Tuesday, December 14, 2010

ObamaCare in the courts (UPDATED)

(Please scroll down for update)

A little more on the ObamaCare decision made by federal district court Judge, Henry Hudson. Here are a couple of money quotes from his decision yesterday:

Hudson rejected the government’s argument that it has the power under the Constitution to require individuals to buy health insurance, a provision that was set to take effect in 2014.

“Of course, the same reasoning could apply to transportation, housing or nutritional decisions,” Hudson wrote. “This broad definition of the economic activity subject to congressional regulation lacks logical limitation” and is unsupported by previous legal cases around the Commerce Clause of the Constitution.


U.S. District Judge Henry E. Hudson wrote that no court had expanded the Commerce Clause of the Constitution to allow the government to regulate a person's decision not to buy a product.

"At its core, this dispute is not simply about regulating the business of insurance — or crafting a scheme of universal health insurance coverage — it's about an individual's right to choose to participate," Hudson wrote.

(italics, ours)

ObamaCare advocates will say that Congress has the right to regulate interstate activity. First, health insurance activity does not cross state lines but more importantly, how is choosing not to participate in an economic activity like purchasing health insurance an economic activity?

Given this logic, what is it that the government cannot force you to purchase?

In these few short paragraphs, Judge Hudson gives a nice, neat summation of the progressive agenda: power and the freedom to choose taken from the individual and given to the collective or the state.

(UPDATE #1): Please click on over to The Liberator Today which has a round up of opinions both agreeing and disagreeing with Judge Hudson's decision, here.

As we were reading through the opinions, a couple of things kept going through our mind: 1) how badly did Congress screw themselves by referring to the penalty (for not purchasing health insurance) as a "penalty" and not a "tax"?

4. Is the penalty defensible under the tax power? No. First, it is a penalty, not a tax. The distinction between penalties and taxes is still viable. Kahriger. Congress chose to characterize the penalty as a “penalty,” and changed earlier drafts which had called it a “tax.”

If we remember correctly, it was termed a "tax" in earlier versions of the bill to make it more palatable. Because being penalized for not participating in commerce is so much more acceptable than being taxed for the same offense?

... and b) at the end of the day, this is still going to boil down to what are the Constitutional limits to what Congress can compel you to do. And we might add, this will forever blur the distinction between your modern-day liberal who is in favor of ObamaCare and a good ol' fashioned authoritarian.

Ladies and Gentelmen, once again.... Pete Stark (D - CCCP)


K T Cat said...

I think Pete Stark needs to spend some time in a place where the government's lack of powers has been taken to its ultimate conclusion.

Anonymous said...

the Hudson decision succeeded where the Moon decision failed (didn't read the Michigan decision yet).

Moon made his decision based on the economic impact to the legislation as a whole, and flirted with judicial activism.

Hudson rightly distilled the matter down to one question: can congress, under the Commerce Clause and the Constitution penalize citizens for non-activity in private markets? Hudson did note it was laudible what the ultimate goal of the legislation was (good healthcare), but the manner in which it was carried out would set a horrible standard for virtually limitless congressional power.

a very good decision, IMO, especially in light of how he shot down the prior case law (with a hat tip to Scalia's Gonzales vs. Raich opinion).

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