Health Care Unconstitutional: Obama Sedition?

[fitz]

Health Care Unconstitutional: Obama Sedition?


Yes, that's a strong word.

It may also be appropriate.

The White House officials said that the ruling would not have an impact on implementation of the law, which is being phased in gradually. (The individual mandate, for example, does not begin until 2014.) They said that states cannot use the ruling as a basis to delay implementation in part because the ruling does not rest on "anything like a conventional Constitutional analysis." Twenty-six states were involved in the lawsuit.

So now we have a White House that has declared its intent to ignore a declaratory judgment.

The Administration has no right to do this.

Obama's White House has exactly two options:

*
Comply with the ruling. This means that any and all activity authorized or mandated by the Statute cease now.

*
File an appeal and ask for a stay pending its hearing. If said stay is granted, then the ruling is held pending consideration.

That's it.

Folks, this is clear. The Judge in question, Judge Vinson, in fact sets forth exactly this in the opinion:

(5) Injunction

The last issue to be resolved is the plaintiffs’ request for injunctive relief enjoining implementation of the Act, which can be disposed of very quickly. Injunctive relief is an “extraordinary” [Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982)], and “drastic” remedy [Aaron v. S.E.C., 446 U.S. 680, 703, 100 S. Ct. 1945, 64 L. Ed. 2d 611 (1980) (Burger, J., concurring)]. It is even more so when the party to be enjoined is the federal government, for there is a long-standing presumption “that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction.” See Comm. on Judiciary of U.S. House of Representatives v. Miers, 542 F.3d 909, 911 (D.C. Cir. 2008); accord Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 n.8 (D.C. Cir. 1985) (“declaratory judgment is, in a context such as this where federal officers are defendants, the practical equivalent of specific relief such as an injunction . . . since it must be presumed that federal officers will adhere to the law as declared by the court”) (Scalia, J.) (emphasis added).

Except in this case The White House has now declared its intent to intentionally disobey the law as declared by the court.

There is no reason to conclude that this presumption should not apply here. Thus, the award of declaratory relief is adequate and separate injunctive relief is not necessary.

Well, as of today, there is such a reason to so conclude.

The Plaintiffs need to make their way back to court this morning and file an emergency request for both an injunction and a citation of contempt of court against the members of The Obama Administration, including President Obama personally, Kathleen Sebelius and The Internal Revenue Service, all of which are staffing up for and acting as if this law remains in full force and effect.

This is now a full-blown Constitutional Crisis. The Executive's willful, intentional and publicly-stated refusal to honor a declaratory judgment is an open act of willful and intentional violation of The Separation of Powers in The Constitution and, if combined with the use of or threat of use of force as is always present when government coercion is employed, treads awfully close to the line, and may cross it, of 18 USC Ch 115 Sec 2384, to wit:

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

The exercise of power by the Executive and Judicial branch, under which the Internal Revenue and Health and Human Services operate, inherently constitutes the use of force.

When such is used to "prevent, hinder or delay the execution of any law of The United States" the parties that have done so, it can be argued, have engaged in a Seditious Conspiracy.

By the way, Mark Levin pretty much sees it this way too. I agree with him, but I'll go further - unless the Obama Administration either stands down now or files an appeal and seeks a stay and stands down until said stay is granted, if it is, then they have indeed crossed the line.

The statement from The Obama Administration is a declaration that he is not a President, but rather a King and he arrogates to himself a "divine right." The willful and intentional refusal of an organ of government to abide a lawful decision of a court of competent jurisdiction is a declaration of tyranny and lawlessness. Such a declaration has only one lawful response, and that is the preparation and filing of Articles of Impeachment on an immediate basis.

http://market-ticker.org/akcs-www?post=178879

[yeskaa]

Originally Posted by fitz

and that is the preparation and filing of Articles of Impeachment on an immediate basis.[/size][/b]

impeachment ????
Woh! Horsie, not so quick. this still has to go to the supreme court. which btw is 5 to 4 conservative majority and when they rule against health reform you can go on your warpath

[fitz]

Originally Posted by yeskaa

impeachment ????
Hold on not so quick. this still has to go to the supreme court. which btw is 5 to 4 conservative majority and when they rule against health feform you can go on your warpath

Here it is again they have to file and comply for it to continue.

Obama's White House has exactly two options:

*
Comply with the ruling. This means that any and all activity authorized or mandated by the Statute cease now.

*
File an appeal and ask for a stay pending its hearing. If said stay is granted, then the ruling is held pending consideration.

That's it.

[chuam]

The justice department is filing an appeal. It will end up in front of the supreme court in a couple of years.

[FredT]

Bill Clinton proved the President has no need to consult the Constitution. He can do whatever he wants, since it'll be after his term expires before the litigation clears the courts anyway. Several of Clinton's "signature" legislation has been declared unconstitutional, but he got to play with the rules his way until after GWB took over. Obama learned the lesson well, expect him to use the "judicial float" for all it's worth.

[ocean_314]

Obama is a democrat. Do you really expect him to abide by the law and the Constitution?

The democratic party is all about exchanging power for free stuff. Give the politicians all the power they want in exchange for all the free stuff one can get.

[Alexrom1207]

Originally Posted by fitz

Health Care Unconstitutional: Obama Sedition?


Yes, that's a strong word.

It may also be appropriate.



So now we have a White House that has declared its intent to ignore a declaratory judgment.

The Administration has no right to do this.

Obama's White House has exactly two options:

*
Comply with the ruling. This means that any and all activity authorized or mandated by the Statute cease now.

*
File an appeal and ask for a stay pending its hearing. If said stay is granted, then the ruling is held pending consideration.

That's it.

Folks, this is clear. The Judge in question, Judge Vinson, in fact sets forth exactly this in the opinion:



Except in this case The White House has now declared its intent to intentionally disobey the law as declared by the court.


Well, as of today, there is such a reason to so conclude.

The Plaintiffs need to make their way back to court this morning and file an emergency request for both an injunction and a citation of contempt of court against the members of The Obama Administration, including President Obama personally, Kathleen Sebelius and The Internal Revenue Service, all of which are staffing up for and acting as if this law remains in full force and effect.

This is now a full-blown Constitutional Crisis. The Executive's willful, intentional and publicly-stated refusal to honor a declaratory judgment is an open act of willful and intentional violation of The Separation of Powers in The Constitution and, if combined with the use of or threat of use of force as is always present when government coercion is employed, treads awfully close to the line, and may cross it, of 18 USC Ch 115 Sec 2384, to wit:



The exercise of power by the Executive and Judicial branch, under which the Internal Revenue and Health and Human Services operate, inherently constitutes the use of force.

When such is used to "prevent, hinder or delay the execution of any law of The United States" the parties that have done so, it can be argued, have engaged in a Seditious Conspiracy.

By the way, Mark Levin pretty much sees it this way too. I agree with him, but I'll go further - unless the Obama Administration either stands down now or files an appeal and seeks a stay and stands down until said stay is granted, if it is, then they have indeed crossed the line.

The statement from The Obama Administration is a declaration that he is not a President, but rather a King and he arrogates to himself a "divine right." The willful and intentional refusal of an organ of government to abide a lawful decision of a court of competent jurisdiction is a declaration of tyranny and lawlessness. Such a declaration has only one lawful response, and that is the preparation and filing of Articles of Impeachment on an immediate basis.

http://market-ticker.org/akcs-www?post=178879

The case is clearly going to be appealed, so no need for the over-the-top language in the article.

Additionally, "gearing up" for future implementation isn't doing anything that disrespects the court's ruling. They would have to take some sort of affirmative step towards disregarding it.

Furthermore, I haven't read the case, but from the remarks I've heard, the ruling was that the universal mandate was unconstitutional. Since the government isn't implementing the unconstitutional provisions right now, they're not doing anything in violation of the court's decision.

Finally, there are a lot of federal courts. These courts split on issues all the time. Certain circuits are clearly more liberals, others are more conservative. The entire federal government cannot come to a standstill every time one of these courts makes some ruling.

The government will appeal the case...just like ALL THE OTHER CASES ON THIS ISSUE...and the issue will be brought to the US Supreme Court long before the universal mandate goes into effect.


The article was a terrible piece of incredibly hyperbolic analysis and over-the-top language. Obama seeing himself as a king with a divine right....please. These guys insult the intelligence of their audience so badly it amazes me that they even still have an audience...only those too stupid to realize they're being insulted continue to pay attention to this whargarbl.

[ocean_314]

Originally Posted by Alexrom1207

The case is clearly going to be appealed, so no need for the over-the-top language in the article.

Additionally, "gearing up" for future implementation isn't doing anything that disrespects the court's ruling. They would have to take some sort of affirmative step towards disregarding it.

Furthermore, I haven't read the case, but from the remarks I've heard, the ruling was that the universal mandate was unconstitutional. Since the government isn't implementing the unconstitutional provisions right now, they're not doing anything in violation of the court's decision.

Finally, there are a lot of federal courts. These courts split on issues all the time. Certain circuits are clearly more liberals, others are more conservative. The entire federal government cannot come to a standstill every time one of these courts makes some ruling.

The government will appeal the case...just like ALL THE OTHER CASES ON THIS ISSUE...and the issue will be brought to the US Supreme Court long before the universal mandate goes into effect.


The article was a terrible piece of incredibly hyperbolic analysis and over-the-top language. Obama seeing himself as a king with a divine right....please. These guys insult the intelligence of their audience so badly it amazes me that they even still have an audience...only those too stupid to realize they're being insulted continue to pay attention to this whargarbl.

You should really read the case rulings before commenting.

[Alexrom1207]

Originally Posted by ocean_314

You should really read the case rulings before commenting.

I will when you do.

And you really should read my comments before you comment, because if you did, you'd understand why I didn't need to read the court's decision. But just in case, I spelled it out below.

I never disagreed with the court's ruling...so there is really no need for me to analyze that ruling. The article wasn't really about the ruling anyway, but rather, about the government's response to the ruling...and the legal force that these types of rulings have. I already know about the legal force of a declaratory judgment, so I don't need to read a case that addresses a different subject matter simply to discuss the effect of a court's ruling. If you noticed, the majority of my commentary had little to do with the actual ruling of the case...but more to do with the procedural steps to be taken and the article's attempt at sensationalizing an action that will be a moot point by the end of the week --> the ruling will be appealed, not ignored, so there was really no need to go into detail about the President thinking he can ignore court rulings.

[fitz]

Going on day 4 with no appeal by DOJ. http://www.justice.gov/healthcare/

The Legal Future of Obamacare

By Peter Ferrara on 2.2.11 @ 6:08AM

As of this moment Obamacare is officially not the law of the land. As Federal Judge Roger Vinson ruled on Monday in Florida, "[T]here is a long standing presumption that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction." That law as declared by the Federal District Court in Florida is now that Obamacare is unconstitutional.

This, of course, is the second federal court ruling that Obamacare is unconstitutional, following the ruling of Judge Henry Hudson in the Northern District of Virginia on December 13. I predicted in this space at the time that Judge Vinson would rule the same. Now he has. I filed amicus curiae briefs in both cases on behalf of the American Civil Rights Union arguing for these results. Those briefs drew on my work in The Obamacare Disaster: An Appraisal of the Patient Protection and Affordable Care Act, published by the Heartland Institute.

Recall former House Speaker Nancy Pelosi laughing off Tea Party objections that Obamacare was unconstitutional with the reply, "Are you serious? Are you serious?" Now she knows just how serious we were.

Limits to Federal Power

Judge Vinson's ruling, as Judge Hudson's before him, represents a return to the original Constitution of limited enumerated powers delegated by the people to the federal government. Vinson opens his decision quoting James Madison in the Federalist Papers explaining,

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite," noting further that "the Tenth Amendment reaffirmed that relationship."

Vinson goes on to explain that the reason for that is to

"ensure protection of our fundamental liberties" and "reduce the risk of tyranny and abuse."

He goes on to quote the ultimate explanation again from James Madison in The Federalist Papers:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

The enumerated power claimed by Congress for Obamacare was the Commerce Clause, which grants Congress the power "To regulate Commerce with foreign nations, and among the several states, and with the Indian Tribes." Trade among the states was mentioned so Congress would have the power to eliminate the protectionist trade restrictions and barriers that had been erected among the states against trade with each other. Eliminating those protectionist trade barriers is a fundamental reason for the long term, world leading prosperity of America. This is the original reason for the Commerce Clause, not to allow abominations like Obamacare.

But this was dramatically changed during the New Deal to allow Congress to affirmatively regulate interstate commerce based on the language of the Commerce Clause, and neither Judge Vinson nor Judge Hudson challenged that change. But more recent Supreme Court decisions have reaffirmed that there are still limits to Congress's power to regulate under the Commerce Clause. Both Judge Vinson and Judge Hudson have now ruled that the individual mandate in Obamacare exceeds those limits.

Obamacare's individual mandate requires all individuals without employer-provided health insurance to buy insurance with all the politically correct and expensive coverage the government dictates they must buy. But as Judge Vinson noted,

" (essentially for life) just for being alive and residing in the United States." Every prior regulation upheld as constitutional under the Commerce Clause involved some activity that could be construed as participation in interstate commerce. But failure to buy health insurance involves no such activity, and no participation in interstate commerce at all.

As a result, Judge Vinson concluded:

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting…that compelling the actual transaction is itself commercial and economic in nature, and substantially affects interstate commerce…it is not hyperbolizing to suggest that Congress could do almost anything it wanted.

Then in words that will be memorialized on future Tea Party walls, Vinson wrote:

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.

Judge Vinson consequently ruled,

"If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be difficult to perceive any limitation on federal power."

http://spectator.org/archives/2011/0...bamacare/print

[Marcus]

Eggzackawee.

[Alexrom1207]

Originally Posted by fitz

Going on day 4 with no appeal by DOJ. http://www.justice.gov/healthcare/

The Legal Future of Obamacare

By Peter Ferrara on 2.2.11 @ 6:08AM

As of this moment Obamacare is officially not the law of the land. As Federal Judge Roger Vinson ruled on Monday in Florida, "[T]here is a long standing presumption that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction." That law as declared by the Federal District Court in Florida is now that Obamacare is unconstitutional.

This, of course, is the second federal court ruling that Obamacare is unconstitutional, following the ruling of Judge Henry Hudson in the Northern District of Virginia on December 13. I predicted in this space at the time that Judge Vinson would rule the same. Now he has. I filed amicus curiae briefs in both cases on behalf of the American Civil Rights Union arguing for these results. Those briefs drew on my work in The Obamacare Disaster: An Appraisal of the Patient Protection and Affordable Care Act, published by the Heartland Institute.

Recall former House Speaker Nancy Pelosi laughing off Tea Party objections that Obamacare was unconstitutional with the reply, "Are you serious? Are you serious?" Now she knows just how serious we were.

Limits to Federal Power

Judge Vinson's ruling, as Judge Hudson's before him, represents a return to the original Constitution of limited enumerated powers delegated by the people to the federal government. Vinson opens his decision quoting James Madison in the Federalist Papers explaining,


Vinson goes on to explain that the reason for that is to

He goes on to quote the ultimate explanation again from James Madison in The Federalist Papers:



The enumerated power claimed by Congress for Obamacare was the Commerce Clause, which grants Congress the power "To regulate Commerce with foreign nations, and among the several states, and with the Indian Tribes." Trade among the states was mentioned so Congress would have the power to eliminate the protectionist trade restrictions and barriers that had been erected among the states against trade with each other. Eliminating those protectionist trade barriers is a fundamental reason for the long term, world leading prosperity of America. This is the original reason for the Commerce Clause, not to allow abominations like Obamacare.

But this was dramatically changed during the New Deal to allow Congress to affirmatively regulate interstate commerce based on the language of the Commerce Clause, and neither Judge Vinson nor Judge Hudson challenged that change. But more recent Supreme Court decisions have reaffirmed that there are still limits to Congress's power to regulate under the Commerce Clause. Both Judge Vinson and Judge Hudson have now ruled that the individual mandate in Obamacare exceeds those limits.

Obamacare's individual mandate requires all individuals without employer-provided health insurance to buy insurance with all the politically correct and expensive coverage the government dictates they must buy. But as Judge Vinson noted,


As a result, Judge Vinson concluded:



Then in words that will be memorialized on future Tea Party walls, Vinson wrote:



Judge Vinson consequently ruled,

http://spectator.org/archives/2011/0...bamacare/print

Decision seems to be well written. The article, on the other hand, is the same type of opinion influenced crap that people like to read because it gets them all angry and gives them some sense of purpose. One more example of crap journalism...keep your opinions out of it...if the facts are that clear...why do you see the need to belabor the point to your reader? IMO --> either (1) the facts are not clear and the journalist is trying to push his opinion on you, or (2) the facts are clear and the journalist just thinks you are too stupid to come to the right conclusion without his help. In either case, he is a bad journalist...and his readers are fools for not having realized it.


But on the point of the decision,

The constitutional issue is a tricky one. I can see an issue coming up as to whether, in fact, people are actually being forced to do anything? You still remain free to not buy any insurance, you just have to pay a fine. Then an issue as to whether that fine is actually a tax and, if so, whether it was properly enacted.

Additionally, the issue of how to read the commerce clause will come up. This certainly "affects commerce." But the question will be whether we can draw a distinction between activity that affects commerce and inactivity that affects commerce. I think this is going to be the real contentious issue in the court and it will be interesting to see how they come down on it. The distinction between an omission and an action is one that has already received a lot of attention in the law. Refusing to act can be considered a criminal act under certain circumstances, and a tortious act under other circumstances...but you usually need some sort of duty to act in the first place for this to happen. I'm not sure if the Supreme Court will address this issue, but if I was the government lawyer making the case, I'd certainly include a decent section in my brief attacking the issue from this standpoint. Courts are usually more likely to agree with you if you can show them that doing so will not change anything...that you're simply asking for the same legal reasoning the court has already accepted to be applied in your case.


Nonetheless, without finding some bright line to separate some types of inactivity from all types of inactivity, upholding the law would set a dangerously open-to-abuse precedent...with each future case being addressed on an ad hoc basis...something that courts do not like to do. Justice Scalia is really the guy who is the master of "finding" or "creating" (whichever word you like) these bright lines and then spending dozens of pages trying to ground them in the law through feats of logic and language. However, I doubt he will be doing that in this case, as he'll most likely be on the other side of it.

I'm anxious to see the Supreme Court's ruling. Jumping to conclusions now is like calling a boxing match in the second round. Most of the match is yet to come.

[fitz]

From the decision the Judge addresses "activity" and "inactitity."
We will see if scotus changes it.
http://www.flnd.uscourts.gov/announc...cv91doc150.pdf

(iv) The “Economic Decision” to Forego Health Insurance
The defendants next contend that the uninsured have made the calculated decision to engage in market timing and try to finance their future medical needs out-of-pocket rather than through insurance, and that this “economic decision” is tantamount to activity. The plaintiffs respond by suggesting that it is “a remarkable exaggeration of [the] rational aspects of human nature” to claim that the uninsured (as a rule) make structured and calculated decisions to forego insurance and engage in market timing, as opposed to simply not having it. See Tr. at 16 (“All we know is some people do not have insurance and some people do”). The plaintiffs describe the defendants’ argument on this point “Orwellian,” because they seek “to redefine the inactivity of not having healthcare insurance as an affirmative economic activity of ‘deciding’ not to buy insurance, or deciding now how to pay (or not to pay) for potential future economic activity in the form of obtaining medical services.” See Pl. Opp. at 10 (emphasis in original). This “economic decision” argument has been accepted by two district courts, Liberty Univ., Inc., supra, 2010 WL 4860299, at *15; Thomas More Law Center, supra, 720 F. Supp. 2d at 893-94. For example, in Liberty University, the District Court for the Western District of Virginia stated that “by choosing to forego insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance,” and concluded that these decisions constitute economic activity “[b]ecause of the nature of supply and demand, Plaintiff’s choices directly affect the price of insurance in the market, which Congress set out in the Act to control.” See 2010 WL 4860299, at *15.
The problem with this legal rationale, however, is it would essentially have unlimited application. There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort. The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that --- when aggregated with similar economic decisions --- affect the price of that particular product or service and have a substantial effect on interstate commerce. To be sure, it is not difficult to identify an economic decision that has a cumulatively substantial effect on interstate commerce; rather, the difficult task is to find a decision that does not.23
Some of our wisest jurists have pointed out the threat that lies in an overexpansive Commerce Clause construction. The words that Judge Learned Hand wrote in 1935 are even truer today:

In an industrial society bound together by means of transport and communication as rapid and certain as ours, it is idle to seek for any transaction, however apparently isolated, which may not have an effect elsewhere; such a society is an elastic medium which transmits all tremors throughout its territory; the only question is of their size.

United States v. A.LA. Schechter Poultry Corp., 76 F.2d 617, 624 (2d Cir. 1935),
aff’d in part and rev’d in part, supra, 295 U.S. at 554 (noting in an elastic society like ours everything affects commerce in the sense that “[m]otion at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center;” but to hold that everything may thus be regulated under the Commerce Clause “will be an end to our federal system”) (Cardozo, J., concurring). As the Supreme Court emphasized in Morrison, supra: “‘In a sense any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so far.’” 529 U.S. at 611 (quoting Lopez, supra, 514 U.S. at 580 (Kennedy, J., concurring)); accord Patton, supra, 451 F.3d at 628 (explaining that everything could be said to affect interstate commerce “in the same sense in which a butterfly flapping its wings in China might bring about a change of weather in New York,” but if all things affecting interstate commerce were held to be within Congress’ regulatory power, “the Constitution’s enumeration of powers would have been in vain”).
Attempting to deflect this rather common sense rebuttal to their argument, the defendants emphasized during oral argument that it is not just the “economic decision” itself that renders the failure to buy insurance activity; rather, it is that decision coupled with the fact that the uninsured are guaranteed access to medical care in hospital emergency rooms as a “backstop,” the use of which can and does shift costs onto third parties. The defendants thus refer to the failure to buy health insurance as a “financing decision.” However, this is essentially true of any and all forms of insurance. It could just as easily be said that people without burial, life, supplemental income, credit, mortgage guaranty, business interruption, or disability insurance have made the exact same or similar economic and financing decisions based on their expectation that they will not incur a particular risk at a particular point in time; or that if they do, it is more beneficial for them to self-insure and try to meet their obligations out-of-pocket, but always with the benefit of “backstops” provided by law, including bankruptcy protection and other government-funded financial assistance and services. See, e.g., Katie Zezima, Indigent Burials Are On the Rise, New York Times, Oct. 11, 2009, at A23 (reporting the number of burials of those who die with insufficient assets are increasing across the country, up 50% in Oregon, and that funeral expenses are frequently borne by governmental entities; noting that Illinois alone budgets $12 million for these expenses). The “economic decision” to forego virtually any and all types of insurance can (and cumulatively do) similarly result in significant cost-shifting to third parties.24
The important distinction is that “economic decisions” are a much broader and far-reaching category than are “activities that substantially affect interstate commerce.” While the latter necessarily encompasses the first, the reverse is not true. “Economic” cannot be equated to “commerce.” And “decisions” cannot be equated to “activities.”
Every person throughout the course of his or her life makes hundreds or even thousands of life decisions that involve the same general sort of thought process that the defendants maintain is “economic activity.” There will be no stopping point if that should be deemed the equivalent of activity for Commerce Clause purposes.25

The Commerce Clause originally applied to the trade and exchange of goods as it sought to eliminate trade barriers by and between the states. Over the years, the Clause’s reach has been expanded from covering actual interstate commerce (and its channels and instrumentalities) to intrastate activities that substantially affect interstate commerce. It has even been applied to activities that involve the mere consumption of a product (even if there is no legal commercial interstate market for that product). To now hold that Congress may regulate the so-called “economic decision” to not purchase a product or service in anticipation of future consumption is a “bridge too far.”

It is without logical limitation and far exceeds the existing legal boundaries established by Supreme Court precedent.

Because I find both the “uniqueness” and “economic decision” arguments unpersuasive, I conclude that the individual mandate seeks to regulate economic inactivity, which is the very opposite of economic activity. And because activity is required under the Commerce Clause, the individual mandate exceeds Congress’ commerce power, as it is understood, defined, and applied in the existing Supreme Court case law.

[toptuna]

Originally Posted by fitz

From the decision the Judge addresses "activity" and "inactitity."
We will see if scotus changes it.
http://www.flnd.uscourts.gov/announc...cv91doc150.pdf

(iv) The “Economic Decision” to Forego Health Insurance
The defendants next contend that the uninsured have made the calculated decision to engage in market timing and try to finance their future medical needs out-of-pocket rather than through insurance, and that this “economic decision” is tantamount to activity. The plaintiffs respond by suggesting that it is “a remarkable exaggeration of [the] rational aspects of human nature” to claim that the uninsured (as a rule) make structured and calculated decisions to forego insurance and engage in market timing, as opposed to simply not having it. See Tr. at 16 (“All we know is some people do not have insurance and some people do”). The plaintiffs describe the defendants’ argument on this point “Orwellian,” because they seek “to redefine the inactivity of not having healthcare insurance as an affirmative economic activity of ‘deciding’ not to buy insurance, or deciding now how to pay (or not to pay) for potential future economic activity in the form of obtaining medical services.” See Pl. Opp. at 10 (emphasis in original). This “economic decision” argument has been accepted by two district courts, Liberty Univ., Inc., supra, 2010 WL 4860299, at *15; Thomas More Law Center, supra, 720 F. Supp. 2d at 893-94. For example, in Liberty University, the District Court for the Western District of Virginia stated that “by choosing to forego insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance,” and concluded that these decisions constitute economic activity “[b]ecause of the nature of supply and demand, Plaintiff’s choices directly affect the price of insurance in the market, which Congress set out in the Act to control.” See 2010 WL 4860299, at *15.
The problem with this legal rationale, however, is it would essentially have unlimited application. There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort. The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that --- when aggregated with similar economic decisions --- affect the price of that particular product or service and have a substantial effect on interstate commerce. To be sure, it is not difficult to identify an economic decision that has a cumulatively substantial effect on interstate commerce; rather, the difficult task is to find a decision that does not.23
Some of our wisest jurists have pointed out the threat that lies in an overexpansive Commerce Clause construction. The words that Judge Learned Hand wrote in 1935 are even truer today:

In an industrial society bound together by means of transport and communication as rapid and certain as ours, it is idle to seek for any transaction, however apparently isolated, which may not have an effect elsewhere; such a society is an elastic medium which transmits all tremors throughout its territory; the only question is of their size.

United States v. A.LA. Schechter Poultry Corp., 76 F.2d 617, 624 (2d Cir. 1935),
aff’d in part and rev’d in part, supra, 295 U.S. at 554 (noting in an elastic society like ours everything affects commerce in the sense that “[m]otion at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center;” but to hold that everything may thus be regulated under the Commerce Clause “will be an end to our federal system”) (Cardozo, J., concurring). As the Supreme Court emphasized in Morrison, supra: “‘In a sense any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so far.’” 529 U.S. at 611 (quoting Lopez, supra, 514 U.S. at 580 (Kennedy, J., concurring)); accord Patton, supra, 451 F.3d at 628 (explaining that everything could be said to affect interstate commerce “in the same sense in which a butterfly flapping its wings in China might bring about a change of weather in New York,” but if all things affecting interstate commerce were held to be within Congress’ regulatory power, “the Constitution’s enumeration of powers would have been in vain”).
Attempting to deflect this rather common sense rebuttal to their argument, the defendants emphasized during oral argument that it is not just the “economic decision” itself that renders the failure to buy insurance activity; rather, it is that decision coupled with the fact that the uninsured are guaranteed access to medical care in hospital emergency rooms as a “backstop,” the use of which can and does shift costs onto third parties. The defendants thus refer to the failure to buy health insurance as a “financing decision.” However, this is essentially true of any and all forms of insurance. It could just as easily be said that people without burial, life, supplemental income, credit, mortgage guaranty, business interruption, or disability insurance have made the exact same or similar economic and financing decisions based on their expectation that they will not incur a particular risk at a particular point in time; or that if they do, it is more beneficial for them to self-insure and try to meet their obligations out-of-pocket, but always with the benefit of “backstops” provided by law, including bankruptcy protection and other government-funded financial assistance and services. See, e.g., Katie Zezima, Indigent Burials Are On the Rise, New York Times, Oct. 11, 2009, at A23 (reporting the number of burials of those who die with insufficient assets are increasing across the country, up 50% in Oregon, and that funeral expenses are frequently borne by governmental entities; noting that Illinois alone budgets $12 million for these expenses). The “economic decision” to forego virtually any and all types of insurance can (and cumulatively do) similarly result in significant cost-shifting to third parties.24
The important distinction is that “economic decisions” are a much broader and far-reaching category than are “activities that substantially affect interstate commerce.” While the latter necessarily encompasses the first, the reverse is not true. “Economic” cannot be equated to “commerce.” And “decisions” cannot be equated to “activities.”
Every person throughout the course of his or her life makes hundreds or even thousands of life decisions that involve the same general sort of thought process that the defendants maintain is “economic activity.” There will be no stopping point if that should be deemed the equivalent of activity for Commerce Clause purposes.25

The Commerce Clause originally applied to the trade and exchange of goods as it sought to eliminate trade barriers by and between the states. Over the years, the Clause’s reach has been expanded from covering actual interstate commerce (and its channels and instrumentalities) to intrastate activities that substantially affect interstate commerce. It has even been applied to activities that involve the mere consumption of a product (even if there is no legal commercial interstate market for that product). To now hold that Congress may regulate the so-called “economic decision” to not purchase a product or service in anticipation of future consumption is a “bridge too far.”

It is without logical limitation and far exceeds the existing legal boundaries established by Supreme Court precedent.

Because I find both the “uniqueness” and “economic decision” arguments unpersuasive, I conclude that the individual mandate seeks to regulate economic inactivity, which is the very opposite of economic activity. And because activity is required under the Commerce Clause, the individual mandate exceeds Congress’ commerce power, as it is understood, defined, and applied in the existing Supreme Court case law.

What he said.

[chuam]

Originally Posted by toptuna

What he said.

Do you ever have your own thoughts to add or are you just cheerleading?