Ohio Supreme Court Denies Group's Signature Challenge To Health Care Ballot Issue

From The Washington Post:

Ohio Supreme Court denies group’s signature challenge to health care ballot issue

By Associated Press, Updated: Friday, August 12, 1:07 PM









COLUMBUS, Ohio — Opponents of the federal health care overhaul championed by President Barack Obama scored a key legal victory on Friday that should clear a proposed ballot measure for a fall vote in a pivotal state.



The chance for voters to reject parts of insurance changes will appear Nov. 8, alongside a ballot issue seeking to repeal a contentious rewrite of Ohio’s law restricting collective bargaining. The first is expected to bring out Republican-leaning voters, and the other is expected to bring out Democrats in a state closely divided along political lines.







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In a unanimous decision Friday, the Ohio Supreme Court rejected a liberal policy group’s lawsuit challenging certification of the issue, to be called the Health Care Freedom Amendment, on the grounds petitions carrying 69,000 signatures were flawed.



ProgressOhio executive director Brian Rothenberg argued that Secretary of State Jon Husted counted signatures on petitions that contained technical errors, including the way paid circulators listed their employment.



Husted, a Republican, argued the challenge revolved around petitions carrying extra information, a practice government should not discourage.



Justices said the secretary of state is “entitled to deference.”



They found that Rothenberg’s charges lacked legal merit, noting “even if his challenge had substantive validity, Rothenberg’s evidence is insufficient to establish that the part-petitions do not have enough signatures.”



Backers of the measure lauded the decision. Ohioans for Healthcare Freedom campaign manager Jeff Longstreth said it will allow “voters to have a choice this fall if healthcare decisions should be made by patients and doctors or politicians in Washington, D.C.”



Husted announced July 27 that the coalition of tea party organizations and other groups behind the measure that submitted 427,000 valid signatures, well over the roughly 385,000 needed to get the amendment on the Nov. 8 ballot.



The proposed amendment to Ohio’s Constitution would keep people from being required to buy health insurance or face penalties. The federal mandate would go into effect in 2014, when new competitive insurance exchanges are scheduled to open.



Opponents say the federal government is overreaching by requiring individuals to purchase a product. The Obama administration counters that Congress’ power to regulate interstate commerce squares the constitutionality of the mandate.



The Ohio court’s decision came as a panel of the 11th U.S. Circuit Court of Appeals in Atlanta struck down the same requirement at issue in Ohio. Other federal courts have ruled or considered the issue, but the Atlanta-based court may be the most pivotal battleground yet because it reviewed a sweeping ruling by a Florida judge.



Rothenberg said ProgressOhio was hindered from fully reviewing all the submitted petitions because 40 percent of Ohio counties refused to respond to a public records request in the time allotted for review.



“Ohioans will now have a choice — to return to the days when children were denied insurance coverage over pre-existing conditions; return to the days when seniors have to choose between prescription drugs and groceries; return to the days when young adults can’t stay on their parents insurance and return to the days when small businesses did not get tax breaks for providing insurance,” he said in a statement. “This fall ‘no’ will be a beautiful word.”



Copyright 2011 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

11th Circuit Strikes Down ObamaCare Mandate

From Legal Insurrection Blog:

11th Circuit strikes down Obamacare mandate












Posted by William A. Jacobson Friday, August 12, 2011 at 1:18pm







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This is the big case involving 26 states. In January, Judge Roger Vinson struck the entire law finding that the mandate could not be severed from the rest of the law.



The 11th Circuit ruled that the mandate was unconstitutional, but unlike Judge Vinson, did not throw out the entire law, finging that the mandate could be severed. The opinion is here. [link fixed]



Here is the conclusion summarizing the various aspects of the ruling:





We first conclude that the Act’s Medicaid expansion is constitutional. Existing Supreme Court precedent does not establish that Congress’s inducements are unconstitutionally coercive, especially when the federal government will bear nearly all the costs of the program’s amplified enrollments.



Next, the individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and cannot be sustained as an exercise of Congress’s power under the Taxing and Spending Clause. The mandate is denominated as a penalty in the Act itself, and the legislative history and relevant case law confirm this reading of its function.



Further, the individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional. This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives. We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers. “Uniqueness” is not a constitutional principle in any antecedent Supreme Court decision. The individual mandate also finds no refuge in the aggregation doctrine, for decisions to abstain from the purchase of a product or service, whatever their cumulative effect, lack a sufficient nexus to commerce. [fn omitted]



The individual mandate, however, can be severed from the remainder of the Act’s myriad reforms. The presumption of severability is rooted in notions of judicial restraint and respect for the separation of powers in our constitutional system. The Act’s other provisions remain legally operaive after the mandate’s excision, and the high burden needed under Supreme Court precedent to rebut the presumption of severability has not been met.



Some thoughts in no particular order:

•Once again a court rejects the belated argument by the administration that the mandate is an exercise of taxing powers. I believe that every court that has considered the issue has ruled against Obama. Remember, during the political debate leading up to passage the Democrats insisted they were not raising taxes with Obamacare, and now those words have come back to haunt them.

•The main opinion is 204 pages, much of which is devoted to explaining how the law works. When Nancy Pelosi said we had to pass it to find out what was in it, she was right. And we need hundreds of pages of judicial decision to tell us.

•The mandate was rejected precisely because it requires people to enter a market rather than regulating a market. I’ll have to spend some more time to see if the court adopted the activity/no activity distinction, but this language certain sounds familiar to people who have been reading Legal Insurrection:





It cannot be denied that the individual mandate is an unprecedented exercise of congressional power. As the CBO observed, Congress “has never required people to buy any good or service as a condition of lawful residence in the United States.” CBO MANDATE MEMO, supra p.115, at 1. Never before has Congress sought to regulate commerce by compelling non-market participants to enter into commerce so that Congress may regulate them. The statutory language of the mandate is not tied to health care consumption—past, present, or in the future.



Rather, the mandate is to buy insurance now and forever. The individual mandate does not wait for market entry. (p. 167)

•In another argument familiar to readers, the Court also pointed out that to accept the administration’s interpretation of the Commerce Clause would mean a limitless federal power:





The federal government’s assertion of power, under the Commerce Clause, to issue an economic mandate for Americans to purchase insurance from a private company for the entire duration of their lives is unprecedented, lacks cognizable limits, and imperils our federalist structure. (p. 171)



Update: On the activity/inactivity issue, the Court accepted that the distinction was legitimate, but found that it was not a complete answer to the health care mandate issue:





As our extensive discussion of the Supreme Court’s precedent reveals, Commerce Clause cases run the gamut of possible regulation. But the diverse fact patterns of Wickard, South-Eastern Underwriters, Heart of Atlanta Motel, Lopez, Morrison, and Raich share at least one commonality: they all involved attempts by Congress to regulate preexisting, freely chosen classes of activities.



Nevertheless, we are not persuaded that the formalistic dichotomy of activity and inactivity provides a workable or persuasive enough answer in this case. Although the Supreme Court’s Commerce Clause cases frequently speak in activity-laden terms, the Court has never expressly held that activity is a precondition for Congress’s ability to regulate commerce—perhaps, in part, because it has never been faced with the type of regulation at issue here. (p.109)

Appeals Court Rules Against ObamaCare Insurance Mandate

From Newsmax:

Appeals Court Rules Against Obamacare Insurance Mandate


Friday, 12 Aug 2011 01:33 PM





A federal appeals court panel on Friday struck down the requirement in President Barack Obama's health care overhaul package that virtually all Americans must carry health insurance or face penalties.



The divided three-judge panel of the 11th Circuit Court of Appeals struck down the so-called individual mandate, siding with 26 states that had sued to block the law. But the panel didn't go as far as a lower court that had invalidated the entire overhaul as unconstitutional.



The states and other critics argued the law violates people's rights, while the Justice Department countered that the legislative branch was exercising a "quintessential" power.



The decision, penned by Chief Judge Joel Dubina and Circuit Judge Frank Hull, found that "the individual mandate contained in the Act exceeds Congress's enumerated commerce power."



"What Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die," the opinion said.



Circuit Judge Stanley Marcus disagreed in a dissent.



The 11th Circuit isn't the first appeals court to weigh in on the issue. The federal appeals court in Cincinnati upheld the government's new requirement that most Americans buy health insurance, and an appeals court in Richmond has heard similar legal constitutional challenges to the law.



But the Atlanta-based court is considered by many observers to be the most pivotal legal battleground yet because it reviewed a sweeping ruling by a Florida judge.



U.S. District Judge Roger Vinson's ruling not only struck down a requirement that nearly all Americans carry health insurance, but he also threw out other provisions ranging from Medicare discounts for some seniors to a change that allows adult children up to age 26 to remain on their parents' coverage.



The states urged the 11th Circuit to uphold Vinson's ruling, saying in a court filing that letting the law stand would set a troubling precedent that "would imperil individual liberty, render Congress's other enumerated powers superfluous, and allow Congress to usurp the general police power reserved to the states."



The Justice Department countered that Congress had the power to require most people to buy health insurance or face tax penalties because Congress has the authority to regulate interstate business. It said the legislative branch was exercising its "quintessential" rights when it adopted the new law.



During oral arguments in June, the three-judge panel repeatedly raised questions about the overhaul and expressed unease with the insurance requirement. Each of the three worried aloud if upholding the landmark law could open the door to Congress adopting other sweeping economic mandates.



The arguments unfolded in what's considered one of the nation's most conservative appeals courts. But the randomly selected panel represents different judicial perspectives. None of the three is considered either a stalwart conservative or an unfaltering liberal.



Dubina, an appointee of President George H.W. Bush, is not considered to be as reflexively conservative as some of his colleagues. But he's been under particular scrutiny because of his daughter's outspoken opposition to the health care overhaul. U.S. Rep. Martha Dubina Roby, a Montgomery, Ala., Republican elected in November, voted to repeal the health care law.



Marcus and Hull were both tapped by President Bill Clinton to join the court. But Marcus was also previously appointed by Republican President Ronald Reagan to serve on the Florida bench after several years as Miami's lead federal prosecutor. And Hull, a former county judge in Atlanta, is known for subjecting both sides of the counsel table to challenging questions.





© 2011 Thomson/Reuters. All rights reserved





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