reminding me in the many times I get far too “full of myself” who I really am. Nevertheless, your comment above gives me a warm feeling of pride in myself, even if like most things my wisdom is ephemeral.
“Your statement raises the matters that I have been considering. I have been thinking about taking a break from the blawg but really, what does that accomplish? Trolls win.”
Lotta,
First in fairness let me say that at times I am vulnerable to a suspicious mind verging on paranoia that I’ve learned to control after years of therapy. After all my earliest memory is that of my parents lying to me.
I had to throw in that caveat because the suspicion has been growing in me that tootie is not all she appears to be. She portrays herself as an uneducated, underpaid, working women, stressed by the climate of today’s uncertain situations. Yet if you’ve followed her posts from the beginning you see an evolution from hit and run tactics, to a more voluble exhibition of her regressive opinions. In that sense she more and more appears to me to be another incarnation of the ongoing “agent provocateurs” that we have familiarly seen populating this blog for the purpose of disrupting and taunting what they perceive to be “amoral Libs.” This implies to me someone who is not at all what they seem to be.
Our problem then is how does one ever know this to be a fact? Didn’t bdaman initially appear to be one and yet as time has passed, while I don’t share his views, he has shown himself to be a serious poster and defender of his viewpoint. for this blog to continue it is necessary that there be a variety of viewpoints, or else we become insular and self-congratulatory.
With tootie only time will tell, until then as I stated above, we need not let her vitriol go unchallenged.
Woosty,
Try these for a start. Look at the demographics in the Gallup poll which shows how they differ from the average citizen:
http://www.nowpublic.com/world/tea-party-republican-party-new-polling-data-shows
http://www.gallup.com/poll/127181/Tea-Partiers-Fairly-Mainstream-Demographics.aspx?utm_source=alert&utm_medium=email&utm_campaign=syndication&utm_content=morelink&utm_term=Politics
So, Ms. Elaine….did you read this……just wanna make sure I am under the teacher radar but still visible when all hell breaks loose….
Otteray Scribe,
I find it best not to read the comments of certain posters–and I often avoid hijacked threads that go on infinitum. By doing these two things, I can still enjoy the exchange of both ideas and witticisms at the Turley blog.
Stamford Liberal, don’t give out any info…..this is a cafe in the clouds and you make me nervous to offer such invitations to the angry….
Otteray Scribe: “Even when I think I might have something useful to say, I no longer bother because of Tootie and her obsessive and self-righteous rants. She is no more interested in exchanging ideas…”
—
I read the replies to them now and then to see what others think about something, not with any hope of it moderating her behavior. I always enjoy your postings.
*********
“My guess is that Tootie may have tried to post on other blogs, but many moderated blogs would have banned her a long time ago.
—
I am of the opinion that Professor Turley has been very busy; he has had recently and does now have active cases he needs to work and who knows what else. Those weekends he gets ‘off’ may also include work at home for his legal cases. I give him the benefit of the doubt in those regards. I don’t think, or, I would rather think, that if he had the time to stay on top of the Blawg 2T would have received an email already regarding her posting ‘style’ if nothing else.
“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.”~ Mike Spindell
I KNEW it! Mike where can I find those polls….
Buckeye: “I’m fairly new to this site (1 year) and am wondering what the general rules are…”
—
Nice try. 🙂
My late father-in-law coined a malapropism that I still use and is appropriate in describing the instigator/responder situation you noted above, to whit: running up against a situation that had elements of the cliched ‘vicious cycle’ and ‘snowball effect’ in play he sputtered out “vicious snowball”. Lol. What we have here is a vicious snowball.
One thing I’ve noticed in almost every blawg I’ve posted to is that around election time passions run high, I expect short tempers at that time. We had an election and a high-profile assassination attempt with tragic results. I think those things are in play emotionally also.
It is because of some posters, most specifically Tootie and ChanL, that this site has become less and less interesting and useful to me. I enjoy the exchange of both ideas and witticisms, but the constant thread hijacking makes much of this blog unreadable. I have seldom seen people so insistent on flaunting their ignorance. As my old mentor used to say,
“Often wrong, never uncertain.” when referring to such people.
Even when I think I might have something useful to say, I no longer bother because of Tootie and her obsessive and self-righteous rants. She is no more interested in exchanging ideas than I am interested in becoming a circus acrobat. She seems to be functionally incapable of examining ideas from different perspectives.
My guess is that Tootie may have tried to post on other blogs, but many moderated blogs would have banned her a long time ago.
So now SS Gruppenfuhrer Tootie has magically transmogrified herself into Rabbi Tootie? This is too much even for my endlessly elastic imagination. Tootie, you need the services of a good shrink-and I don’t mean one of the Founding Shrinks. Sigmund Freud wouldn’t touch you with a ten foot Torah. I will have to admit that Tootie has put me in touch with her very own personal God. I thank her God every night before I go to bed that I don’t have to dream Tootie’s dreams.
“Paranoia strikes deep, into your life it will creep…”
Mike S: “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 misstatements and bigotry unanswered. We know that JT is a leading advocate of free speech, so banning of people is rightly used sparingly.”
———–
Your statement raises the matters that I have been considering. I have been thinking about taking a break from the blawg but really, what does that accomplish? Trolls win. I agree that non-engagement does not always work (with the hit and run sorts that are ubiquitous on the web it does, ignoring them is easy and they lose interest) but engagement only legitimized their pov, in their own minds if no one else’s.
OTOH, to leave their statements unchallenged actually does legitimize their pov. Some response is demanded if only to maintain the spirit of the Blawg.
First Amendment concerns are also why I don’t call for banning. It’s repugnant to our host’s philosophy and it’s a slippery slope, once the worst offenders are gone then does the criteria change and a new crop of ‘worst offender’ get designated? I’ve seen that happen in 3d life and it ends badly. I hesitate to take those first steps.
The question for me ultimately becomes how one loses the battle (while generally winning the argument) but maintain the high ground and, are there subtle distinctions to be made in employing tools to do so? It gets tricky when you see those as your primary options regarding discourse. For me this, then resolves itself into on of form as much as substance and I think that less is more under such circumstances.
A passionless, declarative statement that leaves you on the high ground. Not that rolling around in the mud doesn’t have some satisfying effect, at least to me on occasion. Still, the kind of responses you have made are of the form that preserves the high ground. I don’t have a content quality dissatisfaction with any postings in response to, only form.
A failure of form also has the unintended detriment (IMO) of being able to discourage new posters from coming back if they visit during an acrimonious period. I don’t think anyone wants to see that.
Skip the TPing … I’ll come straight to you
Took me 30 minutes to clean the snow/ice off my truck which made me late for my dinner engagement with girl-friends … I am tired of this!
Gotta go to bed
We could just go on every thread and sign in as TPers … naw, it’s too late … really gotta go to bed
Blouise, TP somebody? Oooooh, a clan-des-tine mission, I’m up for it! Now all we have to do is pick somebody and get there. Oh, wait, darn, I can’t fit into my clandestine-ninja duds any more! Srsly, I can’t go out on a secret mission looking like THIS! Man, I look like I’ve got a built-in backpack (slung way low) in these things… we’ll have to put this off. Between the ice, snow, 9 degree temperature here and this hot-mess of a uniform I’ll just stay at HQ and make some nice hot chocolate for when you return. Hot chocolate, extra whipped cream and a heavy shot of Bailey’s Irish Cream, ummmm, I think I know where the extra weight came from…
🙂