December 16 2010

Today in Florida - Who Rules the U.S.?

Hadley Heath

As I type this blog entry, the 20 states that are challenging ObamaCare in Florida's northern district court are taking their oral arguments to Judge Roger Vinson. The Defendant, the Department of Health and Human Services will be there too, defending the Patient Protection and Affordable Care Act.


This hearing comes just days after a judge in Virginia ruled that the individual mandate is unconstitutional. No one knows if Judge Vinson will follow suit and rule for the plaintiffs, but in any case his ruling won't come down for a month or two.


The Florida case revolves around two issues: the individual mandate (also known as the "minimum essential coverage" provision) and the Medicaid expansion. The mandate applies to nearly all Americans, and the attorneys general of the 20 plaintiff states seek to protect their constituents from this unprecedented requirement to purchase a specific good. The Medicaid expansion is an issue of state sovereignty. The federal government has the power to offer financial incentives to states in exchange for their participation in national programs, but at some point these "incentives" become too strong and cross a line into coercion. That is what Vinson will have to decide on this count.


Legal theory scholar Randy Barnett, of Georgetown Law says this about today's hearing:


In today's hearing, Judge Roger Vinson will consider a bedrock principle of our Constitution: Do the enumerated powers of Congress have any judicially-enforceable limit? After two federal judges declined to identify any limits, on Monday Judge Henry Hudson ruled that Congress may not use its power over interstate commerce to mandate that all Americans enter into contracts with private insurance companies. Like Judge Hudson, Judge Vinson has already dismissed the government's novel tax power theory. Now he must decide whether the Americans are truly "citizens" under the Constitution, or whether the Commerce Clause renders them mere "subjects" of Congressional will --- as Americans once were subjects of the King of England. Constitutional questions don't get much bigger than this.


When I was a child in school, often our teachers would let the class decide on something by a show of hands. Then, I remember hearing the phrase, "Oh well, majority rules!" Maybe this was a good way to decide when to go to recess or what book to read next, but this is not the way the United States works. We make plenty of decisions based on what the majority wants, but ultimately, we are not governed by the majority in Congress (no matter if the majority is right, wrong, liberal, conservative, or whatever). Ultimately, our country is governed by a document - the U.S. Constitution. Let's hope that our judges (and our Supreme Court justices!) honor that document in this health care fight.

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