Obamacare Ruled Unconstitutional

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In the second ruling of its kind, a Florida judge has found the provision mandating individual health insurance to be unconstitutional. Even more interesting to me is that the judge found that the provision was inseparable from the rest of the bill, so that the whole bill is unconstitutional.

The first part may not be that important, as the Supreme Court will have the final say. However, it will be interesting to see what happens with the separability issue. I wonder if Obama will be encouraged by this ruling to start working with Republicans to put many of the positive/popular aspects of the plan (like not denying people with pre-existing conditions) into law such that they are not dependent on the individual mandate. If not, Obama is risking his legacy on getting a majority of Supreme Court justices to believe that’s it ok for the government to mandate people buy something with no way to opt out. That seems to me to be a very dangerous gamble, and considering the political capital Obama’s used on this reform, it would be wise for him to try to preserve what he can and keep as little in the hands of the judiciary as possible.

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  1. I can’t see Kennedy ruling it unconstitutional.

    The only ideas even floating around for covering those with pre-existing conditions without a mandate is to penalize people who put off buying insurance. So instead of penalizing them now as ObamaCare does, they are penalized when they eventually purchase insurance. I find that even worse than a mandate. If you fail to purchase insurance now (which is the problem we’re trying to solve in the first place), you’re discouraged from purchasing it later.

    If you want to cover those with pre-existing conditions, the only options are a mandate or subsidizing them. The latter would involve a lot of central planning as the government would have to determine how much to subsidize whom for which pre-existing conditions and then investigate for fraud.

  2. “Even more interesting to me is that the judge found that the provision was inseparable from the rest of the bill, so that the whole bill is unconstitutional.”

    ObamaCare was so rushed and poorly crafted that they did not insert the standard severability clause. I really don’t see this surviving before the Supreme Court as presently constituted.

    The Supreme Court should be rendering its decision before the Presidential election. I wouldn’t be surprised if Obama is praying that the Supreme Court strikes down ObamaCare. If the Court does, many liberals would go absolutely berserk and drive up the intensity factor for Obama. On the other hand, if the Court upholds ObamaCare, every Republican, conservative and Tea Party member will be pulling out all the stops to make this term Obama’s first and last.

  3. Here is a link to the decision.


    I love this magnificent passage:

    “It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting — as was done in the Act — that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. 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” [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.”

  4. There are no redeeming or positive aspects to Obamacare. The pre-existing condition prohibition is likely the costliest and most unsustainable provision in the entire monstrosity.

  5. I really don’t see this surviving before the Supreme Court as presently constituted.

    Doesn’t it (once again) come down to whether Justice Kennedy gets up on the left or right side of the bed that day?

  6. I can see Kennedy upholding the constitutionality of the mandate. I can see Kennedy finding it unconstitutional. I can also see Kennedy strumming “Sunshine of Your Love” on a sitar.

    Kennedy’s like that.

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