Wednesday, February 02, 2011

Obamacare on the Ropes?

My views on Judge Vinson's opinion holding most of Obamacare unconsitutitonal are much the same as the Volokh Conspiracy's Ilya Somin. And there's no better breakdown than MaxedOutMama's wonderfully snide review. To watch the Judge going over-the-top from law to politics, see Slip Op. at 76 n.30 (Obama was against the mandate before he was for it).

Even so, the Vinson decision is far better than Judge Hudson's ruling from December. I still think the individual mandate will be upheld. Yet, Judge Vinson's ruling confirms that the winning side will be the one which can best define some limits to its governing principles: if this is interstate commerce, what isn't? Or, in the opposite sense, if the Commerce Clause authorizes prohibition of pot, isn't economic regulation of insurance (even if accomplished through a mandate to participate in commerce) a "lesser included offense"? And, unlike Judge Hudson, the Florida opinion strikes down most of Obamacare because the mandate's not severable--an idea Judge Vinson says he got from the Administration.

The only certainty is that the issue will be resolved by Justice Kennedy. Unless, unless, the democratic process manages to speak first.

7 comments:

Bob in LA said...

One sure sign the Vinson decision is a potential death blow (and therefore hugely favorable for the american people) is the paucity of coverage in the so-called main stream media.

MaxedOutMama said...

You know, it would be infinitely better for everyone - citizens, politicians, and the judiciary if we got a legislative solution.

A real issue exists. This is not a "healthy" issue for the courts, and they can't craft solutions.

I think the media is utterly out of step with the citizenry on this, and so are progressives. Congressional approval ratings are abysmal. Given that, the vast majority of citizens do not want the Constitution to be interpreted as allowing Congress to force them to buy things from private companies. We know darned well that companies would be up there lobbying joyously. This is the end point for liberals - they have, as Margaret Thatcher once described the situation - run out of other people's money. They are in fact very likely to continue on their current course by passing just such mandates.

If 70% of DU Denizens (which is a progressive political forum) Do not think that the individual mandate is constitutional, the administration has a terrific problem.

Carl said...

I agree completely with M_O_M--this is a policy issue, and should not be fashioned through Constitutionality via the courts.

suek said...

I have seen it said that the underpinnings of the decision seemed to be written in a way that was directed specifically towards Kennedy.

I have no way to evaluate that statement, but I thought it was worth noting...

Warren said...

I'd like to see a poll on how many want some kind of health care solution but don't want it imposed on them by congress and this dumb bill.

It reminds me of those who are pro-choice but think that Roe v. Wade is a bad decision.

The problem of any legislative solution being wise, workable and fiscally sound is a whole other matter.

What makes this whole business crazy is that Obama could have gotten an agreement on pools for preexisting conditions, buying insurance across state line and some kind of mild tort reform within a couple months of his inauguration. He would have been a hero to many (excluding the far left) if he had done only that -- see how that would have worked for a couple years. It probably would have insured his reelection. Instead we have this mess.

How smart is this guy and the people around him?

Anonymous said...

I thoroughly enjoyed reading the decision, which jibed pretty closely with my projection from the outset. Agreed that Justice Kennedy will be the decider. I think that the prospect of unlimited federal power will make him, at least in part, against.

suek said...

>>How smart is this guy and the people around him?>>

You make the assumption that he wanted to actually solve the health care problem. I think that's a mistake. I believe that his goal was to simply act in such a way as to destroy the private companies so that a single payer plan was inevitable. His goal is total control by the State, and his actions are consistent with that. He couldn't get there directly, so he moved toward that goal incrementally.

Don't look at his actions as solving problems - look at them as "how close does this action move his goal of total State control?"

(heh...word verify is 'hikedial')