The States to Speaker Pelosi: They’re Serious

http://blog.heritage.org/2010/10/14/the-states-to-speaker-pelosi-they%e2%80%99re-serious/

The States to Speaker Pelosi: They're Serious

The Foundry: Conservative Policy News.
October 14, 2010 4:18:28 PM

Robert Alt

When Speaker Nancy Pelosi (D-CA) 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?"

Today comes an answer from Florida, 19 other states, and the National Federation of Independent Businesses: they are very serious.  Federal District Court Judge Roger Vinson today rejected the Obama administration's invitation to throw their case out, allowing the constitutional challenge to proceed.

The 65-page decision is reasoned and methodical.  To give but a taste, the judge spends no less than 22 pages assessing whether the penalty assessed for failing to comply with the individual mandate is a tax or a penalty.  This seemingly arcane issue is important because, despite President Obama and Congress's claims throughout that the penalty is not a tax increase, the Justice Department has argued in Court that it is, in fact, a tax, in order to rely upon Congress's taxing powers as an answer to the question that we began with, namely "where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate."

The federal government's change in position on this issue earned a strong rebuke from Judge Vinson, who used the Justice Department's own arguments about congressional accountability against them:

[I]t is obvious that Congress did not pass the penalty, in the version of the legislation that is now "the Act," as a tax under its taxing authority, but rather as a penalty pursuant to its Commerce Clause power. . . . And, now that it has passed into law on that basis, government attorneys have come into this court and argued that it was a tax after all. This rather significant shift in position, if permitted, could have the consequence of allowing Congress to avoid the very same accountability that was identified by the government's counsel in the Virginia case as a check on Congress's broad taxing power in the first place. . . . .

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.

Opinion at 27-28 (internal citations and footnotes omitted).

With the Alice-in-Wonderland taxing argument taken away, the government is left with only one constitutional rationalization for the mandate: that forcing individuals who are not engaging in commerce regarding insurance contracts to enter into contracts for insurance with private, third-part insurers is somehow a regulation of interstate commerce.  The government argued that this use of congressional authority was nothing unusual, and that the case should be dismissed.  The Court disagreed, finding the question of whether to allow the claim "not even a close call."  The Judge found that "[t]he power that the individual mandate seeks to harness is simply without prior precedent"—contrary to the government's "nothing to see here" argument.   Demonstrating the breadth of the regulatory scheme, the Court noted:

The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive.

The decision is yet another loss for the Obama administration, which now will have to defend the mandate at a hearing on December 16.  And with these mounting losses, the answer to Speaker Pelosi's question is getting stronger, and clearer.

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