Judge torpedoes Obamacare, warns of 'unbridled fed police'

A federal judge today ruled that Obamacare's individual mandate, the core of the president's plan nationalizing health-care decision-making for all, is unconstitutional.

And the implications are even worse than just the dispute over health care and its costs, according to the ruling from U.S. District Judge Henry Hudson.

"A thorough survey of pertinent constitutional case law has yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce or role in a global regulatory scheme," the judge said.

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And he warned, "The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers."

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The controversial plan was adopted by Congress, whose members admitted they did not read the thousands of pages of new requirements, limits and restrictions before their vote, earlier this year and signed almost immediately by Obama, who had made it a central issue of his administration.

While two other federal judges have rejected other challenges to the law, lawyers for the state of Virginia, who brought the challenge to the federal law, argued Washington could not demand that someone buy a service or pay a penalty for not doing so.

The judge's ruling said the dispute was not about regulating insurance – or even a universal health insurance.

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"It's about an individual's right to choose to participate," the judge said.

"We're very pleased the federal court reached a sound decision and concluded that the individual insurance mandate is an unconstitutional violation of the Commerce Clause," said Jay Sekulow, chief counsel of the American Center for Law and Justice, one of the groups that has battled Obamacare.

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"This decision guts Obamacare and represents a decisive and significant victory for America against the largest power-grab by the federal government in U.S. history. The court correctly concluded that forcing someone to buy health insurance is not economic activity and that Congress does not have that authority under the Commerce Clause. We're already working on an amicus brief on behalf of members of Congress in support of the Commonwealth of Virginia as this case proceeds through the appeals process," he said.

At the White House, spokesman Robert Gibbs said challenges such as this are routine.

The state of Virginia had adopted a state law that essentially would nullify the federal plan inside its borders. Since then, one lawmaker in Texas went even further, proposing that those who enforce Obamacare in Texas be subject to jail time.

The ACLJ had filed an amicus brief in the case representing 28 members of Congress, including incoming House Speaker John Boehner and incoming House Majority leader Eric Cantor, as well as 70,000 Americans.

It argued that the mandate – the requirement that each individual buy the government-approved insurance policy Washington would specify, "exceeds any power granted under the Commerce Clause."

The decision ultimately is expected to be put to the U.S. Supreme Court.

Larry Sabato, the prominent professor of politics at the University of Virginia, told Politico, "Eventually the controversy will reach the Supreme Court, otherwise known as 'Anthony Kennedy,' for its resolution."

He was referring to the justice who often provides the swing vote between the two ends of the court's spectrum.

"Let's see," he wrote. "The Democratic judges who have ruled so far have upheld the health care reform law and the Republican judge has struck down the law's heart. Very predictable to this point because – despite the claims of many in the judicial branch – the partisan identification and personal ideology of judges matter enormously in cases with strong political overtones. If you knew the backgrounds of the Democratic judges and Republican Judge Henry Hudson, you could have made a bundle betting in Vegas."

Joining the conversation was former Ohio Secretary of State Ken Blackwell, who said, "There is one way for the high court to nullify all of the obnoxious provisions of Obamacare now that it has been established the individual mandate is unconstitutional. Obamacare lacks a severability
clause, which states that if any part of the statute is found invalid, the remainder continues in full force and and effect. The judge's decision today is the beginning of the end of Obamacare!"

"This is a great victory for the American people, the rule of law and the constitutional principles of individual liberty and freedom," said Mark Meckler, national co-cordinator of Tea Party Patriots. "Although this ruling has a long journey before it reaches the Supreme Court, we are confident that this massive congressional mistake will continue to be found unconstitutional."

"It is difficult to imagine a more massive repudiation of Obamacare than the recent November election, however, this ruling adds tremendous judicial weight to the votes cast by the American people," said Jenny Beth Martin, national co-coordinator of Tea Party Patriots. "ObamaCare is unconstitutional, and we are confident that the Supreme Court will ultimately protect the American people from a reckless congressional mistake."

The judge quoted from the law itself, "If a taxpayer who is an applicable individual … fails to meet the requirement of subsection (a) [mandatory insurance coverage] …there is hereby imposed on the taxpayer a penalty…"

He said the generation of revenue "is a transparent afterthought. The legislative purpose underlying this provision was purely regulation of what Congress misperceived to be economic activity. The only revenue generated under the provision is incidental to a citizen's failure to obey the law by requiring the minimum level of insurance coverage."

The judge said the mandate "is neither within the letter nor the spirit of the Constitution."

He also noted:

"[S]everal operative elements are commonly challenged in Commerce Clause decisions. First, to survive a constitutional challenge, the subject matter must be economic in nature and affect interstate commerce, and second, it must involve activity. ... In her argument, the Secretary [of the Department of Health and Human Services, Kathleen Sebelius] urges an expansive interpretation of the concept of activity. She posits that every individual in the United States will require health care at some point in their lifetime, if not today, perhaps even next week or next year ... This broad definition of the economic activity subject to congressional regulation lacks logical limitation and is unsupported by Commerce Clause jurisprudence."

"Creative drafting [has] never been sufficient to offset an absence of enumerated powers," he continued. "It is not the effect on individuals that is presently at issue – it is the authority of Congress to compel anyone to purchase health insurance. An enactment that exceeds the power of Congress to adopt adversely affects everyone in every application."

Liberty Counsel, which sued on behalf of Liberty University, said the case now is expected to be moved up to the 4th U.S. Circuit Court of Appeals by the Obama administration.

That's the same court to which its appeal of the dismissal of its complaint is headed.

"These is absolutely no authority in the Constitution that would allow the federal government to force every person to purchase a particular kind of health insurance," said Mathew D. staver, founder of Liberty Counsel. "Today marks the beginning of the end of this federal power grab. I am confident when the Supreme Court hears the cases of Liberty University and the Virginia attorney general that the final nail will be driven in this monster's heart."

Boehner said, "Today's decision is an encouraging sign for families and small business owners who have revolted against President Obama’s job-killing health care law and called for its repeal. Instead of appealing this decision, the Obama administration should work with Congress to repeal this job-killing health care law so we can replace it with reforms that lower costs and protect jobs. This would be the easiest way to keep Obamacare from costing our economy more jobs. Republicans have made a pledge to America to repeal this job-killing health care law, and that's what we're going to do.

"The individual mandate at the heart of Obamacare puts the federal government in the business of forcing you to buy health insurance and taxing you if you don't. This is unwise, unaffordable, and as we have argued all along, unconstitutional. If Washington thinks it can get away with this kind of power grab, it will think it can do anything," he said.

"No one should be forced to pay for an unconstitutional federal takeover of health care that will funnel taxpayer dollars into the pockets of abortionists and lead inevitably toward death panels for the elderly and infirm. Congress showed blatant disregard for the Constitution, and that’s the pivotal issue here," said Alliance Defense Fund Senior Counsel Steven H. Aden.

The judge struck the mandate, leaving the rest of law, but administration officials said the entire law would not operate without that.

It was a plan by Texas Rep. Leo Berman, R-Tyler, that would create penalties of up to $5,000 in fines and up to five years in jail for anyone guilty of the "felony" of attempting "to enforce an act, order, law, statute, rule or regulation" of Obamacare, the president's plan that effectively nationalizes the health-care decision making process.

At least, that is what the bill that "relates to federal health care legislation" says:

The federal Act:

(1) is invalid in this state;

(2) is not recognized by this state;

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(3) is specifically rejected by this state; and

(4) is null and void and of no effect in this state.

Prefiled for the 2011 legislature in Texas, it provides that "a person who is an official, agent, or employee of the United States or an employee of a corporation providing services to the United States commits an offense if the person enforces or attempts to enforce an act, order, law, statute, rule, or regulation of the United States in violation of this chapter."

Dozens of other states, individuals and organizations also have sued to overturn the health care nationalization plan.

Michael Boldin, founder of the Tenth Amendment Center, said under the Constitution and a historic understanding of the rights and responsibilities of states, Berman's plan is reasonable.

"There is nothing more extreme than having a federal government that refuses to abide by the laws that we the people of the several states delegated to it in the Constitution," he said. "The important point here is that it's up to the people of each state to determine what the best response may be.

"One state, as Wyoming did with its Firearms Freedom Act, may decide that penalties on federal agents is the rightful response. Another, such as California with medical marijuana, may choose to create an environment conducive to non-compliance by masses of people. Either way – or somewhere in between – that's the beauty of the American system. We can have widely varying actions, responses and viewpoints in different states while all living together in peace. One-size-fits-all solutions are actually the problem, and state-by-state decision-making is the natural response," he said.

A year ago, Wyoming adopted legislation pioneered in the state of Montana that exempts guns made, sold and kept in the state from any federal regulations. Then lawmakers attached a penalty of up to two years in jail or $2,000 in fines for "federal agents" who would try to enforce regulations that violate state law.