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"solve homelessness by mandating everybody to buy a house"

Unless you're simply completely out of touch, you've now heard that a federal judge in Florida has ruled that ObamaCare is unconstitutional.

What you may not yet have heard is that this judge is using Obama's own words to substantiate the ruling:

In ruling against President Obama's health care law, federal Judge Roger Vinson used Mr. Obama's own position from the 2008 campaign against him, arguing that there are other ways to tackle health care short of requiring every American to purchase insurance.

"I note that in 2008, then-Senator Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that 'if a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house,'" Judge Vinson wrote in a footnote toward the end of the 78-page ruling Monday.

Judge Vinson, a federal judge in the northern district of Florida, struck down the entire health care law as unconstitutional on Monday, though he is allowing the Obama administration to continue to implement and enforce it while the government appeals his ruling.

The footnote was attached to the most critical part of Judge Vinson's ruling, in which he said the "principal dispute" in the case was not whether Congress has the power to tackle health care, but whether it has the power to compel the purchase of insurance.

Judge Vinson used Mr. Obama's campaign words from an interview with CNN to show that there are other options that could fall within the Constitution -- including then-candidate Obama's plan.

During the presidential campaign, one key difference between Mr. Obama and his chief opponent, then-Sen. Hillary Rodham Clinton, was Mrs. Clinton's plan required all Americans to purchase insurance, and Mr. Obama's did not.

In the heat of the primaries in 2008, New York Times columnist Paul Krugman predicted Mr. Obama's opposition to an individual mandate could come back to haunt him: "If Mr. Obama gets to the White House and tries to achieve universal coverage, he'll find that it can't be done without mandates -- but if he tries to institute mandates, the enemies of reform will use his own words against him."

Mr. Obama has since defended the constitutionality of the individual mandate, arguing it's the linchpin of the program to bring in more customers, which is key to expanding the availability and affordability of insurance.

Ya gotta love this judge... not only is he pointedly attacking the constitutionality of the bill, he's got the gonads to use Obama's own words to make his case.

Hats off to the man... may more judges like him surface across the country.


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Comments (32)

This may also prove the be ... (Below threshold)

This may also prove the be the only example in recent memory where Paul Krugman was actually right about something. Will wonders ever cease?

"Krugman was actually right... (Below threshold)

"Krugman was actually right about something."

Guess that explains the local earthquake today.

It's the revolt of the prol... (Below threshold)

It's the revolt of the proletariat. And using Obama's own words... oh, I'll bet it's no fun to be around him tonight!

Having the judge quote Obam... (Below threshold)

Having the judge quote Obama himself against Obamacare reminds me of when my parakeet used to crash headfirst into the mirror.

though he is allow... (Below threshold)
though he is allowing the Obama administration to continue to implement and enforce it while the government appeals his ruling.

Mark Levin has stated that this is incorrect. He quoted page 75 of the ruling that the only reason that he did not issue an injunction against the law is that since it is completely unconstitutional and not severable, the administration cannot enforce it at all.

Is it stupidity or just poo... (Below threshold)

Is it stupidity or just poor memory?

"The idea of an individual mandate as an alternative to single-payer was a Republican idea," said health economist Mark Pauly of the University of Pennsylvania's Wharton School. In 1991, he published a paper that explained how a mandate could be combined with tax credits – two ideas that are now part of Obama's law. Pauly's paper was well-received – by the George H.W. Bush administration.

More later -- right now I can't stop laughing.

"Krugman was actually ri... (Below threshold)
jim m:

"Krugman was actually right about something."

Yeah, well my broken watch is still correct more often than he is.

Congrats, woop. You've just... (Below threshold)

Congrats, woop. You've just proven that Democrats don't have a monopoly on stupid.

Or were you expecting us to say "oh, Woop says a Republican favored it, so we should all forget everything and back it?"

Good lord, even for you, that's stupid.


- may more judges like him... (Below threshold)
Tsar Nicholas II:

- may more judges like him surface across the country -

Nov. 2012 will go a long way towards determining whether or not that'll happen.

As I have said many times, ... (Below threshold)

As I have said many times, wait till 2012 rolls along. Obama will be running on repealing Obamacare.

It is a loser, and Obama wants to win. He saw what happened to the Dems defending Obamacare.

galoop you assignment shoul... (Below threshold)

galoop you assignment should you choose to accept it is to find a republican plan from this century that includes and individual mandate.

It's reported that Joey Bid... (Below threshold)

It's reported that Joey Biden is really confused. He can't understand "where the hell this court is coming from!" According to Joey, it's not like this court is any part of the 3 branches of government.

Hey Woop! Want to comment on Palin's intelligence?

Thanks Rick --I am... (Below threshold)

Thanks Rick --

I am pretty certain that whatever else Mr. Obama's rhetoric on the campaign trail was. . . it was -- and is -- hearsay, and thus manifestly NOT not evidence (in a federal court of law) of the intent of the Congress (it is afterall, STILL the Congresspeople who legislate, right?) -- in passing the insurance tax provision.

That a sitting federal trial judge would make a political speech even a footnote in his opinion. . . smacks of a political -- as opposed to legal -- decision-making approach.

And that is an unfortunate lapse, by one we trust to be above reproach -- and thus, it is unfortunate for the future of our Republic.

In a more Machiavellian sense though, I suppose I should give Judge Vinson my thanks, for being so openly political, about a matter upon which he he is supposed to apply the law, alone.

It simply makes the ultimate reversal of Vinson's trasparently political opinion (and Hudson's, by implication) -- by the Supremes -- a year or so from now, far mor likely.

"Nice goin' there, Gator!"

Namaste, just the same -- even if you are not the blogger from Wizbangblog.com who happened by my comment box tonight.

Oh. Right. Consider also th... (Below threshold)

Oh. Right. Consider also the remarks of Professor Orrin Kerr, tonight. He was the first to spot the fatal logical flaw in Judge Hudson's opinion.

In sum, Professor Kerr points out that -- as a trial court judge -- Vinson was to be bound by precedent. However, Judge Vinson has taken it upon himself to ignore precedent, and set out "first principles". That is as serious an error as any trial judge can possibly commit.

In effect, Vinson just adopted Justice Thomas's dissent in Raisch (i.e., ignored controlling Supreme Court precedent).

That is something not even Chief Justice Roberts would sign on for -- just six short years ago.

Good luck with that, Judge Vinson!


Hearsay evidence is sometim... (Below threshold)
jim m:

Hearsay evidence is sometimes admitted into court and when it is a public pronouncement it very likely would be as the number of witnesses is very large giving such testimony some credibility.

Furthermore, it is only a footnote and does not pretend to make a point of legal argument.

The actual opinion in this case relies upon pretty sound argumentation. If we take the administrations current argument ( and the one that was even today espoused by the administration) we would believe that the constitution does not restrict Congress in the least with the Commerce Clause. If Congress can regulate activity of people whether they decide to participate in a market or not then there really is no point for having a Commerce Clause at all in the Constitution.

The administration is arguing that Congress' power to regulate the behavior of the public is unlimited. Virtually all behavior could be cast in economic terms and therefore all behavior comes under the purview of Federal Law. What we wear, what we drive, where we live, what we eat, what we read, everything could be regulated by this argument.

By ruling as he did the Judge is making the only sound decision the administration left him. The administration is not allowing for any limit on Federal power. The whole point of the Constitution was to define the limits of that power.

It is still very likely that this will be upheld. What will be interesting to see is if the SCOTUS will uphold his ruling on severability. The dems have tried to argue that severability is assumed. By pointing out that they dropped the severability clause from the final bill renders a great deal of credibility to the argument that the bill lacks severability.

What is fascinating is that... (Below threshold)

What is fascinating is that for his entire career, Judge Vinson CLAIMED to deplore judicial activism. He has become a judicial creationist, in one fell swoop -- leaping right over activism, and "creating" his own law. Whatever else may be said of this -- it is uniformly true that our judicial system takes pains to NOT countenance that role, for any trial judge. [That is, he was duty-bound to follow precedents. He chose not to. Disappointing, for the rule of law.]

Now, suddenly, he leaps beyond all existing Supreme Court precedents, to distill a set of his own first principles, here. Why?

Honestly, who cares?

The fact is that his "first principles" were unable to attract even four other votes, when penned by Justice Thomas, just six years ago in Raisch. Not even Chief Justice Roberts would join in the Thomas dissent in Raisch.

That's right, Judge Vinson has crafted his decision to invalidate a piece of legislation from a dissent in a prior case.

A dissent.

Let that sink in. And while you do, I'll predict that five (or six) votes will uphold the insurance mandate as a plainly-constitutional exercise of the power to tax, when it reaches the Supremes.

I'll also predict that Justice Roberts will be one of the votes upholding the law -- as enacted.

That event will relegateJudge Hudson -- and now Judge Vinson -- to the dust-bin of history: judges who saw an almost entirely-political dog they decided they wanted to hunt. And so they did.

Unfortunate. Truly.


Since you like Orin Kerr so... (Below threshold)
jim m:

Since you like Orin Kerr so much you should scroll down to read Ilya Somin who has quite a different take on the ruling.

Actually from what I have read this ruling is less partisan than those upholding the law and it correctly cites recent case law in support of the ruling. It is also balanced in that it rejects some of the key claims of the plaintiffs.

The battle is far from over, but it is far from a slam dunk for the government. While the left may desire socialized health care hey would be wise to consider the terms on which they are willing to get it. When the GOP controls the House Senate and White House and has the ability to regulate anything they want. I don't need to give you an example. Just pick for yourself whatever you feel the most repulsive conservative mandate would be and understand that supporting this law will mean that sometime in the future that repulsive conservative mandate could be forced down your throat in the same manner. Of course I'll wager that the left banks on the fact that conservatives have a sense of decency and restraint that they lack themselves.

If you actually look at the... (Below threshold)
jim m:

If you actually look at the decision he is not departing from SCOTUS precedent that dramatically.

Additionally the three courts (including this one) that have addressed the issue of whether the mandate is a tax or a penalty have all ruled that it is a penalty. That is huge because Congress has broad powers to tax but not to penalize.

Vinson notes that the law probably fails the test that the SCOTUS put forth in the Comstock decision.

The severability issue is big as well and this is the first court to address it seriously. Vinson's ruling is well reasoned on this issue and that jeopardizes the whole law. Now any part of the law that gets thrown out threatens to take the whole thing down.

And remember, when this reaches the Supreme Court they won't be arguing whether Vinson ruled well or that his ruling was written properly. They will be arguing the case that they argued to Vinson. The SCOTUS will make a decision not based solely on what Vinson ruled but on the arguments of the parties. Vinson may not persuade the court but he does not have to.

Yep I read all of the blog ... (Below threshold)

Yep I read all of the blog on that topic.

As to the rest -- we are too far apart to continue any dialogue, if you ascribe motives to me (knowing nothing about me), and reserve the moral high ground for only those who think like you. So let's just say that I will let the Supremes speak for me.

I have faith in our system of ordered liberty. The Supremes know this is not socialized medicine. You are likely smart enough to know that too.

But we wouldn't want to let the facts get in the way of your soundbite eh, friend?


PS: Errata -- I misspoke -- the Thomas dissent was in Comstock -- decided last term, not Raisch (decided six years ago). But the link is to the actual decision I mentioned (Comstock) -- and so, scant harm there.

I have faith in our syst... (Below threshold)

I have faith in our system of ordered liberty. The Supremes know this is not socialized medicine. You are likely smart enough to know that too.

And you should be smart enough to know that "socialized medicine" isn't the issue that Judge Vinson ruled on, nor will the USSC rule on "socialized medicine" in the appeal.


“I note that in 2008, th... (Below threshold)

“I note that in 2008, then-Senator Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that ‘if a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house,’” Judge Vinson wrote in a footnote toward the end of the 78-page ruling Monday.

Will anyone be particularly surprised if it turns out that one of the line items on President Obama’s agenda for the next two years is “solving” the problem of homelessness through a federal government mandate that everyone must buy a house?

Mark Levin has sta... (Below threshold)
Mark S.:
Mark Levin has stated that this is incorrect. He quoted page 75 of the ruling that the only reason that he did not issue an injunction against the law is that since it is completely unconstitutional and not severable, the administration cannot enforce it at all.

I heard that last night on his show, basically Levin said that if the Obama administration tried that(claiming that certain portions weren't enacted until 2014), the Obama administration can expect a TON of lawsuits.

I need to reappear just lon... (Below threshold)

I need to reappear just long enough to quote Professor Kerr's retort (a later update to his post, BTW) to Ilya Somin:

. . . .Ilya’s argument is unpersuasive because the existence of nonzero limits in no way implies the existence of major limits. The current state of Commerce Clause doctrine is that there are certain largely symbolic limits on federal power but those limits are relatively minor: As Justice Thomas put it, Congress can regulate virtually anything.

Judge Vinson says that this cannot be the law because it would make the federal government too powerful.

But Judge Vinson does not consult existing doctrine before declaring the principle, and that’s the problem: If you take existing doctrine seriously, it readily fits the mandate under the Necessary and Proper clause. . . .

Kerr's statement that "the ... (Below threshold)
jim m:

Kerr's statement that "the existence of nonzero limits in no way implies the existence of major limits" is ridiculous on its face. The argument is that limits exist and not how significant those limits are. Kerr is saying that those limits exist but is unwilling to identify any such limits. Somin and Vinson are saying that such limits must exist otherwise why did the framers insert the commerce clause to begin with?

As for Justice Thomas' remarks; I believe that when he made them he was in the minority because the others refused to believe that the federal government would actually exert the breadth of power that the court was allowing in that ruling. I sincerely doubt that you could summon a majority on the court who would say that the federal government has the authority to force people to engage in specific forms of commerce.

The government can regulate how people engage in commerce but it has never been given the power to coerce people into engaging in commerce against their will.

Remember, the federal gover... (Below threshold)
jim m:

Remember, the federal government not only is saying that you must buy health insurance, but they regulate who sells it. This law therefore, says that they can force you to buy something, they can decide who you buy it from and they can describe in minute detail exactly what it will look like (the law regulates what a 'qualified' insurance plan covers in detail).

You can apply that to anything, phones, automobiles, food, housing, clothes... The government can determine that you must buy it, tell you who to buy it from and describe exactly what you will buy and determine what it will cost you.

There are no laws as antithetical to the founding principles of this nation as this law.

Let's extend this further:<... (Below threshold)
jim m:

Let's extend this further:

Taking this as a precedent, the federal government can determine what labor markets you will participate in. For people over a certain income the government could force them to hire domestic help, determine what that person's duties will be, what you pay them, whether they are unionized, etc. After all, the decision not to hire a housekeeper is an economic decision having a far reaching effect on the national economy.

I'm confused by Condor, he ... (Below threshold)

I'm confused by Condor, he claims to be on the side of liberty and also on the side of the government forcing you to buy something, how does that add up?

"...though he is allowing t... (Below threshold)

"...though he is allowing the Obama administration to continue to implement and enforce it while the government appeals his ruling."

And THIS is the true disgrace. How can anyone worthy of the name JUSTICE permit an unconstitutional action to continue??!! It's a shame that conservative--that is, REAL judges--do not have the guts of their leftist, activist counterparts.

All these crying, whining l... (Below threshold)
John S:

All these crying, whining liberals make my heart glad. Since the individual mandate was not made severable (a minor mistake due to a 2,700 page bill being voted on with no one reading the fucking thing!) the law is dead. And Congress could fix it, except we own the House of Representatives.

...a mandate could be combined with tax credits – two ideas that are now part of Obama's law...

How will this tax "credit" help me? In my new Obama reality, I have a $12,000 year job with no benefits. In 2014, I'm supposed to buy a $1,400 a month healthcare policy out of my $800 month salary. I can't wait to see Obama run on that.

Anyone else think "The Pige... (Below threshold)
DJ Drummond:

Anyone else think "The Pigeon" is trying to imply the Constitution of the United States means exactly what HE tells us it means?

Is Barry posting here today?

Rick,The Law as wr... (Below threshold)


The Law as written holds passive individuals who decline to participate and buy a health insurance policy from a private company... will have to pay a fine to the Federal government.

Judge Vinson's findings that a federal fine for such inactivity of Commerce is... unconstitutional.

If he had allowed this law to pass muster and ruled against 26 states and businesses (who had standing in his court)... there would be no end to what the other two branches of our Government could coerce/force upon our citizenry under threat of penalty (like a fine)...and that's just the summary version.

He points out (I'm paraphrasing here) that our country revolted, in part, because England gave a monopoly to the East India Company to sell tea in America, with the Crown getting a cut of the proceeds... and tongue in cheek... says our Founding Fathers certainly did not intended for that situation to ever be possible going forward with our new Federal government.

I rarely have read a better well written, logical, and thoughtful Federal Court Ruling that so disassembles the government's (read defendant's) arguments, by using their own court pleadings against them. I have to admire his chutzpa - that.

Unlike some in our Legislative & Executive Branch - its obvious Judge Vinson has read and studied the text of the new Health Care law before he ruled upon it.

My overall take is his decision gives the Appellate Court plenty of leeway to make adjustments along the edges - but will have no room to maneuver on his core unconstitutional finding that Congress has exceed their authority under our Constitution... which to me... is the most awesome BFD of them all.

He even opines that if Congress desires to change our Constitution then they are certainly within their right to amend it... which is a backhanded way of saying: Duh...you want to get with the program... here's how.

If you haven't read his entire 78 page decision, I highly recommend it... there are many more gems of jurisprudence than I can articulate about within it.

On so many levels, I just gotta say thank you to Judge Vinson -

Semper Fidelis-

Rick,A quibble: T... (Below threshold)


A quibble: Though he (Judge Vinson) is allowing the Obama administration to continue to implement and enforce it while the government appeals his ruling...is not a factual statement.

Such a statement, or even an approximate translation is no where to be found in the good Judge's ruling. In fact, its almost the opposite of his explicit writing and implicit intent.

Look, a White House spokesperson, or a Congressperson, can say or spin words anyway they want - doesn't mean that it is true or has any basis in fact or has legal standing.

The truth is... right now, the new Health Care Law is dead and unenforceable in 26 States (the plaintiff ones) and certain businesses (also plaintiffs) of other States that won summary judgement from Judge Vinson.

Media spin also is reporting that Judge Vinson's ruling only applies to his tiny Federal Court district - thus minimizing its impact. What hooey. Yes it also applies to everyone in his district - but also to the plaintiffs outside his district... which they conveniently don't say (it doesn't fit their narrative).

Thus missing the poignant fact that the new Health Care Law is dead in over half the country... which is real BFD news.

Read the good Judge's order to get the finding of facts - and don't let the spin-misters put their opinions into repeatable words without first repudiating them for the BS garbage that they are.

Semper Fidelis-






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