Judge Vinson Rules! (again)

Today, Judge Vinson released his response to the Government's request for a "clarification" of his ruling in Florida v. HHS. If you have been closely following the court cases for the constitutionality of the individual mandate, this order reads like the rise to the climax of a great suspense drama. In it, the government lawyers are thoroughly spanked for misbehaving---and then, in the interests of moving things forward as quickly as possible towards a Supreme Court ruling, Judge Vinson grants the government a stay it did not officially request.

What does all this mean?

At the end of January, Judge Vinson ruled that the individual mandate was unconstitutional, and the because the mandate is an integral part of the legislation, it can not be severed without fatally undermining the greater regulatory intent of the law. For these reasons, the entire law was struck down. Judge Vinson granted declaratory relief, but not injunctive relief, to the plaintiff because "the "declaratory judgement was expected to be treated as the "practical" and "functional equivalent of an injunction"--based on a "long standing presumption that the defendants [i.e. the government] themselves identified and agreed to be bound by." (see today's order, page 14.) Judge Vinson explained today that he expected the government to promptly respond to his ruling with a request for a stay pending appeal--not for the government to completely ignore his ruling, and then file a belated request for a "clarification" of a ruling which was perfectly clear. Vinson indicated that the game-playing delay tactics by the government lawyers are recognized for what they are and will NOT be tolerated.

So after having previously ruled that implementation of the PPACA should halt, why the apparent turn-around by granting a stay of execution of his previous ruling?

Judge Vinson recognizes the complexity of the case, and that it will not be resolved until the Supreme Court finalizes its interpretation. Although the plaintiffs are suffering injury under continuation of the law, given the mixed current rulings (see below) and the uncertainty of the final ruling, the disruption will be greater if the law is halted while under appeal.

The 20 page "Order" is interesting and fun to read--even if you haven't had time to read the eloquent legal discussion in Vinson's original ruling.

The stakes are high here. Nothing less than the nature of our government: is it all-powerful, or limited? If limited, what are the boundaries?

I strongly recommend reading Vinson's original ruling. He provides a well written synopsis of the evolution of Commerce Clause interpretation. For an interesting alternative analysis, read Randy Barnett's amicus curiae, or his longer article "Commandeering the People: Why the individual Mandate is Unconstitutional." If you really get into it, there are the rest of the current court rulings and a few of the relevant landmark Supreme court cases listed below.

(If you want just a few choice quotes from today's order, you'll find some here.)

Happy reading.

Current Individual Mandate law suit rulings

Case #1 – individual mandate ruled constitutional

Thomas Moore Law Center v. Obama 10-07-10

http://www.mied.uscourts.gov/News/Docs/09714485866.pdf

Randy Barnett amicus curiae – very worthwhile reading.

http://www.cato.org/pubs/legalbriefs/TMoreVObama.pdf

http://www.cato.org/pub_display.php?pub_id=12657

Case #2 – individual mandate ruled constitutional

Liberty University v. Geithner 11-30-10

http://www.vawd.uscourts.gov/OPINIONS/MOON/LIBERTYUNIVERSITYVGEITHNER.PDF

Case #3 – individual mandate ruled unconstitutional, and severable

Virginia v. Sebelius 12-13-10

http://www.oag.state.va.us/press_releases/Cuccinelli/Health%20Care%20Memorandum%20Opinion.pdf

Case #4 – individual mandate ruled unconstitutional and nonseverable, declaratory relief granted; injunctive relief denied as unnecessary because declartory relief is sufficient

Florida v. HHS 01-31-11 http://www.politico.com/static/PPM152_101014_order.html

Case #5 – individual mandate ruled constitutional

Mead v. Holder 02-22-11

http://graphics8.nytimes.com/packages/pdf/national/20110223healthMemoMead.pdf

Case #4 – Order 03-03-11

Judge Vinson “clarifies” that he had clearly ruled the PPACA unconstitutional and expected the Government to either quickly file appeal or cease implementing the law.

A stay of his declaratory injunction is granted provided the Government files a notice for an expedited appeal within seven days.

http://www.politico.com/pdf/PPM187_vinson.pdf

Key Landmark Supreme Court Cases on the Commerce Clause

Wickard v. Filburn (1942) http://law2.umkc.edu/faculty/projects/ftrials/conlaw/wickard.html

U.S. v. Lopez (1995) http://www.law.cornell.edu/supct/html/93-1260.ZO.html

U.S. v. Morrison (2000) http://www.law.cornell.edu/supct/html/99-5.ZS.html

Gonzales v. Raich (2004) http://www.law.cornell.edu/supct/html/03-1454.ZD1.html

More on the Individual Mandate

Legal scholar Randy Barnett testified yesterday before the Senate Judiciary Committee. Among other salient points, Barnett reminds Congress that each member takes an oath to uphold the Constitution. It is NOT just the Supreme Court which must judge and vote on the constitutionality of legislation. Congress, and the President himself, have the sworn duty to strike down unconstitutional bills and laws.

Other resources worth reading:

Amici Curiae by Randy Barnett , CEI and Cato, Virginia v. Sebelius

Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional, by Randy Barnett

Columbia Law School web page of links on the Constitutionality of the health care control law.

Ya gotta watch out for them "nice guys"

Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.

Louis Brandeis, Olmstead v. United States, 1928

I came across this quote in Frederich Hayek's The Constitution of Liberty. This warning starts off the seventeenth chapter titled, "The Decline of Socialism and the Rise of the Welfare State" and is an appropriate reminder to us today as government massively expands on the justification of helping some segment of society. The quote prompted me to search for its source, curious about the the context which inspired Justice Brandeis to issue this advice.

The quote is part of Brandeis' dissenting opinion in Olmstead v. United States. The opinion is worth reading in its entirety as an excellent example of a principled interpretation of the Constitution. The issue at stake was whether or not wiretapping was a violation of the Fourth and Fifth Amendments. The 1914 supreme Court case Weeks v. United States had previously established that illegally obtained evidence could not be used in a criminal trial because it violated standards for search and seizure. Brandeis argues that although telephones did not exist at the time of writing of the Constitution, the principle involved is protection of the private citizen's security from government invasion--no matter the form. Here's another taste of his principled reasoning in Olmstead:

'The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case there before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employe of the sanctities of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offense-it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment...There is, in essence, no difference between the sealed letter and the private telephone message. As Judge Rudkin said below:
'True, the one is visible, the other invisible; the one is tangible, the other intangible; the one is sealed, and the other unsealed; but these are distinctions without a difference.'

Let us hope that the judges who will review the constitutionality of ObamaCare think as clearly and in such a principled manner. It's time to reverse this country's tend toward greater and greater indentured servitude of one citizen for the sake of another and get back to a principled application of individual rights, equally applied to all.

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Judge Napolitano on ObamaCare and the Constitution