Enthusiasm for Protecting the Constitution Should Not Be Curbed


By Hadley Heath

Ann Woolner writes in her Bloomberg column today that “ObamaCare Enemies Should Curb Their Enthusiasm.”  She says that, of the District Court judges who have issued substantive orders so far, one judge has sided with the Plaintiffs (Vinson), one judge has sided with the federal government (Steeh), and one judge has yet to decide (Hudson).  She goes on to criticize Vinson of being politically biased, and she urges supporters of the Florida case to calm down.

I will agree with Woolner on one point: that any legal challenge to the law faces a “long, difficult slog” to the Supreme Court.  But I disagree that ObamaCare enemies should curb their enthusiasm.  

First of all, legal scholars have harshly criticized Steeh’s ruling in Michigan (in Thomas More Law Center v. President of the United States).  His creation of a new theory of “Economic Decisions” would expand government power into just about every aspect of our lives.  He bent over backwards to find a way to briefly and vaguely approve of the individual mandate, and the result will no doubt be an appeal.  (He did say in the same Order that Plaintiffs had standing and that their case was ripe to be heard.)

Secondly, Hudson, while he has not ruled on the constitutionality of the law, touched on the merits of the case in his Memorandum Opinion that accompanied his denial of the Defendants’ Motion to Dismiss in the Virginia case (see Commonwealth of Virginia v. Sebelius).  Hudson reminded up to “Keep in mind that the Court’s mission at this stage is narrow,” and went on to enumerate the various arguments of the Plaintiffs and Defendants. 

But he stated multiple times that the individual mandate was new interpretive territory.  Also, he made it a point to cite United States v. Morrison, and the Supreme Court’s rejection of “the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.”  That does not bode well for Secretary Sebelius.

Perhaps most importantly, Woolner should note that her column makes many points that are moot.  She points out the many ways the cases could fail, and even warns that the states as Plaintiffs in the Florida case (Florida v. DHHS) could lose standing if the Medicaid expansion count is struck from the case.  The states as Plaintiffs certainly add weight to the case and bring national media attention to their arguments, but if any Plaintiff – doctors’ group, business group, religious group, one man, one woman, or even one child – if any Plaintiff is successful in demonstrating to the Supreme Court that his or her constitutional rights have been violated, it’s game over for Obamacare.


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