Decision to Void All of ObamaCare is not “Activist”

Liberal commentators didn’t waste much time attacking U.S. District Court Judge Roger Vinson’s ruling as “activist,” particularly for deciding to void the entire national health care law after declaring the mandate unconstitutional.

Ezra Klein writes:

The full ruling has a very Bush v. Gore feeling, as Vinson concedes that his position is activist in the extreme and a break from the court’s usual preference for limited rulings, but says, in effect, that he’s going to do it just this once. “This conclusion is reached with full appreciation for the ‘normal rule’ that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute,” Vinson writes, “but non-severability is required based on the unique facts of this case and the particular aspects of the Act. This is not a situation that is likely to be repeated.” Italics mine.

Meanwhile, Brian Beutler decries the “extreme activism of Judge Vinson,” citing an opinion by Chief Justice John Roberts in a case in which he wrote, “We agree with the Government that the unconstitutional tenure provisions are severable from the remain _der of the statute.”

Case closed, right? Roberts rejects inseverability. Well, not exactly.

The reason why Vinson departed from tradition is that removing the mandate has a much more dramatic effect on the feasibility of the rest of national health care law than is typically the case with most laws.

The case that Beutler cited involved a Supreme Court ruling from last year that a provision of the Sarbanes-Oxley law was unconstitutional. At dispute was a part of the law that insulated members of the Public Company Accounting Oversight Board from presidential authority, by making them only removable for “good cause” when they were appointed by the Securities and Exchange Commission, whose members were also merely removable for “good cause.” As SCOTUSblog recounted, “The petitioners had hoped to persuade the Court that because the Board was unconstitutionally insulated from presidential authority, all of its exercise of authority (including its investigation of the petitioner accounting firm) was unconstitutional.  The Court disagreed, holding instead that it was appropriate to simply sever as unconstitutional the second layer of ‘good cause’ protection, leaving Board members subject to removal by the SEC without cause.”

How Roberts would ultimately rule in anti-ObamaCare lawsuits is unknown, but it simply isn’t appropriate to lift Roberts’ quote from the Sarbanes-Oxley case. The individual mandate plays a much more intractable role in the health care law.

Liberals make it seem as if Vinson’s exception in this case was totally arbitrary, but if you read through the discussion of the severability issue on pages 63 to 74 of the decision, it becomes clear why the judge ruled that this instance was unique.

Citing relevant case law, Vinson goes through several tests for whether making an exception is appropriate. Among them are whether the rest of the law would be operational without the individual mandate and whether Congress would have passed the rest of the law without the mandate.

It’s important to remember that Democrats could have avoided all of this, but as enacted, the law did not include what’s known as a “severability clause,” which specifies that if one part of the law is struck down, the rest of the law stands. Vinson saw this as significant: “Congress’ failure to include a severability clause in the Act (or, more accurately, its decision to not include one that had been included earlier) can be viewed as strong evidence that Congress recognized the Act could not operate as intended without the individual mandate.”

He goes on to say that, “the defendants have conceded that the Act’s health insurance reforms cannot survive without the individual mandate, which is extremely significant because the various insurance provisions, in turn, are the very heart of the Act itself.”

So in other words, without the mandate, you wouldn’t have reforms such as the ban on denying insurance to those with pre-existing conditions, which were the purpose of “health insurance reform” in the first place.

This isn’t particularly controversial stuff. As Randy Barnett noted, the White House itself has said:

“If the constitutional challenge to the Affordable Care Act’s individual responsibility requirement ultimately prevails, it would mean that provisions preventing health insurance companies from discriminating against people with pre-existing conditions would also be invalidated by the court because the two are inseparably linked. If insurance companies are required to cover those with pre-existing conditions, who are potentially more expensive to cover, without requiring everyone–both sick and healthy people–to have insurance, premiums will increase rapidly. Similarly, other provisions — including banning insurers from discriminating based on health status, age and gender — would also fall.”

Once you accept that the mandate and insurance reforms are “inseparably linked,” one might ask, why not merely eliminate the parts of the law that were directly related to the mandate? While even Vinson concedes that there are elements of the law that could still survive without the existence of the mandate, he explains that:

“Going through the 2,700-page Act line-by-line, invalidating dozens (or hundreds) of some sections while retaining dozens (or hundreds) of others, would not only take considerable time and extensive briefing, but it would, in the end, be tantamount to rewriting a statute in an attempt to salvage it, which is foreclosed by Ayotte, supra. Courts should not even attempt to do that. It would be impossible to ascertain on a section-by-section basis if a particular statutory provision could stand (and was intended by Congress to stand) independently of the individual mandate. The interoperative effects of a partial deletion of legislative provisions are often unforseen and unpredictable. For me to try and “second guess” what Congress would want to keep is almost impossibleâ€_.”

He hammered home that point again later in the decision, noting, “In the final analysis, this Act has been analogized to a finely crafted watch, and that seems to fit. It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. It cannot function as originally designed. There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions — which, as noted, were the chief engines that drove the entire legislative effort — for me to try and dissect out the proper from the improper, and the able-to-stand-alone from the unable-to-stand-alone.”

The bottom line is that at the minimum, the interconnectedness between the individual mandate and the rest of ObamaCare, coupled with the lack of a severability clause in the final law, makes this a unique case.

Federal Judge Declares Mandate Unconstitutional, Voids All of ObamaCare

U.S. District Judge Roger Vinson on Monday became the second federal judge to declare the national health care law’s individual mandate unconstitutional.

The decision concerns the lawsuit based in Florida and involving 26 states, and follows a similar decision last month in the suit based in Virginia.

But Vinson’s decision went a step further than the Virginia ruling by not only declaring that the mandate was unconstitutional, but striking down the rest of the law as a result.

As enacted, the law did not include what’s known as a “severability clause,” which specifies that if one part of the law is struck down, the rest of the law stands.  Those challenging the law have argued that as a result, the whole law should be struck down, too.  While U.S. District Judge Henry Hudson of Richmond declined to do so, Vinson argued that, “because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.”

The Obama administration has launched an appeal in the Virginia suit, and is expected to do so in the Florida-based suit as well, likely setting the stage for an eventual showdown in the U.S. Supreme Court.

Read the ruling here.

Will Huntsman Join the Hunt?

In other presidential news today, former Republican governor of Utah Jon Huntsman has told the Obama administration he plans to resign as ambassador to China, Bloomberg reports. Earlier this month, a Newsweek profile raised the prospect of a Huntsman bid, as he declined to comment on his 2012 intentions, but said, “I think we may have one final run left in our bones.”

Huntsman was already facing a tough road to the nomination based on his moderate to liberal record as governor of Utah, but once he accepted a post in the Obama administration, it was widely assumed that he was forgoing the idea of running for president.

Daniels Says He’ll Make Up His Mind “Fairly Soon” on Prez Bid

Indiana Gov. Mitch Daniels has told a local Indiana newspaper that he is nearing a decision on a presidential bid:

“I think I have got to make up my mind fairly soon,” Daniels told The Times Editorial Board Thursday during a visit to Northwest Indiana.

“I don’t think that I’ve waited too long, but I believe I should come to some decision. There are a lot of people waiting and I owe them an answer.

“The country is facing survival-level problems.”

While we can’t say for sure what his decision will be, it isn’t often that politicians announce, “The country is facing survival level problems, which is why I’ve decided against running for president.”

The decision now looks like it may come sooner than April, which is when he originally said he would announce. Should he decide to run, it would be one of the more bizarre lead ups to a presidential bid, as he has spent the past six months picking fights with each strand of the conservative movement — calling for a “truce” on social issues, floating the idea of a VAT and talking about defense spending cuts.

He’ll get a chance to make peace when he addresses CPAC’s Ronald Reagan Banquet on February 11th.

Why We Can’t Do Big Things: 1957 vs. 2011

President Obama’s State of the Union speech was filled with big government jingoism, attempting to tap into the can-do American spirit to push his expansionist public policy agenda. The media seized on his declaration that this was a “Sputnik moment.” Obama said we should respond to current challenges as we did in the space race and declared that “we do big things.” But it’s worth noting that when America faced its actual Sputnik moment in 1957, the nation was in a much better position to respond precisely because we weren’t as burdened by massive debt from government programs.

Just a few numbers comparing America’s fiscal position in 2011, according to the most recent CBO estimates, to where we stood in 1957, according to historical data:

— In 2011, the U.S. will run a projected deficit of 9.8 percent of GDP, or nearly $1.5 trillion. In 1957, the government was running a surplus of .8 percent of GDP, or $120 billion if adjusted for the 2011 GDP estimate.

— In 2011, debt is projected to be 69.4 percent of GDP, and trending upward. In 1957, debt was 48.6 percent of GDP as we were still paying of debt from World War II, but trending downward. Adjusted for today’s dollars, the debt was $3.1 trillion lower back in 1957.

— In 2011, Social Security, Medicare, Medicaid and other health care programs such as S-Chip cost about $1.6 trillion, or 10.6 percent of GDP. In 1957, Social Security cost 1.5 percent of GDP, or $226 billion if adjusted. Medicare, Medicaid, S-Chip, and related programs did not exist.

The existence of those programs today, however, produces the following outlook from the CBO:

Beyond the 10-year projection period, further increases in federal debt relative to the nation’s output almost certainly lie ahead if current policies remain in place. The aging of the population and rising costs for health care will push federal spending as a percentage of GDP well above that in recent decades. Specifically, spending on the government’s major mandatory health care programs–Medicare, Medicaid, the Children’s Health Insurance Program, and health insurance subsidies to be provided through insurance exchanges–along with Social Security will increase from roughly 10 percent of GDP in 2011 to about 16 percent over the next 25 years. If revenues stay close to their average share of GDP for the past 40 years, that rise in spending will lead to rapidly growing budget deficits and surging federal debt. To prevent debt from becoming unsupportable, policymakers will have to substantially restrain the growth of spending, raise revenues significantly above their historical share of GDP, or pursue some combination of those two approaches.

It’s hard to do “big things” when you have to pay for big government.

Cairo on Fire

The story in Egypt is moving fast, and it’s hard to predict how everything will turn out, but right now Al Jazeera’s English-language channel has incredible live footage of the rioting and inferno in Cairo, which among other things has engulfed the headquarters of the ruling National Democratic Party in flames. You can watch live here.

Obama Builds Bridge to Clinton

For all the “future” talk in last night’s State of the Union address, President Obama seemed to have drawn a lot of inspiration from the past.

While the defining phrase of the speech, “Winning the Future,” was the title of a 2005 book by former House Speaker Newt Gingrich, the content of the speech echoed the theme of former President Bill Clinton’s reelection campaign.

After defeat in the 1994 midterm elections curtailed his ambitious legislative agenda, Clinton famously pivoted, acknowledging the public’s desire to rein in government while positioning himself as the protector of the social safety net from the Gingrich Republicans who wanted to rip it to shreds. In the 1996 campaign, this morphed into the vaguely defined “Bridge to the 21st Century.”

Obama, facing a similar set of political circumstances, now looks to be replicating the winning Clinton model as he gears up for his own reelection effort.

In both cases, the presidents were addressing a nation that had become skeptical of big government, and thus they tried to frame their expansionary policies in a way that tapped into Americans’ patriotism and romance with the future.

“So tonight, let us resolve to build that bridge to the 21st century, to meet our challenges and protect our values,” Clinton said in his acceptance speech at the 1996 Democratic National Convention.

In his State of the Union address last night, Obama said, “So over the last two years, we’ve begun rebuilding for the 21st century, a project that has meant thousands of good jobs for the hard-hit construction industry.  And tonight, I’m proposing that we redouble those efforts.”

In the Clinton-Obama framework, government needs to be cut, yes, but only in a humane way that doesn’t inhibit progress.

“(L)et us proclaim to the American people we will balance the budget, and let us also proclaim we will do it in a way that preserves Medicare, Medicaid, education, the environment, the integrity of our pensions, the strength of our people,” Clinton said in his acceptance speech at the 1996 Democratic National Convention. “I want to balance the budget with real cuts in government and waste. I want a plan that invests in education as mine does, in technology and yes, in research.”

In his State of the Union speech, Obama reiterated his call for freezing discretionary spending without endorsing specific reforms to entitlement programs, and in the process he delivered a warning that sounded eerily reminiscent of Clinton’s.

“I recognize that some in this chamber have already proposed deeper cuts, and I’m willing to eliminate whatever we can honestly afford to do without,” Obama said.  “But let’s make sure that we’re not doing it on the backs of our most vulnerable citizens. Cutting the deficit by gutting our investments in innovation and education is like lightening an overloaded airplane by removing its engine. It may make you feel like you’re flying high at first, but it won’t take long before you feel the impact.”

Last night, Obama spoke of a renewed commitment to education. “To compete, higher education must be within the reach of every American,” he said. “That’s why we’ve ended the unwarranted taxpayer subsidies that went to banks, and used the savings to make college affordable for millions of students. And this year, I ask Congress to go further, and make permanent our tuition tax credit — worth $10,000 for four years of college.”

Back in 1996, Clinton said, “By the year 2000 the single most critical thing we can do is to give every single American who wants it the chance to go to college. We must make two years of college just as universal in four years as a high school education is today. And we can do it. We can do it and we should cut taxes to do it. I propose a $1,500 a year tuition tax credit for Americans, a Hope Scholarship for the first two years of college to make the typical community college education available to every American. I believe every working family ought also to be able to deduct up to $10,000 in college tuition costs per year for education after that.”

Clinton wanted “every single library and classroom in America connected to the information superhighway by the year 2000” and to make sure that “every 12-year-old will be able to log in on the Internetâ€_” Last night, Obama predicted that, “Within the next five years, we’ll make it possible for businesses to deploy the next generation of high-speed wireless coverage to 98 percent of all Americans.”

Just as Clinton took credit for welfare reform that was largely forced upon him by the new GOP majority, Obama declared early in his speech that, “Thanks to the tax cuts we passed, Americans’ paychecks are a little bigger today.”

Obama may be the beneficiary of a weak GOP field in 2012 no matter what strategy he employs, but there are several reasons why Obama is in a tougher position than Clinton.

Ironically, Clinton benefitted from the fact that his legislative priorities were largely stymied during his first two years in office, allowing him to later distance himself from a transformational liberal social agenda. By contrast, Obama was very successful legislatively, and the implementation of his policies — most notably, the national health care law — will continue to remind voters that he’s a big government liberal.

Also, it was easier to postpone action on entitlements back in the 1990s, but now our debt is much steeper, the economy is much weaker, and the day of reckoning is quickly approaching with Baby Boomers retiring. As Rep. Paul Ryan put it in his response to Obama’s speech, “What was a fiscal challenge is now a fiscal crisis.”

Back in 1996, Clinton observed, “(W)e do not need to build a bridge to the past. We need to build a bridge to the future.”

Last night, Obama explained that, “We can’t win the future with a government of the past.”

The question facing Obama is whether he can win reelection with a campaign from the past.

Excerpts of Ryan’s Response

Rep. Paul Ryan’s office has released the following excerpts of his response to President Obama’s State of the Union Address:

REP. GABRIELLE GIFFORDS: “President Obama just addressed a Congressional chamber filled with many new faces.  One face we did not see tonight was that of our friend and colleague, Congresswoman Gabrielle Giffords of Arizona.  We all miss Gabby and her cheerful spirit; and we are praying for her return to the House Chamber.” 


SPENDING: “In one of our first acts in the new majority, House Republicans voted to cut Congress’s own budget.  And just today, the House voted to restore the spending discipline that Washington sorely needs.  The reason is simple.  A few years ago, reducing spending was important.  Today, it’s imperative.  Here’s why.  We face a crushing burden of debt.  The debt will soon eclipse our entire economy, and grow to catastrophic levels in the years ahead.  On this current path, when my three children — who are now 6, 7, and 8 years old — are raising their own children, the federal government will double in size, and so will the taxes they pay.  No economy can sustain such high levels of debt and taxation.  The next generation will inherit a stagnant economy and a diminished country.  Frankly, it’s one of my greatest concerns as a parent — and I know many of you feel the same way.”


BUDGET: “Americans are skeptical of both political parties, and that skepticism is justified — especially when it comes to spending.  So hold all of us accountable.  In this very room, the House will produce, debate, and advance a budget.  Last year — in an unprecedented failure — Congress chose not to pass, or even propose a budget.  The spending spree continued unchecked.  We owe you a better choice and a different vision.  Our forthcoming budget is our obligation to you — to show you how we intend to do things differently, how we will cut spending to get the debt down, help create jobs and prosperity, and reform government programs.”


FISCAL CHALLENGE AHEAD: “Our nation is approaching a tipping point.  We are at a moment, where if government’s growth is left unchecked and unchallenged, America’s best century will be considered our past century. This is a future in which we will transform our social safety net into a hammock, which lulls able-bodied people into lives of complacency and dependency.  Depending on bureaucracy to foster innovation, competitiveness, and wise consumer choices has never worked — and it won’t work now.  We need to chart a new course.”


“STIMULUS”: “The facts are clear: Since taking office, President Obama has signed into law spending increases of nearly 25% for domestic government agencies — an 84% increase when you include the failed stimulus.  All of this new government spending was sold as ‘investment.’  Yet after two years, the unemployment rate remains above 9% and government has added over $3 trillion to our debt.”


HEALTH CARE: “What we already know about the President’s health care law is this: Costs are going up, premiums are rising, and millions of people will lose the coverage they currently have.  Job creation is being stifled by all of its taxes, penalties, mandates and fees.  Businesses and unions from around the country are asking the Obama Administration for waivers from the mandates.  Washington should not be in the business of picking winners and losers.  The President mentioned the need for regulatory reform to ease the burden on American businesses. We agree — and we think his health care law would be a great place to start. Last week, House Republicans voted for a full repeal of this law, as we pledged to do, and we will work to replace it with fiscally responsible, patient-centered reforms that actually reduce costs and expand coverage.”


DEBT LIMIT: “Whether sold as ‘stimulus’ or repackaged as ‘investment,’ their actions show they want a federal government that controls too much; taxes too much; and spends too much in order to do too much.  And during the last two years, that is exactly what we have gotten — along with record deficits and debt — to the point where the President is now urging Congress to increase the debt limit.  We believe the days of business as usual must come to an end.  We hold to a couple of simple convictions: Endless borrowing is not a strategy; spending cuts have to come first.”


ROLE OF GOVERNMENT: “We believe government’s role is both vital and limited — to defend the nation from attack and provide for the common defense; to secure our borders; to protect innocent life; to uphold our laws and Constitutional rights; to ensure domestic tranquility and equal opportunity; and to help provide a safety net for those who cannot provide for themselves.  We believe that the government has an important role to create the conditions that promote entrepreneurship, upward mobility, and individual responsibility.  We believe, as our founders did, that ‘the pursuit of happiness’ depends upon individual liberty; and individual liberty requires limited government.  Limited government also means effective government.  When government takes on too many tasks, it usually doesn’t do any of them very well.  It’s no coincidence that trust in government is at an all-time low now that the size of government is at an all-time high.”


LIMITED GOVERNMENT: “We need to reclaim our American system of limited government, low taxes, reasonable regulations, and sound money, which has blessed us with unprecedented prosperity.  And it has done more to help the poor than any other economic system ever designed.  That’s the real secret to job creation — not borrowing and spending more money in Washington.  Limited government and free enterprise have helped make America the greatest nation on earth.

_ _#####

Excerpts of Obama’s SOTU Address

Via the White House press office:

With their votes, the American people determined that governing will now be a shared responsibility between parties. New laws will only pass with support from Democrats and Republicans. We will move forward together, or not at all — for the challenges we face are bigger than party, and bigger than politics.

At stake right now is not who wins the next election — after all, we just had an election. At stake is whether new jobs and industries take root in this country, or somewhere else. It’s whether the hard work and industry of our people is rewarded. It’s whether we sustain the leadership that has made America not just a place on a map, but a light to the world. We are poised for progress. Two years after the worst recession most of us have ever known, the stock market has come roaring back. Corporate profits are up. The economy is growing again.

But we have never measured progress by these yardsticks alone. We measure progress by the success of our people. By the jobs they can find and the quality of life those jobs offer. By the prospects of a small business owner who dreams of turning a good idea into a thriving enterprise. By the opportunities for a better life that we pass on to our children.  That’s the project the American people want us to work on. Together.


Half a century ago, when the Soviets beat us into space with the launch of a satellite called Sputnik ¸ we had no idea how we’d beat them to the moon. The science wasn’t there yet. NASA didn’t even exist.

But after investing in better research and education, we didn’t just surpass the Soviets; we unleashed a wave of innovation that created new industries and millions of new jobs.

This is our generation’s Sputnik moment.

Court Kicks Rahm off the Ballot

The Chicago Sun-Times reports:

Rahm Emanuel was thrown off the ballot for mayor of Chicago today by an appellate court panel, a stunning blow to the fund-raising leader in the race.

An appellate panel ruled 2-1 that Emanuel did not meet the residency standard to run for mayor.

Emanuel is expected to appeal the decision to the Illinois Supreme Court.

UPDATE: Read the full decision here.