Supreme Court

Liberty Links: Morning Reads for Wednesday, January 19th

Below is a collection of several links that we didn’t get around to writing about, but still wanted to post for readers to examine. The stories typically range from news about prominent figures in the liberty movement, national politics, the nanny state, foreign policy and free markets.

Half of states suing the federal government over ObamaCare

The Heritage Foundation notes that with Ohio, Oklahoma, Maine, and Wisconsin now suing the Obama Administration of the health care law passed last March, that half of the states are engaging in litigation against ObamaCare:

If it is allowed to be implemented, Obamacare will eventually do deep and irreparable harm to our nation’s budget deficit. But while Obamacare is more of a long-term threat to fiscal health at the federal level, it is a  clear and present danger to the states. Of the 34 million Americans who gain health insurance through Obamacare, over half (18 million) will receive it through Medicaid.

While Obamacare will pay for all of the benefit expansion for the first three years of the law, and 90% of it after that, Obamacare never pays for any of the state administrative costs for adding those 18 million Americans to their welfare rolls. That amounts to billions in unfunded federal mandates for states to absorb. That is why 33 Republican governors signed a letter to the White House and Congress making an emphatic appeal that Obamacare’s Medicaid provisions be repealed.

60% oppose individual mandate

Public opinion has gone against ObamaCare for some time now, but a new survey shows almost two-thirds of Americans are opposed to the individual mandate, the centerpiece of the president’s health care “reform” law:

As a crucial component of the nation’s new health care law requiring all Americans to buy insurance faces an uncertain fate in federal courts, a new national poll indicates that a majority of Americans oppose that provision in the bill Congress passed earlier this year.

And a CNN/Opinion Research Corporation survey released Monday also indicates that a majority of the public still opposes the new law, but by a smaller margin than earlier this year.

According to the poll, six in ten oppose the requirement that all Americans get health insurance, with 38 percent saying they favor the provision.

In a ruling earlier this month a federal district court judge in Virginia struck down the provision, finding that Congress had overreached in imposing the insurance requirement. But two other federal district court judges ruled the opposite way, saying the insurance mandate is within Congress’s authority under the Constitution’s Commerce Clause. The cases are expected to make their way through the federal court system and eventually land in the U.S. Supreme Court.

“Among Democrats, 54 percent favor the insurance requirement, but more than six in ten Independents and Republicans oppose it,” says CNN Polling Director Keating Holland. “Women are more likely than men to support that provision, but even among women, 53 percent oppose it.”

Individual mandate coming under fire

Some observers, such as Jason Mazzone, are wondering whether the individual mandate in ObamaCare will survive a challenge in the Supreme Court:

When the health care law makes it to the Supreme Court, the justices will ask, with varying degrees of concern, this age-old question: How do we define the limits, because limits there must be, on this federal power?

Judge Hudson has presented a way for the court to finally answer this question. His opinion is the first prominent judgment to say that Congress can use its power over interstate commerce only to regulate “activity,” as opposed to a lack of action. This strikes many as a bold assertion, but it has a lot going for it. All of the Supreme Court cases upholding Congress’s power under the Constitution’s interstate commerce clause have involved Congress regulating some kind of activity that is already occurring.

Indeed, the court has never confronted a federal statute that forces people to engage in some action like this. The conservative justices in particular will no doubt wonder what else Congress can make Americans do if it can make us buy health insurance. Can Congress tell us to join a gym because fit people have fewer chronic diseases? Can Congress direct us to purchase a new Chrysler to help Detroit get back on its feet?
While nobody knows for sure what the Supreme Court will do in any particular case, there is now a serious question as to whether the individual mandate will ultimately survive. Judge Hudson has offered the justices a ready-made limit on Congressional power, a limit that makes sense of past cases, is steeped in the law’s traditions and allows the court to complete the task it began a century ago.

Florida judge likely to rule against administration on ObamaCare

Just a few days after a federal judge in Virginia found the individual mandate to be unconstitutional, Judge Roger Vinson heard similar arguments in a challenge by 20 states against the health care reform law:

Attorneys for 20 states fighting the new federal health care law told a judge Thursday it will expand the government’s powers in dangerous and unintended ways.

The states want U.S. District Judge Roger Vinson to issue a summary judgment throwing out the health care law without a full trial. They argue it violates people’s rights by forcing them to buy health insurance by 2014 or face penalties.

“The act would leave more constitutional damage in its wake than any other statute in our history,” David Rivkin, an attorney for the states, told Vinson.

President Barack Obama’s administration counters that Americans should not have a choice of opting out of the overhaul because everyone requires medical care.

Initial reports are that Vinson views the law in much the same light that he did back in October, that the individual mandate is unconstitutional. Vinson wonder how far the Commerce Clause could stretch if the federal government could mandate every citizen buy health insurance:

In a federal courtroom Thursday, Judge Roger Vinson questioned how far Congress’s authority would go if it can legally require nearly all Americans to purchase health insurance.

Stephen Breyer: Founding Fathers advocated gun control

During an interview on Fox News Sunday, Supreme Court Justice Stephen Breyer told Chris Wallace that the Founding Fathers would have regulations on guns:

If you look at the values and the historical record, you will see that the Founding Fathers never intended guns to go unregulated, Supreme Court Justice Stephen Breyer contended Sunday.

Appearing on “Fox News Sunday,” Breyer said history stands with the dissenters in the court’s decision to overturn a Washington, D.C., handgun ban in the 2008 case “D.C. v. Heller.”
Madison “was worried about opponents who would think Congress would call up state militias and nationalize them. ‘That can’t happen,’ said Madison,” said Breyer, adding that historians characterize Madison’s priority as, “I’ve got to get this document ratified.”

Therefore, Madison included the Second Amendment to appease the states, Breyer said.

“If you’re interested in history, and in this one history was important, then I think you do have to pay attention to the story,” Breyer said. “If that was his motive historically, the dissenters were right. And I think more of the historians were with us.”

That being the case, and particularly since the Founding Fathers did not foresee how modern day would change individual behavior, government bodies can impose regulations on guns, Breyer concluded.

With all due respect to Justice Breyer, he is just flat wrong. The Founding Fathers, including James Madison, made clear their views on guns, considering an armed citizenry essential to protecting liberty from a government gone wild.

BREAKING: Federal judge rules against ObamaCare

As expected, U.S. District Court Judge Henry Hudson has ruled that ObamaCare is an unconstitutional violation of the Commerce Clause, which the Obama Administration was arguing gave them the power to enforce the individual mandate, in what is the clearest legal rebuke of the new health care reform law:

A federal judge in Virginia ruled Monday that a key provision of the nation’s sweeping health-care overhaul is unconstitutional, the most significant legal setback so far for President Obama’s signature domestic initiative.

U.S. District Court Judge Henry E. Hudson found that Congress could not order individuals to buy health insurance.

In a 42-page opinion, Hudson said the provision of the law that requires most individuals to get insurance or pay a fine by 2014 is an unprecedented expansion of federal power that cannot be supported by Congress’s power to regulate interstate trade.

“Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market,” he wrote. “In doing so, enactment of the [individual mandate] exceeds the Commerce Clause powers vested in Congress under Article I [of the Constitution.]

We’ll have more reaction to the decision posted later today or tomorrow. Meanwhile, you can read his opinion below:

McConnell to file brief in court challenge against ObamaCare

While he is getting earmarks wrong, Senate Minority Leader Mitch McConnell (R-KY) is getting ObamaCare right by planning to file an amicus brief in the suit working its way through federal court against the new health care reform law:

Senate Minority Leader Mitch McConnell (R-Ky.) will file a brief in a Florida court in support of a lawsuit challenging the constitutionality of the new health-reform law.

The top Senate Republican will file an “amicus curiae” (“friend of the court”) brief in the Florida case and has urged GOP colleagues in the Senate to sign onto the filing, too.

“While I strongly believe that we should repeal the law and replace it with the types of commonsense reforms Americans support, I also strongly support the efforts of over twenty States that have challenged this law in the courts,” McConnell wrote in a dear colleague letter.

You can read McConnell’s letter at the bottom of the post.

The challenge in federal court in Florida has been hit or miss, though the challenge has merit and could ultimately prevail. The judge is allowing the challenge to the individual mandate to move forward, but he has thrown other challenges in the suit out.

We’ll have some movement on this case towards the end of this month and at the beginning of next month, though we are a long way off from getting a final verdict in this case, which will eventually wind up at the Supreme Court.

Democrats already casting blame for mid-terms

The mid-terms aren’t even over yet and Democrats are already blaming their impending defeat on outside groups spending money against them:

With Election Day still a week away, Democrats are previewing what promises to be a main line of argument if Republicans make strong gains in Congress: Conservatives bought their way to power with a flood of spending by outside groups.

These post-mortems, made before the patient is actually dead, have slipped into public statements from top Democrats in recent days. And the argument is being made even more strongly in not-for-attribution comments to reporters from party operatives: A tough-but-manageable political climate turned much more lethal with the infusion of tens of millions of dollars from anonymous donors funding ads for right-leaning independent groups.

The denunciations of outside money by President Barack Obama and others began as a tool to rally the Democratic base before the Nov. 2 election. But in recent days it has morphed gradually into something else: A main talking point to explain—and fend off the recriminations over—what many Washington Democrats assume will be a brutal election night.
Vice President Joe Biden sounded the first notes of the coming it-was-the-money message last week in an interview with Bloomberg’s Al Hunt.

“We will keep control of the Senate for certain, and I believe we’ll keep control of the House,” Biden said before adding that he had been “amazed” at the cash pro-Republican third-party outfits are dropping in campaigns.

“I’ve never seen this before, so the only caveat I’d put in terms of the House is how much impact this $200 billion are going to mean,” he hedged.

Pence believes SCOTUS will find ObamaCare unconstitutional

Despite a recent federal court ruling out of Michigan upholding ObamaCare, Rep. Mike Pence (R-IN) believes that the Supreme Court will eventually find the individual mandate to be unconstitutional:

Rep. Mike Pence (R-Ind.), the third-ranking House Republican, who serves as conference chairman, said he saw enough votes on the high court to strike a blow to President Obama’s signature domestic initiative.

“It’s going to the Supreme Court, and the Supreme Court’s going to decide whether or not the Constitution of the United States permits the government to order the American people to purchase goods or services, whether they want them or need them or not,” Pence said Friday on WLS radio in Indiana.

The Indiana lawmaker, and potential 2012 presidential candidate, has been among the crowd of Republicans to question whether a central part of Democrats’ healthcare reform bill is constitutional. The crux of their argument is that the individual mandate — the section of the law requiring individuals to have health insurance of some sort — violates the Constitution.

A similar lawsuit pushed by Virginia Attorney General Ken Cuccinelli has cleared its first hurdle, a motion to dismiss the case by the Obama Administration. Another suit in Florida has had mixed results.

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