As I have reported in greater length on Bench Memos, federal district court judge Roger Vinson handed the Obama administration a significant defeat today, rejecting the Justice Department’s request to throw out the legal challenge to Obamacare brought by Florida, 19 other states, and the National Federation of Independent Businesses. Today’s decision allows the constitutional challenge to proceed, with a hearing scheduled for December 16.
Of particular note, the judge takes the Obama administration to task for trying to have it both ways with regard to whether the penalty for failing to purchase health insurance is a penalty or a tax. When the administration was getting this penalty passed, they were adamant that this was not a tax. But when they got into court and found it convenient to argue that the individual mandate to purchase insurance was authorized under Congress’s broad taxing powers, the tune changed, and they argued that it was, indeed, a tax. Judge Vinson was not amused:
Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an “Alice-in-Wonderland” tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check.
The judge’s assessment of the Commerce Clause is likewise telling. The judge referred to “[t]he power that the individual mandate seeks to harness [a]s simply without prior precedent,” regulating individuals not based upon the choice that they make, but “based solely on citizenship and on being alive.” Of course, “without prior precedent” does not necessarily mean unconstitutional (although it may well be, and I have argued that it is), but it does mean that the claims of the administration and liberal legal pundits that this statute is nothing more than what has been done before is nothing more than wrong.
When Speaker Pelosi was asked by a reporter, “Where specifically does the Constitution grant Congress the authority to enact an individual health-insurance mandate?” she responded, “Are you serious? Are you serious?” By contrast, when the judge today considered whether the states had made a significant enough claim that Congress lacked the constitutional authority to enact the mandate, he found that it was “not even a close call.”
— Robert Alt is senior legal fellow and deputy director, Center for Legal & Judicial Studies, the Heritage Foundation.