Supreme Court Fall term preview; Obamacare, police Gps tracking and Illegal immigration

 A week after the traditional start of the Supreme Court's "Fall Term" on the first Monday in October, this year's court docket is shaping up to be a historical one in light of its potential for far reaching impact on the life of every single American.  This is primarily due to several watershed cases which the court is expected to rule on this term.  We therefore thought it appropriate to examine a few of the cases that some court watchers say will make the High Court's rulings this year the most important and momentous in decades, (perhaps even the whole 21st century!).

  First up, the High Court's decision to resolve the controversial "individual mandate" in Obamacare, (aka the "Affordable Care and Patient Protection Act," the Obama Administration's sprawling overhaul of the country's health care system).  A split between the Federal 11th and Sixth Circuit Courts of Appeal on this landmark legislation makes resolution of this matter not only a near certainty, but one with far reaching results for both the way government regulates (read "decides") not just the cost of health care, (and who will pay for it!), but the amount and kind of health care procedures Americans are entitled to receive in the future.

 Indeed, for the first time in history, a government bureaucrat will actually determine what procedures are medically necessary that individuals receive under their health plan, creating a potentially additional layer of interference between doctor and patient that many fear will end in health care rationing on an unprecedented level in an area which many feel insurance companies already have too much say in, (you can read our entire opinion on the dangers of Obamacare here).

  Of course, it goes without saying that whichever way the High Court comes down on this one, the ruling on Obamacare, expected to come next summer and smack dab in the middle of the 2012 re-election campaign of President Obama, will be an incredibly momentous and historical one in its likely impact on the 2012 elections, as well as on our health delivery system in this country in general.

  Second up, at least in potential impact on our republic in an equally contentious area of law, is the State of Arizona's anti-illegal-immigration bill S.B. 1070.  The Arizona bill, which aims to assist federal authorities and fill in the gaps on an out-of-control immigration problem that has inundated the Western state with Mexican immigrants in search of an American standard of living and accordingly overwhelming Southwestern states' like Arizona's schools and health care systems, (and, some say, taken American jobs at a time when employment is scarce), has never been allowed to take effect due to the Obama Administration (and others) immediately suing the state before it could.  

  And while we here at the ACLP don't feign to be experts enough in this area, nor do we have the time to definitively resolve such disputes, one matter is (indisputably!) not in dispute: The resolution of the legality of this law-- now copied by at least one other State, see here-- will have an enormous impact on the future of the states, (and our nation's for that matter), ability to protect itself from the effects of illegal immigration on our economic vitality and, in many ways, our very culture.   Moreover, we would be remiss approaching the presidential elections in 2012 not to mention that the matter has tangentially become an intense political issue recently due to a "gaff" of Texas Governor Rick Perry on related issues while debating Mitt Romney.

  In the Republican candidates debate in Orlando Florida on Sept 22, (see news here, and video of debate here, click on Sept 22 debate), Governor Perry responded that those who didn't support his policy in Texas of giving illegal immigrants in-state tuition at public universities didn't "have a heart," (video here), starting a furious debate within the Republican party on its immigration policy and, at least for Perry, accelerating a precipitous fall as front-runner of the Republican primary to a close race for second place with former businessman and CEO of Godfather's Pizza Herman Cain, (click here. Of course, not adequately addressed at the debate was the legal right of Arizona, which shares the second longest border with our neighbors to the South behind Texas, to pass its own laws, something that pro "states rights" candidate Perry might be expected to support).

  Watch for the resolution of this case's ability to potentially upend the Republican primary race for who will have the right to challenge President Obama in 2012 by-- depending on when the High Court resolves this case-- re-injecting this issue into the Republican campaign by summer, (if Perry can hold off Romney and Cain in the Iowa and early primary states long enough for the issue to remain relevant).

  Most important for our purposes is the potential impact of this case to determine the relationship between the states and the federal government on the immigration issue and to what extent, if any, they can work together to stem the tide of illegal immigration across our Southern borders, (the Obama Administration's legal position being that the Federal government alone under the Constitution's "Supremacy Clause" is the only level of government which has the right to pass legislation regulating this critical area).

  U.S. v. Jones is the last case of note and a matter of interest to us here at the ACLP-- as well as many privacy advocates around the country-- and regards the ability of the government to use increasingly powerful modern technology to invade average Americans private lives for less than compelling reasons.

  In light of those on the political left who seem to persistently believe that it is the political right which poses the biggest threat to personal liberty and that election of Barack Obama was the only antidote to a Patriot-Act promoting Bush Administration which they saw as invading the privacy rights of Americans, it is interesting that this case arises out of an appeal by the Obama Administration from the D.C Court of Appeals which overturned the conviction of a defendant on Fourth Amendment grounds after police affixed a gps device to track his movements without a warrant, (for pdf of court decision click here).  In other words, the Obama Administration is now arguing for less privacy of individuals and more authority for government surveillance of citizens.   Indeed, along with the continuation of Bush era policies re: indefinite detention of enemy combatants, the continued operation of Gitmo, continued, (indeed, increased!) use of predator drone strikes responsible for the taking out of terrorists like Anwar Al-Awlaki and continued economic malaise raising the chances of a 2012 Republican sweep it is not a good time to be a political liberal.  But I digress.

  On the merits of the police/gps cases the ruling of the D.C. Circuit contradicts that of another case, United States v. Juan Pineda-Moreno, in which the 9th Circuit Court of Appeals came to the opposite conclusion.  Indeed, just last year they upheld the right of police to place GPS tracking units on the cars of individuals without probable cause or a court order, (more in depth analysis of this case here).  

 The conflict between these cases in the Federal Circuit Court of Appeals makes resolution by the High Court necessary to clear up the issue, (one of the key purposes and reasons for the Supreme Court's intervention according to court rules).


  Legally, these federal rulings follow close on the heels of various state court rulings, the majority of which have ruled against the practice on Fourth Amendment grounds, see here, here, and here.  

  Most troublesome to us is the underlying premise of the 9th Circuit's decision, that individuals have little or  no "expectation of privacy" with regard to their vehicles on the public roads (or even parked in their own driveway in most cases!) such that would prohibit police from attaching such a tracking device, (in recent years a position of law increasingly expanded and used to legally justify everything from blanket "license check" roadblocks to "safe welfare" checks on children in custody disputes).


 Relying on a previous U.S. Supreme Court case, United States v. Knotts, in which the U.S. Supreme Court found a "beeper" tracking device constitutional, the 9th Circuit decision likened the police's conduct in tracking the movements of a suspected drug trafficker to that of detectives on a traditional "stakeout" or "tailing" a suspect.   The 9th Circuit essentially reasoned that since under Knotts an owner of an automobile using public roads, (and their driving habits of where and when they come and go), is entitled to no more an "expectation of privacy" under the Fourth Amendment than a person walking down a public street, the police's conduct in attaching a gps tracking device passed constitutional muster.  

  This ruling is interesting not only because it comes out of what is usually considered the nation's "most liberal" (and most reversed) Court of Appeals in the nation, (and thus makes an interesting switch in political as well as legal bedfellows from the usual state of affairs), but because it may provide us a glimpse into the views on such matters of the High Court's newest members, (Sonia Sotomayor and Elena Kegan, both appointed by President Obama in 2009 and 2010 respectively).

  Of course, what the Supreme Court will do with this case-- with two new Obama appointee judges who incidentally don't tip the ideology of the court in any particular direction as they replaced liberal-leaning justices-- is anyone's guess.

  However, keeping in mind that Knotts was decided on decidedly narrow grounds and the concurring decisions of Justices Blackman, Stevens and Brennan made clear their uncomfortability with both the treatment of certain precedents of the court and the broad terms of certain dicta of the Knotts decision, ours feeling is the odds are slightly against even that the High Court upholds the rights of the police in this case, (although the wild card here is Justice Antonin Scalia, who is known to be a maverick in certain areas of criminal jurisprudence and could easily tip the balance of the court).

  Indeed, although Scalia's strongest anti-police-power opinions have been in dealing with cases in which the text of the Constitution is crystal clear, (e.g. the constitution's guarantee re: Free speech or that an accused has the right "to confront his accusers" before he can lawfully be deprived of liberty), Scalia has frequently taken positions in favor of the liberty of individuals against expansion of governmental power, (shocking many on the left who believe that "conservatives" are all nazis with no respect for civil rights). For the record, and to shock and chagrin of our friends on the left of the political spectrum, our beliefs are to the contrary principled ones informed, and in fact strengthened, by a rock-solid belief in rights as immovable under the Constitution as we believe the words in its text are, a subject on which we reserve further examination for another day).

  In any case, and whichever way this one goes, with the potential to result in expanding the power of government at the expense of shrinking the privacy of individuals in our increasingly technology-monitored (and dependent) world, it cannot be doubted this case has the ability for immense change both to our American culture placing high value on being "free on the open road" as well as laying the groundwork for future intrusions into private life as technology expands.

  Of course, isn't that the rub?  How to not unduly hinder police in their important duties investigating criminals among us, a particularly needful and important job of the government, while at the same time not unduly threatening the rights of law abiding individuals, has always been a thorny balancing act.  This balancing act will only become more difficult, with its inherent moral and ethical dilemmas, (think movies like "Minority Report"), as time (and technology) march forward.

  We here at the ACLP will attempt to keep you apprised of such critical matters before the U.S. Supreme Court in 2011, and their impact upon our nation's political and civil freedoms.   jp

Obama and the DOMA- Rule by decree?

In a letter to Speaker of the House John Boehner yesterday, Attorney General and political appointee Eric Holder announced President Obama's unilaterally deciding the Administration would no longer "defend" the Defense of Marriage Act signed into law by President Clinton, raising a firestorm of protest from a variety of quarters for reasons that may not at first seem apparent from a cursory perusal of most major media's coverage of this issue, (and surprisingly it has little to do with "homosexual rights," see below analysis and explanation).

Coming on the heels of the Obama Administration utilizing the "lame duck" sesson of Congress in December of last year to force through its dismantling of the "Don't Ask Don't Tell" law responsible for successfully regulating homosexual conduct and disposition in the armed forces for over a decade and a half, it is only natural that countless pro-family and Christian groups would have serious concerns over Obama's apparent penchant for remolding the entire Federal government into a more secular, anti-Christian one which some would say is in fact antagonistic towards conservatives and especially people of faith, (all except radical adherents of Islam and Communist activists, for whom Obama seems to have a soft spot).  However, this decision by the nation's chief Executive officer charged with enforcing and defending the nation's laws has also raised alarm bells for many Libertarian, Tea Party and other groups for entirely irreligious reasons.

 Indeed, this apparently ideologically-motivated decision by the Obama Administration has not only brought notice to the sheer hypocrisy of the Administration in light of Obama's refusal to heed the Order of the Federal District Court in Pensacola that implementation of the Affordable Healthcare Act (i.e "Obamacare") is unconstitutional and should immediately cease, it has more importantly raised a potential Constitutional crisis over the failure of the Executive branch to "take care" to "faithfully execute the laws" and the Rule of Law in our country generally, (see http://www.frugal-cafe.com/public_html/frugal-blog/frugal-cafe-blogzone/2011/02/26/newt-gingrich-slams-the-rule-of-obama-instead-of-the-rule-of-law-on-enforcing-doma-mentions-impeachment-video/).

  Indeed, in our view it is a huge step away from a government under the “rule of law” towards a disturbing trend of this Administration in favor of absolute control and consolidation of all power at the federal level. 

 Moreover, judging by the chatter of cyberspace, to many it appears little different than the "Rule by Decree" formula favored by dictatorial regimes all over the world which America has opposed since its founding, (to varying degrees of success) and seems intent on using executive fiat to accomplish what it could not by the democratic process through open debate and appeals to the electorate, (which have repeatedly repudiated gay marriage in almost every state in which it has been put to a public vote).

 To really understand the opposition to this unprecedented action of the Obama Administration coming at a time when most Americans remain focused on economic recovery and job creation requires analysis of the broader Constitutional implications and a brief examination of those foundational principles upon which our very Republic is, in many significant ways, based.

 The Constitution of the United States clearly states that the Executive Branch is responsible to "faithfully execute the laws." (Art 2, Section 3).  Indeed, due to the fact our Constitution sets up checks and balances among three co-equal branches of government with distinctly different duties, our Democratic Republic is heavily dependent upon the "Rule of Law" (as well as and Separation of Powers principles) to function.  Though this concept is so basic as to be doubtful to require elaboration for anyone who has a basic understanding of American government or follows this blog regularly, due to its crticial nature I will briefly expound on this for newcomers or the uninitiated.

 The concept of the Rule of Law in human history is a relatively novel one compared to the much wider practice in the ancient world of conquer and enslavement, or, in pre-democratic Old World Europe a political society based upon the "Divine Right" of kings, (who routinely used their absolute power to oppress political opponents and stifle dissent). Nevertheless, it was thought of by our republic's Founders as fundamental to survival of a democratic State dedicated to individual rights and a key check on unbridled governmental power. (For those who might question its importance the key "abuses" of King James III listed in our Declaration of Independence from England all boil down to essentially the denial of the Rule of Law as expressed in denial of the right to be treated as other English Citizens, right to jury trial, right to be free from taxation without representation, etc., etc. (see http://www.courts.mo.gov/page.jsp?id=1084.)

 It is also key to checking the President from both over-riding the decisions and law-making powers of the Congress inherent in our constitutional Separation of Powers and superseding the fundamental rights of the court's to interpret the laws as found in Marbury v. Madison, (the first decision of the U.S. Supreme Court checking the power of the Legislative Branch by declaring an act unconstitutional and against our primary law of the land, the U.S. Constitution.  While early on in our nation's history some considered all three branches of government to be authorized to determine Constitutional questions for itself, the almost universal consensus in the modern age recognizes the harm such a consolidation of power does to our system of Separation of Powers and is thus almost universally disproved).  It is in this light that the President's unilateral decision not  to defend the DOMA is so troublesome; it clearly is taking upon itself a role that, in our Constitution, is reserved for the courts to determine.

 This is so because, while not technically invading the province of any court, this decision by our nation's Chief Executive and Attorney General Eric Holder, our nation's chief law enforcement officer, actively undermines the sovereign right of the Courts to determine the constitutionality of "cases and controversies" as is their sole right and obligation under Article three of our Federal Constitution. (Indeed, by one stroke of a pen, President Obama's unexpected action on this issue seems designed to deprive federal appellate courts of jurisdiction by rendering moot cases already winding their way through our legal system on this very issue).

 As a result, a constitutional crisis and inherent conflict has been triggered by the President's actions, (even if the left can't seem to understand the Separation of Powers principles at stake. Indeed, as above alluded, the idea that each branch gets to decide for itself what is or is not constitutional has since Marbury v. Madison long been discredited, for better or worse, see www.stopjudicialactivism.us ).

 Further, while couching its rationale in respect for the judiciary in not wanting to establish "precedent" in circuits of the Federal Courts of Appeals that have not ruled on what level of legal scrutiny applies to challenges to the DOMA, that-- according to the President and Attorney General-- may be incorrect, (i.e., so called "rationale basis" test that requires a high level of deference be given to the governmental regulation or law challenged), by taking it upon itself to make such determinations in advance the Administration is in fact showing an appalling lack of respect for the right of the Courts to make this determination AND Congress, who presumably considered such matters prior to passage of this act.  (While we shall analyze whether, in fact, such judgment by Congress, as well as other court's determinations on the issue, was correct in a separate post, it is sufficient for our purposes here to merely note the inherent contradiction in the President's actions).

 In further support for its constitutional "determination," the Administration also cites "changing public perceptions" on the issue, and, in an amazing display of self-aggrandizing hubris, the lame duck Congress' recent overturning of the Clinton era 'Don't ask, Don't Tell' rule at the specific behest of the President!  (Talk about self-serving political arguments!)  This in spite of considerable opposition to repeal of DADT in both the military and society at large.   The attorney general's reference to the High Court's recent declarations in Lawrence v. Texas that "states have 'demean[ed] the[] existence' of gays and lesbians 'by making their private sexual conduct a crime.'   Lawrence v. Texas, 539 U.S. 558, 578 (2003) is both irrelevant to the Administration's Constitutional duties and arguably factually incorrect.  Indeed, as pointed out in the Bowers v Hardwick decision (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0478_0186_ZS.html which governed this area of jurisprudence for 17 years prior to the controversial Lawrence decision, there had never been found a right to sodomy since the nation's founding, nor would such a right have been recognized by the Founders or any of the original colonies.  In fact, all these historical sources unanimously speak to the disapproval of any such "right" (which would have undoubtedly been considered deviant and sinful expressions of sexuality by our laws and citizens alike).   Don't get me wrong.  I say this not to say gay people should be imprisoned for their private expressions of affection; as a conservative with a strong libertarian streak, I could care less what they do in the privacy of their bedrooms.  Indeed, regardless of my personal moral view to hold otherwise would just as anathema to me as is the constitutional destruction we are now witnessing at the behest of the President's personal to "reshape" society in a more secular, progressive mold.  However, only one of these, (the abandonment of defending a duly passed law by the United States Congress) has the devastating effects to our constitutional fabric and system of "ordered liberty" which is, to put it mildly, extremely worrisome, (and therefore is our mission to address here).  I only refer to it because the administration cites this state of the law in support of its decision to not defend DOMA and our belief here at the ACLP that such is an extremely weak reason for doing so.  (Indeed, the reference in attorney general Holder's letter to Congress makes it sound as if the Lawrence decision was made without controversy and there is no other rational view of either the law or its effect upon what weight it should be given vis a vis the Administration making its "constitutional" determination not to defend the Defense of Marriage Act, which is just not factually the case).   The Supreme Court has been wrong before and in subsequently overruled controversial holdings, (as it did in Brown v. Board of Education and many, many others); Regardless of your view of such matters it does not justify the President in deciding unilaterally not to enforce current, lawful acts of Congress which have not been struck down as unconstitutional by the U.S. Supreme Court, (at least not if you care about our whole constitutional framework by which all our basic rights are protected). 

 Finally, a word on outcomes.  By not allowing each state to decide this matter for themselves and failing to prevent states whose population's don't approve of gay marriage from being forced to accept it due to the "full faith and credit" clause of the U.S. Constitution, (the whole point of the DOMA in the first place), the inevitable outcome of this “Executive Decision” of the President is to insure more cultural combat on this issue in much the same way as the infamous 'Dred Scott" decision predating the American Civil War did, (now there's both an intellectually intriguing and tragic notion).  Hopefully the result won't be the same.

 In any case, taking into account the fact of the President's known support by homosexual activist groups and progressive/liberal past associations (i.e., Jeremiah Wright), and voting record, (the most liberal in the U.S. Senate), it seems likely that rather than being based on any strong belief in "principle" as Mr. Holder attempts to spin this in his letter to House Speaker Boehner, it is much more likely we are witnessing a shrewd political act meant to shore up the President's left wing base in the Democratic party at what is arguably the start of his 2012 campaign for re-election. 

 On the matter of concern in this post, such a self-aggrandizing power grab as here displayed by the President of the United States, is, in our view, an alarming development by an Administration that seems at war both with foundational principles of our Republic and its own position in other cases in which it favors a different outcome.

 Specifically, in the 'Obamacare' cases now making their way through our court system on the way to their likely resolution in the Supreme Court, what has the Obama Administration's position been re: the constitutionality of Acts of Congress? Has it not been that the Congress has spoken re: Obamacare's passage by duly-elected Representatives in Congress and the President has signed this monstrous legislation into law? (See Feb 4 post, "So what's really the problem with Obamacare?") Sure, it is wrapped inside pious legalese re: the Commerce Clause and the right of the Federal Government to "tax," (read "penalize") individuals who don't choose to purchase health insurance, but that is what it comes down to in the end. Which makes a curious juxtaposition against the Administration's jettisoning of Congress' will regarding the much-more-firmly established DOMA.

 Clearly, on the former, the Administration continues to ignore the plain direction of the Pensacola (and Virginia) Federal courts finding the largely unpopular and recently passed "Affordable Healthcare Act" unconstitutional and ordering the federal government to cease implementation; On the latter, the DOMA has the almost universally popular support of the American electorate, (including in liberal California whose voters upheld it for a third time by a 52% percent vote in 2008), and had, prior to July of 2010 never been declared unconstitutional in spite of continuous litigation by liberal and gay-rights activist groups since its implementation nearly 15 years ago.  (to say nothing of the fact it is Congress' job to enact legislation, and the President's to defend and execute the policy of Congress, which it outright refuses here to do, arguably an impeachable act, see below). 

 Of course, such considerations don't seem to faze the Obama Administration's stubborn determination to impose its liberal-progressive social agenda on American society regardless of the outcome, damage to our constitutional system, or will of the American people.  

 Indeed, the inescapable conclusion is that, rather than based on its obligations to "faithfully execute the laws," it is simply the politics and ideological preferences of the most liberal Administration since Jimmy Carter of the late 70's, desperate to please its left-wing base in time for the 2012 elections, that is the cause for such blatant hypocrisy and disregard for the Rule of law. (Either that, or, as some have alleged, an outright assault on America's core and Christian values, which we here at the ACLP are not sure is worse or that such motives can be definitely ascertained, though it does appear increasingly clear).

 The tragic and funny thing is, that if our leftist friends were really honest they would have to agree, if only intellectually, that the courts, (which allowed segregation and issued the infamous "Dred Scott" decision that said blacks were merely property to be returned to their owners), are a particularly poor venue for asserting rights. Indeed, as has been previously pointed out elsewhere, (see http://www.stopjudicialactivism.us/ ), by vesting the federal courts with such unmitigated power they also form the legal noose that can prove their undoing, (as if one set of men in robes can "find" such things in the Constitution another surely can "unfind" them! see  http://stopjudicialactivism.us/Page2.html  ).

 This is why it is the job of the Congress and/or the people through their State Legislators, not the President or even the courts unless clearly against the U.S. Constitution, to make such "political" determinations on hot button issues; It is also why decisions like the one the Obama Administration has just made re: defending the Defense of Marriage Act, even if technically legally correct, (still a matter in dispute), come at too high a cost as it is just one more step in a complete disavowal of American law and principles upon which our nation was founded and a step towards unmitigated consolidation of power in the Federal government which can only lead to it and the judiciary's corruption.

 As our nation's third President and author of the Declaration of Independence Thomas Jefferson warned us, "It has long, however, been my opinion, and I have never shrunk from its expression... that the germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body (for impeachment is scarcely a scarecrow) working like gravity by night and by day, gaining a little today and little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one." - Thomas Jefferson, letter to C. Hammond, 1821

 In any event, one thing is abundantly clear; Beyond the start of the 2012 Presidential elections, (which we think is evident have begun with a bang), the damage to our Republic and system as a "nation of laws and not of men" that such "decisions" by the Executive branch has caused is inestimable and most worrisome.

 Indeed, we seem to recall the expression of strikingly similar concerns on the part of representatives of the Democratic party in the Mid-eighties that similar behavior on the part of the Reagan Administration indicated criminality and "corruption" of the highest order justifying impeachment, (and bringing extensive hearings in any case, does the name "Colonel Oliver North" ring any bells?)

 Politically, we are talking, of course, about the so called "Iran-Contra" affair in which President Reagan was accused of disregarding laws duly-passed by Congress prohibiting aid to forces fighting to overthrow an oppressive Communist government in Central America by trading arms for hostages held in Iran. Back then we were repeatedly assured by high officials in the Democratic party of the "seriousness" of the "crime" President Reagan committed by disregarding the laws duly passed by Congress and the harm this caused to our "Democratic" institutions. (And this was so even though such actions as alleged to be done by the President, even if conclusively proven true, which was never the case, could at least arguably be said to have been done under the Executive's inherent authority to conduct the nation's Foreign Policy, a justification not available to the Obama Administration here). Apparently the only harm to our "democratic institutions" the political left in this country cares about is the kind that harms their own political agenda. jp

Obamacare unconstitutional- Florida Court

In a stunning decision striking down the controversial "Affordable Health Care for America Act," (i.e. "Obamacare"), a United States federal court for the second time has ruled unconstitutional President Obama's crown legislative accomplishment.  United States District Court Judge Roger Vinson, sitting at Pensacola Florida, ruled yesterday that the 2008 bill, forced through on a straight party-line vote with little bipartisan input, exceeded its limits under the Constitution by an expansive interpretation of the "Commerce Clause" that unlawfully intruded into both individuals' and States' rights in its attempts to govern "passive" non-commercial activity.  

Significantly, the court found payment by individuals of a "fine" for failing to buy health insurance a penalty, (the so called "individual mandate"), and inappropriate under application of precedents of the U.S. Supreme Court.   Further, finding no "severability clause" in the controversial law's provisions, the Court declared the whole act void, (or, in layman's terms, illegal).

Be careful what you wish for.

The ruling, partly forced by the Obama Administration's own insistence in court proceedings that no "severability clause" was intended in the legislation and it thus must either be upheld or struck down in its entirety, was nonetheless a stunning victory for States Rights and anti-Obamacare forces in both its breadth and intellectual heft. 

A comprehensive and well reasoned decision which invokes Revolutionary history.


 Of special note, the reasoning of the 78 page decision-- widely perceived as more comprehensive and sweeping compared to a previous decision by a Virginia court striking the law down on narrower grounds-- at one point utilized the historical backdrop of the American Revolution-era "Boston Tea Party" to analogize that the act could not be legal under our Constitutional system for the simple reason that, just as England then in our nation's history could not force Colonists to buy taxed tea only from the British-authorized "East India Company," (a provision of the 1773 "Tea Act" passed by the British parliament to deal with the "problem" of cheaper and allegedly inferior "smuggled" tea, see http://www.ushistory.org/declaration/related/teaact.htm), neither could the present day U.S. government force individuals to buy a product (health insurance) on penalty of a fine. 

As Judge Vinson reasoned, "It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place." (P. 42 of ruling and Order, download in pdf form here http://johnrlott.blogspot.com/2011/01/copy-of-florida-judges-decision.html).

A victory for "States' Rights" and "originalist" forces.

Focusing in large part on the rights of the States' under the Tenth Amendment and Separation of Powers principles, the Court's decision essentially validated the view of the "health reform" law's opponents which emphasizes a distinction between commercial "acts" under the "commerce clause" of the U.S. Constitution, (thus subject to federal regulation under decisions of the U.S. Supreme Court, see http://topics.law.cornell.edu/wex/Commerce_Clause, http://en.wikipedia.org/wiki/Commerce_Clause), and the "non act" of individual citizens in failing to buy a governmentally-prescribed product or service.  

Indeed, Judge Vinson's decision repeatedly cited the U.S. Supreme court in clearly voicing the concerns of Constitutional "originalists," civil libertarians, legal scholars and Tea Partiers alike that if the commerce clause can be interpreted in such a way as to, for the first time in history, not just prohibit activity but compel the purchase by private individuals of a certain product or service, then there is nothing the government can be limited from coercing of its citizens, no activity, no matter how small, which the federal government cannot control, (from forcing us to buy certain brands of toothpaste to eating our vegetables like good little citizens).  Again, in Judge Vinson's own words:

"If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” [citing Supreme Court case United Staes v. Lopez, 514 U.S. at 564], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended."

Equally important to the straightforward reasoning of this decision is the breadth of the ruling which at one and the same time as it declares unequivocally that the controversial law is unconsitutional also issued an injunction prohibiting its enforcement and implementation.   

From here to eternity (or at least five members of the U.S. Supreme Court!)

Notwithstanding indications from the Obama Administration that it has no intention of heeding Judge Vinson's Order(s), the ruling will almost certainly be appealed to the Eleventh Circuit Court of Appeals, (even as the Attorney General of Florida, along with the other 25 States, organizations and individuals who are also challenging the constitutionality of Obamacare, seeks expedited review by the Supreme Court of this critical case).  We shall be very carefully watching this one and keep you apprised of any developments.  jp