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Posted at 6:43 AM ET, 02/ 1/2011

Wonkbook: What the Vinson ruling means

By Ezra Klein

3993517479_9c92fbbf22.jpg

Wonkbook today has plenty of analysis -- both political and legal -- of Judge Vinson's ruling against the Affordable Care Act. The bottom line of much of it is that the fate of the legislation is now, as it was last week, in the hands of Anthony Kennedy.

That's likely to be true. But the fact that the Supreme Court will still have the ultimate word on this does not mean nothing changed yesterday. Vinson's ruling, which was much more extreme and sweeping than previous rulings, opened up the right side of the debate. So now there are two possible questions the Supreme Court must decide on. The first is the basic legitimacy of the legislation. Many Court-watchers expect that the question will be decided on a 5-4 split, with Kennedy proving the deciding vote. If five justices -- or more -- say the law is constitutional, their work is done. But if five or more say the individual mandate is not constitutional, then a second question emerges: Is the mandate severable, as Judge Hudson thought it was? If the Court says it is, then the vast bulk of the legislation remains intact, and the only real question is whether congressional Republicans are open to crafting some sort of replacement to the provision if it proves needed in 2015 or 2016 or 2017. If the Court says it's not, and voids the entirety of President Obama's most important legislative achievement, that's a decision with much more far-reaching consequences.

Most Court-watchers I've spoken to think it very unlikely that Vinson's ruling will stand. The bigger danger, they say, is that Vinson's ruling will make Hudson's ruling seem more modest and appealing. But there's a good chance that whatever the decision is, it will come in 2012, while Barack Obama is campaigning for president and his supporters are at their most activated. In that environment, an adverse ruling could radicalize liberals toward the Court in much the way that Roe radicalized conservatives. This case puts the Supreme Court more firmly at the center of a major and polarizing political issue than they've been in recent memory. The long-term consequences of an aggressive ruling in that context will also be weighing on Kennedy and his colleagues as they grope their way to a decision.

The Vinson Ruling

Florida district court judge Roger Vinson has ruled all of health care reform unconstitutional, report N.C. Aizenman and Amy Goldstein: "A federal judge in Florida on Monday became the first to strike down the entire law that overhauled the nation's health-care system, potentially complicating implementation of the statute in the 26 states that brought the suit...As the judge ruled in the Virginia case, Vinson held that Congress overstepped its authority by compelling nearly all Americans to be insured or pay a fine. But Vinson went further: Likening the law to 'a finely crafted watch' in which 'one essential piece is defective and must be removed,' he ruled that the insurance mandate cannot be separated from the rest of the statute and therefore the entire law must be voided."

Read the full ruling: http://scr.bi/eI6Oqg

Democrats' legislative sloppiness provided an opening for the decision, writes David Weigel: http://slate.me/eaUzjw

The rulings have been surprisingly political, writes Jonathan Cohn: "There’s what looks like a shout-out to the Tea Party--specifically, a reference to the American Colonists' outrage over the tax on tea. (Page 42.) There’s the gratuitous reference to General Motors as “partially government-owned.” (Page 45.) And there’s the use of President Obama’s campaign rhetoric against the law Obama now supports. (Page 68). Nor is the first time a judge invalidating the Affordable Care Act may have tipped his political hand. Henry Hudson, the federal judge who issued a narrower ruling against the law late last year, noted in his decision that the bill was rushed through the legislative process--which is a strange way to describe a law nearly fourteen months in gestation, unless you are trying to argue there was something fundamentally illegitimate about the process that produced it.

Vinson's argument that the individual mandate is non-severable derives from the administration's argument that the individual mandate is non-severable, writes Peter Suderman: "Vinson concludes that 'the individual mandate is indisputably necessary to the Act’s insurance market reforms, which are, in turn, indisputably necessary to the purpose of the Act.' Essentially, the administration's lawyers argued that the health care law wouldn’t work without the mandate, and Vinson took them at their word."

The decision relies on weak originalist arguments, writes Mark Hall: "The same Founders wrote a Constitution that allowed the federal government to take property from unwilling sellers and passive owners, when needed to construct highways, bridges and canals. But Judge Vinson dismissed those and other examples with the briefest of parenthetical asides: '(all of [these] are obviously distinguishable)' (p. 39). Instead, he twice cites and quotes the lower court opinion in Schechter Poultry (pp. 53, 55), which struck down the National Industrial Recovery Act, at the height of the Great Depression and the pinnacle of Lochner jurisprudence. Still, it’s fair enough to conclude, absent controlling precedent, that being uninsured might not constitute interstate commerce. What’s harder to swallow is the judge’s rejection of the Necessary and Proper Clause."

Vinson got it right, writes Ilya Somin: "As Vinson explains, both the 'economic decisions' argument and the 'health care is special' argument ultimately amount to giving Congress the power to mandate virtually anything, and therefore conflict with the text of the Constitution and Supreme Court precedent. I addressed both arguments in more detail here. Judge Vinson also notes that the scenarios he raises are not merely a 'parade of horribles,' but have a realistic basis, a point that I discussed in this recent post. Turning to the Necessary and Proper Clause, Judge Vinson concedes that the individual mandate is 'necessary' under existing Supreme Court precedent, but argues that it isn’t 'proper' because the government’s logic amounts to giving Congress virtually unlimited power. I think this is exactly right."

Vinson's argument ignores precedent, writes Orin Kerr: http://bit.ly/hfGLxa

The ruling violates opinions Justices Scalia, Roberts, and Kennedy have written, writes Simon Lazarus: "Today's decision in Florida federal district court striking down the Affordable Care Act in its entirety would effectively shred the Constitution as it has been interpreted, applied, and endorsed across a broad ideological spectrum for the last three-quarters of a century -- since the New Deal -- and, actually, dating back to Chief Justice John Marshall's expansive interpretations of the constitutional provisions directly at issue here...Among those who have joined in rejecting the century-old, long-defunct decisions on which Judge Roger Vinson's decision rests, are Justices Scalia, Kennedy, and Chief Justice Roberts. They will have to twist their prior decisions and statements into pretzels in order to rule the individual mandate or other ACA provisions unconstitutional."

The reaction to the decision shows you can't take the Constitution away from politics, writes Mark Tushnet: http://bit.ly/hnwsn7

The ruling on severability relies on evidence from the Family Research Council, an anti-gay hate group, writes Igor Volsky: "The most surprising part of Judge Roger Vinson’s ruling was his argument that the individual mandate was not severable from the health care law as a whole and must therefor bring down the entire Affordable Care Act...In fact, as Vinson himself admits in Footnote 27 (on pg. 65), he arrived at this conclusion by 'borrow[ing] heavily from one of the amicus briefs filed in the case for it quite cogently and effectively sets forth the applicable standard and governing analysis of severability (doc. 123).' That brief was filed by the Family Research Council, which has been branded as a hate group by the Southern Poverty Law Center (SPLC)."

Indie pop interlude: Papercuts' "Do What You Will".

Got tips, additions, or comments? E-mail me.

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Still to come: The White House is pushing to increase investment in start-ups and small businesses; Senate Democrats are ready for a fight on the Constitutionality of health care reform; GOP governors are pushing for an end to teacher tenure; the administration wants to end billions in oil subsidies; and elderly elephants listen to Beethoven.

Economy

The White House wants to boost investment in start-ups and small businesses, reports Perry Bacon: "The Obama administration, continuing its recent pro-business push, is launching a new campaign Monday to increase investment in start-up companies and small businesses. The White House has enlisted Steve Case, the co-founder of AOL, and Carl Schramm, who runs a group that encourages entrepreneurship called the Kaufman Foundation, to head the 'Startup America Partnership.' The two men will lead a privately funded board that will encourage large companies and foundations to provide seed money to start-ups. The Obama administration Monday also will announce a series of ideas to encourage innovation and entrepreneurship that it will include in its federal budget proposal to be released Feb. 14."

Egypt's unrest is continuing to hurt the global economy: http://wapo.st/eM95Wh

Direct bank negotiations are more effective at resolving mortgages than HAMP, report Robbie Whelan and Anthony Klan: "As the federal government's flagship mortgage-modification program comes under scrutiny for failing to meet its goal of helping three to four million troubled homeowners, state-level efforts to boost modifications appear to be picking up momentum. The Treasury reported Monday that the government's Home Affordable Modification Program, or HAMP, had provided permanent help to 521,630 homeowners since the program began in spring 2009. By comparison, over the same period, banks negotiating directly with borrowers have made about two million permanent loan modifications outside the government's program."

More people have lost homes during the crisis than gained them during the boom, reports Dawn Wotapka: "The meltdown of the U.S. mortgage market and rising foreclosures have wiped out more homeowners than were created in the 2000-07 housing boom, some industry watchers say, the latest indication of the severity of the housing bust. In the fourth quarter of 2010, 66.5% of Americans owned homes, down from 67.2% a year earlier and the lowest rate since the end of 1998, according the Census Bureau. During the boom, when easy credit made mortgages available with less regard for income or ability to pay, the ownership rate surged to a record 69.2% in 2004's second and fourth quarters and stayed near that level until the recession deepened."

Taxes need to go up if the budget is to be sustainable, writes Jeffrey Sachs: "The truth of US politics today is simple. The key policy for the leaders of both political parties is tax cuts, especially for the rich. Both political parties, and the White House, would rather cut taxes than spend more on education, science and technology, and infrastructure. And the explanation is straightforward: the richest households fund political campaigns. Both parties therefore cater to their wishes. As a result, America’s total tax revenues as a share of national income are among the lowest of all high-income countries, roughly 30%, compared to around 40% in Europe. But 30% of GDP is not enough to cover the needs of health, education, science and technology, social security, infrastructure, and other vital government responsibilities."

Across-the-board cuts won't make government more efficient, writes Louis Gerstner: "Americans do not want only a smaller government; they want a more productive government. We do not want simply to decrease our taxes by, say, 5%, as nice as that sounds. We also want 100% of our tax dollars to be working as effectively as possible. In short, we need to reinvent government...A truly effective organization needs incremental investments in programs that drive innovation and higher productivity. Moreover, I've learned that across-the-board cuts are almost guaranteed to reduce morale, promote short-sighted choices, and encourage accounting gimmicks that send people looking for loopholes instead of creative solutions."

Adorable children with adorable animals interlude: A Japanese girl plays with her pet chipmunk.

Health Care

Senate Majority Whip Dick Durbin is calling a hearing on the constitutionality of health care reform, reports Shira Toeplitz: "Minutes after a Florida judge ruled that the health care law passed last year is unconstitutional, Senate Majority Whip Dick Durbin announced he will chair a hearing this week on whether the law is constitutional. Durbin’s announcement is the first indication that Senate Democrats are willing to entertain a debate on whether the law is constitutional, taking critics of the law head-on. Senate Republicans have repeatedly called for a vote to repeal the law, but Senate Majority Leader Harry Reid has refused to take it to the floor in the upper chamber - saying he wants no part at all in getting rid of the law passed last year. The House voted earlier this month to repeal the entire bill, which is considered to be the landmark legislation of President Barack Obama’s tenure in office so far."

All Senate Republicans have signed on to a bill repealing health care reform: http://politi.co/h6aGmt

Domestic Policy

GOP governors are aiming to end teacher tenure, report Trip Gabriel and Sam Dillon: "Seizing on a national anxiety over poor student performance, many governors are taking aim at a bedrock tradition of public schools: teacher tenure...Now several Republican governors have concluded that removing ineffective teachers requires undoing the century-old protections of tenure. Governors in Florida, Idaho, Indiana, Nevada and New Jersey have called for the elimination or dismantling of tenure. As state legislatures convene this winter, anti-tenure bills are being written in those states and others. Their chances of passing have risen because of crushing state budget deficits that have put teachers’ unions on the defensive."

Harry Reid has taken Social Security "off the table" for cuts, reports Brian Beutler: "At an event with progressive activists last week, Senate Majority Leader Harry Reid took major Social Security cuts and privatization completely off the legislative table. 'As long as I'm the Majority Leader, I'm going to do everything within my legislative powers to prevent privatizing or eliminating Social Security,' Reid said. 'I'll simply say it's off the table.'...Reid's been a pretty staunch defender of Social Security, but this statement goes a bit further than previous ones. Most recently, on Meet the Press, he said he wouldn't be a part of any effort to undermine the program. But now, he's taken privatization and raising the retirement age off the table."

Democrats are getting aggressive on spending fights: http://wapo.st/gbHVLo

The "state most likely to go bankrupt" is none of them, writes Elizabeth McNichol: " State debt levels aren’t particularly high by historical standards. States are in no danger of defaulting on their debt, as the phrase 'going bankrupt' suggests. In the second quarter of calendar year 2010, state and local government outstanding debt stood at 16.7 percent of GDP, up from a recent (and relatively brief) low of 12 percent in 2000 but similar to the average levels from the mid-1980s to the mid-1990s. The vast majority of this debt is long-term, fixed rate debt used to finance infrastructure projects. Over the last century, only one state has defaulted on its general obligation debt: Arkansas in 1934, during the depths of the Great Depression. In most states, bonds have the first call on revenues."

Elderly animals listening to classical music interlude: Beethoven's Sonata Pathétique played for old elephants, for some reason.

Energy

The Obama administration is pushing to eliminate billions in oil subsidies, reports John Broder: "When he releases his new budget in two weeks, President Obama will propose doing away with roughly $4 billion a year in subsidies and tax breaks for oil companies, in his third effort to eliminate federal support for an industry that remains hugely profitable. Previous efforts have run up against bipartisan opposition in Congress and heavy lobbying from producers of oil, natural gas and coal. The head of the oil and gas lobby in Washington contends that the president has it backward -- that the industry subsidizes the government, through billions of dollars in taxes and royalties, not the other way around. But even as the president says he wants to do away with incentives for fossil fuels, his policies continue to provide for substantial aid to oil and gas companies."

Sen. Jay Rockefeller (D-WV) has introduced a bill delaying the EPA's climate rules for two years: http://bit.ly/fR3thQ

Sen. John Barrasso (R-WY) has introduced a bill blocking EPA action on the climate permanently, reports John Broder: "Senator John Barrasso, Republican of Wyoming, introduced legislation on Monday to block the Environmental Protection Agency from taking any action to regulate greenhouse gases to address climate change...The Barrasso bill would overturn the agency’s 2009 finding that carbon dioxide and other greenhouse gases are harmful to public health and the environment. It would pre-empt any action by the E.P.A. to limit greenhouse gas emissions without specific Congressional authorization. It would forbid the use of several landmark federal laws for the purpose of dealing with global warming, including the Clean Air Act, the Clean Water Act, the National Environmental Policy Act and the Endangered Species Act."

The Senate is working with Obama on hashing out a "clean energy standard", reports Andrew Restuccia: "Senate Energy and Natural Resources Committee Chairman Jeff Bingaman (D-N.M.) is working with the White House to iron out the details of a broad proposal to require that 80 percent of the country’s electricity come from 'clean' sources. President Obama outlined the proposal in his State of the Union address last week, but offered few details. He called for 80 percent of the country’s electricity to come from 'clean' sources like wind, solar, natural gas, nuclear and coal with carbon capture technology. Bingaman has been reluctant to endorse a so-called 'clean energy standard,' instead underscoring his support for a 'renewable electricity standard,' which focuses strictly on renewable energy."

Closing credits: Wonkbook is compiled and produced with help from Dylan Matthews, Mike Shepard, and Michelle Williams. Photo credit: White House.

By Ezra Klein  | February 1, 2011; 6:43 AM ET
Categories:  Wonkbook  
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Next: The Senate vs. the future

Comments

Why should the USSC accept the ACA case at all?

Couldn't they just refuse to review the Vinson decision and, Voila, ACA is dead and no one can blame the USSC?

Posted by: lauren2010 | February 1, 2011 7:32 AM | Report abuse

"The rulings have been surprisingly political"

Someone was SURPRISED?

Fool me once, shame on you.
Fool me twice, shame on me.

Anyone still being surprised by the fact that major political decisions are being decided by conservative justices ought have his journalistic license revoked.

Posted by: lauren2010 | February 1, 2011 7:36 AM | Report abuse

If this law is Unconstitutional can states force people to buy Auto Insurance?
Good old Republican States like TEXAS.

Posted by: ddoiron1 | February 1, 2011 8:15 AM | Report abuse

LMAO ! Ezra "The Constitution doesn't mean anything" Klein calls himself a wonk. Does wonk suddenly mean ignorant socialist?

Posted by: johnfchick1 | February 1, 2011 8:23 AM | Report abuse

"If this law is Unconstitutional can states force people to buy Auto Insurance?"
Posted by: ddoiron1
===========================
Only if they wish to drive a car. Otherwise, they don't.
And your point again was.....?

Posted by: OttoDog | February 1, 2011 8:30 AM | Report abuse

The WaPo has Ezra Klein analyzing legal rulings? The same guy who can't understand the 4-page Constitution? Hilarious.

Because Ezra can't comprehend it himself, here are my favorite parts of the ruling:

"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,’”

Suck it, Barry!

Posted by: diesel_skins_ | February 1, 2011 8:34 AM | Report abuse

Ezra JournoList Klein, aka evil dwarf, has mistitled his article. It would more accurately be titled, "What Committed, Big Government Socialists Would Like You To Believe About the Vinson Ruling"

Posted by: hill_marty | February 1, 2011 8:34 AM | Report abuse

Anyone still being surprised by the fact that major political decisions are being decided by conservative justices ought have his journalistic license revoked.

Posted by: lauren2010


Your side lost. Get the f### over it!!

Posted by: LibsRidiots | February 1, 2011 8:36 AM | Report abuse

I read the Military Commission Act of 2006 does not have a severability clause, yet only small parts of it was ruled unconstitutional--not the whole thing.

Posted by: lauren2010 | February 1, 2011 8:46 AM | Report abuse

Why do liberals simply make stuff up?


http://thomas.loc.gov/cgi-bin/query/F?c109:1:./temp/~c109ab772g:e106973:

SECTION 1. SHORT TITLE.
2 This Act may be cited as the “Military Commis-
3 sions Act of 2006”.

SEC. 10. SEVERABILITY.
12 If any provision of this Act, or the application of a
13 provision to any person or circumstance, is held to be un-
14 constitutional, the remainder of this Act, and the applica-
15 tion of the provisions to any other person or circum-
16 stance, shall not be affected thereby.

Posted by: krazen1211 | February 1, 2011 8:57 AM | Report abuse

Why should the USSC accept the ACA case at all?

Couldn't they just refuse to review the Vinson decision and, Voila, ACA is dead and no one can blame the USSC?

Posted by: lauren2010 | February 1, 2011 7:32 AM | Report abuse

No. The case decided by Judge Vinson yesterday isn't dispositive and doesn't finally conclude the matter.

What will happen is that the 4 district court cases decided to date will be appealed to their respective federal circuit courts of appeal. Then, the parties losing on appeal will petition for the USSC to hear their cases. While the high Court could decline to take the case or cases, if there is a split in the appellate decisions the Court would likely take the cases to resolve the split.

Posted by: Policywonky | February 1, 2011 9:00 AM | Report abuse

I wonder what the founders would think of a dysfunctional congress, a politicized judiciary, and a media that controls what people hear? The court decisions about health care reform have come from jurisdictions where we have political judges. Forum shopping at its finest. It may be time to examine the issue of lifetime appointments for judges. It can't be anymore political than what we now have, and at least we wouldn't be stuck with these guys/women for decades.

Posted by: cdierd1944 | February 1, 2011 9:00 AM | Report abuse

I wonder what the founders would think of a dysfunctional congress, a politicized judiciary, and a media that controls what people hear? The court decisions about health care reform have come from jurisdictions where we have political judges. Forum shopping at its finest. It may be time to examine the issue of lifetime appointments for judges. It can't be anymore political than what we now have, and at least we wouldn't be stuck with these guys/women for decades.

Posted by: cdierd1944 | February 1, 2011 9:01 AM | Report abuse

tks for the link

But if you are accusing me of making it up, then you are an idiot though.

I in fact read that this morning.

I don't know if the person I read it from made it up though.

note I did not ASSERT it was true. I posted it hoping someone would set the matter straight.

BTW, that link doesn't tell me if it is the final and SIGNED version of the MCA.

The thing I read explicitly said the MCA had severability clauses in it until the final, signed version. So I still need confirmation.

Posted by: lauren2010 | February 1, 2011 9:06 AM | Report abuse

policywonker

thanks. But if it is possible the USSC might refuse to take the case, and in so doing ACA dies, then that is my prediction of what will happen.

Posted by: lauren2010 | February 1, 2011 9:08 AM | Report abuse

Here's a link to what I read earlier about the final version of the MCA not having a severability clause. There's another link within that I believe used to access the final version of MCA, but the link is broken, so can't verify whether the clause is in it.

So obviously I did not make up the fact I read about this somewhere, though I can not attest to whether the commenters on the link made it up.

http://www.discourse.net/2007/01/on_the_severabilty_of_the_habeas_corpus_provisions_of_the_military_commissions_act.html

Posted by: lauren2010 | February 1, 2011 9:34 AM | Report abuse

Another clown Reagan judge strikes again. Another anti-government zealot who enjoys a great government salary, health benefits and pension paid by the taxpayer.

This, once again, has nothing to do with the Constitution.
It's "I've got mine and who cares about you" bully in your face nonsense.

Posted by: sufi66 | February 1, 2011 9:41 AM | Report abuse

That Kerr link is awesome: everyone cracking jokes about Klein and the Constitution should check it out -->

The Constitution isn't just this thing that sits around untouched for all eternity. The precedents the Supreme Court set -- in cases like Wickard v. Filburn and Gonzales v. Raich -- are *extremely* important. Stare Decisis is the true conservative ideal, ensuring respect for past authority and slow-moving change.

Hating on ACA might be popular with the GOP right now, but there's TOTAL lack of respect toward our constitutional law. That's the opposite of "conservative."

Posted by: Chris_ | February 1, 2011 9:41 AM | Report abuse

"Egypt's unrest is continuing to hurt the global economy:"

This is what happens when you have general interest reproters covering the economy. Almost everything in that story is demonstrably wrong!

"Oil prices on Monday reached their highest levels since 2008,"

No they didn't even meet their peak for 2010.


"Political turbulence in Egypt is casting a pall on world financial markets, driving up the prices of crude oil and food"

No, they've been on a steady upward swing for more than 6 months, you're late to the party.

Most of what was sold on Monday, was bought back on Tuesday, excepting Egyptian issues themselves.

This is not to say that things won't blow up later on, but so far things have been remarkably calm. In fact both the dollar and gold were down yesterday, while Treasury yields resumed their rise.

Ezra, the Post is the absolute worst place in the world to get financial news and information, akin to your local barber shop.

Posted by: johnmarshall5446 | February 1, 2011 9:53 AM | Report abuse

Since there are directly conflicting rulings between District Courts in different parts of the country, the SCOTUS is certain to take the case eventually to resolve the conflict.

Posted by: johnmarshall5446 | February 1, 2011 9:59 AM | Report abuse

the SCOTUS needs to take it up sooner rather than later. We need resolution to this so we can move on from wherever it ends up.

Posted by: visionbrkr | February 1, 2011 10:05 AM | Report abuse

"Jeff Bingaman (D-N.M.) is working with the White House to iron out the details of a broad proposal to require that 80 percent of the country’s electricity come from 'clean' sources. President Obama outlined the proposal in his State of the Union address last week, but offered few details. He called for 80 percent of the country’s electricity to come from 'clean' sources like wind, solar, natural gas, nuclear and coal with carbon capture technology"

This is strictly impossible to do without a trillion dollar investment in a time when we are talking about cutting the budget. Sheer lunacy!

Posted by: johnmarshall5446 | February 1, 2011 10:06 AM | Report abuse

ddoiron1,

Vinson framed the decision in the Constitutional limits of federal government, not of the individual states. The question you're asking should have been answered in your high school civics class.

Posted by: cprferry | February 1, 2011 10:17 AM | Report abuse

--*The long-term consequences of an aggressive ruling in that context will also be weighing on Kennedy and his colleagues as they grope their way to a decision.*--

That's about all you got, isn't it, Klein? It smells of petulant desperation.

Posted by: msoja | February 1, 2011 10:20 AM | Report abuse

"The long-term consequences of an aggressive ruling in that context will also be weighing on Kennedy and his colleagues as they grope their way to a decision."

So Kennedy should support Obamacare less his house be harassed by SEIU and Soros-paid protesters or, god forbid, risk an assassination attempt?

Posted by: cprferry | February 1, 2011 10:20 AM | Report abuse

If Obama is a politically savvy leader, more than he has shown so far, he needs to hold a "come to Jesus" meeting with Reid and Pelosi.

They need to sit down and dispassionately calculate the odds with SCOTUS. If a bad ruling is likely, than they need to do a direct repeal now in the next few months. Repeal in spring 2011 would be bad politically, but a SCOTUS ruling aginst the president in 2012 would simply end his chance of re-election completely.

Perhaps there could even be a pre-arranged deal where the parts that are popular are put into a new smaller limited package and done at the same time.

Posted by: johnmarshall5446 | February 1, 2011 10:26 AM | Report abuse

not mentioned in Wonkbook is the below. Wondering if this will set off a flurry of copycats? Can't wait for Sebelius' response.

http://www.politico.com/news/stories/0111/48546.html

Posted by: visionbrkr | February 1, 2011 10:26 AM | Report abuse

If it comes down to the Constitution, then the law will be found constitutional.

If it comes down to politics, it will be thrown out.

Health insurance is most surely interstate commerce. The question of mandatory taxes to support common coverage was settled more than 200 years ago -- no less than John Adams, Thomas Jefferson and James Madison helped pass the sailor's welfare act, which imposed mandatory taxes on sailors and ship owners to pay for a system of hospitals.

That law was created by the Framers of the Constitution (and Jefferson).

To find this new unconstitutional, the Supreme Court would to find that John Adams -- author of the seminal text on constitutional drafting that is still in print two centuries later -- violated the U.S. Constitution he framed.

The only way the justices could do that would be:
* Assume all other Americans are stupid. (No a stretch, the court has done so before).

* Place personal ideology above common sense. (Roberts Court is already famous for this.)

* Create from activist whole-cloth a 'new' logic that somehow says that Mr. Adams and Mr. Jefferson were right when they did the exact same thing 200 years ago, but now it's somehow unconstitutional.

* The court cares little for logic, common sense or the political rights of voters to the government they elected, and launches a 'judicial coup,' that re-writes the Constitution in such as way as to render the Congress of the people of the United States unable to make ANY legislation on any matter not specifically named in a document written in 1787. James Madison didn't write in 'electricity,' so not only does it not exist, the court will hold, Congress is powerless to regulate it.

And then, the court will douse the lights in the Supreme Court Building, and put up black-out curtains, to signal in real terms the world of darkness and blindness in which the majority of justices do their 'work.'

Posted by: EgoNemo | February 1, 2011 10:35 AM | Report abuse

An inconvenient for the petulant democrat childrren like ezra. The 10th amendment to the Constitution says the federal government doesn't have the authority so socialize the health care system. If the democrat party wants to do something useful, reform the trial lawyer mafia.

Posted by: carlbatey | February 1, 2011 10:44 AM | Report abuse

--*Health insurance is most surely interstate commerce.*--

Then why can't a citizen of Tennessee buy a policy from a company sited in North Dakota?

Health insurance is regulated by the states. A recent attempt to allow interstate health insurance business was squelched by the Pelosi/Reid junta.

Posted by: msoja | February 1, 2011 11:00 AM | Report abuse

I love the comments about "The Conservatives" bias on the Supreme Court. Yea right, "The Liberal" justices have never shown ANY bias, LMAO! Or that previous constitutional ruling made by Roberts and Kennedy will make them have to twist like pretzels to now support the Vinson ruling. Yea, like TheOne has had to twist his words from being AGAINST the Individual Mandate before he was for it and That You Can Keep your current insurer. TheOne and The Ones We've Been Waiting for deserve this judicial "shellacking". They earned it! You Betcha!!!!

Posted by: bobcatbuzz | February 1, 2011 11:42 AM | Report abuse

Then why can't a citizen of Tennessee buy a policy from a company sited in North Dakota?

Posted by: msoja | February 1, 2011 11:00 AM | Report abuse


The Tennessee citizen *can* buy a policy from a North Dakota-domiciled insurance company, but only if (a) the company is properly licensed in or otherwise has the authority to do business in Tennessee; and (b) in issuing the policy the company follows all Tennessee laws, including all of Tennessee's insurance benefit mandates.

What Rs want is for the Tennessee citizen to be able to buy coverage from the ND company that is exempt from Tennessee laws (and thus has fewer benefit mandates).

While the selling of health insurance (an affirmative activity) may be interstate commerce, Judge Vinson held (I think correctly) that a person's failure to buy health insurance is inactivity (failure to take action) that does not constitute interstate commerce.

Posted by: Policywonk14 | February 1, 2011 11:43 AM | Report abuse

What about the 733 exemptions from Obamacare that Obama has given to the SEIU and others? The very people clamoring for health care are given exemptions from it! Such actions by a President are truly Hugo Chavezian.

Posted by: hz9604 | February 1, 2011 12:12 PM | Report abuse

--*The Tennessee citizen *can* buy a policy from a North Dakota-domiciled insurance company, but only [caveats]*--

So, it's interstate in name only. It's not like ordering a lead brick from a smelter in Alabama.

It seems to me that the feds' only interest in such matters as health insurance, is to referee the way the states play with each other, not in imposing some overarching structure on the populace in general.

Posted by: msoja | February 1, 2011 12:26 PM | Report abuse

EgoNemo writes: If it comes down to the Constitution, then the law will be found constitutional. If it comes down to politics, it will be thrown out.

Health insurance is most surely interstate commerce. The question of mandatory taxes to support common coverage was settled more than 200 years ago -- no less than John Adams, Thomas Jefferson and James Madison helped pass the sailor's welfare act, which imposed mandatory taxes on sailors and ship owners to pay for a system of hospitals.

That law was created by the Framers of the Constitution (and Jefferson). To find this new unconstitutional, the Supreme Court would to find that John Adams -- author of the seminal text on constitutional drafting that is still in print two centuries later -- violated the U.S. Constitution he framed.

The only way the justices could do that would be:
* Assume all other Americans are stupid. (No a stretch, the court has done so before).

* Place personal ideology above common sense. (Roberts Court is already famous for this.)

* Create from activist whole-cloth a 'new' logic that somehow says that Mr. Adams and Mr. Jefferson were right when they did the exact same thing 200 years ago, but now it's somehow unconstitutional.

* The court cares little for logic, common sense or the political rights of voters to the government they elected, and launches a 'judicial coup,' that re-writes the Constitution in such as way as to render the Congress of the people of the United States unable to make ANY legislation on any matter not specifically named in a document written in 1787. James Madison didn't write in 'electricity,' so not only does it not exist, the court will hold, Congress is powerless to regulate it.

And then, the court will douse the lights in the Supreme Court Building, and put up black-out curtains, to signal in real terms the world of darkness and blindness in which the majority of justices do their 'work.
===========================
Where is there common sense in Tax Exclusion, Deferred income for some and full tax on income for Mom & Pop enterprises. Egotleme sees only what he wishes to see. He never sees inequity when he is the beneficiary. He would just leave the self-reliant hung out to dry and call it a good because it benefits his ilk. Either we march together, or we do not march at all. Go Steelers

Posted by: buckaroo5 | February 1, 2011 1:15 PM | Report abuse

At the risk of betraying my ignorance in the law, it seems to me the difference is that the tax imposed in the "Act for the Relief of Sick and Disabled Seamen" was imposed on those individuals as engaging in a specific form of commercial activity.

In the case of Health Care, the tax is imposed upon individuals who are NOT engaging in a specific commercial activity BECAUSE they are not engaging in the specific economic activity.

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

What this means is 26 states have stood up to the lawless unconstitutionality of this awful bill. And if D.C. still doesn't get the message by now, they sure as heck will in 2012.

Posted by: RealTexan1 | February 1, 2011 1:31 PM | Report abuse

It seems to me that the feds' only interest in such matters as health insurance, is to referee the way the states play with each other, not in imposing some overarching structure on the populace in general.

Posted by: msoja | February 1, 2011 12:26 PM | Report abuse


Well, or how the states play altogether. I'm thinking of HIPAA, a law which visionbrkr frequently mentions (and most people don't recall, because 1996 was so long ago and memories are short).

HIPAA required states to reform their individual and group health insurance markets, and among other things precluded insurers from imposing pre-existing condition exclusions in group health insurance when an individual has less than a 63-day gap in coverage.

HIPAA (aka the Kennedy-Kassebaum bill) was the result of the failed proposed Clinton healthcare reforms of the early 1990s.

If ACA had simply required states to implement GI/community rating *and* require their residents to take up health insurance, one wonders whether those requirements would be found to pass federal constitutional muster.

Posted by: Policywonk14 | February 1, 2011 1:43 PM | Report abuse

@msoja:

The constitution, in Article 1, Sections 8, 9, and 10, makes it clear that the founders greatly disapproved of barriers limiting commerce between states, and considered it to be one of the major duties of the federal government to eliminate them and create standards that would allow such commerce across state lines.

The PPACA, which creates such an interstate standard, is clearly right in line with the founders intent of a federal government that replaced different state standards (which as you point out, currently limits interstate commercial activity) with a federal standard that allowed improved/increased commerce between states.

If Vinson indeed believes the bill is inseverable, as he states, that is an argument that the mandate is constitutional (as being "necessary and proper for executing" regulation of interstate commerce), not the other way around. Again, the anti-mandate argument is that it is unsupported by an enumerated power (and as such, unconstitutional if and only if severable from the rest of the bill), not that there is a specific Constitutional clause the mandate violates. Vinson's decision is in fact a very useful citation for those who would argue that that mandate is constitutional.

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

"Most Court-watchers I've spoken to think it very unlikely that Vinson's ruling will stand..." Hey, Ez, would this all be fellow "journolisters?" When you ask a house painter if he thinks your house needs painting, do ya think he's gonna refer you to a siding company?

Is there any subject whatsoever that the Post does not consider Ezra an expert on? Next, he'll be writing restaurant reviews and taking Robin Givhan's job.

Posted by: Curmudgeon10 | February 1, 2011 3:49 PM | Report abuse

""Most Court-watchers I've spoken to think it very unlikely that Vinson's ruling will stand..." Hey, Ez, would this all be fellow "journolisters?" When you ask a house painter if he thinks your house needs painting, do ya think he's gonna refer you to a siding company?

Is there any subject whatsoever that the Post does not consider Ezra an expert on? Next, he'll be writing restaurant reviews and taking Robin Givhan's job."


What constitutional scholars did you talk to, then?

Posted by: j762 | February 1, 2011 4:35 PM | Report abuse

Ironic how the signature legislation of our former-constitutional-law-professor president seems to keep failing challenges to its constitutionality.

Posted by: Illini | February 1, 2011 5:40 PM | Report abuse

Ironic how the signature legislation of our former-constitutional-law-professor president seems to keep failing challenges to its constitutionality.

Posted by: Illini


A perfect example of an affirmative action education at work.

Posted by: LibsRidiots | February 1, 2011 6:08 PM | Report abuse

Great explanation, Ezra. Thanks.

Posted by: MadamDeb | February 1, 2011 6:27 PM | Report abuse

What does the Florida vote mean?

It means that Florida has finally arrived as a key redneck state. Like one of our newspaper commentators said recently, "Florida does stupid like Nebraska does corn."

Posted by: ShawnDavis1 | February 1, 2011 9:46 PM | Report abuse

What does the Florida vote mean?

It means that Florida has finally arrived as a key redneck state. Like one of our newspaper commentators said recently, "Florida does stupid like Nebraska does corn."

Posted by: ShawnDavis1 | February 1, 2011 9:47 PM | Report abuse

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