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The Two-Front War on Obamacare



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Success in the historic battle to repeal Obamacare appears a little more achievable than it did a week ago. Federal district court judge Roger Vinson ruled in Florida v. HHS that every word, every phrase, indeed, every section of Obamacare offends not only a majority of Americans, but the Constitution itself.

Now, the pro-repeal coalition includes the federal judiciary, the House of Representatives, a majority of the states, millions of small-business owners, and, significantly, a unanimous and determined caucus of Senate Republicans. The proponents of Obamacare are also formidable and include the entire Executive Branch, the Democratic caucus in the Senate, and many state lawmakers. For now — or at least until a federal appeals court and, ultimately, the Supreme Court render their verdicts in the case — the two sides have achieved a state of political equilibrium.

The plaintiffs in the Florida case are an especially impressive lot, which causes this case to stand out from the others and warrants our attention.

 Most important, 26 states signed on. Collectively, these states are a diverse lot and will account for 266 electoral votes in the next election (including all eight of the fast-growing states that gained House seats in the recent census). This is just shy of the 270 required for a majority in the Electoral College. Throw in 13 electoral votes in Virginia (where another district court judge found the individual mandate to be unconstitutional) and an additional 10 in Missouri (where 71 percent of the electorate voted to repeal the individual mandate in a referendum) and a comfortable majority of Americans live in states where Obamacare has either been determined to be unconstitutional or where an overwhelming majority believes that to be the case.  

Then there is the National Federation of Independent Business, to which Judge Vinson granted standing to sue alongside the state litigants. NFIB represents hundreds of thousands of small-business owners in all 50 states and is the sort of ally that commands the attention of lawmakers in both parties in both chambers and from every state.

And, finally, Judge Vinson’s decision is a masterpiece. Scholarly and well-reasoned, it promises to do more to instill some long-overdue common sense into our confused Commerce Clause jurisprudence than any lower court decision in over half a century. Many believe the Supreme Court will use Vinson’s decision as the basis for its own consideration of the constitutional issues raised by Obamacare

The bottom line is that this historically unprecedented assemblage of plaintiffs and the quality of the decision itself make it difficult for the administration to shunt the Florida decision aside by equating it with the other district court decisions rendered thus far, and those yet to come.

The other new twist in the repeal battle is that the Florida decision (so long as it remains in effect) offers the repeal coalition a new line of attack. Should the administration flout the decision and command its bureaucrats to write the memos, create the spreadsheets, hold the meetings, and draft the regulations to implement Obamacare, the repeal coalition can raise the specter of a lawless administration willing to jettison not only the Constitution, but our most important safeguard against arbitrary government rule — the principle that every citizen, no matter how high and mighty, must abide by the law.  Should the ruling still be in effect when Congress considers the Continuing Resolution (legislation to fund government agencies for the rest of  the current fiscal year), expect pro-repeal lawmakers to add language requiring Obama’s appointees to abide by Judge Vinson’s decision.   

Nothing, nothing, is more likely to reignite the political passions of the Summer of ’09 than if the president opts for an ill-advised two-front war on both the Constitution and the Rule of Law principle that underlies it.



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