Critical Condition

It’s Okay to Spike the Football, but Get Ready for the Next Kickoff in Higher Courts

The Wednesday update on the surprisingly good and sweeping ruling in Florida that struck down the entire Obamacare health law as unconstitutional is: What do the states do next, and how does the “rule of law” Obama administration respond?

It’s technically correct that the only governing law, at the moment, in this realm for the 26 states that were plaintiffs in the district court case is that there is no Patient Protection and Affordable Care Act that applies to them. Cue the dancing in the end zone by several governors, attorneys general, and many of their citizens. Yes, a declaratory judgment is almost as good as an injunction, and the Florida court put the Obama administration in a corner by saying, in effect, of course you will obey the law as a standard course of action.

Initially, the administration will bluster about rulings in other federal district courts, the legal uncertainty of what will happen in later appeals, and the extreme difficulty of unwinding the many early tentacles of the PPACA and then perhaps needing to re-attach them later if higher courts rule differently. But cooler legal heads (hopefully smarter than those who undermined their own legal arguments in the Florida case, see further below) should prevail and ask for some version of a stay of full enforcement of the Florida court order while further appeals are pursued. And the 11th Circuit’s federal court of appeals will grant this, rather than encourage further games of constitutional law chicken and quite a mess in the interim.

So, the legal and political forces that achieved this very significant initial victory will need to reassemble for the next legal kickoff, and avoid acting like the proverbial political equivalent of a “suicide squad.” This ain’t over (Obamacare was knocked unconscious with a stun gun, not yet fatally wounded with more broad-based firepower — I can hear some “progressives” already clucking about that last line). But the odds have changed tremendously. And worrying about the accounting over the chump change of early federal planning grants (give it back, pocket it, turn down any more) is more of a symbolic distraction than a central issue of concern.

Nevertheless, it’s worthwhile to keep posting more political points on the board while the other squad is shaken and back on its heels. Here’s some of what I wrote elsewhere earlier today, in that regard, at AEI’s Enterprise Blog:

‘Hoist with His Own Petard’ — The Individual Mandate Blows Up ObamaCare

At the heart of Monday’s sweeping ruling<> by U.S. District Judge Roger Vinson, which declared the Patient Protection and Affordable Care Act unconstitutional, is this irony: The court used the too-clever-by-half legal arguments of the Obama administration’s lawyers not just to undermine their desperate defense of the law’s mandate on individuals to purchase health insurance, but to overturn the entire law.

Judge Vinson first provided an extensive review of the periodically tortured history of the Commerce Clause in U.S. constitutional law jurisprudence. He concluded that using this source of congressional power to require individuals to buy a private product (insurance) from a private company was not just novel and unprecedented federal action: it would be a “radical departure from existing case law” to hold that Congress can regulate “inactivity” under the Commerce Clause. Moreover, if Congress could do this, it would be difficult to perceive any remaining constitutional limits on federal power to regulate.

This part of the decision in Florida—that the individual mandate was unconstitutional—was not a particular surprise. A previous ruling and several hearings in the case foreshadowed that result.

Much more interesting was Judge Vinson’s decision that the rest of the health law was not “severable” and could not survive the constitutional flaws of the individual mandate provision.

Attorneys for the Obama administration had constructed a complicated and contradictory defense strategy from which they could not escape. The Florida district court noted how their legal briefs strongly insisted again and again how absolutely “necessary” and “essential” the individual mandate was for the overall Act to operate as it was intended by Congress. “I accept that it is,” said Judge Vinson.

The defense team had concluded that its best chance for defending the unprecedented individual mandate was to tie it inextricably to the health law’s other health insurance provisions, as part of the “regulatory scheme” necessary to achieve other more constitutionally permissible (and politically popular) objectives. But this legal gambit turned out to be analogous to strapping the dynamite of an irredeemably flawed mandate to their chests and daring judicial onlookers not to take any steps closer unless they wanted to risk blowing up the entire healthcare law.

After all, this not-so-veiled threat also meant that the various legal wires holding this politically explosive package together were connected so inextricably that, if and when the individual mandate’s unconstitutionality actually was tripped, everything else in the law actually might go up in smoke as well.

The defendants, as well as congressional supporters of the legislation, even conceded the key points that the Act’s health insurance reforms cannot survive without the individual mandate, and its various insurance provisions are the very heart of the Act itself.

Hence, when Judge Vinson approached the issue of whether he could sever the constitutional pieces of the health law from its unconstitutional ones, he concluded that it remained uncertain, if not doubtful, whether Congress would have passed the former ones without the individual mandate. He refused to play the role of King Solomon in daring to slice this legislative baby in two (or many more pieces), because he could not determine what would survive. Rewriting complex and convoluted statutes remains a salvage job for Congress, not a federal court (although a high-speed paper shredder might do, in a pinch).

The court noted that the Affordable Care Act has been analogized to a finely crafted watch. But Judge Vinson’s opinion added that one of its essential pieces—the individual mandate—is defective and must be removed. However, there were too many moving parts inside for a court to repair, and the new watchmakers in Congress have other design plans these days.

It turns out that the hands of this watch are stopped by the Constitution, and they really are signaling that “it’s time to go” for ObamaCare.

Readers of Shakespearian tragedies may recall the original source of the proverbial phrase, “hoist with his own petard<>,” comes from a table-turning change of words in a death warrant letter in Hamlet. In the military engineering language of the time, a “petard” was a small bomb and the original bomb maker was thrown up into the air (“hoist”) when his own bomb exploded ahead of schedule. (Although the original Latin root for petard means “to break wind” and certainly is apt for many of ObamaCare’s efforts, a more modern translation also might refer to two federal court rulings, the November 2010 congressional elections, and “repeal and replace.”)

An additional irony is that our current president and many of his Democratic Party allies in Congress and elsewhere have relied for many years on using the courts aggressively, as well as ambitiously extending regulatory interpretations beyond the original text of statutes, to achieve what they could not win through more transparent and accountable, but less malleable, political processes. Their admonition to critics then has been, “But it’s the law, and you must follow it.” Yet now they must try to duck, dodge, bob, and weave around a clear and unequivocal ruling in federal court, covering 26 states as plaintiffs, that the entire ObamaCare enterprise is unconstitutional—even as they hope to keep defining and implementing its many provisions and insisting on its “inevitable permanence” in our lives.

Although some sort of judicial stay of the immediate effects of the Florida court’s declaratory judgment may be sought on appeal, in the meantime administration officials implausibly sound like traffic cops at a serious accident scene, telling rubber-necking passers-by: “Move along. There’s nothing to see here. Go about your business, citizens.”

Shakespeare reminds us of the transience of life (in this case, political life):

To regulate activity or inactivity (not to be), that is the question…

Alas, poor Obamacare, I knew it. (Hold up skull, then exit stage very Left)

Like poor Yorick, Tom Miller is a “fellow” of infinite jest, but he resides in post-Obamacare good health at the American Enterprise Institute.


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