Judge Overturns Healthcare Bill (and my Constitutional analysis!)
Back in November, I wrote an article for the Huffington Post entitled, “Health Care, Commerce and Kevin Bacon” which focused on the Constitutional challenge to the Affordable Health Care for America Act (often referred to as the “Healthcare Bill” or, for those less enamored of universal healthcare, “Obamacare”) by 20 State Attorney Generals. In that article, I speculated that the AGs were on shaky ground, as follows:
“I am no constitutional scholar; but it appears the state AGs have a couple of problems: First, “acts of omission” — where someone acts by not acting — are well established in the legal field. For example, if you sat back and watched someone drown when you could have saved them, everyone would agree that you have acted by not acting and should probably be punished for it.
Second, the Commerce Clause over the years has greatly expanded from the limited language drafted by James Madison 223 years ago. I think of the Commerce Clause as the Constitutional equivalent of the trivia game “Six Degrees of Kevin Bacon.” Even if you are not a Footloose fan (everybody cut, everybody cut . . .), you have probably heard of the game where someone names an actor and another person has to link him or her to Kevin Bacon within six steps using the actor’s various film roles.
As for the Commerce Clause version of SDKB (hey, if a health care law has a fancy acronym, then so should any game involving Kevin Bacon), it seems that depending on how the political winds are blowing, a court could come up with a way to link just about any activity to interstate commerce in six steps or less. For example, in a similar time (the depression) involving similarly sweeping legislation (the New Deal’s Agricultural Adjustment Act), the Supreme Court held that, if you grow wheat on your own land and even for your own consumption, your wheat farming activity could affect interstate commerce by affecting the demand and thus price for wheat.
So, how the AG’s Commerce Clause arguments fare depends on whether the assigned federal judge in Florida leans more towards James Madison or Kevin Bacon.”
Well, I’ll be possum in a gator parade*. Federal Judge Roger Vinson of the Northern District of Florida not only overturned the Heathcare Bill’s individual mandate but went on to strike the entire law on Constitutional grounds. According to Judge Vison, “ . . . the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit.”
Wow. Obviously, Judge Vinson and his clerks did not read my HuffPo article or we would be reading an entirely different ruling on this matter (please note sarcasm). Still, my speculation may come to fruition as this sure-to-be-appealed opinion works its way through the judicial (and political) system. We are in the first inning of a very long public policy ballgame. Better grab some peanuts – this is going to be interesting.
Mark
*I have no idea what this means, but it felt sufficiently Southern to express my surprise. If anyone finds this accurate or witty, I would like to expressly claim all copyright at this time. I can see the t-shirts already . . .
January 31st, 2011 at 5:41 pm
From a political standpoint, I think it’s wonderful to keep this pot boiling. Healthcare reform, however imperfect, has a whole lot of very popular elements!
From a legal standpoint, I guess we all have to be grown-ups about our thoroughly corrupt court system. Ever since the stay in Bush v.Gore, in which conservatives re-wrote the law of the stay to get the result they wanted, it’s been patently clear that our courts are simply another political branch, to be approach as lobbyists, not lawyers.
In this analysis, it may be most important to the Supreme Court that overturning “Obamacare” will deprive the health insurance industry of 30+million new consumers.