T Nation

Federal Judge Strikes Down Obamacare


Decision is worth reading.

From the decision, the judge made (ahem) a nod to the Tea Party.

I like this too:

And this is interesting too, that he used Obama's own words against him:


Robert Alt of the Heritage Institute:


Incidentially, shouldn't Kagan have to recuse herself?


This was too scrumptious for words. The expander in chief is at times as entertaining as he is spectacularly incompetent and inconsistent.


This is a GEM! WOW! Is it Fox news? Nope. Was it Rush? Nope.

$1,000,000,000,000.00 for health care, $800,000,000,000 for bribes...
8 bought votes for unknown compensation..... The look on Obama's face after reading the verdict....priceless.


Don't let the irony of this decision go unnoticed. Obama and the liberals who have repeatedly pushed for a change of laws from the bench now get it stuffed down their own throats by the very judicial part of the government that they so worship.

It's a good day.



The White House is already calling this "judicial activism" - which is hilarious for the reason you say. But it's even more hilarious than that because it's the polar opposite of judicial activism.


I was hopeful this year would be awesome and so far it has yet to leave me disappointed!!


Yet one more layer of irony, I am loving this. But it is too early to declare victory.


Right, cause it's only legislating from the bench when you dislike the judicial decision. When you agree, it's all good lol.


You obviously don't know what you're talking about. How exactly is this "legistlating from the bench?" lol.


Not to sidetrack, but when Obama sued the state of Arizona over their immigration law, was that "Presidential Activism?"


That's only one topic forlife doesn't understand, stick around he twists, turns and misunderstands almost everything he comments on.

But it's all good and far more entertaining than most television programming.


I haven't been following this, but it would be interesting if this decision stood. Way back when I was reading Volokh Conspiracy it looked like there were good legal arguments that there's no way in hell Obamacare is constitutional. I'd probably do a little happy dance if they got repeal.

As for Kagan... yeah, she was working for the administration when the bill was being drafted, right? I always had my doubts about having a Supreme Court justice that closely tied to the president. I don't think there's any daylight at all between her and the administration.


Turns out the personal mandate was a 'conservative' response to nationalized health care in 1991. It has been a Republican talking point until just recently.

"So in 1991, a group of conservative academics proposed an alternative: the individual mandate, which says that everyone who can afford health-care insurance has to buy it. That means no free riders, no healthy people waiting until they get sick to buy insurance or stick the rest of us with the costs of their care. â??We did it because we were concerned about the specter of single-payer insurance, which isnâ??t market-oriented, and we didnâ??t think was a good idea,â?? says Wharton economist Mark Pauly, one of the ideaâ??s authors.

For the next 18 years or so, thatâ??s the role the individual mandate played. It was what Republicans proposed as a smaller-government alternative to the health-care plans favored by liberals. In November 1993, Sen. John Chafee, a Republican from Rhode Island, proposed the Health Equity and Access Reform Today Act. The legislation became the GOPâ??s semiofficial response to President Bill Clintonâ??s health-care bill, and it was eventually co-sponsored by such influential Republicans as Bob Dole, Richard Lugar, Chuck Grassley, and Orrin Hatch. The other major Republican alternative, the Consumer Choice Health Security Act, included Jesse Helms and Trent Lott as cosponsors, and also included an individual mandate."

Addressing Constitutionality...

"But when Republicans failed to stop Obamaâ??s health-care law in Congress, they decided to try convincing the courts that the individual mandate represented something new and unprecedented: a regulation of economic inactivity. The Constitutionâ??s Commerce Clause gives Congress authority to regulate your actions when youâ??re engaged in commerce, argue these conservatives, but not when youâ??re not engaged in commerceâ??like when youâ??re choosing not to buy something. Someone deciding not to buy something is, almost by definition, not engaged in commerce, the argument goes.

That strikes many health-care policy experts as an oddly narrow understanding of what the individual mandate does in the context of the free-rider dilemma. As 38 of themâ??including a few Nobel Prize winnersâ??wrote in a brief to the court, â??There is no such thing as â??inactivityâ?? or non-participation in the health care market.â?? Eventually, we all end up as participants in the health-care system, whether we want to or not. The question is simply whether we participate responsibly or irresponsiblyâ??whether we pay for ourselves or have others pay for us."


Luckily or unluckily, economics and Constitutional law are two separate subjects. When you're talking about Constitutional restrictions, form matters, because form is substance. The structural restrictions are substantive. With Constitutional law, you can't take an outcome, and argue that because you can get there one way, getting there another way is equivalent - you can, and do, make such arguments in economics and accounting (because dollars are fungible). With Constitutional law, the way you get to an end is vitally important.

That said, I don't think you can hold the current GOP responsible for whatever the GOP came up with in 1991. It's not often noted, but "the GOP" in these instances are distinct sets of members elected to Congress. If the 2011 GOP doesn't agree with the 1991 (or 1993) GOP, it's not a shocker, nor is it even necessarily hypocritical. Even if you had the same people in both groups (and the overlap is minute), you have 20 years of intervening politics and Constitutional law (US v Lopez was in 1995, and it completely changed the Commerce Clause jurisprudential landscape).

And, as far as it goes, Obama could very well have structured the plan differently and been perfectly in line with current Constitutional jurisprudence. Instead of a mandate, they could have passed a tax on everyone, with a tax credit for those who bought insurance. Under that scenario, any Constitutional challenge would have been much more difficult to pursue. However, for political reasons (a tax increase was toxic) and accounting reasons (the costs would have been more directly scored by the CBO: http://reason.com/archives/2011/02/02/he-loves-the-mandate-he-loves ), the Obama administration chose to pursue the mandate. Too bad for them it just might be Unconstitutional to do it that way...


If you want to see the Senate Judiciary hearings on the Constitutionality of the hearing, you can see it hear:


It's 2 hours and 40 min, so you may not want to watch it all. However, I would highly recommend checking out Randy Barnett's part.