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Freedom Lands a Few Blows on Obamacare

In Virginia and Missouri.

12:00 PM, Aug 4, 2010 • By MARY KATHARINE HAM
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On the road to passing Obamacare, Democrats made it their business to dismiss the concerns of the majority of Americans who opposed the bill.

This week, a federal judge ruled the federal government can't dismiss a lawsuit by the Commonwealth of Virginia over the health care bill's individual mandate, which would require every citizen to buy health insurance or face fines and punishment.

U.S. District Judge Henry Hudson's ruling asserts there's plenty of doubt as to whether the federal government is authorized under any part of the Constitution to make citizens buy a product.

The guiding precedent is informative, but inconclusive. Never before has the Commerce Clause and 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...

While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate–and tax–a citizen’s decision not to participate in interstate commerce. Neither the U.S. Supreme Court nor any circuit court of appeals has squarely addressed this issue. No reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce. Give the presence of some authority arguably supporting the theory underlying each side’s position, this Court cannot conclude at this time stage that the Complaint fails to state a cause of action.

The full opinion is here (pdf).

Virginia Attorney General Ken Cucinelli told CBS, "We are out beyond the known limits of the Constitution with this legislation."

The White House slammed the decision, but contends it will win on the constitutional merits later:

"The federal government believes this procedural ruling is in error and conflicts with long-standing and well-established legal precedents," Cutter wrote, "the types of precedents that, in the words of Chief Justice Roberts, are designed to preserve the 'judiciary's proper role in our system of government' and to ensure that our courts do not become forums for political debates."

Perhaps the federal government will employ the Rep. Pete Stark constitutional defense: "The federal government can do most anything in this country."

In a popular rebuke to Obamacare on Tuesday, the voters of Missouri also rejected the individual mandate in a ballot referendum, 71-29.

The proposition, which sought to deny the federal government the authority to penalize people for not getting insurance, is expected to have little practical effect on implementation of the healthcare law.

But the Missouri measure represented the first electoral test for the landmark legislation that Obama signed in March. And it underscored continued hostility to the law from Republican voters.

The Democratic spin is that the GOP turn-out was high because of competitive primaries on their side of the ballot, but it's hard to spin 71 percent. Boehner's job is easier:

"Last night, in Missouri, they sent a message as loud as it was clear," said House Minority Leader John Boehner (R-Ohio). "By a more than two-to-one margin, they don’t want the unconstitutional mandate at the heart of ObamaCare."

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