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Tilting at Windmills

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January 31, 2011

REPUBLICAN JUDGE STRIKES DOWN ENTIRE AFFORDABLE CARE ACT.... Today's biggest domestic political development is also the least surprising.

A second federal judge ruled on Monday that it was unconstitutional for Congress to enact a health care law that requires all Americans to obtain commercial insurance, evening the score at two-to-two in the lower courts as the conflicting opinions begin their path to the Supreme Court.

Judge Roger Vinson of Federal District Court in Pensacola, Fla., ruled that the law will remain effect until all appeals are concluded, a process that could take two years. However, Judge Vinson determined that the entire law should fall if appellate courts agree with his opinion that the insurance requirement if invalid.

It can be tough to keep track of all the health care litigation -- there are nearly two dozen cases -- but this was the one brought by conservative state officials from 26 states, who carefully chose the venue.

Vinson had already telegraphed the outcome, so the ruling just makes official what everyone expected anyway.

More soon.

First Update: Note that when Judge Henry Hudson of Virginia, a Bush appointee, reached a similar conclusion in December, in a ruling that no one seemed to think made any sense, he said the individual mandate is unconstitutional, but left the rest of the law intact. Reagan appointee Vinson, however, took a far more activist approach, striking down a massive piece of legislation because of one provision.

Republicans are thrilled, of course, because activist court rulings are to be celebrated, just so long as it's activism the right can agree with.

Second Update: It's also worth emphasizing that two Republican-appointed federal district court judges have now found that the individual mandate -- an idea Republicans came up with -- is unconstitutional. And while that's important, let's not forget two other federal district court judges, appointed by Democratic presidents, came to the opposite conclusion.

Indeed, overall, about a dozen federal courts have dismissed challenges to the health care law.

In other words, when you hear on the news that "courts" have a problem with the Affordable Care Act, remember that it's actually a minority of the judges who've heard cases related to the law.

Steve Benen 3:25 PM Permalink | Trackbacks | Comments (40)

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Comments

Can you fill in how many appeal levels are between this guy and SCOTUS?

Posted by: Z. Mulls on January 31, 2011 at 3:30 PM | PERMALINK

The ladder has three steps: 1) Your local federal district court (the judge who wrote this opinion is a district judge); 2) The regional Circuit Court of Appeals (in this case, the Eleventh Circuit, based in Atlanta {"Established by Congress in 1981, the U.S. Court of Appeals for the Eleventh Judicial Circuit has jurisdiction over federal cases originating in the states of Alabama, Florida and Georgia. The circuit includes nine district courts..."; and
3) The U.S. Supreme Court.

Posted by: shystr on January 31, 2011 at 3:38 PM | PERMALINK

There's just the Court of Appeals for the 11th Circuit. However, that could be a 2 stage appeal. The first appeal will be heard by a panel of 3 judges out of the 16 judges on the court. However, either party who loses that appeal can request that the case be heard by an "en banc" panel, which is all the judges of the court. However, there may be rules that limit the availability of "en banc" hearings. I'm not an expert on it.

Posted by: Alan on January 31, 2011 at 3:38 PM | PERMALINK

You mean there wasn't one single person who wrote and/or reviewed this bill who could have thought of putting in something as basic and critical as a severability clause? I hate to say it, but this stinks of either deliberate sabotage or incomprehensible incompetence.

Posted by: Curmudgeon on January 31, 2011 at 3:39 PM | PERMALINK

It's not judicial activism! It's only judicial activism when libruls do it! Citizens United? Not in the least bit activist! Bush v. Gore? Not even close to activist!

I weep for our beloved country when the rule of law is little more than a tattered sheet of paper.

-Z

Posted by: Zorro on January 31, 2011 at 3:42 PM | PERMALINK

Our freedom to be controlled by unelected foreign based corporations is safe , for now .

Posted by: FRP on January 31, 2011 at 3:43 PM | PERMALINK

Does this mean the judge is a guest of honor at the Koch conference?

Posted by: Bob M on January 31, 2011 at 3:43 PM | PERMALINK

My understanding is that laws don't actually require severability clauses to be severable (nor does a severability clause actually guarantee that unconstitutional parts of a law *will* be severed by the court when a decision finally comes down -- sometimes they go ahead and rule the whole thing void anyway).

The severability thing is really not as big a deal as it's been made out to be.

Posted by: GC on January 31, 2011 at 3:44 PM | PERMALINK

foreign - offshore

Posted by: FRP on January 31, 2011 at 3:44 PM | PERMALINK

Vinson tossed the entire thing because it lacked a "severability clause," which would have compartmentalized the legislation itself and forced judges to weigh individual sections on their own merits. But the standard is not that an unseverable law should be stricken in its entirety. Noted liberal activist judge John Roberts recently struck a sole provision of the Sarbanes-Oxley law, which likewise lacks a severability clause.

"We agree with the Government that the unconsti­tutional tenure provisions are severable from the remain­der of the statute," he wrote.

Simply ruling against the mandate puts any judge on the opposite side of the vast majority of expert legal opinion. But given that ruling, a less "activist" judge could have stricken the mandate, along with directly relevant provisions -- like guaranteed issue and the ban on discrimination against people with pre-existing conditions. Vinson decided instead to "legislate from the bench" and scrap the subsidies, regulations, marketplaces, and other goodies the law creates that really have nothing to do with the mandate as well.

http://www.talkingpointsmemo.com/author_blogs/2011/01/the-extreme-activism-of-judge-vinson.php

Posted by: GC on January 31, 2011 at 3:46 PM | PERMALINK

"Republicans are thrilled, of course, because activist court rulings are to be celebrated, just so long as it's activism the right can agree with."

It's not "activist" for judge to point out that a piece of legislation exceeds the authority of Congress, Steve. That's the traditional role of the courts. Nothing activist about it.

A judicial "activist" is a judge inventing a previously unknown "right" by reading the Constitution in an unprecedented way. There are legitimate ways for citizens to gain new rights, as provided for in the Constitution. Inventing them through judicial fiat is not one of them.

Posted by: Perplexed and Amused on January 31, 2011 at 3:53 PM | PERMALINK

It is activism to strike the entire law down, as opposed to just striking down the mandate/fine.

Posted by: Holmes on January 31, 2011 at 3:55 PM | PERMALINK

I'd again like to note that the same people who are against the mandate to buy private health insurance are the same people who think I should be forced to participate in a privately ran Social Security and believe that vouchers for private education are good things.

The government is apparently only able to force citizens to purchase private products when the Republicans decide they can.

Posted by: doubtful on January 31, 2011 at 3:56 PM | PERMALINK

The individual mandate is a tax on those who choose not to purchase health insurance. Now, two federal judges have written rulings that say, essentially, Congress does not have the power to tax.

This is what happens when an entire side of a political spectrum continues to make fundamentally unserious arguments --- and does not care how stupid they look while doing it.

Posted by: DZ on January 31, 2011 at 3:58 PM | PERMALINK

Why is that I don't find it at all ironic that it was what the Dem's took from the Rep's that was deemed 'unconstitutional?'

Now can we talk about single payer?
No, of course not...

Posted by: c u n d gulag on January 31, 2011 at 3:58 PM | PERMALINK
A judicial "activist" is a judge inventing a previously unknown "right" by reading the Constitution in an unprecedented way. There are legitimate ways for citizens to gain new rights, as provided for in the Constitution. Inventing them through judicial fiat is not one of them.

oh what, you mean like the well regulated Militia stuff?

Posted by: ant on January 31, 2011 at 4:05 PM | PERMALINK

doubtful wrote: "... the same people who are against the mandate to buy private health insurance are the same people who think I should be forced to participate in a privately ran Social Security ..."

And why, exactly, should those of us who are against the mandate to buy health insurance from for-profit corporations because we prefer, and advocate, single-payer government-run health insurance, be "forced to participate in a privately ran Social Security"?

You do realize that the Republicans who have advocated an individual mandate to buy insurance from for-profit corporations for 30 years, are generally the same ones who advocate privatizing Social Security?

Posted by: SecularAnimist on January 31, 2011 at 4:08 PM | PERMALINK

I'd again like to note that the same people who are against the mandate to buy private health insurance are the same people who think I should be forced to participate in a privately ran Social Security and believe that vouchers for private education are good things.

They also believe it's okay for them to force their religious beliefs on you through legislation. And they think they can do the same by requiring their religious beliefs

Posted by: fourlegsgood on January 31, 2011 at 4:08 PM | PERMALINK

The court probably decided not to sever the mandate provision after considering that insurance companies would have blocked any law without it. A deal is a deal, you know.

Posted by: jeri on January 31, 2011 at 4:08 PM | PERMALINK

So this means it is not illegal to force people to buy car insurance.

Correct?

Or is logical consistency still too much to ask from these dumbfucks?

Posted by: Mark D on January 31, 2011 at 4:13 PM | PERMALINK

Well in that case I guess they can't "force me" to have car insurance. I can save around $1500 a year. It'll be like Mad Max ..everyone for themselves.

Posted by: John R on January 31, 2011 at 4:15 PM | PERMALINK

Mark D,

Republican't logic: It's okay if the STATES require you purchase something, but not okay if the FEDERAL GUBMINT orders it. States rights, y'know.

Posted by: Gridlock on January 31, 2011 at 4:15 PM | PERMALINK

That was supposed to be:

So this means it is now illegal to force people to buy car insurance?

Sorry for the typo. :-)

Posted by: Mark D on January 31, 2011 at 4:16 PM | PERMALINK

Yep, gridlock -- you nailed it.

It's kinda like they hate government interference ... unless it interferes with, say, a woman's right to control her own body. Then they think it's just dandy.

Posted by: Mark D on January 31, 2011 at 4:18 PM | PERMALINK

So, are the states that now want to drop out of the mandate to buy insurance saying that those states take responsibility for those citizens that chose not to have insurance, and will pay the bills if and when that person gets sick?

Posted by: j on January 31, 2011 at 4:21 PM | PERMALINK

Another huge decision will be decided by Justice Kennedy. If a Republican replaces Kennedy that would a fricking disaster.

Posted by: RolloTomasi on January 31, 2011 at 4:21 PM | PERMALINK

It seems to me that instead of a mandate to buy insurance, the bill could have: (1) raised everyone's taxes by 1%, and (2) given everyone a 1% tax break for having health insurance.

Posted by: Daryl McCullough on January 31, 2011 at 4:28 PM | PERMALINK

Daryl,

Perhaps the Dems should have given the Republican'ts an option. Either an individual mandate so we could get rid of pre-existing conditions or an elimination of the tax exemption for corporate purchased health insurance. I think we can guess which way Republican'ts would have voted then.

Perhaps we can repeal the tax exemption for company purchased health insurance now and replace it with a credit, but for individuals only (not corporations).

Posted by: Gridlock on January 31, 2011 at 4:34 PM | PERMALINK

As a former surgeon I assure you that most of the people who insist that healthcare is a "right" are the last to actually get off their crackhead butts and hold jobs that would help them pay for that "right." In this country anybody who works hard enough can have health insurance.

Too bad the concept of effort is lost on liberals. If I weren't on Medicare I'd be happy to pay cash to have my gout, enlarged prostate, high blood pressure, high cholesterol, emphysema and blocked arteries treated.

But then I believe in personal responsibility. Imagine that.

The judge has decided correctly and AbominableCare is going down. The free market does not make mistakes. Thanks to the spontaneous grassroots movement called the Tea Party, the free ride is over.

Posted by: Mlke K on January 31, 2011 at 5:06 PM | PERMALINK

the only court that is going to matter is SCOTUS. The outcome then will be 100% political. If it suits the political interests of the 5 conservative judges to strike down the law, then they will (most likely on the grounds that it will help defeat obama and install another republican POTUS).

If OTOH, insurance companies have made it clear to the 5 SCOTUS partisan political potentates that they like the extortion of funds out of all Americans to pay for their corrupt inefficient, greedhead pocket-lining insurance policies and that they are comfortable that they can easily skirt the painfully weak requirements against rescission and denial of service for all manner of nonsensical pre-existing conditions, well then, the mandate will be just swell by the Fascist 5 SCOTUS judges.

If I were asked to wager at this point, I put money on the mandate standing: greed and extortion of the average American rules!
.

Posted by: pluege on January 31, 2011 at 5:37 PM | PERMALINK

This whole thread is funny. Hey Steve how's that "we'll improve it after it's passed" b.s. looking now?

The point of the lawsuits, you dumbf*cks, wasn't necessarily to win them, but to change the political climate to scare the living daylights out of any elected and future Dems so they'd never want to try and pass any more health care improvements with a ten foot pole knowing that it's a political loser.

Now they've got the Florida courts to agree and pretty soon they'll have their Roe v Wade case in front of SCOTUS in a 5-4 decision.

Win or lose, either way I'd say Mission Accomplished.

The only shot at health care reform has been fumbled by hapless Dems like Obama and Steve who probably never really wanted single payer in the first place.

can anyone here play this game?

Posted by: Observer on January 31, 2011 at 6:08 PM | PERMALINK

Posted by: c u n d gulag on January 31, 2011 at 3:58 PM

"Now can we talk about single payer?
No, of course not..."

Of course your representatives in Congress can talk about it. That's what Congress is for. Do you have support in Congress for single payer? No you don't. That's why you folks tried Obamacare, and overplayed your hand. You tried back-door single payer. Hasn't worked, now has it?

Posted by: Perplexed and Amused on January 31, 2011 at 6:16 PM | PERMALINK

Posted by: pluege on January 31, 2011 at 5:37 PM

"the only court that is going to matter is SCOTUS. The outcome then will be 100% political. If it suits the political interests of the 5 conservative judges to strike down the law, then they will (most likely on the grounds that it will help defeat obama and install another republican POTUS)."

I think regardless of the decision in the SCOTUS, the Democrats are set to lose the Senate. With 23 Dems and only 10 Reps up in 2012, and most Dems in red states. Moreover, current polling shows a strong bias against re-election, especially for the Dems who go on record again in favor of Obamacare (which is why Reid is trying so desperately to avoid another public vote).

If the GOP wins the Senate, and stays in control of the House, it doesn't matter much who is President. It's far better to control Congress than the Presidency, as we saw in the mid to late 90's when the GOP Congress forced fiscal responsiblity on a Democratic President.

Posted by: Perplexed and Amused on January 31, 2011 at 6:23 PM | PERMALINK

Perplexed and Amused wrote: "That's why you folks tried Obamacare, and overplayed your hand. You tried back-door single payer."

The ACA is not "back-door single payer". It is the antithesis of single-payer, entirely based on a 30-year-old Republican proposal (the individual mandate), the entire purpose of which is to entrench the for-profit insurance corporations as the foundation of the US health care system, and to ensure that nonprofit single-payer insurance under public administration remains "off the table" permanently.

"Gullible and Brainwashed" would be a better moniker for you, bub.

Posted by: SecularAnimist on January 31, 2011 at 6:53 PM | PERMALINK

Woooooo! Fringe nutcase cage match! Good seats still available for Perplexed vs. Secular!

Posted by: entertained on January 31, 2011 at 7:04 PM | PERMALINK

Justice is blind by choice. No mandates to get glasses allowed.

The truly stupid don't know they are stupid. They just see things in such a clear and simple way, they do the rest of us favors.

My God.

Posted by: Sparko on January 31, 2011 at 7:15 PM | PERMALINK

This is what happens when a overwhelmingly Democratic Congress enacts Republican legislation.

Posted by: taritac on February 1, 2011 at 8:54 AM | PERMALINK

Perplexed and Amused is a well-chosen name.
A person this stupid must be continually flabbergasted over the fact that many countries actually have good socialized healthcare. Like my own, Denmark.

Posted by: HMDK on February 1, 2011 at 10:37 AM | PERMALINK

I love Mike K's comments. Very effective at parodying right-wing talking points. Good job!

Posted by: Daryl McCullough on February 1, 2011 at 10:49 AM | PERMALINK

HMDK: America can NEVER learn from the experience of another country, because that would imply that that country does something better than America does, which is IMPOSSIBLE.

Posted by: Daryl McCullough on February 1, 2011 at 11:05 AM | PERMALINK




 

 

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