Tuesday, February 1, 2011

This just keeps getting jucier...


You know how much I hate it when you smirk, and cringe at every opportunity you have to do so. Now it looks like Federal Judge Roger Vinson has given you carte blanche to engage in this annoying activity. As I'm sure you are aware, yesterday he ruled against the constitutionality of The Affordable Health Care Act. And to top it all off, in a key section of the ruling he uses an analogy which should set the Tea Party a'crowing:

"It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting --- as was done in the Act --- that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” "

As I said before during out discussions on Prop 8, I always admire the way an informed and intellectually competent jurist goes about rendering an opinion - and Judge Vinson's work is no exception. If you have time, take a moment to skim through the 78 page ruling. His argument here is compelling. To wit, it is: What exactly are the limits of the Commerce Clause? And we might as well recognize that the answer to this question has implications which go quite beyond this particular case. Judge Vinson invokes the troubling idea that an unrestricted interpretation of the Commerce Clause could give Congress the power to do almost anything.

That idea should give us all pause. I'll have to admit, I mostly like the Affordable Health Care Act - including the Individual Mandate provision on which Judge Vinson's ruling principally turns. However, if indeed his reasoning is correct, shouldn't we all be wary of a constitutionally derived power which allows the Federal Government to enact and enforce a host of laws we may not like? After all, practically every activity and (as Judge Vinson states in this case) inactivity is going to impact interstate commerce.

Ironically, the White House has termed the ruling a case of "judicial overreaching". Funny, that. I guess the application of the "activist judge" motif, so common these days among social conservatives, ultimately depends on whose ox is gored.

At any rate, this latest ruling only evens the score. Before this, two Federal judges had ruled in favor of the Act and now, two have ruled against. I haven't yet decided if I agree with the logic of the ruling. But one thing is for sure. Back when several states joined this suit, most in the media gave them virtually no chance. Now we find they're batting .500 and knocking on the Supreme Court's door.

Since there is no doubt the world's great statesmen frequently depend on LRA&H as a source of wisdom on the crucial issues of our times, I suggest a brief account of your thoughts on this matter would be greatly appreciated....


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