Commerce Clause For Alarm, Part 2

This week's ruling on the health insurance mandate wasn't the win the Republicans were looking for.  Virginia Federal Judge Hudson found the mandate unconstitutional, but he also specifically refused to throw out the entire health care reform law, as Ezra Klein reminds us.

Hudson pointedly refused. "The Court will sever only Section 1501 [the individual mandate] and directly-dependent provisions which make specific reference to 1501." That last clause has made a lot of pro-reform legal analysts very happy. Go to the text of the health-care law and run a search for "1501." It appears exactly twice in the bill: In the table of contents, and in the title of the section. There do not appear to be other sections that make "specific reference" to the provision, even if you could argue that they are "directly dependent" on the provision. The attachment of the "specific reference" language appears to sharply limit the scope of the court's action.

As a result, GOP State Attorneys General are now shopping around their various flood of lawsuits against the law in order to find someone who will throw out the entire law.  They are turning to a Florida federal judge to do just that.

Attorneys for 20 states fighting the new federal health care law say it will expand the government's powers in dangerous and unintended ways.

But U.S. District Judge Roger Vinson questioned at a hearing in Florida on Thursday how the government can halt massive changes to the health care system that have already begun.

Earlier this week, a federal judge in Virginia ruled in a separate case that citizens can't be forced to buy health insurance. That case is likely to end up before the U.S. Supreme Court.

The states in the Florida case are asking Vinson to issue a quick ruling in their favor.

Judge Vinson doesn't look like he's going to bite either.  So far of the 3 cases decided, 2 have gone in the government's favor, and the most recent only has struck down the mandate.  The law itself remains.  It's pretty clear that Republicans will sue until they find a judge who's activist enough to strike down the entire law, and then force the Obama administration to appeal the case to the Supreme Court directly and immediately.  They will keep shopping around until they get a judge who will play ball.  Rule of law doesn't matter, nor does precedent.  We've already proven that.

Remember, the larger issue here is to get SCOTUS to issue such a narrow interpretation of the Commerce Clause (that ignores the Elastic Clause) that federal government oversight is all but impossible, and that Republicans can immediately challenge just about every piece of social and labor legislation in the last century that depends on using the Commerce Clause.

A whole hell of a lot is at stake here, far more than just who has to buy health insurance.