ObamaCare Starts Taking on Water

by Bill O'Connell on December 14, 2010

Share and Recommend:

Whether you call it an iceberg or a torpedo, ObamaCare just struck something or vice versa and it doesn’t look good.  The ship is taking on water and you can hear the orchestra tuning up as they rearrange the deck chairs.


Federal Judge Henry Hudson, in Virginia, ruled that the odious provision in ObamaCare requiring all Americans to buy health care insurance or pay a fine was unconstitutional.  This is the core of ObamaCare, for without it this massive expansion of government into our lives would simply not work.  He went right to the heart of the argument that opponents have been making all along. 

“Article I, Section 8 of the Constitution confers upon Congress only discrete enumerated governmental powers.  The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people.  See U.S. Const. amend. X; Prinz v. United States, 521 U.S. 898, 919,117 S. Ct. 2365, 2376-77 (1997).

“On careful review, this Court must conclude that section 1501 of the Patient Protection and Affordable Care Act – specifically the Minimal Essential Coverage Provision – exceeds the constitutional boundaries of congressional power.”


That’s the iceberg.  The torpedo was the concept of severability.  In many contracts there is a severability clause.  That clause states that if a court finds any provision of that contract to be invalid, the invalid portion will be severed from the rest of the contract and the rest of the contract will remain valid.  ObamaCare did not include such a clause, which means that the court, in finding one part of it invalid, could find the whole kit and caboodle invalid.  No need to repeal, override an Obama veto of repeal, etc., etc.  It would be dead.

But Judge Hudson wasn’t prepared to go that far.  He knows this is not the end of the road.  This will find its way to the Supreme Court and since there are a few years to go until most of the provisions of the bill kick in, he was reluctant to take that step.

“The teachings of Free Enterprise are a direct descendent of the rule restated in Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 107 S. Ct. 1476 (1987). “The standard for determining the severability of an unconstitutional provision is well established: ‘[u]nless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.’ Id. At 684, 107 S. Ct. at 1480 (quoting Buckley v. Valeo, 424 U.S. 1, 108, 96 S. Ct. 612, 677 (1976))

“In applying this standard, the Court must also consider whether the balance of the statute will function in a manner consistent with the intent of Congress in the wake of severance of the unconstitutional provision.  Alaska Airlines, 480 U.S. at 685, 107 S. Ct. at 1480. Finally, in evaluating severability, the Court must determine whether in the absence of the severed unconstitutional provision, Congress would have enacted the statute.  Id. at 685, 107 S. Ct. at 1480. Given the vagaries of the legislative process, ‘this inquiry can sometimes be ‘elusive.’’  Free Enter. Fund, 130 S. Ct. at 3161 (quoting I.N.S. v. Chadha, 462 U.S. 919, 932, 103 S. Ct. 2764, 2774 (1983)).

“The final element of the analysis is difficult to apply in this case given the haste with which the final version of the 2,700 page bill was rushed to the floor for a Christmas Eve vote.  It would be virtually impossible within the present record to determine whether Congress would have passed this bill, encompassing a wide variety of topics related and unrelated to health care, without Section 1501.  Even then, the Court’s conclusions would be speculative at best.  Moreover, without the benefit of extensive expert testimony and significant supplementation of the record, this Court cannot determine what, if any, portion of the bill would not be able to survive independently.”

So for now, we don’t know if the torpedo hit or missed.  But we do know this.  Nancy Pelosi was right.  In words that will go down in history regarding a Congress that is broken she famously said, “We have to pass the bill, to know what is in the bill.”  There you have the Speaker of the House of Representatives fighting feverishly, using every parliamentary trick at her disposal to pass this bill, particularly after Scott Brown was elected Republican senator from Massachusetts, to pass a bill she does not understand.  Consider Judge Hudson’s words that the bill was “encompassing a wide variety of topics related and unrelated to health care,” and you can’t help but ask, what has our government come to?  What were the elected representatives who voted for this doing?  Isn’t it their job to know what they are voting for?  Isn’t that why we pay them $174,000 per year?

While the band may play on, this is a serious blow to ObamaCare.  Many Americans rose up because of this bill and got involved in politics for the first time.  That is a good thing.  Let us pray they stay involved.

That’s my opinion; I’d like to know yours.  Please comment below.

Share and Recommend:
  • http://pulse.yahoo.com/_VJQMCEZVOMFGKC3AE4SJJHMW6Y J

    Judge Hudson’s decision is good news, and we all hope that it will prevail when Obamacare finally reaches the Supreme Court two years from now. However, that is not certain, and there remain substantial political powers who regard this vast extension of federal power as acceptable based upon the Supreme Court’s vast expansion of the interstate commerce clause since 1937. The only sure way to stop not only Obamacare, but the innumerable other ways in which the federal government has increased its power beyond the original scope of the Constitution, is to reverse those Supreme Court cases and restore the interstate commerce clause to its original meaning. Given how entrenched these Supreme Court precedents are, this will require a constitutional amendment restating the original, very limited scope of the interstate commerce clause. See http://www.timelyrenewed.com

    • http://libertyslifeline.com William O’Connell

      I agree the Supreme Court has in a number of cased gone way too far. One of the cases sited in Cuccinelli v. Sebelius is Wikford v. Milburn where a farmer was sued for growing grain on his own farm for his own use. It was ruled that because he exceeded the government’s quota he was not buying grain in the open market and therefore not propping up market prices!

      Another interesting concept by Mark Levin is the idea of a legislative veto over Supreme Court rulings. The idea is a check on the Supreme Court that if by a 75% majority, Congress disagrees with the court a Supreme Court decision could be nullified by Congress. Since it is Congress’ role to make the laws and the Supreme Courts role to interpret what Congress intended, it makes a lot of sense to give power to Congress to tell the Court, no, that’s not what we meant.

Previous post:

Next post:

© 2010 Liberty's Lifeline. All Rights Reserved.