Patterico's Pontifications

8/2/2010

Federal Judge Allows Challenge to ObamaCare to Proceed

Filed under: General — Patterico @ 7:15 pm



Details at Hot Air.

The opinion is less than impressive in its analysis, which I can summarize as follows: both sides have good arguments, and this is a hard case, so tie goes to the plaintiff.

The position[s] of the parties are widely divergent and at times novel. The guiding precedent is informative, but inconclusive. Never before has the Commerce Clause and associated Necessary and Proper Clause been extended this far. At this juncture, the court is not persuaded that the Secretary has demonstrated a failure to state a cause of action with respect to the Commerce Clause element. This portion of the complaint advances a plausible claim with an arguable legal basis.

That’s not my understanding of how a 12(b)(6) motion is supposed to be decided. The plaintiff gets the benefit of the doubt on factual issues, but not on legal ones. Sounds like the judge didn’t want to make the final decision, so he issued a wimpy decision that buys time until the issue resurfaces. Unimpressive.

My view is that ObamaCare is unconstitutional. But then, I thought Wickard v. Filburn was a totalitarian decision. Just because I think it’s unconstitutional doesn’t mean it will be ruled unconstitutional. I suspect this battle will have to be fought and won in the political arena, and not in the legal one.

23 Responses to “Federal Judge Allows Challenge to ObamaCare to Proceed”

  1. I thought Wickard v. Filburn was a totalitarian decision.

    Amen, brother. From that to Raich to Kelo, I don’t think the obvious view of freedom or limited government can be applied to what will be ruled constitutional.

    But Wickard’s a good place to point to when people ask where their country went.

    Dustin (b54cdc)

  2. Goddam racists.

    JD (3dc31c)

  3. JD, lol

    Dustin, i second that. wickard was the product of intimidation, pure and simple. well, more like corrupt and simple.

    Aaron Worthing (A.W.) (f97997)

  4. I do what I can.

    JD (3dc31c)

  5. totalitarianism always begins with usurpation and in our little country what you have to usurp is that stupid Constitution…

    Never before has the Commerce Clause and associated Necessary and Proper Clause been extended this far.

    It was precisely this precedent what was the prize the dirty socialists were seeking way more more even than creating a vast swath of dependency I think.

    happyfeet (19c1da)

  6. Virginia AG
    say this THE ONE that decide
    how far Feds can reach

    ColonelHaiku (537db7)

  7. Many battles should be fought in the political rather than the legal arena. But we don’t always get the chance. In the absence of Roe v. Wade, we’d have had big political battles on abortion that would be complete by now. Instead we have high emotions because the courts imposed a solution.

    Clavius (b00448)

  8. Well, at least the judge gets the fact that the application of the commerce clause to this case is unprecedented, so there’s that.

    Sean P (6f6c60)

  9. The word unprecedented gets used a lot when discussing Barcky.

    JD (3dc31c)

  10. JD, you’re just angry because he doesn’t look like all the people on our money… and he has a funny name.

    John Hitchcock (9e8ad9)

  11. A few points.

    Patterico is right. it is weird and frankly wrong. As a federal judge, you do not give the benefit of the doubt on legal matters. You decide them. The judge should have decided whether congress could force us to buy health insurance or not, and then dismissed whichever side loses that debate.

    Also the Feds claim that inevitably, we will ALL use health care. Really? Because I was under the impression that most states gave you an absolute right to refuse care. In fact, even in the absence of state law or precedent, I would tend to think that its kind of covered by a small, obscure case you guys might not have heard of, called ROE V. WADE. I mean what is Roe about, seriously, if it is not the extreme application of right to control your medical destiny?

    Which by the way, is yet another problem with the entire health care thing.

    By the way, if you have not seen the pete stark video, its is classic. A regular person pwns him. Totally pwns him. http://www.breitbart.tv/congressman-at-town-hall-the-federal-government-can-do-most-anything-in-this-country/

    Aaron Worthing (A.W.) (f97997)

  12. JD

    You are right about the word unprecedented.

    Obama’s ignorance of economics is unprecedented in the white house.

    His bowing to kings, and random asian american mayors is unprecedented (and a little racist).

    The size of Ted Kennedy’s head upon his death was unprecedented.

    and so on.

    Hopefully we can add another “unprecedented” to the list:

    The Democrats’ losses in 2010 were unprecedented.

    Aaron Worthing (A.W.) (f97997)

  13. I just saw a post saying 88 House seats are in play, 76 Democrat and 12 Republican. That leaves lots of opportunity to Break on thru to the other side!

    John Hitchcock (9e8ad9)

  14. Oh man do I love my new AG. Christie/Cuccinelli 2012!

    Britt (7756a0)

  15. Britt

    Where in VA are you mat? I am in Manassas. Or as i like to call it… Man… ass… as.

    i kid, but its actually a pretty nice place.

    Aaron Worthing (A.W.) (f97997)

  16. It’s interesting that Wickard was a unanimous decision.

    The Wikipedia article cites United States vs. Lopez in 1995 as the first opinion of the Supreme Court since the New Deal to limit the application of the Commerce Clause. It reversed a conviction under the Gun-Free Schools Act, saying that the act exceeded Congress power to legislate under the Commerce Clause.

    From Rehnquist’s opinion, “Thus, if we were to accept the Government’s arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate.”

    That decision was 5-4, with Souter, Breyer, Ginsburg and Stevens dissenting.

    JoeH (eeb280)

  17. Aren’t Federal District Court judges supposed to be graduates of something called a Law School, and to have taken classes on Constitutional Law, and Jurisprudence?

    Maybe this guy, and the gal from AZ were short tuition money that semester?

    Somehow, I think that we might be better off with Bill Buckley’s “first 500 names from the Boston phone book”.

    AD - RtR/OS! (95ef37)

  18. Comment by JoeH — 8/2/2010 @ 9:03 pm

    With affirmation from Pelosi and Stark…
    (sounds like a TV detective show).

    AD - RtR/OS! (95ef37)

  19. I’d be OK with creating $1000 bills with Obama’s likeness on them… if we are going to let him print trillions of dollars, we might as well put his picture on them so we get one in change for the $10,000 a loaf of bread costs, we will know who to thank

    SteveG (11baba)

  20. If you look at Bush after 9/11 and Obama after the market crash, you’ll see the President given a lot of power by Congress which is then dialed back by the courts when the emergency begins to fade.

    We seem to be well along in the process now.

    Kevin Murphy (5ae73e)

  21. I oppose the $1000 bill for Obama. Instead we should stamp all the bills with some extra zeros and overprint them with a bad likeness of Obama. Stamps, too. For the historical record.

    Kevin Murphy (5ae73e)

  22. JoeH

    And i think that is what the government has to explain. they have to be able to say, “yes, we can do this, but we can’t do anything we want.” if they can’t find any basis of a limitation for their power, the supreme court will strike it down. plain and simple.

    Aaron Worthing (A.W.) (e7d72e)

  23. i would add to all of this, that having slept on this, i would suspect that the feds have a right to interlocutory appeal. seriously, wtf is up with this decision?

    The whole purpose of a motion to dismiss is to say, “even if they are right on the facts, the law is against them.” The here judge goes, “well, gee, i don’t know if the law is against them.” wrong answer. its your job to figure it out, your honor.

    Now if the judge said, “I am not ready to decide. i need more briefing” that is okay. but you don’t then deny the motion to dismiss; you are officially considering it until you can make up your mind about what the constitution says.

    Aaron Worthing (A.W.) (e7d72e)


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