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Posted at 3:29 PM ET, 01/31/2011

GOP judge rules against Affordable Care Act

By Ezra Klein

Roger Vinson, the second Republican judge to rule on the constitutionality of the individual mandate, has, as expected, ruled against it. More surprising is that he's decided that the presence of the mandate means the rest of the law must be overturned, too, which is an extremely radical step. The full ruling has a very Bush v. Gore feeling, as Vinson concedes that his position is activist in the extreme and a break from the court's usual preference for limited rulings, but says, in effect, that he's going to do it just this once. "This conclusion is reached with full appreciation for the 'normal rule' that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute," Vinson writes, "but non-severability is required based on the unique facts of this case and the particular aspects of the Act. This is not a situation that is likely to be repeated." Italics mine.

That puts Vinson on the far right of this debate: Previously, Henry Hudson had ruled the individual mandate unconstitutional but the rest of the law constitutional, and Norman Moon and George Steeh had ruled both the mandate and the rest of the legislation constitutional. So there's currently a 2-2 split: The judges appointed by Democrats think the law constitutional, and the judges appointed by Republicans think the law varying degrees of unconstitutional. Whatever happens to the legislation at the end of the day, the clear level of politicization in the judiciary is getting its day in the sun. Vinison even shouts out to the Boston Tea Party in his decision.

Vinson's ruling does not halt, slow, or otherwise impede implementation of the act.* What it does do is speed the law's route to the Supreme Court, which is where this question will ultimately be decided. It could also have the effect of making the Supreme Court more comfortable with adopting Hudson's stance, under the theory that Vinson's ruling makes a limited rejection of the individual mandate seem less extreme. We'll see.


Update: I'm getting some contrasting opinions of whether the ruling could impede implementation. Vinson does not grant the plaintiff's request for injunctive relief, which would force the administration to stop implementing the law. But he says, on page 75, that he expects they won't implement the law given his ruling. it's not clear what force that has. I'll try to find out how the Justice Department is actually treating this and will report back.

Update the second: here's the DoJ's statement:

“The department intends to appeal this ruling to the Eleventh Circuit Court of Appeals.

“We strongly disagree with the court’s ruling today and continue to believe – as other federal courts have found – that the Affordable Care Act is constitutional. This is one of a number of cases pending before courts around the country, including several that the government has won in the district courts that are now before the courts of appeals. There is clear and well-established legal precedent that Congress acted within its constitutional authority in passing this law and we are confident that we will ultimately prevail on appeal.”

"We are analyzing this opinion to determine what steps, if any - including seeking a stay - are necessary while the appeal is pending to continue our progress toward ensuring that Americans do not lose out on the important protections this law provides, that the millions of children and adults who depend on Medicaid programs receive the care the law requires, and that the millions of seniors on Medicare receive the benefits they need."

As of yet, they're not specifically saying whether the ruling halts implementation.

By Ezra Klein  | January 31, 2011; 3:29 PM ET
Categories:  Health Reform  
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Next: What happens if conservatives succeed in undermining the ACA?

Comments

Medicare for all!! It would solve this problem easy.

Posted by: PhilPerspective | January 31, 2011 4:01 PM | Report abuse

From the ruling:

"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. Again, this case is not about whether the act is wise or unwise legislation. It is about the constitutional role of the federal government,"

Try to keep the opinions on the constitutionality rather than merits.

Posted by: kitchendragon50 | January 31, 2011 4:11 PM | Report abuse

as George Will noted, judicial activism is a silly label. Here a conservative judge substitutes his opinion for that of the legislature - the very definition of activism conservatives are supposed to despise.

of course the courts are also supposed to defend individual liberties guaranteed by the Constitution against the acts of the legislature. whether they are doing their job or being activist depends on whether you like the law in question or not - which is precisely why the label is meaningless.

Posted by: JoeT1 | January 31, 2011 4:15 PM | Report abuse

Stop the nonsense - Single payer is the only logical system in a modern industrial society.

Posted by: keb777 | January 31, 2011 4:18 PM | Report abuse

Striking down a blatantly unconstitutional law is not activism. It's called upholding the Constitution. Creating new rights from "penumbras and emanations of penumbras" is activism. The Dems did not insert a severability clause. That's Legislating 101. The Supreme Court will uphold this decision. Book on it. so the Dems can ponder the fact that they spent the better part of two years passing an unconstitutional law and lost their huge House majority to boot. a House majority that, because of redistricting, they will not regain for the remainder of the decade. All to please the infantile delusions of people like Klein and the left. Nicely done. Hilarious, too.

So it'll be back to the drawing board on healthcare. Only this time with a Republican House majority. Good luck with the public option and single payer in that Congress. Commence your crying pencil neck.

Posted by: lure1 | January 31, 2011 4:18 PM | Report abuse

Stop the nonsense - Single payer is the only logical system in a modern industrial society.

Posted by: keb777 | January 31, 2011 4:20 PM | Report abuse

Between this and Citizens united, if anyone has any doubts that our system is broken and tea-bagger republicans broke it, they're nuts.
As a combat veteran, I'm disgusted I actually put my life on the line for these people, or this has been shell of America.
Tea-bagger republicans don't care about America, the rule of law or anything but imposing their views on everyone else.

Posted by: jeffc6578 | January 31, 2011 4:21 PM | Report abuse

this is WELL over the line. Obviously this will be overturned on appeal. Either way it'll draw out the loonies on both sides as I'm sure we'll see in the comments.

Posted by: visionbrkr | January 31, 2011 4:23 PM | Report abuse

Who knew that the Post's Jr. High Schooler-in-residence was constitutional scholar to boot? Who employs such sophisticated analytic tools in his discussion of the case, e.g., "Republican," "far right," and "Democratic." Guess I'll skip going Volokh and Balkiniation to get a handle on the constitutional issues at stake.

Thanks Ezra!

Posted by: kryon77 | January 31, 2011 4:31 PM | Report abuse

What we should be asking those who claim this law is unconstitutional is whether or not they support universal health care or not.

This implementation is not what they want, but do they actually want to do this another way? My gut says no, they are against the concept of the bill rather than the methods of the bill.

I'm as left wing as I come and I fully concede this bill shouldn't stand as written. Requiring people to buy something is a slippery slope I'd rather than travel any farther down.

Implement this as a tax and there are no valid objections to the method. Only as to whether we should provide this benefit. And that is a discussion the opponents do *not* want to have.

Posted by: rpixley220 | January 31, 2011 4:32 PM | Report abuse

It sounds like he's just teed up single payer as the only Constitutional solution.

This matter will take two years to play out. How many employers and plans will stop preparing in the meantime? Regardless of the merits, the judge has injected more business uncertainty and more cost into the process.

Posted by: jack824 | January 31, 2011 4:33 PM | Report abuse

Between this and Citizens united, if anyone has any doubts that our system is broken and tea-bagger republicans broke it, they're nuts.
As a combat veteran, I'm disgusted I actually put my life on the line for these people, or this has been shell of America.
Tea-bagger republicans don't care about America, the rule of law or anything but imposing their views on everyone else.

==================================

Jeff - dont care about America? With all do respect to your service - that is exactly what we care about. That the federal government should think it has the authority to require "all" americans to purchase health care based on the Commerce clause of the constitution with a broadly and I do mean broadly interpretation is beyond pale. To then inflict a tax or penalty (that term always changes - it just depends at the time who the democrat is speaking with) if one does not purchase is beyond the reach of the federal government. Just ask yourself - if the Fed government can do this - where is the line drawn? They as the judge stated - should be able to enforce everyone eat their vegetables ....or perhaps everyone now must buy an electric car, etc, etc. Sorry - that is just beyond their authority....and if you believe they should be able to do just that - they you placed your life on the line for the wrong ideals.

Posted by: short1 | January 31, 2011 4:35 PM | Report abuse

Of course it is unconstitutional to force people to buy something. Also, the way this bill was rammed into law using backroom deals and complete lack of the transparency promised by Obama was an insult to the American people and our way of life.

We must continue to VOTE THEM OUT!!!

Posted by: AngryMobVoter | January 31, 2011 4:38 PM | Report abuse

Why would anyone read or listen to a little leftist punk like Ezra Klein? Has he ever paid a mortgage? Has he ever had any other job then blathering at the leftist rag that is the Washington Post? Besides, as the founder of the sinister Journolist, the amount of integrity possessed by Ezra Klein wouldn't fill a thimble.

Get over yourself, Baby Ezra. The Democratic nationalization of the health care industry was unconstitutional. Deal with it.

Posted by: Azarkhan | January 31, 2011 4:39 PM | Report abuse

Okay then - let's fix this Republican healthcare plan and replace the mandate with the public option that President Obama proposed.

You all do realize that the individual mandate was backed by Republicans from Richard Nixon to Mitt Romney. The mandate was created by them as a "free-market solution to controlling healthcare costs" and they pressed for replacing the public option with the mandate.

Man, can they get any more hypocritical?

BTW, speaking of hypocritical --

I'm not the only one to have noticed that all of those congressional representatives who claim they are opposed to government healthcare are still enjoying government healthcare insurance on our dime and have not - not even one has not - cancelled his/her "government healthcare" insurance and gone out and bought a private health insurance policy to replace it.

Hmmmm. Guess government healthcare can't be all that bad, considering.....

Posted by: jKO2010 | January 31, 2011 4:49 PM | Report abuse

The Judge found the mandate unconstitutional, he also refused to sign an injunction preventing the law from being implemented? In reality, nothing has changed.


This was always expected to go to the activist right wingers on the Supreme Court in time for the next election.


.

Posted by: DrainYou | January 31, 2011 4:51 PM | Report abuse

Ezra, the Judge went on at length explaining why the individual mandate is not severable and thus the entire law must be unconstitutional. To reduce this aspect of his ruling the way you did is highly disingenuous. I say this as a true blue liberal.

I applaud this decision and think it speeds the way to real reform, something in the neighborhood of a public option, Medicare buy-in, or single-payer.

Posted by: michaelh81 | January 31, 2011 4:57 PM | Report abuse

With his comments Mr. Vinson just disqualified himself from being a judge.

The American people need impartial judges who hand down rulings based pure on the law and precedent. Anything else is not acceptable, be that judge a repub, a dem or a libertarian.

Resign, Mr. Vinson. You are unfit to sit.

Posted by: PoliticalPrisoner2012 | January 31, 2011 5:01 PM | Report abuse

I want to clarify what I said earlier.
If judges can't be trusted to follow the law, and fail to be impartial, the whole thing falls apart.
Judges like this guy and John Roberts are the very prople who hate America, and are willing to IGNORE the law in order to impose thier will on the people. At this point, America ceases to mean anything.
If this judge had rendered the portion of the law he found unconsitutional, and not the whole thing, I would feel differently, but this guy just crapped on avarything America stands by when he very proudly ruled based on his politics.
I guess Bush v. Gore was all the precedent tea-bagger republican judges needed to stop considering the law!

Posted by: jeffc6578 | January 31, 2011 5:08 PM | Report abuse

hey all you re-thuglicans happy about the ruling, i just got my 24 year old son on my health plan. he has health for the first time in YEARS, now he's gonna lose it casue of you. hope you're happy, hope your kid dies of some disease casue they don't have health care.

Posted by: submarinerssn774 | January 31, 2011 5:10 PM | Report abuse

What a great victory for the American people against Obama's socialist agenda. The GOP tried to tell Pelosi, Reid and Obama that their health care plan was unconstitutional, but they wouldn't listen.....now they will have to listen as their socialist Health Care plan is void and null!

Posted by: Realist201 | January 31, 2011 5:12 PM | Report abuse

To all the teabaggers who come on this sit and keep trashing Ezra:

Why are you here?

This judge is a textbook case of judicial activism if I've ever seen one. The decision not to purchase health insurance is not an "inactive decision" at all. It's very much an active decision to not purchase insurance and it's one that threatens the national health care system and a paying member's premiums. Open and shut. Perfectly constitutional.

And you know what? If you don't want to buy the insurance, then you pay the tax. Sounds like a perfectly reasonable consequence for driving up my premium.

The whole law is based on the 1993 GOP counterplan to Hillarycare and Romneycare in the mid 2000's. Didn't know that the 1993 GOP was really filled with a bunch of freedom-hating socialist-loving losers?

The only thing that's changed is that the GOP has gone so far to the right that's it's fallen off a cliff. I don't trust Kennedy. Not after Citizens United.

The game is rigged. It's only a matter of time before the very idea of self-governance is ruled unconstitutional as well in favor of anonymous, unaccountable private corporate power.

The Koch brothers and powers that be couldn't possibly allow us to have even the 1993 GOP health care plan.

Of course, a year of legislating, 60 vote super majorities, a deficit reducing CBO score, and the hundreds of olive branches extended by Obama just to get one republican on board all mean nothing.

That's the liberal's problem: we keep thinking that if we use enough facts, play by all the right rules (even super majority rules), and compromise in good faith, that we'll win in the end. Facts mean nothing anymore.

It's Fox News' world. The game's rigged and always has been.

My son was born the day before HCR was signed into and I told him he'd never hear of pre-existing conditions again except for in a text book.

The republicans really are an evil party. Truly evil. And I say that as an atheist.

Posted by: dplionis | January 31, 2011 5:13 PM | Report abuse

Get used to it Ezra - the dirty backroom dealing, Medicare stealing, big tax Health Care Bill is gone. Another liberal socialist program bites the dust.

Posted by: topgun97365 | January 31, 2011 5:18 PM | Report abuse

Notice how Klein makes this a "Republican" judge and compares the ruling to "Bush vs. Gore" (and Bush did win the state Thank God - could you imagine Gore and his Global Warming Fraud?). What a over-reaction by Klein. No wonder all the "Loughner's" come from the Democratic Party supporters.

Posted by: Realist201 | January 31, 2011 5:21 PM | Report abuse

Love it. Ezra headlines Republican judge rules against Affordable Health Care Act. Hmm, not judge but Republican judge. Another journolist still smarting from Bush's win against the father of the internet in 2000.....

Posted by: jkk1943 | January 31, 2011 5:22 PM | Report abuse

Another republican appointed judge legislating from the bench.
Shocking!!

Posted by: knjincvc | January 31, 2011 5:23 PM | Report abuse

We will either deal with the skyrocketing cost of health care and the way the medical establisshment, drug companies, insurance companies, and large corporations are mining for all the gold in it, or health care costs will bankrupt the nation and undermine the fabric that holds us together.

Maybe the person above is right--Medicare for all.

Posted by: tinyjab40 | January 31, 2011 5:25 PM | Report abuse

Just send this to the Supreme Court and let them make the decision. Remember, folks, the outcome, if ruled by the alleged conservative majority, is to have Congress redo the legislation, which, oh yeah, the public as a majority asked of this in November. So, we have to go through this judicial garbage to get the actions we asked alleged reasonable and fair representatives to do in the first place. Wow, do you see now, Americans, why we need other party representation besides this one party of Republocrats!?

Posted by: Joelhassfam4 | January 31, 2011 5:25 PM | Report abuse

The best thing is health care reform has no severability clause!

Posted by: krazen1211 | January 31, 2011 5:31 PM | Report abuse

As expected, this post by Ezra has attracted the usual flock of slack-jawed, drooling, frothing, teabaggers.

Posted by: Observer691 | January 31, 2011 5:32 PM | Report abuse

hey all you re-thuglicans happy about the ruling, i just got my 24 year old son on my health plan. he has health for the first time in YEARS, now he's gonna lose it casue of you. hope you're happy, hope your kid dies of some disease casue they don't have health care.

Posted by: submarinerssn774
=======================================
Your 24 year old son is a grown man. He can vote, drink alcohol, serve in the military and if he commits a crime he will be charged as an adult. Maybe they should charge Jared Loughner in Tucson as a minor. He's only 22.

Posted by: lure1 | January 31, 2011 5:32 PM | Report abuse

Ha, ha, ha so much for being against judicial activism. You can count on it that the judicially active Supremes will weigh in on the side of Republicorp at every opportunity just as they have been doing for the past ten plus years. At least until there is a new majority of democrats in the Congress then they will get even more judicially active so they can decide things like Presidential elections and such. After all they have so many debts to the financial industry and the Health Insurance industry and wealthy individuals who are frantically worried that the ill gotten gains of their parents and themselves will actually be used to the good of the country.

Posted by: verdadero | January 31, 2011 5:35 PM | Report abuse

Where are the howls from the right about "judicial activism"?

Posted by: Chops2 | January 31, 2011 5:35 PM | Report abuse

So, judges who are Democrats have ruled for the statute, and judges who are Republicans have rules against.
--
This concerns me. If we are going to have partisan judges, shouldn't they be elected, not appointed? Where is the "Judging" here?
I'm thinking that this is a much more important question than anything to do with Healthcare Reform, since it intrudes into every court proceeding on any issue.
--
BTW, the Florida AG specifically chose his district judge to come out with a predictable ruling. That is also disturbing.

Posted by: OldUncleTom | January 31, 2011 5:35 PM | Report abuse

"Who knew that the Post's Jr. High Schooler-in-residence was constitutional scholar to boot? Who employs such sophisticated analytic tools in his discussion of the case, e.g., "Republican," "far right," and "Democratic." Guess I'll skip going Volokh and Balkiniation to get a handle on the constitutional issues at stake.

Thanks Ezra!

Posted by: kryon77"

Cry on, "kryon"!

The only way you'll ever get published is in an open forum like this one. Which gives us all a chance to laugh at you. Idiot!

Posted by: thrh | January 31, 2011 5:36 PM | Report abuse

The Obama administration would have been better served calling this a tax on being uninsured rather than an individual mandate.

Posted by: jnc4p | January 31, 2011 5:37 PM | Report abuse

having now read the opinion, it is reasonable well reasoned, but rests on a slender proposition - that it is unconstitutionally speculative to contemplate that those without insurance will get sick, will go to emergency rooms, will not have insurance then, and will not be able to pay then, and that no one else will pay their bill, and that, therefore, the cost will be passed on to the rest of us.

I say slender because the judge calls this supposition upon supposition on the one hand, and acknowledges that this is exactly what is happening to the tune of 43 Billion dollars a year - hardly speculative.

this will be the most important point upon which the Supreme Court's practically inevitable consideration of the case will turn. just how speculative is it that uninsured people will get sick.

Posted by: JoeT1 | January 31, 2011 5:39 PM | Report abuse

"hey all you re-thuglicans happy about the ruling, i just got my 24 year old son on my health plan. he has health for the first time in YEARS, now he's gonna lose it casue of you. hope you're happy, hope your kid dies of some disease casue they don't have health care."


Your 24 year old son can't get his own healthcare? What an adult!

Posted by: krazen1211 | January 31, 2011 5:39 PM | Report abuse

kryon77's obnoxious reference to Mr. Klein as a junior high schooler is consistent with his lack of understanding of Obama's magnificent achievement in his against all odds passage of health care reform. Although it is not all that I wanted, and I would have even favored incorporation of some Republican suggestions, it remains the case that it was disgraceful that the richest country in the world made no effort to help those who could not afford healthare. Thank you, Mr. President, for your intelligence, courage and persistence.

Now back to Mr. Klein. I refer kryon77 to the jhser's beautifully written piece in Newsweek on how the outright lying by the opponents of healthcare with respect to the CBO scoring {"Roughing Up the Refs"), their ability to use the big lie to slander objective, nonpartisan experts making factual reports, may well end up depriving us all of any objectivity in future political confrontations. Mr. Klein has been a breath of fresh air in an otherwise moribund collection of journalists. As a 69er, I can testify that one can learn a lot from people who are younger than they are.

Posted by: richardshaker | January 31, 2011 5:39 PM | Report abuse

No, implementation will not be delayed -- the judge refused to grant an injunction which would have stayed implementation. The case will go to the 11th Circuit, and in the meantime compliance will go on.

For all of you complaining about an activist judge coming to a bad decision -- you really should blame the government here. The government argued that the individual mandate was absolutely essential to PPACA, leaving the door open for the judge to hold that if the individual mandate was unconstitutional, the rest of PPACA could not be given effect. Oops.

Essentially the government was hoist on its own petard -- they walked right into that one.

But of course they had to have a backup argument on the Necessary and Proper Clause, since the Virginia judge shot them down on their argument that the individual mandate penalty was a tax (which, during enactment of PPACA as you will recall, the government swore up and down that it wasn't).

One wonders what "novel" and "unprecedented" argument the government will think up next? /snark

All I know is, I don't want the government to force me to buy a crappy GM car!

Posted by: Policywonk14 | January 31, 2011 5:40 PM | Report abuse

"The whole law is based on the 1993 GOP counterplan to Hillarycare and Romneycare in the mid 2000's. Didn't know that the 1993 GOP was really filled with a bunch of freedom-hating socialist-loving losers?
"


Why do liberals trot out this lie? When did the 1993 GOP propose giving away $150 billion a year to the leftist base?

Posted by: krazen1211 | January 31, 2011 5:41 PM | Report abuse

To all of those bashing the ACA, do you care that if this ruling stands that the whole law goes out the window? Meaning no more health care for the youth of the nation (kids are high risk), no more coverage for pre-existing conditions (that will cost us money). For those who seem to stand so firmly on "all men created equal", these are two points prove that you would rather have others suffer then be willing to give them the chance of life, liberty and happiness.

Posted by: Falling4Ever | January 31, 2011 5:46 PM | Report abuse

anyone who reads my posts here knows I am no conservative, and with that, I agree that Klein's reference to the judge as a Republican at the outset, as opposed to in passing, his anaylsis of the severability issue, and his references to other portions of the opinion, are completely without merit.

the severability conclusion is unassailable (especially given the government's insistence that the mandate was indispensible to half the rest of the law), and the entire opinion is quite balanced and scholarly.

It's flaw, if any, is in finding the decision not to buy insurance "inactivity" and the impact of the uninsured "speculative" while acknowledging that we know this impact to be 43 Billion a year. The judge explains his reasoning behind rejecting this indirect impact's relevance on Commerce Clause jurisprudence, and it's not frivolous or subject to partisan attack. It's not perfect, either, but the point is that any judge of either party could have written this opinion.

Posted by: JoeT1 | January 31, 2011 5:52 PM | Report abuse

JoeT1:
"the very definition of activism conservatives are supposed to despise..."

Reviewing a law passed by Congress, and deciding Congress overstepped the restraints of the enumerated powers allotted to it in the Constitution, is not "activism".

"Activism" is when a judge creates a law where there isn't one. You know, like Roe vs Wade. In this case Vinson does not strike down the ACA, and substitute his OWN health care reform plan in it's sted. If he did, then that would be 'activism' on the level of what Justice Blackmun did in Roe v Wade.

Posted by: dbw1 | January 31, 2011 6:01 PM | Report abuse

So now Ezra Klein is a constitutional lawyer? No, he is a hysterical liberal who writes his immature utopian ideas into every opinion. One can't swing a dead cat without hitting a constitutional lawyer in D.C. Couldn't the Washington Post have actually asked one to comment instead of this gasbag?

Posted by: milly3 | January 31, 2011 6:12 PM | Report abuse

Falling4Ever:
"To all of those bashing the ACA, do you care that if this ruling stands that the whole law goes out the window?"

We can only hope....

"...Meaning no more health care for the youth of the nation (kids are high risk),"

This canard is as false now as it was prior to passage of the ACA....access to health care exists via numerous state, local, and private programs....but of course to statists, any program that isn't controlled by the federal program is no program at all.

" no more coverage for pre-existing conditions"

Then pass a law that bans health insurance companies from denying coverage for pre-existing conditions. You don't need a 2,000 page overhaul of the entire system to garner this one provision.

" For those who seem to stand so firmly on "all men created equal", these are two points prove that you would rather have others suffer then be willing to give them the chance of life, liberty and happiness."

And you can only achieve life, liberty, and happiness if handed out every need and want by the federal government, right?

Posted by: dbw1 | January 31, 2011 6:18 PM | Report abuse

HOPEFULLY OUR JUDICIAL SYSTEM GETS EXPOSED FOR THE FRAUD IT IS!!! I'M TALKING TO YOU SOCIALISTS AND FASCISTS!!!

Posted by: Albright4Snapper | January 31, 2011 6:18 PM | Report abuse

If childish partisanship plays out the end game will be a 5-4 vote for repeal. Wake me up when we have some adults in D.C.

Posted by: atxord | January 31, 2011 6:28 PM | Report abuse

@dbw1
Blackmun, author of Roe v. Wade was a lifelong Republican. Burger, also another lifelong pubbie.

Back then, a justice ruled on what he thought was right. Now, it's all about the party lines. Can you imagine Warren Burger speaking at a Repub think tank? Our judicial system is laughable.

Posted by: Albright4Snapper | January 31, 2011 6:28 PM | Report abuse

So the judge admits he is making the wrong decision, but doing it because of his personal political convictions.

That would be a clear case for removal from the bench if ever there was one.

Posted by: John1263 | January 31, 2011 6:30 PM | Report abuse

If childish partisanship plays out the end game will be a 5-4 vote for repeal. Wake me up when we have some adults in D.C.

Posted by: atxord | January 31, 2011 6:30 PM | Report abuse

Sorry, Ezra, looks like it's "dead in its tracks" (better luck next Democratic President--in about 40 years): http://www.cato-at-liberty.org/florida-ruling-requires-government-to-stop-implementing-obamacare/

Posted by: lgstarr | January 31, 2011 6:38 PM | Report abuse

"As expected?" Expected by whom? I ask Mr. Klein to highlight articles from liberals who expected this verdict. For each one he finds, I will produce twenty in which liberals laughed at legal challenges to HCR.

Posted by: 4Civility | January 31, 2011 6:40 PM | Report abuse

I get it, Mr. Klein- you don't like this decision. However, your first paragraph is riddled with partisan rhetoric, inaccuracies, and one outright falsehood: "Vinson concedes that his position is activist in the extreme". Vinson conceded no such thing. If you had studied the issue at all, or sought the opinion of an expert, you would have found that 'non-severabuility" was a consequence of congress removing the severability clause itself. As Vinson stated in his decision, the act of removing the clause indicated that congress intended it's absence.

Your poor writing and shoddy research indicates you are past due for dismissal. You certainly should not be writing for the WaPo.

Posted by: FlyDiesel | January 31, 2011 6:41 PM | Report abuse

If vinson succeeds at halting implementation, he will kill more Americans than all the terrorists combined.

Posted by: lauren2010 | January 31, 2011 6:44 PM | Report abuse

TO: John1263 who wrote:
“So the judge admits he is making the wrong decision, but doing it because of his personal political convictions.
That would be a clear case for removal from the bench if ever there was one.”

^^^^^^^^^^^^^^

Absolutely ! I’d also check is bank account for recent (large) deposits say of a million dollars or more.

With billions at stake, insurance companies and insurance company lobbyists would be well invested for just a few million dollars to the right judges.


Posted by: lindalovejones | January 31, 2011 6:45 PM | Report abuse

The judge is obviously an ignorant cracker who doesn't even understand what interstate commerce is. Unfortunately Conservatives have been packing the court with yahoos like this for years. He'll be quickly overturned.

Posted by: steveandshelley | January 31, 2011 6:46 PM | Report abuse

If vinson succeeds at halting implementation, he will kill more Americans than all the terrorists combined.

Posted by: lauren2010 | January 31, 2011 6:48 PM | Report abuse

Just another Conservative Activist judge. Just as we now have a Supreme Court dominated by Conservative activists.

Posted by: samsara15 | January 31, 2011 6:54 PM | Report abuse

JoeT1:
"the very definition of activism conservatives are supposed to despise..."

Reviewing a law passed by Congress, and deciding Congress overstepped the restraints of the enumerated powers allotted to it in the Constitution, is not "activism".

"Activism" is when a judge creates a law where there isn't one. You know, like Roe vs Wade. In this case Vinson does not strike down the ACA, and substitute his OWN health care reform plan in it's sted. If he did, then that would be 'activism' on the level of what Justice Blackmun did in Roe v Wade.

Posted by: dbw1
________________________
actually, no. Roe was a decision throwing out a state abortion law as overstepping the limits of the constitution. exactly the same thing. George Will wrote an excellent piece on how circular the "activism" label is. It's activist if you like the law being thrown out, otherwise, you think it's the court's duty. Will noted that the eminent domain case went wrong for lack of sufficient activism.

Posted by: JoeT1 | January 31, 2011 7:03 PM | Report abuse

Who could have predicted how a Republican judge would vote... if

requiring people to carry health insurance is unconstitutional than

requiring kids to go to school is unconstitutional.

Posted by: WmLaney | January 31, 2011 7:03 PM | Report abuse

As usually the teabaggers invoke the founders.

Judge Vinson might find this article interesting: http://open.salon.com/blog/paul_j_orourke/2009/07/22/our_founding_fathers_socialist_healthcare_system

Posted by: SteveCA1 | January 31, 2011 7:10 PM | Report abuse

"requiring people to carry health insurance is unconstitutional than

requiring kids to go to school is unconstitutional."

Kids aren't required to go to school by the federal government. Thanks.

Posted by: krazen1211 | January 31, 2011 7:10 PM | Report abuse

"...as Vinson concedes that his position is activist in the extreme and a break from the court's usual preference for limited rulings, but says, in effect, that he's going to do it just this once. 'This conclusion is reached with full appreciation for the 'normal rule' that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute,' Vinson writes, 'but non-severability is required based on the unique facts of this case and the particular aspects of the Act. This is not a situation that is likely to be repeated.'"

This is unbelievable. Again, we have to wonder how this juvenile is still employed by WaPo. Ezra, did you miss this line: "but non-severability is REQUIRED based on the unique facts of this case and THE PARTICULAR ASPECTS OF THE ACT"? In other words, did it ever occur to you that the judge felt his hand was being forced in this case? By a power-hungry egomaniac we had the misfortune of electing as President and his tools in Congress. These goofs we call our representatives hastily put together a 2000 plus page pile of crap, the basis of which is the individual mandate. You remove that and the entire thing collapses.

Posted by: conservativemaverick | January 31, 2011 7:10 PM | Report abuse

Ah! The little boy in short pants, Ezra doesn't understand big legal stuff. Aw, don't cry. Ask why the Obumbler Admin argued AGAINST severability.

Posted by: illogicbuster | January 31, 2011 7:18 PM | Report abuse

Posted by: JoeT1 "actually, no. Roe was a decision throwing out a state abortion law as overstepping the limits of the constitution. exactly the same thing."
----------------------------------------
Absolutely. Roe v. Wade & todays ruling are similar, NOT activist & correct.

Posted by: illogicbuster | January 31, 2011 7:22 PM | Report abuse

John1263 wrote:
"So the judge admits he is making the wrong decision, but doing it because of his personal political convictions."

Please show where Judge Vinson said this.

Posted by: FlyDiesel | January 31, 2011 7:35 PM | Report abuse

Mr. Klein,
You really failed to do your "due diligence" on this one.

The democrats chose to NOT put a severability clause into the bill because they knew the reform act would never work if the "public mandate" was not enforced.

In so doing, they essentially said "you can't cut this up", and therefore, the whole bill becomes invalid with Vinson's ruling. Judge Vinson noted the importance of the absence of such a provision in assessing Congressional intent.

Please read the paragraph of Vinson's decision that starts thusly:


The lack of a severability clause in this case is significant because one had been included in an earlier version of the Act, but it was removed in the bill that subsequently became law. "Where Congress includes [particular] language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the [omitted provision] was not intended." Russello v. United States, 464 U.S. 16, 23-24, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983). In other words, the severability lause was intentionally left out of the Act.


I can find this in less than 5 minutes, and I am not a journalist. Hoping you can do a better job next time.

Posted by: ho420yahoocom | January 31, 2011 7:45 PM | Report abuse

JoeT1 "actually, no. Roe was a decision throwing out a state abortion law as overstepping the limits of the constitution. exactly the same thing."
==========================================
In his dissent in Roe, Justice White Says that the Court "The Court simply fashions and announces a new constitutional right for pregnant mothers" That's activism.

"At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons -- convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc.

The Court, for the most part, sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court's exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affair"

Posted by: lure1 | January 31, 2011 7:49 PM | Report abuse

What a useless post!

Ezra, aside from the lack of a severability clause [and why ISN'T there one?] Judge Vinson took seriously the argument of the Democrats that everything in the Act affects and is affected by everything else. Without the individual mandate the rest of the Act is untenable as you have argued yourself on more than one occasion.

Posted by: wbcoleman | January 31, 2011 8:00 PM | Report abuse

When the judge said: "This is not a situation that is likely to be repeated."

He is right...go back a few pages and you will see the Administration itself said The Act was unseverable. Nothing like making the case for your opponent.

What Administration would be so careless to sow the seeds to destruction of its legislation within the language of the legislation or the process?

Posted by: ReadTheCourtDecision | January 31, 2011 8:04 PM | Report abuse

Roger Vinson, the second Republican judge to rule on the constitutionality of the individual mandate, has, as expected, ruled against it. More surprising is that he's decided that the presence of the mandate means the REST OF THE LAW" must be overturned, too, which is an extremely radical step.

~~~

Who said justice was blind?

If anything, these radical extremist conservative judges make justice look like a bigoted thug.

Posted by: lcarter0311 | January 31, 2011 8:32 PM | Report abuse

"If a mandate was the solution [to the health care question], we can try that to solve homelessness by mandating everybody to buy a house."

Barack Obama -- 2008

Posted by: logicprevails | January 31, 2011 8:50 PM | Report abuse

Mr. Klein: So you just made up the part about the judge conceding he wrote an activist opinion? No wonder! You're the guy who said reading the Constitution was so difficult because it was over 100 years old.

Pathetic. We expect better from the Post.

Posted by: ElmerStoup | January 31, 2011 9:21 PM | Report abuse

Ezra,

You should refrain from writing about stuff you have no training in. It makes you look like more of an idiot than usual.

The severability clause isn't radical young Ezra, it's been around as long as the constitution itself, like 100 years or something. If your supposed constitutional lawyer Barack Obama was the least bit competetent he would have left it in instead of removed it.

Posted by: robtr | January 31, 2011 9:56 PM | Report abuse

Didn't Klein call the Constitution "too confusing?"

And now he wants to write an analysis of a legal opinion based on a constitutional question?

Posted by: mykeuva | January 31, 2011 10:02 PM | Report abuse

One definition of a cult:
Great devotion to a person, idea, object, movement, or work (as a film or book); especially : such devotion regarded as a literary or intellectual fad.

That's you, Ezra, the guy who thinks the Constitution is just too hard to understand. Lot of education people, don't, including federal judges who, you know, like, have to go to law school and understand high-falootin' concepts like
'Severability'.

I'm glad you are the face of the WaCompost, though. Shows the shallowness of the cult of progressivism and it's mouthpiece, the WaCompost.

Posted by: deeprock7 | January 31, 2011 10:07 PM | Report abuse

How clever of the Post to use Ezra Klein as a legal analyst.
Will he be covering the science and medical reports as well?

Can't wait for his take on the latest in brain surgery.

Posted by: clarice2 | January 31, 2011 10:14 PM | Report abuse

How clever of the Post to use Ezra Klein as a legal analyst.
Will he be covering the science and medical reports as well?

Can't wait for his take on the latest in brain surgery.

Posted by: clarice2 | January 31, 2011 10:15 PM | Report abuse

Hysterical. An immature non-lawyer left wing child whining about the judgment of a 40 year attorney.

Posted by: drjohn3 | January 31, 2011 10:24 PM | Report abuse

Hey Ezra,

I just heard an ABC news report about the striking down of the law. They reported that the White House may actually agree with the judge on the issue of non-severability (not that they have a choice). They only take issue with the ruling that the mandate is unconstitutional.

A retraction and apology to the judge first thing tomorrow morning is in order.

Posted by: conservativemaverick | January 31, 2011 10:34 PM | Report abuse

Mr Klein is obviously no lawyer. Obama care is clearly a violation of the U S Constitution and would require an amendment to be legal. Take a look at the 16th amendment and the case law leading up to it's passage. Obamacare is virtually identical to the implementation of the income tax and will require the same level of consent of the Governed.
Once Mr Klein has stopped foaming at the mouth he should consider the reality that he does not live in Europe and he must obtain the consent of the Governed to radically change our society. That consent does not exist for Obamacare.
No doubt Mr Klein is furious that our Harvard educated betters are not allowed to tell the rest of us how to live, well you can always move east dude.

Posted by: devluddite | January 31, 2011 10:45 PM | Report abuse

Lets do single payer then. That is constitutional. I have had enough of the crooked , evil insurance companies anyway.

Posted by: jimbobkalina1 | January 31, 2011 10:52 PM | Report abuse

Klein should either go to law school or forgo writing about things he doesn't understand.

Posted by: aramkr | January 31, 2011 10:56 PM | Report abuse

The comments are always more entertaining even than Mr. Klein's "legal analysis".

Lefties cry evil Rethuglican teabaggers while conservatives simply quote the ruling or relevant case law.

Hmm tough call who is more believable?

Posted by: JackSheet | January 31, 2011 11:59 PM | Report abuse

Wonder how much insurance the Judge has? I bet plenty. I also bet when he retires he will get a very large GOVERNMNET pension. Marie Antoinette said "let them eat cake" but this judge said "let them be without insurance". Same thing only different times.

Posted by: mcdonalsherry | February 1, 2011 1:29 AM | Report abuse

I truly enjoy watching Ezra Klein make an idiot of himself in public. The problem is that it's happening with such regularity, it's losing it's unique charm. Of course, the claims that Vinson is an "activist judge" with an "agenda" coming from the lefty commentators on this blog is utterly hypocritical.

The Affordable Care act has to go. Single payer is untenable and not supported by a majority of Americans. Enough is enough.

Posted by: TheLastBrainLeft | February 1, 2011 1:52 AM | Report abuse

the mandate issue is a red herring.

Had it not been an issue, the neocons would have simply made up another issue, and vinson would have made the same type of decision using that issue.

The fact that vinson also tries to pin the blame on the Dems "shortsightedness" of the severability clause is more proof this is political.

Besides, the lack of such a clause probably has more to do with ConservaDems secret ambitions to sabotage ACA than it is to do with strengthening it. The Senate was forced to enact ACA after it seemed impossible to do so ONLY because Scott Brown threw them a monkey wrench and they momentarily feared for their jobs at the hands of angry progressive voters who were threatening to stay home in future elections should ACA fail.

Posted by: lauren2010 | February 1, 2011 3:43 AM | Report abuse

Ezra Klein, 27 year old journalist, has never studied law school, has no understanding of jurisprudence, does not understand the Constitution, but he does a fine job of carrying water for the Democratic Party.

Posted by: johnhiggins1990 | February 1, 2011 5:54 AM | Report abuse

The core argument is that the mandate regulates inactivity as opposed to activity. But suppose the following hypothetical: Congress imposes an additional flat income tax equivalent to the size of the penalty on everyone in the country, and then exempts people from that tax (or gives them a tax credit) if they have health insurance meeting the minimum standards set by ACA. Would that version be unconstitutional in Conservatives’ eyes?

Surely not. In that case, Congress is not punishing inactivity (not buying insurance), but is subsidizing activity (buying insurance). It also seems identical to every other tax exemption we already have, like for people that own a home. I tend to think, but am not sure, that opponents would argue that this is not a proper hypothetical, because there is a difference between regulatory penalties and taxes.

But then my question is, what is the point? To any rational economic agent, the individual mandate and my hypothetical have exactly identical effects on their incentives. They are no more “free” than they were except for the rhetorical victory that the government now can’t require them to do something; it can just make it so they are effectively forced to by economic circumstances.

-AFG
http://www.afoolsgame.com/?p=63

Posted by: AFoolsGame | February 1, 2011 6:42 AM | Report abuse

Quick primer on "judicial activism" for EK:

"Finding" a "right" to abortion lurking in "emenations from penumbras" from actual constitutional rights that trumps plenary police powers reserved to the states is judicial activism.

Finding that the power to regulate "commerce among the several States" does not include, under any S Ct precedent, the power to compel the purchase of health insurance is not.

If Vinson had gone the "activism" route, he could have always found this power lurking in "emanations from penumbras" of powers actually granted to Congress.

See how that works?

Your comments on severability are even more foolhardy. For example, it took me about 30 seconds to find this from an opinion that I would guess you feel is right in the "mainstream" and right on the money:

"Congress determined that the Individual Mandate2 “is an essential part of this larger
regulation of economic activity,” and that its absence “would undercut Federal regulation
of the health insurance market.” Id. § 1501(a)(2)(H). Congress found that without the
Individual Mandate, the reforms in the Act, such as the ban on denying coverage based on
pre-existing conditions, would increase the existing incentives for individuals to “wait to
purchase health insurance until they needed care,” which in turn would shift even greater
costs onto third parties. Id. § 1501(a)(2)(I). Conversely, Congress found that by
“significantly reducing the number of the uninsured, the requirement, together with the other
provisions of this Act, will lower health insurance premiums.” Id. § 1501(a)(2)(I). Congress
concluded that the Individual Mandate “is essential to creating effective health insurance
markets in which improved health insurance products that are guaranteed issue and do not
exclude coverage of pre-existing conditions can be sold.” Id."


Can you guess? That's from Judge Steeh, upholding ACA in the opinion the O Admin likes to crow about.

Posted by: quarterback1 | February 1, 2011 7:10 AM | Report abuse

I don't suppose it would do any good to remind the Washington Post that hiring writers who are undereducated about our system of government as dictated by our Constitution and the rule of law is a bad idea and harms their reputation. The Judiciary does not have political parties, little Ezra.

Posted by: lavistabb | February 1, 2011 7:20 AM | Report abuse

WP - Young Grasshopper Ezra has much to learn. His "greenness" is showing. Some of your more experienced journalists should help him along.

Posted by: opieus | February 1, 2011 7:38 AM | Report abuse

@AFoolsGame ... or consider that maybe there really is not a "mandate" since as of December 31, 2010, 733 national and local organizations have been exempted from the Act.
What the heck, it would be easier to shoot this down by simply all 300 million applying for an exemption. So far, Sibelius has exempted over 2 million! It's a good start.

Posted by: opieus | February 1, 2011 7:47 AM | Report abuse

Can there not also be lawsuits against the ACA's implementation -- not just its construction? With the revelation that more than 700 entities have been given permission to get out from under its onerous demands, we can wonder what they did, what was asked of them, in return for that waiver. If the act is being used by anyone as a means of extorting ANYTHING, would it not fall under the provisions of the RICO act?

Posted by: truck1 | February 1, 2011 8:19 AM | Report abuse

There is another Mr. Klein, the Joe one of Time magazine. I am sure the contract of employment of both must have a clause of the number of comments their articles generate. Well I think anyone that names a judge either R or D just are poor in their imagination. Yes there are liberal and conservative judges, that is human nature but to judge as politicos is not what they do. I will follow Mr. Klein to find out more about him. It took me 12 years to drop my subscription to Time, I can afford few more days for WAPO.

Posted by: demec | February 1, 2011 8:54 AM | Report abuse

dbw1 said:
" 'Activism' is when a judge creates a law where there isn't one. You know, like Roe vs Wade.

JoeT1 said:
" actually, no. Roe was a decision throwing out a state abortion law as overstepping the limits of the constitution. exactly the same thing."

'Actually', you are incorrect. Roe v Wade did not simply strike down a state abortion law. If so, then the overarching decision of whether abortion is legal or not would still be a state-by-state decision. Instead, Blackmun and the other liberals on the court didn't just 'strike down a state law', but they created a new 'right', and in the course of doing so set up their own framework for what future laws should entail...I mean, they went as far as to create a legal framework of trimesters to determine how to phase out the 'right to privacy', for crying out loud.

That, my friend, is judicial activism. They created a new law where none existed, and it was not a law that has ever been passed by Congress and signed by a President.

Posted by: dbw1 | February 1, 2011 9:55 AM | Report abuse

When Nancy Pelosi (and other Democrats) were asked about the constitutionality of this legislation, they assured us that it was, and when pressed for exactly what area of the Constitution authorized it, stated that the "courts would sort it out". So, JoeT, here are the "courts sorting it out", and you sound like you don't like the way they are "sorting it out". Make up your mind.

If the legislature is the authority of constitutionality, then we should expect a more serious answer from legislators regarding how the Constitution justifies a particular action. If the courts are the authority, you might allow them to do their work without your partisan sniping and suggestions of illegitimacy.

Jack Chaffin MD
Boise, ID

Posted by: oscar777 | February 1, 2011 11:23 AM | Report abuse

And, of course, the other thing is the implication in this article's headline, "GOP judge". Which implies that this was an unfair, inappropriate, partisan decision. Other judges appointed by Clinton ruled in favor of the Act. Were they identified as "Democrat judges"? Were their actions considered partisan?

Not by Ezra Klein nor by the Washington Post.

Jack Chaffin MD
Boise, ID

Posted by: oscar777 | February 1, 2011 12:02 PM | Report abuse

Under this logic, explain to me how this is different from car insurance? Yes, yes, yes, driving a car is not a right, but according to republican logic, neither is healthcare. So I say, "I'm not going to get into an accident and ever hurt anyone, so why do I need car insurance?" You say, "Because chances are you're likely to get into a car accident." My chances of a car accident are probably less likely than the odds that I'll never need to recieve medical treatment. You say, "Everyone doesn't have a car!!!" But, everyone recieves medical treatment. Whether it's a band-aid or brain surgery, at some point we all recieve medical aid.

Posted by: nsu1203 | February 1, 2011 1:11 PM | Report abuse

"but non-severability is REQUIRED based on the unique facts of this case and THE PARTICULAR ASPECTS OF THE ACT"?

An outright lie by "Judge Vinson." He needs to go to law school. If he does, he might read Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005). Which declared that even home-grown marijuana, which never entered the stream of commerce at all, could be criminalized by the Federal government, even in the face of state laws and medical evidence and testimony to the contrary.

Posted by: mcstowy | February 1, 2011 1:52 PM | Report abuse

Some call it ObamaCare. I call it EzraCare. Even so, it wasn't a Republican judge, it was a Federal judge. Do we really want a judicial system where if you agree with the judge, it's a ruling and if you disagree it's a political hit? Shame Ezra. Shame shame on you

Posted by: kurtmudgeon1 | February 1, 2011 3:40 PM | Report abuse

"Vinson concedes that his position is activist in the extreme".

Where? A search through the .PDF for the word "activist" gets no hits.

Did Vinson misspell the word, or did you just make this part up?

Posted by: clynch1961 | February 1, 2011 3:53 PM | Report abuse

Why do you call out the judge's party affiliation? Better you should read the opinion, the judge might school you on the constitutional underpinnings of our government, which they seem to skip at which ever institutions you garnered your education. It's real simple: the federal government cannot compel you to buy insurance. A state government can, under police power. It's the federal system. Learn it.

Posted by: cccarol | February 1, 2011 4:21 PM | Report abuse

Ezra show his complete ignorance of law or the constitution: he just makes stuff up and tells you it is 'fact'. And morons beleive him because he in 'in the paper'. This is the same child who brought us JournOList where reporters across the MakeBelieveMedia all made up stories and used exactly the same words to report the same stories while they pretended they were not doing that. Ezra is like a five year old who thinks he is 'all grown up.' Klein is about the most partisan person out there and you will surely not get an honest answer from him. His is a socialist who prefers autocracy to freedom. He would prefer you don't find out about that.

Posted by: recklessprocess | February 1, 2011 5:15 PM | Report abuse

Under this logic, explain to me how this is different from car insurance?

Posted by: nsu1203 | February 1, 2011 1:11 PM | Report abuse


The individual mandate in ACA is in a FEDERAL law. Legal requirements to obtain car insurance are in STATE laws. There is a difference between STATE and FEDERAL government. (Actually, there are many differences.)

In general, states have broader powers than does the federal government to require their citizens to do things. This is because the founders of our nation were afraid of an all-powerful federal government that would mirror a monarchy (like England), so they limited federal governmental power.

Federal government needs to find its powers as enumerated in the federal constitution; federal government is thus limited. Whatever powers the federal government doesn't have, are left to the states (that's the 10th Amendment to the U.S. Constitution). So states have a lot of power as compared to the federal government.

This is one reason why a state like Massachusetts can require its citizens to obtain health insurance. Massachusetts as a state (actually, a Commonwealth) has the power to do that. It doesn't have to find the power under the U.S. Constitution.

And this is why a state can require you to obtain car insurance, if you choose to drive a motor vehicle.

Can we now stop with the questions about why the federal individual mandate to take up health insurance is different than a state's requirement for a person to carry auto insurance?

Posted by: Policywonk14 | February 1, 2011 5:53 PM | Report abuse

EZRA KLEIN .. I RECALL A FEW WEEKS AGO YOU WERE ON ONE OF THE CABLE NETWORKS SAYING THE DOCUMENT WAS A 100 YEARS OLD (DID YOU NOT GO TO SCHOOL AND TAKE A HISTORY CLASS) AND TO DIFFICULT TO UNDERSTAND. IF YOU FIND THE CONSTITUTION TO DIFFICULT TO UNDERSTAND THEN MAYBE YOU SHOULD NOT BE DISCUSSING THE CONSTITUTIONALITY OF OBAMACARE AND JUDGE VINSON'S OPINION. I WOULD THINK THIS WOULD DEFINITELY BE ABOVE YOUR PAY GRADE SINCE YOU ADMITTED YOUR IGNORANCE OF THE CONSTITUTION. PLEASE STICK TO THINGS YOU ARE QUALIFIED TO DISCUSS, LIKE COUNTING TO TEN, YOUR ABC'S, AND LEAVE THE BIG STUFF TO THE SCHOLARS.

Posted by: patriot49 | February 1, 2011 7:48 PM | Report abuse

to nsu1213: The individual mandate to buy health insurance is completely different from the requirement to buy auto insurance.

States require you to purchase liability insurance to protect others against the damage you may do to THEIR life or property by driving a motor vehicle.

You are not required to buy insurance to cover injury to yourself or or damage to your own property. If you have financed your car, the lienholder requires you to carry collision insurance to protect THEIR financial interest in your car. This requirement is part of the private contract between the lender and you.

Posted by: mike98 | February 1, 2011 10:28 PM | Report abuse

I find the arguments regarding the mandate to be really quite odd. I'm liberal on most issues, but there are things about the arguments being used to justify that mandate that strike me as being quite wrong.

For example:
'This judge is a textbook case of judicial activism if I've ever seen one. The decision not to purchase health insurance is not an "inactive decision" at all. It's very much an active decision to not purchase insurance and it's one that threatens the national health care system and a paying member's premiums. Open and shut. Perfectly constitutional.'

No, it's not "an active decision" to not do something. You are standing common usage of language on its head. And I have no moral or constitutional obligation to buy insurance that I may or may not need solely to provide you with an economic benefit.

I find it amusing that such a large slice of the left have bought into the framing of this issue presented to us by Obama and the insurance companies.

"And you know what? If you don't want to buy the insurance, then you pay the tax. Sounds like a perfectly reasonable consequence for driving up my premium."

Again, boo-hoo. The relationship between you and your insurance carrier is your own business and not my concern.

The government is mandating that I participate in an industry that I may or may not want to support. There are many sound reasons why I might prefer to avoid health insurance. If I were independently wealthy, I wouldn't dream of wasting my money on insurance. On the flip side, if I have severe economic difficulties, health insurance might rationally be a cost I want to avoid.

In any case, what's happening here is that a private industry is calling upon the power of Congress and the Federal government to provide it with an increase in its customer base. What next? What industry will next convince the nation that it should be able to use the power of the government to gather in more customers?

And sadly, too many of the arguments about health care reform focus entirely on whether the person making the argument thinks that the mandate is a good idea, with absolutely no regard as to whether it's sensible to argue whether the law is actually _Constitutional_. I can think of all sorts of good laws that are not actually Constitutional.

The problem is that the Interstate Commerce Clause has been stretched far beyond its original intent. It's been abused in the past for purposes such as supporting a Federal ban on marijuana.

A mandate that I be forced to purchase a product from a private entity truly represents a new infringement on my liberty. People really need to think this through, in terms of the expansion of government power.

Posted by: rick_desper | February 1, 2011 10:50 PM | Report abuse

"actually, no. Roe was a decision throwing out a state abortion law as overstepping the limits of the constitution.
Posted by: JoeT1"

By relying upon and securing an inconsistent precedent of privacy even in committing illegal acts. It was activism in that acted outside of the tradition of the courts. And not one merely to address the unique facts of the case, but to establish a new unprecedented tradition. That's judicial activism.

Posted by: cprferry | February 2, 2011 10:29 AM | Report abuse

=======
=======
This is Obama's fault for bending America over and letting the repiglicans give it to us deep.

If Hillary were president, she'd have arm-twisted the evil rich bas stards like LBJ did, and we'd have single payer like civilized countries do.

"Senator, if you want that new interstate highway to run through your state instead of 50 miles north, you'll do the right thing and vote for the citizens instead of the insurance companies who bribed you".

She also would have investigated Cheney's treasonous crimes and Rove's murder of his computer guy the night before he was to testify to congress how they stole the election.

But no.

Obama "compromised", which with repuglicans means "give away the store", and settled for a ridiculous bill that preserves
the insurance companies, which were causing the problem he was trying to solve, and forces everyone to buy something--which is indeed unconstitutional.

America had one last chance to survive, and we blew it by electing obama.

Because he pandered to the pigs, he never got anything done, so Palin will win in '12. Then Rove will be back, they'll declare martial law, and cancel the '16 election.

I hope when they drag every democrat into terrorist security prison, that they throw Obama in too, so he can get a good close look at what he let happen.

--faye kane, homeless idiot-savant
More of my smartmouth at http://tinyurl.com/kanecave

Posted by: Knee_Cheese_Zarathustra | February 3, 2011 2:53 PM | Report abuse

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