October 14, 2010

Court suggests ways to avoid individual mandate

Leave the country or die:
Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive.
State of Florida v. DHHS (.pdf; 65 pgs.)

The court utterly rejected the federal government's argument* that the individual mandate is a tax in furtherance of the general welfare rather than an exercise of Congress's interstate commerce power.

"If [the individual mandate] is to be sustained," the district court declared today, "it must be sustained as a penalty imposed in aid of an enumerated power, to wit, the Commerce Clause power."

That won't be easy, given that the law seeks to regulate inactivity.

Somewhere, J.B. Van Hollen is gloating.

* Which the court essentially accused the feds of disingenuously cobbling together after the fact, as this here blog had predicted.

eta: "Based on the reporting we've done, it looks like the Commerce Clause argument is the best shot the [plaintiff] attorneys general have — but it was still considered a long shot." — David Kurtz, J.D.

It was? By whom? Not by anybody I know.


gnarlytrombone said...

Excuse my ignorance, but was the defense under the purview of the recently promoted solicitor general?

illusory tenant said...

I don't believe the SG's office gets involved until paper starts landing at the Supreme Court, but given the number of cases Kagan's recused herself from already, who knows. And I believe she was recused as SG from every case in the SG's office the moment she was nominated. It's a bit odd that recusal would be required where the recusee has simply spent time thinking about the case, or maybe written a memo, whereas in Wisconsin, it's actual published policy that recusal is not even in play where a party has made a maximum political contribution to the judge.

gnarlytrombone said...

Interesting, thanks. I just listened to a Geof Stone rant about Kagan's tendency as SG to go beyond the pale (esp. in free speech cases), and was wondering if this strategy had her fingerprints.