Judge Finds ObamaCare Unconstitutional
ObamaCare Fails an Early Constitutional Challenge
February 5, 2011
This past Monday, January 31, 2011, Federal Judge Roger Vinson, the Senior Judge for the United States District Court for the Northern District of Florida, handed down a 78 page ruling that declared that “The Patient Protection and Affordable Care Act of 2010”, commonly known as ObamaCare, is unconstitutional.
Of course, this ruling only applies to the Northern District of Florida and it will certainly be appealed in a process that will more than likely not end until it reaches the United States Supreme Court and that court ultimately decides whether or not the law is truly unconstitutional.
A second point, made very clear by Judge Vinson in his ruling, is that the decision is not about ObamaCare per se nor about the right of Congress to legislate on health care or health care insurance reform.
Links for Further Reading
- Text of Patient Protection and Affordable Care Act of 2010
Full text of the 1,024 page ObamaCare Law
- Text of Judge Roger Vinson's Very Readable Decision
One of many copies (this one is in PDF format) of Judge Roger Vinson's January 31, 2011 Decision in the ObamaCare case
Instead, the ruling is about the U.S. Constitution and its role in protecting both individual liberties and our Federal System which divides power between the central government in Washington and the governments of the fifty states that make up the United States of America.
Unlike the 1,024 pages of text so confusing and mind numbing text that even many of Democratic members of the House and Senate who voted for it admitted publicly that they were not going to attempt to read it before voting for the law, Judge Vinson’s 78 page opinion which is very straight forward and can be easily read by the average voter.
While I will summarize and discuss the Judge’s opinion here, reading the opinion itself provides a great lesson in understanding our Constitution and Federal system as well as how courts interpret the Constitution.
Links for Further Reading
- Full Text of the Constitution of the United States | Freedom Documents
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity
- The Bill of Rights - Text Version | Freedom Documents
Read the complete text of the first ten Amendments to the United States Constitution
Suit Filed by 26 States, Two Private Citizens and One Organization
This case, The State of Florida, et al versus United States Department of Health and Human Services, et al, was filed within minutes of the signing into law the Patient Protection and Affordable Care Act of 2010 (more commonly known as ObamaCare) by President Obama on March 23, 2010.
While the State of Florida was the leader in this case, it was joined in filing the suit by twenty-five other states (Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin, and Wyoming) plus two private citizens (a person named Mary Brown and another named Kaj Ahlburg) and the National Federation of Independent Business (NFIB).
The defendants in the case were the United States Department of Health and Human Services, the Department of Treasury, the Department of Labor, and their secretaries.
Decision is About Constitution, Not Health Care
Judge Vinson makes very clear from the start, in the last two sentences of the second paragraph of the first page, that the case is about the U.S. Constitution and our Federal System and NOT about health care, stating:
I emphasized once before, but it bears repeating again: this case is not about whether the Act is wise or unwise legislation, or whether it will solve or exacerbate the myriad problems in our health care system. In fact, it is not really about our health care system at all. It is principally about our federalist system, and it raises very important issues regarding the Constitutional role of the federal government.
Constitution Intended to Limit the Power of the Government
The U.S. Constitution is not just a blue print outlining how our Federal government is structured. It is also a document that defines the limits of the power of the Federal government. In other words, it protects the people from abuses of their liberties by the Federal government.
In addition to the famous checks and balances which divide Federal power between the three branches of the Federal Government - Legislative (Congress), Executive (President) and Judiciary (Supreme Court) there also the division of power between the Federal government and the governments of the fifty states which make up the United States of America.
The Constitution lists the powers reserved for the Federal government as well as powers which are denied to the state governments. As if this were not enough, those among our founders who opposed the ratification of the Constitution, fearing it gave too much power to the Federal Government and threatened the people’s liberties and freedoms, insisted on and got a Bill of Rights (which are the first ten amendments to the Constitution) which was added to the Constitution following its ratification.
Articles Nine and Ten of the Bill of Rights reiterate the fact that the Constitution is intended to limit the power of the Federal Government and protect people’s rights from abuse by the Federal Government. Below is the text of the ninth and tenth amendments to the U.S. Constitution:
Article 9: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Article 10: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The United States had a government before the ratification of the Constitution in 1788 which occurred twelve years after we declared our independence from Great Britain in 1776 and five years after Great Britain signed the Treaty of Paris in 1783 in which Great Britain both agreed to recognize our status as an independent nation and cease the war against us.
The goal of the founders who met in Philadelphia was to write a new constitution to replace the then existing constitution, known as the Articles of Confederation. The new constitution was intended to produce a document that was better able to solve the problems threatening the nation under the Articles of Confederation.
The framers also wanted to produce a document that would, as Judge Vinson repeatedly states in his decision, last for the ages thereby avoiding having to reinvent the government and write a new constitution every few years as times changed.
The Constitutionality of ObamaCare’s Individual Mandate
The central issue of the states’ lawsuit is the constitutionality of the so called individual mandate in the ObamaCare legislation which requires individuals to purchase health insurance from private companies.
Nowhere in the Constitution is health insurance or even the power to mandate the purchase of a good or service mentioned. However, the reason why the U.S. Constitution continues to be a relevant and usable document as well as one that can be easily read and understood by the average citizen two and a quarter centuries after it was written is that it is written using language that is broad and straight forward.
The good news in this is that the broad language gives flexibility to the document allowing it to be adapted to changing conditions. The bad news is that people can, and do, disagree as to what specifically certain terms mean two hundred plus years after they were written.
Reading Judge Vinsons’ decision explains this dilemma very well. While he ultimately finds the individual mandate, as well as the entire ObamaCare law, unconstitutional, his clearly written decision is an excellent lesson in Constitutional history and interpretation for anyone.
Even those who disagree with his final decision in the case, will find numerous arguments and references to court cases and articles in his decision that support the opposite conclusion, namely that the individual mandate and law are constitutional.
The Constitution’s Commerce Clause
During the debate over the ObamaCare legislation the Democratic majority in Congress argued that the commerce clause of the Constitution gave them the authority to enact this piece of sweeping legislation. According to these members of Congress the individual mandate in the law was within the powers allowed by the Constitution’s commerce clause.
The Commerce Clause can be found in Article I (which deals with Congress), Section 8 (which lists the powers of Congress) of the U.S. Constitution. The commerce clause consists of a single, sixteen-word sentence which reads:
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
Judge Vinson goes to great length in discussing the clause and its meaning including citing definitions of the word commerce in dictionaries going back to the time of the writing of the Constitution as well as in articles and court decisions going back to the 1824 case of Gibbons vs Ogden which was the first time a lawsuit involving the commerce clause came before the U.S. Supreme Court.
While the word commerce originally referred to the act of transferring goods between individuals it has been expanded by the courts to include the act of a person producing a good solely for their own consumption. In the 1942 case of Wickard vs Filburn the U.S. Supreme Court ruled that Ohio farmer Roscoe Filburn’s growing wheat on his 12 acre farm and using it to feed his chickens was an act of commerce that could be regulated by Congress under the commerce clause of the Constitution.
The reasoning here, which Judge Vinson discusses at length on pages 30 - 32 as well as referencing the case in other parts of the decision, is that if Filburn had not grown the wheat (and the Agricultural Adjustment Act of 1938, which was the law in question here, specifically forbid the growing of certain crops without permission of the U.S. Department of Agriculture) he would have had to engage in commerce and purchase wheat in the market and some of the wheat purchased might come from other states which meant that Mr. Filburn would be engaging in interstate commerce which can be regulated by Congress.
In his decision, Judge Vinson ultimately finds that the individual mandate in the ObamaCare law does not meet even the broad definition of commerce that the U.S. Supreme Court used in the Filburn case.
Despite the court’s very broad definition, Judge Vinson points out that Mr. Filburn was not only actively engaging in economic activity, he also had the option of not growing wheat and instead buying it or doing something else besides raising chickens.
In the case of the individual mandate there is no activity and no real choice involved. The mandate in the law simply requires everyone who is alive and living in the United States to purchase health insurance from private companies or be prosecuted as criminals.
The Necessary and Proper Clause
Following the passage of ObamaCare and the lawsuits that were immediately filed challenging its constitutionality, the Congressional Democrats and Obama Administration began to realize that the law might not withstand a constitutional challenge based on the commerce clause alone. They then began to argue that the act was also constitutional under the necessary and proper clause of the Constitution.
This clause which is the last part of Article I, Section 8 of the Constitution states that Congress has the power:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
The argument for the legitimacy of the individual mandate in the ObamaCare law is that, without the individual mandate, the law cannot deliver on its promise to deliver the Patient Protection and Affordable Care promised in its official title.
A basic principle of insurance is that one buys insurance to compensate them for losses from a potential risk that has not yet occurred. We know that out of any given group a certain percent will fall victim to a known risk. Out of every 100,000 drivers of automobiles we can fairly accurately predict that x number of them will be involved in a traffic accident. What we don’t know is specifically which of the 100,000 drivers will be involved in an accident.
Knowing the number that will potentially be involved in a traffic accident and the costs they will bear as a result of being involved in the accidents we can estimate the total cost of the accidents and divide them by the entire 100,000 drivers at risk thereby spreading the cost and keeping it low for everyone.
Such a system only works if people are forced to buy the insurance BEFORE they have an accident. Once a person is involved in an accident we are no longer talking about potential risk but actual risk.
In a way, insurance is like a poker game. In a poker game players put money into the pot and then look at their cards. One then becomes the winner of the pot while the others lose their contribution. With insurance, everyone who buys insurance pays, in advance, a small fraction of the estimated cost of the potential loss and then those who actually incur the loss are compensated and the rest get nothing.
Just as in a poker game no one, other than the winner would have an incentive to contribute to the pot if everyone waited until the cards had been dealt and shown. Similarly, with insurance no one would buy insurance if everyone waited until to buy until they had an accident.
However, this is exactly what ObamaCare does when requires insurers to accept everyone including those who are already sick or injured and need expensive care.
Because of this and other expensive mandates in the ObamaCare law, the only way the law will work is if the Federal Government either taxes the population to raise the funds needed to provide health care for everyone or forces everyone to buy insurance.
Since even radical Democrats knew they would face punishment at the polls for levying the huge taxes needed to fund a socialized health care system, they made a back door attempt to disguise the levy as an insurance purchase rather than a tax.
However, again as Judge Vinson explains, allowing this under the necessary and proper clause would stretch that clause to literally give Congress the power to regulate anything. The judge states this very eloquently writing on pages 59 and 60:
One of the amicus curiae briefs illustrates how using the Necessary and Proper Clause in the manner as suggested by the defendants would vitiate the enumerated powers principle (doc. 119). It points out that the defendants’ are essentially admitting that the Act will have serious negative consequences, e.g., encouraging people to forego health insurance until medical services are needed, increasing premiums and costs for everyone, and thereby bankrupting the health insurance industry --- unless the individual mandate is imposed. Thus, rather than being used to implement or facilitate enforcement of the Act’s insurance industry reforms, the individual mandate is actually being used as the means to avoid the adverse consequences of the Act itself. Such an application of the Necessary and Proper Clause would have the perverse effect of enabling Congress to pass ill conceived, or economically disruptive statutes, secure in the knowledge that the more dysfunctional the results of the statute are, the more essential or “necessary” the statutory fix would be. Under such a rationale, the more harm the statute does, the more power Congress could assume for itself under the Necessary and Proper Clause. This result would, of course, expand the Necessary and Proper Clause far beyond its original meaning, and allow Congress to exceed the powers specifically enumerated in Article I. Surely this is not what the Founders anticipated, nor how that Clause should operate.
Severability and the Voiding of the Entire Act
On page 63 of the decision Judge Vinson concludes his discussion of the individual mandate and how it falls outside commerce and necessary and proper clauses of the Constitution and rules that the individual mandate is therefore unconstitutional.
However, he doesn’t end his discussion here as there is still the issue of severability. Severability deals with the issue of severing or separating a part from its whole while leaving the remainder intact.
Laws and contracts generally contain a severability clause in which the writers specifically state that in the event one part of a contract or law is struck down by a court, the remainder of the law or contract will be unaffected and still in force. Of course, a court can, and sometimes will, declare an entire contract to be illegal or an entire law unconstitutional but it has to so state in its ruling otherwise the severability clause will allow the remaining parts to continue in effect.
In discussing severability Judge Vinson describes the concept of severability and how courts try to go to great length to avoid striking down entire laws enacted by the people’s elected representatives.
However, after leading the reader through pages of text in which he explains, step by step, his reasons, he is forced to conclude that in finding the individual mandate unconstitutional he has no choice but to find the entire law unconstitutional despite the fact that he finds many parts of it not only good but, by themselves, well within the constitutional powers vested in Congress.
In a nutshell, the Judge concludes that not only is the individual mandate central to the successful implementation of the national health care portion of the law but that the intent of Congress in passing the bill was to create a system of national health care.
Thus, without the individual mandate there could be no national health care system under the ObamaCare law and, since the main intent of Congress in passing the legislation was to create a system of national health care, there was no reason to try to retain the remaining parts of the legislation.
Regardless of One's Views on ObamaCare, Much Can be Learned From Reading the Judge's Decision
One of the great things about the Internet is the fact that individuals can easily access and read for themselves original source documents rather than rely, as we did in the not so distant past, on others to explain what these documents say.
While relying on others to read, interpret and explain what such documents contain it is often good to check them ourselves as all interpretations, including this piece by me, are both condensed and tend to be slanted toward how the reporter views the document.
For this reason, I have included links in the links capsule above to the text of the ObamaCare law, Judge Vinson’s easily understandable 78 page decision, the U.S. Constitution and the Bill of Rights.
Whether one agrees or disagrees with Judge Roger Vinson’s decision in this case there is much to be learned from reading it.
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