ObamaCare Unconstitutional: The Brilliant Decision

February 1st, 2011

By Dan Miller

Only one who simply doesn’t care about individual rights could read Judge Vinson’s decision and still believe the individual mandate is constitutional. (Also read: “McConnell to attach ObamaCare repeal to FAA bill today”)

In a seventy-eight page order released on January 31, Judge Vinson of the United States District Court for the Northern District of Florida, Pensacola Division, held the mandatory medical insurance provisions of ObamaCare unconstitutional as exceeding the powers of the federal government under the Commerce Clause. Finding the mandatory insurance provisions not severable from the remainder of ObamaCare, he declared it unconstitutional in its entirety and granted summary judgment in favor of the plaintiffs and against the defendant federal government.

In most respects, Judge Vinson’s opinion tracks that of Judge Hudson in the Virginia case finding that there is no basis in the Commerce Clause of the Constitution upon which to justify it. Unlike Judge Hudson, Judge Vinson held that the mandatory medical insurance requirements are the keystone of ObamaCare, needed to fund it. He did not consider it his prerogative to attempt to rewrite the legislation and hence held that the whole thing must fall.

Judge Vinson’s decision provides many reasons why the mandatory medical care provisions of ObamaCare exceed the powers granted to the Congress under the Commerce Clause in ways never previously attempted. Congress has never sought to impose a requirement that individuals cease the inactivity of not purchasing something and undertake the activity of doing so. He provided a lengthy analysis of what the Commerce Clause originally meant, i.e. regulating “Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” and discussed the ways in which it has been judicially engorged:

There is no doubt historically that the primary purpose behind the Commerce Clause was to give Congress power to regulate commerce so that it could eliminate the trade restrictions and barriers by and between the states that had existed under the Articles of Confederation. Such obstructions to commerce were destructive to the Union and believed to be precursors to war.

Then came the New Deal and other legislation of the 1930s and later; things changed substantially, to the point that growing small quantities of wheat for private use was held to be covered and later growing marijuana for purely intrastate use as permitted by California was held to be covered. The theory was essentially that activities such as these, while infinitesimal in isolation, would have substantial impacts on interstate commerce if engaged in by many people.

Then, in 1995 in United States v. Lopez, the Supreme Court considered the constitutionality of the Gun Free School Zones Act of 1990, which criminalized the possession of a firearm in a school zone. The Court observed:

Even in cases which had interpreted the Commerce Clause … expansively, every decision to date had recognized that the power granted by the Clause is necessarily “subject to outer limits” which, if not recognized and respected, could lead to federal action that would “effectually obliterate the distinction between what is national and what is local and create a completely centralized government.” … Consistent with those limits, the Lopez Court stated “we have identified three broad categories of activity that Congress may regulate under its commerce power.” … The “substantially affects” category was the one at issue there, and in holding that the statute did not pass muster thereunder, the Supreme Court focused on four considerations: (i) the activity being regulated (guns near schools) was not economic in nature; (ii) the statute did not contain jurisdictionally limiting language; (iii) Congress did not make any formal findings concerning the effect of the regulated activity on commerce; and (iv) the connection between that activity and its effect on commerce was attenuated.

As for the fourth consideration, the Court impliedly conceded the claims by the government and the dissent that: (1) gun-related violence is a serious national problem with substantial costs that are spread throughout the population; (2) such violence has adverse effects on classroom learning (which can result in decreased productivity) and discourages traveling into areas felt to be unsafe; all of which, in turn, (3) represents a substantial threat to interstate commerce.

The Lopez Court made a point to “pause to consider the implications” of such arguments, however. … It found that if such theories were sufficient to justify regulation under the Commerce clause (even though their underlying logic and truth were not questioned), “it is difficult to perceive any limitation on federal power” and “we are hard pressed to posit any activity by an individual that Congress is without power to regulate.”

To accept such arguments and uphold the statute, the majority concluded, would require the Court … to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.

Id. at 567-68; see also id. at 578, 580 (explaining that it is the Court’s duty to “recognize meaningful limits on the commerce power” and intervene if Congress “has tipped the scales too far” as federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom”) (Kennedy, J., concurring) (emphasis added)

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3 Responses to “ObamaCare Unconstitutional: The Brilliant Decision”



  1. Tom Carter |

    It’s depressing to see that of the four federal judges who have ruled on the individual mandate, two Democratic appointees have upheld it and two Republican appointees have ruled it unconstitutional. I know the law isn’t science and judicial opinions can vary, but the rank partisanship in our political system has invaded the judiciary more and more, too. Sad.

    Since Judge Vinson didn’t enjoin the government to stop implementing ObamaCare, instead expressing his expectation that they would, where are we? Can the executive simply ignore a federal district court ruling, electing to wait until the Supreme Court finally makes a decision on it? Seems to me they can’t do that. A federal judge has ruled it unconstitutional, and until the judge grants partial relief or something else happens, they have to abide by the decision. Don’t they?


  2. Dan Miller |

    I also find distressing the tendency of some judges to elevate their personal political views/ideologies to positions superior to the Constitution and laws we empower them to interpret. Unfortunately, it is neither a new nor transitory phenomenon.

    As to what will happen with Judge Vinson’s ruling, I don’t know; probably the same as happened with Judge Hudson’s ruling in December of last year. At most, the Obama Administration is likely to take the position that it applies only within the small division of Judge Vinson’s district and no further. There has been some talk of seeking a stay. However, unless the Administration feels under an obligation to implement the decision promptly, there would be little or no basis for claiming that there is a need for a stay. Perhaps the states which Judge Vinson’s decision favored will renew their requests for an injunction; he might grant it and then the injunction would be appealed to the 11th circuit court of appeals.

    Judge Vinson’s decision could give some impetus to repeal efforts in the Congress, but even if Zeus were to descend from on high and threaten destruction of the Earth unless the thing were repealed it probably would do no good. As I have with obnoxious and repetitious articles suggested (here’s the first), there is one probably effective way of “repealing” ObamaCare and that involves selective and specific refusals to fund it, agency by agency, department by department. Such appropriation bills would either pass the Congress and be signed by President Obama or the individual agencies would have no money for anything — even paperclips. There are ways to do that and there are ways toward repeal guaranteed not to work. The ploy of attaching a repeal bill, passed by the House, to an FAA appropriation bill has already failed on a point of order motion or will.

    The decisions of federal district courts in Florida and Virginia, and the others which went a different way, will probably be appealed to the appropriate circuit courts of appeal and then wind up at the Supreme Court. When? Hu Who knows? Result? Ditto. There is ample reason for the Supreme Court to consider the matter expeditiously, but whether it will is anybody’s guess. It may well be in the best interest of the Obama Administration to delay things for as long as possible (or at least until after the elections of 2012) in the hopes that a justice will die or retire and be replaced by someone of “liberal” sensibilities. That would, of course, be a bit of a gamble.


  3. Dan Miller |

    As anticipated, the repeal vote failed. Maybe if they keep trying until 2013 it might get somewhere. Not a great idea, but that doesn’t much matter.


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