- The Washington Times - Monday, January 31, 2011

Quoting James Madison and Thomas Jefferson as authorities, a federal judge in Florida ruled Monday that Congress breached the Constitution when it passed the health care law, dealing the broadest rejection yet to President Obama’s signature initiative.

U.S. District Judge Roger Vinson’s ruling is the second to find that Congress exceeded its powers by requiring Americans to buy insurance, known as the “individual mandate.” But the judge went further, saying that if the individual mandate is unconstitutional, so is the entire law.

“The individual mandate is neither within the letter nor the spirit of the Constitution,” Judge Vinson wrote, warning that to allow Congress to use the Necessary and Proper Clause of the Constitution to justify it would “effectively remove all limits on federal power.”

Judge Vinson said Mr. Obama can continue to implement the law while the case winds its way through the appeals courts toward an eventual Supreme Court showdown.

The Obama administration vowed to appeal, and White House officials called the ruling “surpassingly curious reading,” questioning Judge Vinson’s references to the Boston Tea Party and his discussion of the Founding Fathers. One senior administration official, briefing reporters Monday evening on the condition of anonymity, said the references to Madison, Jefferson and other Founders were “a mark of the weakness of the other side’s argument.”

“This is an opinion that just doesn’t rest on anything like a conventional constitutional analysis,” the official said.

Some policy analysts argued Monday that while the judge allowed the federal government to continue to implement the law, states could choose to halt their own efforts to implement it. But the administration doubted states would take that step.

Still, the ruling could boost Republicans’ efforts to force the Senate to hold a vote on a bill to repeal the law. On Monday, Senate Republicans announced that all 47 of their members have signed on to that bill.

Judge Vinson earlier ruled against the government’s claim that it was using the broad constitutional taxing power to enact health care. That earlier ruling meant the crux of Monday’s decision came down to whether enacting health care could be done under the commerce clause of the Constitution.

The government argued that health care is an interstate market, and since every person will eventually require health care, the decision not to buy health care is an economic decision. Given that, the government said, it can act.

While acknowledging the commerce clause had already grown beyond its initial understanding in the late 1700s, Judge Vinson said the Supreme Court has not gone so far as to grant authority to force purchase of a specific good or service.

“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),” the judge wrote. “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.”

Judge Vinson, who was appointed by President Reagan in 1983, said his ruling is based on current Supreme Court jurisprudence and said that “only the Supreme Court (or a constitutional amendment) can expand that.”

The White House, though, called his reasoning “judicial activism.”

“History and the facts are on our side,” Stephanie Cutter, a senior adviser to Mr. Obama, said in a blog on the White House website. “Similar legal challenges to major new laws — including the Social Security Act, the Civil Rights Act, and the Voting Rights Act — were all filed and all failed. And contrary to what opponents argue, the new law falls well within Congress’ power to regulate economic activity under the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause.”

The ruling is the second one to go against the law, while two other federal judges have upheld it. Still other judges have shot down challenges on technical grounds, though they never decided the merits of the case.

Ever since Mr. Obama signed the health care legislation in March, it has been the dominant issue in American politics, with Republicans campaigning on opposition to the law on their way to winning control of the House and gaining seats in the Senate in last year’s elections.

Already, the House has passed a bill to repeal the entire law, and Senate Republicans have vowed to try to force a vote on the measure in their chamber.

Senate Republicans’ campaign committee also fired off attacks on Democrats facing difficult re-election bids in 2012 who defended the health care law as constitutional.

Democrats, though, say Americans have already become attached to some of the early-acting benefits in the law, such as allowing adult children to remain on their parents’ insurance until age 26 and requiring insurance companies to cover pre-existing conditions.

“Political opponents of the Affordable Care Act are intent on doing in the courts what they could not do in Congress, by rolling back these important protections,” said Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat.

His committee will hold a hearing Wednesday looking at the constitutional basis for the health care law.

The law took a tortuous path to passage last year, surviving purely based on Democrats’ at-the-time overwhelming majorities in both the House and Senate.

The measure that eventually became law was written to survive the Senate in December 2009, but wasn’t designed to pass the entire Congress. But Sen. Scott Brown’s surprise election victory in January 2010 left Democrats without a filibuster-proof majority, which meant the House had to accept the Senate’s version.

Judge Vinson exposed many of those flaws of that process in his ruling — most notably the lack of a severability clause, which existed in some other versions, but not in the Senate’s final bill. Severability would have allowed some parts of the law to remain in place even if the individual mandate fell.

In his ruling, the judge did uphold the federal government’s argument for rewriting Medicaid, the federal-state health care program for the poor. The states had argued that the new burdens the federal government put on state Medicaid programs was unfair, but Judge Vinson said states always have the option — however unpalatable — of opting out of the program.

But he ruled in favor of states who said the individual mandate went beyond Congress’ authority as granted by the Constitution.

The case was brought by Florida and 19 other states last year, and just two weeks ago, six other states joined the suit, bringing the total to 26. Virginia Attorney General Kenneth T. Cuccinelli II filed his own lawsuit based on Virginia law, and late last year federal Judge Henry E. Hudson upheld Mr. Cuccinelli’s challenge.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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