VOL. 17 ISSUE NO. 5   | FEBRUARY 2 – 8, 2011


Obamacare declared unconstitutional and void

‘If a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house’

PENSACOLA, Fla. – On Monday, U.S. District Court Judge Roger Vinson, for the Northern District of Florida, held the individual mandate to purchase health insurance in “The Patient Protection and Affordable Care Act,” otherwise known as Obamacare, unconstitutional.

And, because the individual mandate was not severable, he declared the entire Act void.
Vinson, a Ronald Reagan appointee, stated, “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.’”

Vinson agreed with the plaintiffs, which included the attorneys general from 26 states, that the “individual mandate” requiring everyone, with limited exceptions, to purchase federally-approved health insurance or pay a fine, was a violation of the Commerce Clause.

Plaintiffs maintained the Commerce Clause only pertained to individuals and entities engaged in an “activity,” and an individual’s failure to purchase health insurance is, for all practical purposes, “inactivity.”

Defendants argued activity is not required before Congress can exercise its Commerce Clause power, but that even if it is required, not having insurance constitutes “activity.”

Vinson noted the Commerce Clause is “a mere 16 words long,” providing Congress with the power: “To regulate Commerce with foreign Nations and among the several States, and with the Indian Tribes.”

He stated, “There is considerable historical evidence that in the early years of the Union, the word ‘commerce’ was understood to encompass trade, and the intercourse, traffic, or exchange of goods; in short, ‘the activities of buying and selling that come after production and before the goods come to rest.’”

Citing the dictionary definition of commerce used in a 2002 case as “exchange of one thing for another,” Vinson stated, “Even a constitutional scholar who has argued for an expansive interpretation of the Commerce Clause (and, in fact, has been cited to, and relied on, by the defendants in this case) has acknowledged that when the Constitution was drafted and ratified, commerce was the practical equivalent of the word ‘trade.’”

In other cases where the Commerce Clause had been interpreted more expansively, Vinson pointed out, “Every decision to date had recognized that the power granted by the Clause is necessarily ‘subject to outer limits.’”

Quoting the Thomas More Law Center, Vinson stated the U.S. Supreme Court “has never needed to address the activity/inactivity distinction advanced by plaintiffs because in every Commerce Clause case presented thus far, there has been some sort of activity.”  

During health care reform efforts in 1994, the Congressional Budget Office analysis stated, “The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

Vinson continued, “It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be ‘difficult to perceive any limitation on federal power,’ … and we would have a Constitution in name only.”

While the defendants argued everyone at some point in their lives will experience some form of unexpected and needed health care and therefore should be required to purchase health insurance, Vinson said, Congress could then exercise the Commerce Clause to more directly raise too-low wheat prices by mandating every adult purchase and consume wheat bread daily.

Or, he said, as discussed during oral argument, Congress could require people to buy and consume broccoli at regular intervals “… because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system.”

The same could be said about the transportation market, he said, whereas “Congress could require everyone earning above a certain income threshold buy a General Motors automobile …”

Vinson wrote, “I pause here to emphasize that the foregoing is not an irrelevant and fanciful ‘parade of horribles.’ Rather, these are some of the serious concerns implicated by the individual mandate …”

“The problem with this legal rationale, however, is it would essentially have unlimited application,” wrote Vinson. “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 … to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact … 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.”

Vinson stated, “The existing problems in our national health care system are recognized by everyone in this case … 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.”

Concluding Congress exceeded the bounds of its authority in passing the Act with the individual mandate and because the individual mandate was determined to be unconstitutional and not severable from the Act, Vinson declared the entire Act void.

The footnote on page 76 reads: “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.’”

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