Judge Vinson's Individual Mandate Ruling and Continued Implementation

With Judge Vinson's ruling striking down the individual mandate of ObamaCare as unconstitutional and with the lack of a severability clause causing the entirety of ObamaCare to be void, how can the Obama Administration continue implementation?

"It’s well known that Judge Roger Vinson ruled yesterday that the individual mandate exceeded the powers of the federal government under the Commerce Clause. But he also ruled that because the law lacked a severability clause and the law’s proponents had argued that the individual mandate was a necessary part of the scheme, the entire law was invalid." (1)

From page seventy five of Vinson's ruling:

"The last issue to be resolved is the plaintiffs’ request for injunctive relief enjoining implementation of the Act, which can be disposed of very quickly. Injunctive relief is an “extraordinary” [Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982)], and “drastic” remedy… It is even more so when the party to be enjoined is the federal government, for there is a long-standing presumption “that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction.” See Comm. on Judiciary of U.S. House of Representatives v. Miers, 542 F.3d 909, 911 (D.C. Cir. 2008); accord Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 n.8 (D.C. Cir. 1985) (“declaratory judgment is, in a context such as this where federal officers are defendants, the practical equivalent of specific relief such as an injunction . . . since it must be presumed that federal officers will adhere to the law as declared by the court”)…There is no reason to conclude that this presumption should not apply here. " (2)

And that means?

"That means that under the ruling, the law is void and cannot be implemented from this point forward. The Administration’s legal remedy is to seek a stay of the ruling pending appeal. It cannot just defy a federal court ruling." (3)

Deeper Meaning?

"The Law:

Already bruised and unpopular, ObamaCare has now been issued a death sentence. Yet the White House says it will "proceed apace" with its implementation. Has anyone there heard of checks and balances?

It's worth noting that Monday's ruling by U.S. District Court Judge Roger Vinson that the Democrats' health care overhaul is unconstitutional is only the latest setback for the badly flawed legislation inflicted on the nation last March.

The measure was already invalidated by the courts once before, the House has overwhelmingly passed a bill to repeal it, insurance companies are bailing out of markets left and right because of its profit-killing mandates and the government has issued Obama-Care waivers by the hundreds.

And now 47 lawmakers have signed on as co-sponsors of a repeal bill in the Senate.

Despite all this, and with no sense of irony, the White House contends Vinson "overreached" in his decision, vows that the revamping of the world's best health care system will continue and warns states against using the ruling to delay its implementation.

What is it about "unconstitutional" that this administration doesn't understand?

True, Vinson didn't grant an injunction against ObamaCare in his 78-page ruling. But that's because he clearly considers his judgment to be an injunction in itself. He expects the executive branch to comply with the law as he has ruled. "There is no reason to conclude that this presumption should not apply here," he wrote.

As one of the lawyers for the 26 states that sued to block Obama-Care put it: "The statute is dead."

That means current regulations, such as forcing insurance companies to treat 26-year-olds as children and provide free preventive care for policyholders, cannot be enforced, and new regulations should not be written."(4)

And so follow the ruling

"In light of Judge Roger Vinson’s ruling that Obamacare is unconstitutional, Wisconsin’s attorney general, J. B. Van Hollen, has declared the Badger State free of any obligations imposed by the law. “Judge Vinson declared the health care law void and stated in his decision that a declaratory judgment is the functional equivalent of an injunction,” Hollen says in a statement. “This means that, for Wisconsin, the federal health care law is dead — unless and until it is revived by an appellate court.”

Steve Means, a senior official in Hollen’s office, tells NRO that the ruling “effectively takes the health-care-reform bill off of the books.” He adds, “At a practical level it will really be up to the governor and his cabinet to determine what they will do in terms of day-to-day activities.”(5)

Don't follow the ruling?

"So has the Obama administration halted the implementation of the law? The answer is: No.

The website of the White House is unambiguous about this: “Implementation will continue.”

Vinson’s decision did not include an injunction to stop the implementation of health care reform on the grounds that an injunction would be superfluous. He argued that the government would stop implementing the law automatically once it was announced as unconstitutional.

That, apparently, hasn’t happened.

So here’s a question: should government officials mindful of the constitution start defying the Obama administration to honor the decision by the court? If, say, you were charged with monitoring the computers that send out rebate checks to seniors with high prescription drug costs, should you turn off the computer?

Much of this is probably theoretical. Most of the law did not yet apply, so implementation was minimal. But if you were working on implementing the law, shouldn’t you be obligated to stop work?

“Pencils down” as we used to say back when an M&A deal fell apart." (6)

notes:

(1)http://www.cnbc.com/id/41375835

(2) http://www.ohiofreepress.com/downloads/Vinson-Ruling-Against-Obamacare.pdf

(3)http://www.firstthings.com/blogs/firstthoughts/2011/02/01/obamacare-cannot-be-implemented-without-a-court-stay/

(4)http://www.investors.com/NewsAndAnalysis/Article/561722/201102011905/No-Longer-A-Law.htm

(5)http://www.nationalreview.com/corner/258639/wisconsin-ag-declares-obamacare-dead-brian-bolduc

(6) http://www.cnbc.com/id/41375835

ObamaCare and the Severability Clause

ObamaCare does not contain a "severability clause". What is a severability clause?


Severability:

1. If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

2. Invalidity or unenforceability of one or more provisions of this Agreement shall not affect any other provision of this Agreement.

3. In the event that any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this agreement, but this agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein, unless the deletion of such provision or provisions would result in such a material change so as to cause completion of the transactions contemplated herein to be unreasonable. (1)

Hence if you add a severability clause and one provision is struck down then the remaining provisions continue.

Why was no severability clause added to ObamaCare

To find the answer one must first ask if ObamaCare ever have a severability clause? Yes.

'In addition, Judge Vinson notes that Congress could have easily included a severability clause in the legislation if they wanted to, that an earlier version of Obamacare did indeed have such a clause, but Congress intentionally removed the severability clause in the final bill. Judge Vinson wrote that the Obama Administration has “asserted again and again that the individual mandate is absolutely ‘necessary’ and ‘essential’ for the Act to operate as it was intended by Congress. I accept that it is.” ' (2)

Why was the severability clause removed in the final ObamaCare bill? Apparently severability was removed based on Section 1501 of ObamaCare which is the individual mandate. In a nutshell, without the individual mandate to buy health insurance the plan would fail. That the mandate was used to show costs being lowered [keeping total cost under one trillions dollars] as 32 million people were supposedly added to the insurance pool and lowered cost due to volume and their new found forced ability to pay medical costs through mandated insurance. Further the mandate supposedly stopping people from buying coverage only when they needed coverage then later lapsing the coverage. The fine for not buying coverage was further factored into the Congressional Budget Office (CBO) figures showing total cost being under one trillion dollars. Hence without the mandate the CBO estimates would have shown no savings and a price tag well in excess of one trillion dollars. (3) (4)

Then ObamaCare is void?

When Section 1501 of ObamaCare was ruled unconstitutional by Judge Vinson then the entire ObamaCare scheme was ruled entirely null and void by Vinson as no severability clause was included. (6)

'Judge Vinson also found that Section 1501 of the act, which forces all Americans to buy government-approved health insurance policies, “falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers.” But then Judge Vinson went even further, concluding that “the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit.” Accordingly, Vinson concluded: “Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.” ' (7)

Then ObamaCare will not be implemented?

Implementation will continue. How so?

'The ruling marks the first time a federal judge has struck down the entire law. "I must conclude that the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit," the judge ruled.

Noting that the judge did not order the government to stop implementing the law, a senior administration source said "implementation will proceed at pace." ' (8)


Notes:

(1)http://www.library.yale.edu/~llicense/sevcls.shtml


(2)http://blog.heritage.org/2011/02/01/morning-bell-another-victory-on-the-road-to-repeal-3/

(3)http://online.wsj.com/article/SB10001424052748703439504576116361022463224.html?mod=WSJ_hp_MIDDLENexttoWhatsNewsThird

(4)http://blog.heritage.org/2011/02/01/morning-bell-another-victory-on-the-road-to-repeal-3/

(5)(6)(7) http://blog.heritage.org/2011/02/01/morning-bell-another-victory-on-the-road-to-repeal-3/

(8)http://blogs.abcnews.com/politicalpunch/2011/01/white-house-calls-ruling-striking-down-health-care-law-an-outlier.html

ObamaCare: read Judge Vinson's ruling

If you would like to read Judge Vinson's ruling regarding the unconstitutional individual mandate within ObamaCare, a link appears below to the entire ruling. (1) (2)

On page 77 and concluding on page 78 appears the flollowing:

“For all the reasons stated above and pursuant to Rule 56 of the Federal Rules of Civil Procedure, the plaintiffs’ motion for summary judgment (doc. 80) is hereby GRANTED as to its request for declaratory relief on Count I of the Second Amended Complaint, and DENIED as to its request for injunctive relief; and the defendants’ motion for summary judgment (doc. 82) is hereby GRANTED on Count IV of the Second Amended Complaint. The respective cross-motions are each DENIED.

In accordance with Rule 57 of the Federal Rules of Civil Procedure and Title 28, United States Code, Section 2201(a), a Declaratory Judgment shall be entered separately, declaring “The Patient Protection and Affordable Care Act” Unconstitutional.” (3)

Link appears below:

http://msnbcmedia.msn.com/i/MSNBC/Sections/NEWS/A_Politics/___Politics_Today_Stories_Teases/PPM153_vin.pdf

Notes:

(1)http://firstread.msnbc.msn.com/_news/2011/01/31/5961248-florida-judge-rules-health-care-law-unconstitutional-


(2)(3)http://msnbcmedia.msn.com/i/MSNBC/Sections/NEWS/A_Politics/___Politics_Today_Stories_Teases/PPM153_vin.pdf

ObamaCare: and then there were 28

Twenty six states and their respective state attorney generals joined a law suit opposing the individual mandate provision of ObamaCare. That requiring US Citizens to purchase health insurance was unconstitutional.

The twenty six states had their case heard in Florida. A separate case was heard in December with Virginia alone opposing the individual mandate.

In both the Florida case and the Virginia case the individual mandate was held as unconstitutional. And then there were 27. Number 28 is Oklahoma in their own separate law suit opposing the individual mandate.

'Judge Roger Vinson, a Reagan appointee serving in Pensacola, Florida, ruled that key components of the law are unconstitutional and that the entire law "must be declared void." '(1)

Who are the twenty six states joined in today's law suit ruling? Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Indiana, Idaho, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin and Wyoming. (2)

Notes:

(1) http://firstread.msnbc.msn.com/_news/2011/01/31/5961248-florida-judge-rules-health-care-law-unconstitutional-

(2)http://www.newsmax.com/Newsfront/ANNOTATED-BB-BNALL-BNSTAFF/2011/01/31/id/384541?s=al&promo_code=B935-1