I’ve already detailed how the ever-malleable Commerce Clause, after Raich, could hurt constitutional challenges to ObamaCare — though I suspect this time around Scalia would be less enthusiastic about its expansion, and so would walk back prior reasoning. Obama’s Justice Department likely realizes this as well, which is why they hope to delay any kind of legal ruling until after the November elections.
Happily for classical liberalism, the Justice Department ran into a judge whose appreciation of the political maneuvering didn’t match its own:
Last week, Administration lawyers motioned for a one-month extension in Florida district court, where 20 state Attorneys General and the NFIB, the small business association, are arguing that ObamaCare is unconstitutional. Justice is asking for the suit to be dismissed, presumably on the same assumptions of the Washington establishment. Only “presumably,” though, because the government lawyers say they need more time to file a brief. Could ObamaCare’s constitutional problems be more serious than liberals advertise?
At the core of the suit is whether the Commerce Clause gives the government the power to compel all private citizens to buy insurance. “Requiring individuals to purchase something simply because they are alive is unprecedented,” as NFIB president Dan Danner recently wrote in these pages—and if this individual mandate stands, the question is what remains of the Constitution’s government of limited and enumerated powers. Yet neither the House nor Senate thought the question deserved even a hearing before the law passed.
Taking these matters with more gravity was Judge Roger Vinson, who denied Justice’s extension request on Friday. A delay isn’t warranted, he wrote dryly, because the defendants “have at their disposal the very substantial resources of the federal government, including numerous attorneys and staff within and outside the United States Department of Justice.” Then again, maybe this is the first time they’ve actually had to think about what they’ve done.
This is unquestionably an immediate (political) win for the anti-big government alliance. But ultimately it may prove a Pyrrhic victory. Notes one of the commenters at the WSJ:
The penalty for not having insurance is only $750 per year and enforcement is almost non-existent. $750 is one to two months coverage in most states (less than a month in NY). This very weak mandate, along with the requirement that insurers must take anyone regardless of pre-existing conditions will encourage people to only buy insurance when they need it.
The whole bill wouldn’t have to pass again, just a two page bill that eliminates the mandate. It wouldn’t even have to be a stand-alone bill, it could be an amendment to a war funding bill or something else that would get Republican support. All the Dems in the House would vote for it; their constituents don’t want the mandate, a vote against it would be populist. The Senate might present a small challenge, but don’t underestimate the Dem’s ability to manipulate the rules if the Republicans manage to hold their 41 votes together.
I’m sure Pelosi, Reid, and Rahm are already working through the legislative strategy. Holder is keeping them informed day-to-day on the risk of losing in court. Anyone who thinks the Dems will let this slip away because of a court decision doesn’t grasp their zealoutry [sic] (is that a word?)
The only way to stop this train wreck will be at the ballot box. First, defund, then repeal.
While there are questions over procedural niceties and severability, the larger point here has some force: we shouldn’t count on the courts to do the work we as voters should be doing to walk back this monstrosity. Gingrich’s counsel to defund is still the most sound short-term strategy, should the GOP manage to win back enough control of Congress. After that, a move for full repeal — with dire electoral consequences for those who hem and haw and dither.
We can thank Judge Vinson for refusing to allow Obamalot to bury this political claymore until after the November elections; but we shouldn’t feel too confident about anything the courts may or may not do these days — and so we should work to take the final say out of their hands altogether.
(h/t TerryH)
“political claymore”
New term! WOOt!
clay·more[kley-mawr, -mohr]
–noun
1.a two-handed sword with a double-edged blade, used by Scottish Highlanders in the 16th century.
2.a Scottish broadsword with a basket hilt.
Huh.
Claymore
My health insurance costs per month are $82. I’m single, (relatively) young, and healthy, so I have major medical only. It is insane to argue that because $750 is a month’s premium for a family in NY that I shouldn’t consider it an undue burden for a single person in Texas.
Not that undue burden matters. I am seriously considering dropping all my health insurance in protest.
I know that’s a yearly penalty, btw. I’m just arguing with their cost analysis.
I’m a big fan of #3, myself.
I love de Tocqueville:
the consequence of individualism
By which, I hope, he means “self-absorbtion” rather than “anti-collectivism.”
To the extent individualism leads to the apathy against which A de T descries, it wouldn’t seem to be active or inclined to be actively anti-collectivist, which in turn would seem the danger to which he speaks. For it would seem that to be anti-collectivist, one would have to be aroused to opposition, to be attentive and mindful.
Have you read the chapter that sdferr linked, dicentra? It’s one of the most powerfully enlightening things I’ve read, ever. I don’t understand why it isn’t compulsory learning for every citizen (how’s that for irony?).
In any event, de Tocqueville’s use of “apathy” denotes the state where everyone minds his own business; he leaves his neighbors alone, and expects to be left alone in turn. As such, he is focused on his own affairs, and the goings-on in distant capitols are of little matter to him, since he feels that such events have only the most tangential bearing on his life.
It is this sort of apathy that allows our political creatures to expand their power unchecked, since nobody takes them seriously until after their powers are strong enough to seriously influence our lives, by which point it’s very difficult to put the genie back in the bottle. Still, it’s hard to blame Joe Sixpack for minding his own business, since that’s really what we’re all supposed to be doing in the first place.
I wish somebody had given me Democracy in America when I graduated high school. I might have believed a lot fewer embarrassing things in my 20s…
“Still, it’s hard to blame Joe Sixpack for minding his own business, since that’s really what we’re all supposed to be doing in the first place.”
Though I’m often inclined to believe the founders unstated assumption was that before Joe S would tend to his own business, of course he would already have sought to get himself the most thorough and best education about his world and polity he could do, and thus would be equipped to make a wise choice when the time comes round that he should have to do so.
And then the government got involved (in the educating, that is) and it all went to shit.
I’m inclined to think that the founders assumed part of joe sixpacks own business would be protecting it from the depredations of a tyrannical collective.
de Tocqueville speaks of apathy as a natural consequence of individualism. To the extent that an individual might mistake his sense of individualism as proof against the forces of any collective he is correct. To the extent that an individual defines his sense of individualism through conscious exertion intended to protection his own status viz a viz any collective he is mistaken.
Shorter, being an individual is not so much what you are, it is what you do. You must protect your individualism else be subsumed.
What part does gingrich want defunded, medicare?