Monday's federal court decision striking down the landmark Affordable Care Act (ACA) shows how much the political right has embraced judicial activism. After years of denouncing liberals for seeking to overturn the will of the people through court decisions, conservatives have fully adopted that very same approach to laws they don't like. Unable to repeal the health care reform bill through the elected branches, they want the judiciary to do their bidding for them.
Unfortunately, some federal judges are going along.
Approximately a dozen federal courts have already upheld the ACA from constitutional challenges. Yet the ruling out of Florida will undoubtedly receive much more media attention than those earlier rulings. The media is always much more interested in outlandish rulings striking down legislation than thoughtful ones upholding legislation.
The ruling out of Florida is unsurprising in one respect: the judge, a conservative Republican appointee, had already signaled his hostility to the law in hearings a few months ago. So people who follow the health care litigation have been waiting for him to issue the ruling that came down Monday.
It was anticipation over this ruling -- and real concern about how the judge would likely distort longstanding case law to reach it -- that led over one hundred law professors to sign a statement last week expressing their view that the ACA is constitutional. Their statement pointedly observed that the "current challenges to the constitutionality of this legislation seek to jettison nearly two centuries of settled constitutional law."
The basis for the Florida court's ruling was that Congress did not have the power to require people to obtain health insurance. While Congress does only have limited powers, one of those powers enables Congress to regulate "commerce... among the several States." This "commerce power," as it is known, enables Congress to regulate aspects of the economy that would evade easy solution by regulation at the state level alone.
The national market for health care is in precisely the sort of crisis that mandates a federal, not state, solution. This market consumes more than 17% of the annual gross domestic product and amounts to over $2 trillion annually. Clearly, the ACA regulates interstate commerce and no state law is going to solve it's current problems.
The judge in Florida said that people refusing to buy health insurance were "passive" and thus beyond Congress's reach. Only people who affirmatively choose to undertake some sort of activity, the court said, were subject to federal lawmaking. Yet every person required to obtain health insurance will actively seek out health care services at some point. In any given year, a majority of Americans see a doctor. Over the course of a lifetime, all of us receive medical attention.
That Congress lacks the power to require people to buy a product when the national interest demands it would surprise the Founding Fathers. They required people to do just that. In the second Militia Act of 1792, they required individuals to outfit themselves with a military-style firearm and ammunition. This was the first "individual mandate" and one had to obey even if one had to go out and buy a gun. Being passive didn't put you out of Congress's reach.
After years of telling Americans to follow the original intent of the Framers, now the same people want us to ignore what the Framers actually did.
Besides, the ACA doesn't regulate "inactivity." It merely requires that, because all of us use health care services, we have the ability to pay for it. Without the requirement to have insurance, people will seek out medical help without being able to afford it -- imposing costs on all of us taxpayers and insurance policyholders who do obtain coverage.
Funny thing is, health care reforms' opponents are the same people who for years have been insisting we need more personal responsibility.
Of course, Monday's ruling doesn't matter very much. The only votes that really count are on the Supreme Court. What Monday's ruling does suggest, however, is that conservative judges are more than willing to break from longstanding precedent and their own favored policies of originalism and personal responsibility when push comes to shove. Or when faced with a law favored by Democrats.
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Richard T. Hughes: What The Flap Over Health Care Tells Us About American Religion
Like this one “After years of denouncing liberals for seeking to overturn the will of the people through court decisions, conservatives have fully adopted that very same approach to laws they don't likeâ€
Have to assume that Mr Winkler doesn’t read the poles.
Also like the idea that the administration is going to “attempt†to enforce Obama care even though the courts have, and will continue to rule against it.
Two states Wisconsin, and Alaska have already said Obama care doesn’t exist. Maybe Al Jazeera will send some reporters to cover when federal troops are sent in to enforce Obama Care afer the Supreme Court strikes it down. Which it will.
Good stuff. Who needs a constitution?
This is better then Comedy Central
The Judge, who ruled against this health-care law, used President Obama's own words against Hillary Clinton about "mandates".
If anything good could come out of this whole fiasco, it would be that a real "public option" or "single payer" can be done so ordinary poor people and the elderly can receive medical treatment regardless.
Before the treaty of Westphalia, (where the word "the West" comes from), there were no nation-states, just imperial governments that ruled over what is now called Europe.
That imperial system was based upon an imperial monetary system that forced peoples of all cultures and ethnicities to circulate the "currency" of the financial oligarchs that ruled over them.
George Washington led a revolution against such imperialism, which at the time was known as the British East India Co.
In fact, it was the first order-of-business when it came to a "public option" for the people of former colonies; to have their own government who could, not only 'compete' against the East India Co. but excercise SOVEREIGNTY over it.
Therefore it is against the principle of SOVEREIGNTY, that a private citizen be mandated to buy a 'derivative' (insurance), from a private, corporately owned HMO monopoly.
Both Republicans and Democrats get it wrong because they don't understand the underlying 'principle' involved that's enshrined in our Constitution.
If past administrations failed to stop a corporate monopoly from taking over in the first place then government itself must compete against that monopoly.
The functions of courts in authoritarian regimes. What motivates state leaders to establish judicial institutions with varying degrees of autonomy? Following Moustafa (2007) we identify five primary
functions of courts in authoritarian states.
Courts are used to:
(1) establish social control and sideline political opponents,
(2) bolster a regime’s claim to “legal†legitimacy,
(3) strengthen administrative compliance within the state’s own
bureaucratic machinery and solve coordination problems among competing factions within the regime,
(4) facilitate trade and investment,
(5) implement controversial policies so as to allow political distance from core elements of the regime.
Rule by Law: The Politics of Courts in Authoritarian Regimes
Edited by
TOM GINSBURG
University of Illinois
TAMIR MOUSTAFA
Simon Fraser University, British Columbia
they had that with the articles and the country was failing
the constitution was made to keep the union of states togrther with a strong central goverment
with input from all the states big or small
that there are unenumerated powers in addition to unenumerated rights
The Militia Act of 1789 is a poor example. Obviously Congress had the power to mandate the purchase of firearms. Even Antonin Scalia would agree with that. Why? Because the Constitution *expressly authorizes Congress to so mandate*. Sayeth Article I, Section 8:
"Congress shall have Power... To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."
If there were an expressly enumerated power enabling Congress to "provide for the general welfare" divorced from the tax-and-spend power, the PPACA would not be disputed. But then we would also have a non-federalist system of government and Congress would have a general police power. This would violate a mountain of precedent, and would require a Constitutional amendment.
It is, to a conservative, extremely regrettable when a judge must conclude that Congress has violated the plain text of the Constitution, and must therefore refuse to give that law effect within his court. It is dangerously close to judicial activism -- reading powers into and out of the Constitution based on policy preference, not law. (For example, Roe v. Wade.) Yet it is sometimes the only possible ruling.
Thats a total red herring and is only remotely relevant. Ths issue is CAN YOU OR CAN YOU NOT IMPLY powers which are not expressed in the consitution and that practice has been applied to about a DOZEN constitutional provisions starting with 1792.
http://factcheck.org/2010/11/the-truth-about-health-insurance-premiums/
Almost all pharmaceuticals are usless and dangerous as are almost all operations . I would like to be able to write my own policy and exclude most things . I would excluse chemotherapy for cancer , almost all operations and pharmaceuticals and my premiums would go way down ..
Dear Jill
You might have avoided this if you had asked your congressional representative to vote for the
PUBLIC OPTION.
I want MY waiver from it no differently than did all kinds of big Obama supporters like the SEIU, UFCW, hundreds of other unions and hundreds of corporations.
They all wanted waivers and they are getting them so I just want MINE too! So if I cannot get one from Obama then who else but the court can give me one?
The role of the federal court includes protecting us from egregious government legislation. Right or wrong, any decision that serves THAT purpose, defending my liberty, cannot possibly be described as 'activism'.
What I find remarkable about the Ruling of Judge Robert Vinson is that being that he is only a US DISTRICT Ct. Judge he used a very inappropriate judicial standard to adjudicate this matter.
Remember this is a trial court not an appellate Court. It is a universal principal that trial courts do not rule on the broadest but only upon the narrowest scope decision which is necessary to dispose of the case. If you agreed with this judge, the proper decision would have been limited to finding ONLY that the mandate to purchase was not enforceable. He had no license to pontificate on the possible diverse effects of his views of the narrow issue upon broader issues as they relate to the entire law. That is for the appellate and US Supreme Court to deal with.
I believe we shall find that even among judges who agree with him on the narrower issue will be highly critical of Judge Vinson’s application of an inappropriate standard of adjudication. The proper procedure would have been to decide the narrower issue by specific existing legal precedent not to create a new one. i expecdt that Justices Roberts and Alito will give an unbiased hearing to the Defendant as they have shown more inclination to suppoert federal legislative power than some of their associate justices.
Who in the word said that DISTRICT COURT judges do not ever rule on constitutional issues?
Of course they do when
A. It is required in order to dispose of the actual case they are presiding over; and
B. When they have directly relevant legal precent to support their a decision other than a dismissal. and
C. When it is NECESSARY in order to make a decision that he establish a new precedent in a novel case where there is no legal precent upon which to dispose of the case being tried, sometimes called a "case of first review".
Judge Vinson was acting appropriately (even if incorrect) ruling on the Constutionality of forcing the purchase of insurance. His ruling striking the ENTIRE AHC law did not pass the test. (A, B & C)
The point mad very bluntly is that when a trial judge has the minimum necessry to completely disopose of THE case being tried, he shuts up. There is no "incidentally" or "by the way - - -"
If Judge Vinson had an irresistable urge to make another remark, he should have posted it below his opinion as a mere footnote (which is no kind of legal precedent.)
The consequence of all this is that the oinion that the entire law be struck is not binding on anybody anywhere.
The NRA and its constituents are such a powerful lobby, sensible firearm control laws cannot be passed. The NRA tells its constituents any sensible firearm control law is the beginning of a slippery slope. The NRA says this slippery slope will lead to confiscation of every gun from everyone. Knee-jerk reactions ensue: The NRA speaks, gun-owners freak, politicians are weak.
After the horrific events in Arizona, right-wing politicians and pundits (primarily) said the problem was mental illness and not the easy availability of automatic weapons and super-sized ammunition clips. Their solution is to put the names of people with mental illness on a government list. This from the people who are continually claiming they alone protect the personal freedoms of Americans. This from the same people who DO NOT want sales of fire-arms recorded on a government list becaue it is a violation of personal freedom.
It just doesn't make sense to me.
F&F