Notes From Babel

Another District Court Rules Obamacare Unconstitutional

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Lots of write-ups today on Judge Roger Vinson’s opinion out of the federal district court in Pensacola, Florida striking down the individual mandate and, due to a lack of a severability clause, the entirety of Obamacare.  I don’t plan on adding anything to the analysis, but I would like to note a couple of my favorite passages I’ve read so far:

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.

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.’

Judge Vinson also cites to the excellent Reason video on the Commerce Clause, featuring Erwin Chemerinsky and John Eastman:

For example, in the course of defending the Constitutionality of the individual mandate, and responding to the same concerns identified above, often-cited law professor and dean of the University of California Irvine School of Law Erwin Chemerinsky has opined that although “what people choose to eat well might be regarded as a personal liberty” (and thus unregulable), “Congress could use its commerce power to require people to buy cars.” See ReasonTV, Wheat, Weed, and Obamacare: How the Commerce Clause Made Congress All-Powerful, August 25, 2010, available at: http://reason.tv/video/show/wheat-weed-and-obamacare-how-t.

Finally, the decision also takes the Broccoli Objection seriously:

[T]here are lots of markets — especially if defined broadly enough — that people cannot “opt out” of. For example, everyone must participate in the food market. Instead of attempting to control wheat supply by regulating the acreage and amount of wheat a farmer could grow as in Wickard, under this logic, Congress could more directly raise too low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market. Or, as was discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also 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. Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile — now partially government-owned — because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business….

As I said here, it may be politically unlikely now that Congress would require every American to eat more broccoli.  But given the administrative demands and practical goals of the new healthcare regime, such a mandate would be downright prudent.  It waits only for liberal political will to surge again.  This is why we write this stuff down in a Constitution, and why we pay judges to take it seriously.

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Written by Tim Kowal

January 31, 2011 at 10:45 pm

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