Key Obamacare Provision Found Unconstitutional

A Virginia judge ruled against the federal government today, finding that the mandate for citizens to buy insurance is not constitutional. The judge's finding is crucial because it represents the first judicial blow against the leviathan known as Obamacare. The judge ruled that the federal government could not say to the American people that this mandate was not a tax, then turn around and defend the mandate by saying that it basically was a tax that is covered under the commerce clause. From the WSJ:

A federal court ruled Monday that a central plank of the health law violates the Constitution, dealing the biggest setback yet to the Obama administration's signature legislative accomplishment.In a 42-page ruling, U.S. District Judge Henry E. Hudson said the law's requirement that most Americans carry insurance or pay a penalty "exceeds the constitutional boundaries of congressional power."

The individual mandate "would invite unbridled exercise of federal police powers," wrote Judge Hudson, of the Eastern District of Virginia. "At its core, this dispute is not simply about regulating the business of insurance—or crafting a scheme of universal health insurance coverage—it's about an individual's right to choose to participate."

This is what we have been saying all along. Essentially the individual mandate is a tax on human life. A tax on breathing. This flies in the face of the basic tenets of freedom of individual choice, which liberals are supposed to view as sacred.

In his ruling, Judge Hudson wrote that the Interstate Commerce Clause wasn't sufficient for Congress to establish the individual mandate. He said Congress lacked precedent for "regulation of a person's decision not to purchase a product, notwithstanding its effect on interstate commerce or role in a global regulatory scheme."

Judge Hudson took some jabs at the law. In discussing whether Congress intended the law to stand if the mandate weren't included, he wrote that it was difficult to assess "given the haste with which the final version of the 2,700-page bill was rushed to the floor for a Christmas Eve vote."

He said the court was finding invalid only the part of the law that establishes the individual mandate, and any directly dependent provisions that refer to that part.

As usual, libs are trying to say that this will hurt people and that they need such huge powers to prevent insurance companies from discriminating against people with pre-existing conditions. Um, how is making everyone buy insurance related to pre existing conditions? Only twisted liberal logic knows.

For the full text of the ruling, go here.

This decision, even though it doesn't fully vacate or injunct the law, is still key because it gives a reasoned and cogent argument why the healthcare law is unconstitutional. It lays out in judicial language why this is such a gross abuse of power. Of course, this will eventually reach the Supreme Court, where the onus will be on the judges to decide if they want to overturn a solid legal opinion for political expediency. Still to be decided of course are several other state lawsuits, including one that 20 plus states are a part of.

This is a key first battlefield victory over the repressive, expensive, and crippling Obamacare initiative. We need to stay vigilant and still go about repeal in the House and getting something done or on record in the Senate, because who knows how the US Supreme Court will rule, whether Kagan will recuse herself (she was involved with some aspects of the bill), and whether middling justices like Kennedy will shred the Constitution or not.

Update

Eric Cantor is calling for a direct appeal to the US Supreme Court. From National Review:

Today’s ruling is a clear affirmation that President Obama’s health care law is unconstitutional. The efforts of Governor McDonnell and Attorney General Cuccinelli have raised legitimate concerns and ensured that the people of the Commonwealth will have their rights protected against this unconstitutional law. Ultimately, we must ensure that no American will be forced by the federal government to purchase health insurance they may not need, want, or be able to afford.

“To ensure an expedited process moving forward, I call on President Obama and Attorney General Holder to join Attorney General Cuccinelli in requesting that this case be sent directly to the U.S. Supreme Court. In this challenging environment, we must not burden our states, employers, and families with the costs and uncertainty created by this unconstitutional law, and we must take all steps to resolve this issue immediately.

Update 2

This one from CNS News...It seems Nancy Pelosi doesn't care about whether what government does can be traced to the Constitution. I mean, who cares, it is only the framework and blueprint for our government, right? She doesn't take the Constitution seriously, nor probably her oath to defend it. Here is the skinny:

CNSNews.com originally published this story in which House Speaker Nancy Pelosi dismissed the question of whether Obamacare was constitutional on Oct. 22, 2009.When CNSNews.com asked House Speaker Nancy Pelosi (D-Calif.) on Thursday where the Constitution authorized Congress to order Americans to buy health insurance--a mandate included in both the House and Senate versions of the health care bill--Pelosi dismissed the question by saying: “Are you serious? Are you serious?”The exchange with Speaker Pelosi on Thursday occurred as follows:

CNSNews.com: “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?

Pelosi: “Are you serious? Are you serious?"

CNSNews.com: “Yes, yes I am."Pelosi then shook her head before taking a question from another reporter. Her press spokesman, Nadeam Elshami, then told CNSNews.com that asking the speaker of the House where the Constitution authorized Congress to mandated that individual Americans buy health insurance as not a "serious question."

“You can put this on the record,” said Elshami. “That is not a serious question. That is not a serious question.”

That is disgusting. I think lawmakers should know where the authority for such things come from, or they shouldn't propose the cursed things.

Let's hope that this is but one of the beginning nails in the coffin for Obamacare and death panels.

Ninth Circuit Ruling Outrages Veterans

The Ninth Circus Court of Appeals continues its history of outrages. This time, they have ticked off veterans with a ruling regarding a scumbag who lied about his service:

Elven J. Swisher wore a replica of a Purple Heart on the witness stand when he testified that the defendant had tried to hire him to kill three federal officials.

Asked about the medal, Mr. Swisher pulled a document from his pocket to show that he was entitled to it and many others for his service in combat in the Korean War.

Mr. Swisher said the defendant, David R. Hinkson, an armchair constitutionalist with eccentric views about the tax code, had asked him how many men he had killed. “Too many,” Mr. Swisher recalled saying.

All lies. Mr. Swisher had never seen combat, had killed no one and had served without distinction. The document was a forgery. Mr. Swisher has since been convicted of lying to federal officials, wearing fake medals and defrauding the Department of Veterans Affairs of benefits for combat injuries. But the jury knew none of this, and with Mr. Swisher’s testimony it convicted Mr. Hinkson of soliciting three murders. He was sentenced to 33 years for those crimes, along with 10 years for tax evasion, and he is serving his sentence in the maximum-security prison in Florence, Colo.

When Mr. Swisher’s lies came to light, Mr. Hinkson challenged his convictions for soliciting the murders. The jury had believed him guilty of more than loose talk, he said, only because Mr. Swisher had falsely presented himself as a battle-hardened killer.

But the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled against him last year by a 7-to-4 vote.

Mr. Swisher’s lies, the majority said, were no big deal. There was no reason to think the jury would have come out differently had it known of “Swisher’s routine, rather than heroic, military history,” Judge Carlos T. Bea wrote.

Their contempt for veterans oozing from the opinion, the Ninth Circus has faced steep criticism from veterans:

William F. Mac Swain, the national president of the Korean War Veterans Association, told the appeals court in a brief filed after the decision that “its reasoning and language are a slap in the face to veterans and jurors alike.”

The majority opinion implied “that the average American no longer attaches any significance to a veteran’s wartime service,” Mr. Mac Swain continued.

In fact, he said, jurors are likely to believe those who have sacrificed to defend them and are likely to reject the testimony of those who have falsely claimed entitlement to honors for which others have bled and died.

That was not just speculation. One of the jurors at Mr. Hinkson’s trial, in Boise, Idaho, in 2005, later said he would have voted to acquit had he known the truth.

“I was surprised to hear that Mr. Swisher was allowed to tell such lies which created the misimpression that he would be a good ‘hit man’ candidate based on having been a decorated combat veteran,” the juror, Ben S. Casey, said in a sworn statement. “These lies discredit him as a witness and therefore discredit the rest of his testimony.”

Mr. Mac Swain’s brief was prepared by John W. Keker, a prominent San Francisco lawyer who earned a Purple Heart in Vietnam. In an interview, Mr. Keker said the majority’s “dismissive and even supercilious attitude” about military service “drove me out of my mind.”

“The idea that jurors wouldn’t be tremendously affected if they knew someone had lied about getting their war decorations was just astonishing,” Mr. Keker said.

This is another reason why the Luthor Proposal from Superman: The Movie makes more and more sense each and every day.

Obama Drill Ban Smacked Down By Judge...AGAIN

From al-Reuters:

A U.S. judge refused on Thursday to put on hold his decision blocking the federal government from enforcing its six-month ban on deepwater oil drilling after the Gulf of Mexico oil spill.

U.S. District Judge Martin Feldman in New Orleans rejected the Obama administration's request to stay his decision that allowed deepwater drilling to resume. The Interior Department suspended drilling after the ruptured BP Plc (BP.L) (BP.N) well began gushing oil into the Gulf more than two months ago.

Fifteen hours after the Justice Department appealed Feldman's ruling and requested a stay pending that appeal, Feldman issued a brief order denying the request for the same reasons he gave in his Tuesday decision.

In that opinion, Feldman strongly criticized the Obama administration's moratorium, saying that it was "indeed punitive" because it was too broad, arbitrary and was not adequately justified given the impact on thousands of oil industry workers and on local communities.

Meranda v. Gusweiler Update: Gusweiler Has Real Lawyers, As Opposed to Celebrity Wannabes

Judge Gusweiler's legal team responds to the so-called legal suit filed by crappy radio show host and sometimes lawyer Eric Deters on behalf of vengeful County Clerk of Courts Tina Meranda. Wayne Gates and the Brown County Press have the story, and the link to the document is available here.

Oh yeah, "BulldogChihuahua," where is the info on your joke of a website about this case? You told me on the air over a month ago that it would be on your site...I guess even for you it is not a "Case of Interest"!

Here are some key excerpts from the news story and see the actual document below for further info and legal precedent:

In a 13 page response to the lawsuit filed last Wednesday, the Cincinnati law firm of Montgomery, Rennie and Johnson said Meranda's claim should be dismissed with prejudice by appointed Judge Thomas Nurre.

"With prejudice" means Meranda would be barred from filing another lawsuit making the same claims.

If Nurre agrees with Gusweiler's attorneys, the case would then end with the stroke of his pen.
It begins by asserting that Judge Gusweiler is absolutely immune from monetary damages.

"Meranda is seeking compensatory damages against Judge Gusweiler for actions he took in his capacity as a judge", it reads.

"Such claims are barred by the doctrine of judicial immunity and must be dismissed."

The repose then addresses the threat of arrest for contempt that Meranda said Gusweiler threatened her with last February.

Meranda had changed the locks to her office and Gusweiler issued a court order demanding a key.

Meranda said Gusweiler told her she would be arrested if she didn't give him the keys.

Gusweiler's attorneys said in the response that "As a common pleas court judge, Judge Gusweiler has jurisdiction to order compliance with a court order or be held in contempt."

The response also cited case law that supports the contention that Gusweiler was acting within his jurisdiction when he made the arrest threat, saying "Judge Gusweiler had jurisdiction for immunity purposes to issue the order and enforce the order, if need be, through a contempt order."

The response also asserts that "A judge cannot be held civilly liable (sued) for any act performed as part of his or her judicial function."

It continues, "Thus Meranda's claim fails and her demand for monetary relief against Judge Gusweiler must be denied."

The response also claims that Meranda cannot challenge the validity of the court order demanding the keys because Gusweiler is also immune from being sued for decisions he makes in his capacity as Administrative Judge.

The claim continued, saying Meranda "has failed to allege how Judge Gusweiler's alleged decision was improper, let alone how it violated" the law or her constitutional rights.

It also cited case law saying "the common pleas clerk of court is required to perform her duties '***under the direction of the court***', thus Judge Gusweiler has authority to direct Meranda's conduct as court clerk".

The asterisks were added in the claim for emphasis by the attorneys.

The response then moved to Meranda's claim of illegal intimidation of her by Gusweiler.

"Meranda must allege that Judge Gusweiler threatened her, in an unlawful way or through a materially false or fraudulent filing, in an attempt to influence her duties as clerk of court. Further, she must demonstrate she was injured as a result of the commission of the offense."

The response is claiming she has not done so, therefore "she has failed to sufficiently state a cause of action" and has no claim of damage.

Finally, the response said that Meranda's request that the court order Judge Gusweiler not to "exceed the scope of his duties" and interfere with her own is too broad an order and not practical or enforceable.

In other words, Team Meranda doesn't have a case and this is nothing more than a waste of the court's time and taxpayer dollars as well as work hours lost to do this case. Case law is clear.

Tina Meranda misjudges this situation, thinking that everyone, including Jessica Little, would get behind her if she went running to the media with this abusive language and that Gusweiler would be shamed into submission. However, she underestimated that Jessica Little, unlike, it seems, failed sheriff candidates, actually knows the law and stuff and knew that there was no criminal offense and that a civil case was sheer lunacy. However, pride goeth before being a laughingstock. I just hope the judge doesn't delay in sending this case to where it belongs--in the ash heap of history as a sad chapter of a vengeful woman who doesn't like to be shown up and who is out to destroy anyone who gets in her way.

Look, Gusweiler and Meranda did not exhibit their finest hours. This could have been handled better. Jessica Little was trying to get things to go through the proper channels through the 12th district court of appeals. However, Meranda had to have her pound of flesh, and since Little hasn't played ball, she is enlisting the likes of Dennis the Menace KazinskiVarnau to harass and smear Jess Little. Jess Little has shown very good judgment in this matter, and should be commended for her work, not castigated. Tina Meranda, in her quest for dollars and vengeance, has threatened the future of three offices--the clerk, the judge, and the prosecutor...and for what? Her own selfish and wounded pride. The sooner this piece of Chihuahua poo is dismissed, the better it is for Brown County. Maybe then Meranda will do the honorable thing and resign.

meranda_vs_gusweiler216_3

Michael Moore is Right--We Should Follow Canada's Example..

Yes, you read that right. I didn't mistype. Michael Moore, fat idiotarian fakeumentarian, is absolutely right. We need to follow Canada's example. They have shown the way for years and we have not listend.

Now, before you revoke my Reagan card and send me over to the Soros camp, let me clarify.

We need to follow Canada's example on education, not health care.

For those of you who didn't know, while Canada does have a boondoggle of a socialized and failing health care system, they have a streak of Reagan individualism in them. There is no Ministry of Education. There is no federal cabinet official for K-12 education in Canada. Canada spends very little on Federal education. All funding and policy making takes place at the provincial and state levels.

Contrast that with our system. Over 4000 federal employees in the Dept. of Education. And, Washington gives 10 percent or better of the funding of k-12 education. And also, we have a 19 billion dollar education budgetal increase. This is a total appropriation of over 78 billion dollars. Since 1970, inflation adjusted spending per pupil has risen almost 200%, while achievement by 17 year olds has stagnated, and drop out rates increase. Obama wants to furnish college students with $173 billion in 2011. What are we getting for this? Let's see.

While more people are getting degrees, those degrees are not worth as much as they used to be. There is a huge surplus of degree hlders. According to the US government, only 21% of jobs require bachelor's degrees. Also, the bang for the buck in higher education has gone away. The most recent National Assessment of Adult Literacy shows that the percentage of Americans whose top degree is a bachelor's who were proficient readers dropped about 10 points between 1992 and 2003, and only about 38% were proficient in 1992. Aemricans with graduate degrees saw comparable drops. But the costs continue to rise in college. Why? Well, more free cashola or less restrictive cashola has encoraged students to demand more from schools--rec centers, gourmet food, big time dorms--and enable schools to pass the costs along to Mom and Dad, and all taxpayers who foot the bill for federal aid. It should come as no big deal to learn that real aid per student rose 149% since 1979, while public four year college charges swelled 105%.

And what of public schools? Well, while failing schools continue to get money thrown their way, the failure rates continue to go up. We continue to fail students upwards, putting out students with less knowledge and academic foundations than their forebears even a generation ago. While they may be able to text and facebook, their knowledge in math and civics has cratered.

As Ronald Reagan said, education isn't "an isolated bureaucrat in WAshington"'s responsiblity. It is "a parental right and responsibility." However, we have let many parents abdicate this role, even as they decry teachers working their best in a failed system. We need to get the feds out of education, as Canada has done and continues to do.

In Canada, there is freer experimentation and innovation than in American schools, where unrealistic and unindividualized mandates must be followed. In the US, Washington bureaucrats have used the feds' pockets as a carrot to push states to meet federal directives. Several Canadian provinces provide direct per student grants, similar to vouchers, to private and independent schools. In provinces like British Columbia and Alberta, school choice has empowered PARENTS at all income levels, and academic achievement has skyrocketed. Meanwhile, in the US, we throw more money at failing school systems and the problems only get bigger. According to a study from the Fraser Institute, "Achievement scores are not only higher generally in th provicnes that fund independent schools, but also higher particularly among studetns from less advantaged backgrounds." The study also finds that public schools, forced to compete with private schools, improve their performance. Wow, free markets work!!! Imagine that.

On the 2006 Program for International Student Assessment, Canada destroys the US almost across the board. In Math, the US scores 474 (below average), and Canada with its free market approach scores 527. In reading, Canada outscores America. This is all the more explosive when you realize the US outspends Canada by 20% per student.

But, let's also take a lesson from civics. Aside from its governance of the District of Columbia and the due process clauses in the 5th and 14th Amendments, the Constitution gives the Federal government NO POWER over education. The founders realized how dangerous such a thing could be, and how it could lead to some monolithic system that discriminates systemically. Which is what has happened. I guess the Court judges who have shamefully used the general welfare clause to allow abuses of power like this to go on should go back to school. But, maybe they should go to Canadian schools for lesson in what competitive and achieving schools should look like.

Like the healthcare issue, the government needs to get out of the way. While Canada has realized this in education, they failed to do so in healthcare. We need to look at Canada's success in education and failure in healthcare and realize government needs to let the market decide, and let the rising tide of competition and achievement lift all boats. Artificial goals and incentives only destroy achievement and incentivize mediocrity. Don't American children deserve better?

Coughlin Joins Wolpert & Moyer To Preserve Integrity OF Court System

From the e-mailbag:

COLUMBUS—State Senator Kevin Coughlin (R-Cuyahoga Falls) today introduced Senate Bill 252, legislation eliminating Ohio’s mayor’s courts in an effort to modernize the state’s court system, while working to preserve legitimacy and fairness at all levels of the judiciary.

For years, communities across the state have operated mayor’s courts, which adjudicate violations of local ordinances, such as traffic tickets and other minor misdemeanors. These courts are presided over by the local mayor, and all costs and fines assessed go towards the community’s operating revenue.

Ohio Supreme Court Chief Justice Thomas Moyer, a strong supporter of SB 252, explained that mayor’s courts are a threat to the legitimacy of our court system.

“Even the appearance of a conflict of interest undermines confidence in the judicial system,” Chief Justice Moyer said. “Those judging cases and imposing fines should not also be overseeing the budgets where those fines are deposited.”

SB 252 would eliminate Ohio’s mayor’s courts. Communities with a population of 1,600 or more would be allowed to create a new community court, while mayor’s courts in smaller communities will be eliminated with no option of a community court.

The community court proposal differs from the current mayor’s courts. Instead of the mayor serving as a judge, the presiding judge in the municipal court will appoint a magistrate to serve as the judge in the community court. Importantly, the bill would also place these new community courts under the supervision and oversight of the Ohio judicial system. Currently, mayor’s courts do not fall under this authority.

SB 252 is companion legislation to a bill introduced in the Ohio House earlier this year by state Representative Larry Wolpert (R-Hilliard). Demonstrating the need to realign the state’s court system, Wolpert noted that only two states in the country still have mayor’s courts – Ohio and Louisiana.

“Eliminating mayor’s courts is a modernizing step for our state and its justice system,” Coughlin said. “Our citizens deserve to know that justice is handed down in a fair and impartial way, free from conflict of interest.”

These courts do appear to be a conflict of interest and ought to be eliminated...

Legal War on Terror Update

AP News Alert:

NORFOLK, Va. (AP) A federal judge has ruled that Sudan is responsible for the terrorist bombing of the USS Cole that killed 17 sailors in 2000.

And what, exactly, does this mean? Will the US now sue Sudan? And what exactly are we looking for?

France Gets One Right

From the Guardian:

France's highest court Tuesday rejected as unlawful the first marriage by a gay couple in France, annulling the union of the two men.

Stephane Charpin and Bertrand Charpentier were married in a civil ceremony on June 5, 2004, in Begles, a town in the southwest Bordeaux region. The government immediately said the union was outside the law, and a series of court decisions unfavorable to the couple followed.

In the latest decision, the court ruled that "under French law, marriage is a union between a man and a woman," backing a 2005 decision by an appeals court in Bordeaux.

There may yet be some hope for France...

Prosecutor Marc Domingo said during an earlier court hearing that it was the parliament, not judges, who should have the final word in any legalization of marriages involving homosexual couples.

I've heard something similar...where have I heard that before???

HT: BizzyBlog via email

UPDATE: The LLamaButchers have an interesting theory...

Plame-aquiddick Update

AP News Alert:

WASHINGTON (AP) Special Prosecutor Patrick Fitzgerald has rested his perjury and obstruction case against former vice presidential aide I. Lewis "Scooter" Libby.

None of the stories on the subject will carry the name Richard Armitage...but they should.