Breaking news from CNN: a federal judge in Virginia has rejected ObamaCare as unconstitutional:
A federal judge in Virginia has ruled parts of the sweeping health care reform effort led by President Obama to be unconstitutional. This is the first federal court to strike down the law, contradicting other recent rulings the law was permissible. The key issue of contention was the “individual mandate” requirement that most Americans purchase health insurance by 2014.
Decision PDF, here.
What does it mean? Here’s a round-up of the best legal minds in the right-wing blogosphere:
Ace corrects a mistake he made last week, concerning the severability clause, apparently a widespread misconception:
I said that without a severability clause, the act would fall if any section of it was found unconstitutional.
Turns out that’s not right; courts will still try to keep as much of law with an unconstitutional section as possible. I guess the whole act would fall only if the bill was found to be so dependent on this section as to render it senseless without it.
At the Volokh Conspiracy, Randy Barnett was recently thinking about the issue. He thought the whole act would fall. I guess this judge sees it different.
Update V: Hudson hits the nail on the head with this:
Hudson rejected the government’s argument that it has the power under the Constitution to require individuals to buy health insurance, a provision that was set to take effect in 2014.
“Of course, the same reasoning could apply to transportation, housing or nutritional decisions,” Hudson wrote. “This broad definition of the economic activity subject to congressional regulation lacks logical limitation” and is unsupported by previous legal cases around the Commerce Clause of the Constitution.
As to why the Judge did not throw out the entire law, the Judge stated that there is a presumption of serverability, and the congressional record was sufficiently muddled as to whether Congress would have passed the legislation without the mandate. Interestingly, the Judge noted that the law was about more than healthcare and was rushed to a vote on Christmas eve (emphasis mine):
Having found a portion of the Act to be invalid, the Section 1501 requirement to maintain minimum essential health care coverage, the Court’s next task is to determine whether this Section is severable from the balance of the enactment. Predictably, the Secretary counsels severability, and the Commonwealth urges wholesale invalidation. The Commonwealth’s position flows in part from the Secretary’s frequent contention that Section 1501 is the linchpin of the entire health care regimen underlying the ACA. However, the bill embraces far more than health care reform. It is laden with provisions and riders patently extraneous to health care-over 400 in all…. [at p. 38]
The final element of the analysis is difficult to apply in this case given the haste with which the final version of the 2,700 page bill was rushed to the floor for a Christmas Eve vote. It would be virtually impossible within the present record to determine whether Congress would have passed this bill, encompassing a wide variety of topics related and unrelated to heath care, without Section 1501. [at p. 39]
The main impact of today’s ruling, and any similar future rulings, likely will be to keep the issue of repeal alive. Scott Rasmussen finds that support for repeal has risen to 60 percent, with only 34 percent opposing repeal.
Michelle Malkin takes us on a trip down recent memory lane:
Hey, remember when conservatives objected to the Obamacare federal individual mandate on constitutional grounds and the liberal establishment laughed.
Flashback October 2009 – Pelosi scoffs at constitutional concerns:
Yeah, we were serious.
See Michelle for more flashbacks.
Just One Minute: The Hits Keep Coming – ObamaCare Mandate Loses In Virginia Court
The funniest reaction I have noticed is from Josh Marshall:
A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional.
No one? It’s not exactly one year to the day, but on Dec 9, 2009 the Heritage Foundation hosted an event with just that topic
The NYTs echoed the same nonsense:
But the ruling was nonetheless striking given that only nine months ago, prominent law professors were dismissing the constitutional claims as just north of frivolous.
The left tried very hard to dismiss the question as the product of right-wing fringe lunacy. Now, what are they going to do?
Abe Greenwald at Commentary Contentions:
But today’s ruling, coming when it did, is important beyond its implications for the fate of the health-care overhaul. For it is one more data point in a seemingly endless narrative of administration setbacks. Every failure is now a compounded failure. Furthermore, this is yet another setback about which Obama can do precious little. After a term of ferocious activism, this administration is stuck watching its own deficiencies play out along with the rest of us.
Bill Clinton couldn’t be reached for comment.