Your Daily Appellate Court HCR Ruling!

Gather round kids, the 11th Circuit has issued a ruling on HCR.

Let's see who wrote it -- hey, it's a joint opinion by Dubina and Hull!

How special!

And they drop a footnote to explain that this has happened at least twice before in 11th Circuit history, so don't go around thinking there's anything special about it, no siree.

And look at that -- the odd man out, the rugged individualist, Judge Marcus -- he wrote his own dissent!

So now everyone got to write everything they wanted on a matter that will be decided by the Supremes anyway.

And boy did they -- the majority duo wrote a crisp and tight 207(!) page opinion, and Judge Marcus decided to cut his dissent short at the otherwise pithy page 84.

Is everyone happy now?

For those who care about the substance, the Court found the mandate unconstitutional but upheld everything else.

On the mandate's constitutionality, the 11th is now squarely at odds with the always-liberal 6th Circuit, which earlier this summer found the whole enchilada to "hold water," as Vinny Gambino would say.

Someone remind me, what happens again when Circuit Courts split on important Constitutional issues?

Governor Scott Starts Returning Federal Health Care Money!

For those of you looking for a silver lining in Judge Vinson's recent health care ruling, here you go:

In the wake of U.S. District Judge Roger Vinson's ruling that the federal health care legislation is unconstitutional, Florida insurance commissioner Kevin McCarty returned a $1 million federal grant awarded to the state to assist with reforms. The money would have paid for a system to provide information to consumers on the rates of large-group insurers.

"The purpose of this letter is to inform you that after deliberate consideration, I hereby rescind the acceptance of the above-referenced $1 million rate review grant, which occurred in a letter to you dated September 15, 2010. No drawdown of any of the $1 million will occur," McCarty wrote in a letter to the director of the U.S. Department of Health and Human Services' Center for Consumer Information and Oversight. 

This is pathetic.

The court's ruling was vague as to enforcement, perhaps intentionally so.  

And it's obviously an issue in legal flux.

Why not wait for the dust to settle before you start returning monies provided pursuant to a federal statute?

This feels like cheap political theatrics at the expense of underinsured Florida consumers.

Oh hail this is way too depressing for a Friday afternoon, but I have to follow my muse, peoples (I'm paraphrasing Woody....)

Let me get some windsurfing in and see what it does to improve things, and I'll check back in later.

YEAH -- Obamacare Ruled Unconstitutional!!

Ok kids, here is Judge Vinson's 78 page order finding that whole Obamacare thing a bad nightmare, much like the last season of Dallas:

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting --- as was done in the Act --- that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.

 Ok, I'm really digging the explicit Tea Party reference.

I stopped caring about the Commerce Clause when I left law school, so I won't pretend to be a sudden expert on it now.

And I'm still analyzing the opinion.

However, on first blush, I think the Judge has written a thoughtful, comprehensive order, one that draws deeply on history and context and which attempts in good faith to tackle the parties' arguments head-on.

This is exactly what a district judge should do, regardless of how one may feel about the outcome.

Say what you want about Judge Vinson, but this comports with my personal experience with him.  He is straightforward and intelligent, tells you exactly what he thinks and where he is coming from, and tries to engage you on the merits without excessive rancor or inflated "judge-itis."

Do Any Tenured Florida Law Professors Think the Health Care Law is Constitutional?

I was interested to read this statement by over one hundred law professors from around the country regarding the constitutionality of the Affordable Care Act:

Given that the minimum coverage provision bears a close and substantial relationship to the regulation of the interstate healthcare market, Congress can require minimum coverage pursuant to the Constitution’s Necessary and Proper Clause. In a landmark decision studied by every law student, the Supreme Court in 1819 explained that the Necessary and Proper clause confirmed Congress’s broad authority to enact laws beyond the strict confines of its other enumerated powers: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end” are lawful, the Court wrote. Since then, the Supreme Court has repeatedly held that Congress, in regulating the national marketplace, can reach matters that when viewed in isolation may not seem to affect interstate commerce.

In 2005, Justice Antonin Scalia explained that the necessary and proper clause gives Congress broad authority to ensure that its economic regulations work. In Justice Scalia’s words, “where Congress has authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” Just last term, a majority of the Supreme Court, in an opinion joined by Chief Justice John Roberts, wrote that in “determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.”

The ACA’s minimum coverage provision fits easily within this framework.

It goes on, in a mildly persuasive manner, from there.

Naturally I was curious to see which professors from our many Florida law schools signed on to this statement, as the list includes national luminaries such as Yale's Jack Balkin, UC Irvine's Erwin Chemerinsky, Chicago's Geoffrey Stone and many others.

So who signed on from our glorious Sunshine State, where nearly 8 million Floridians have pre-existing conditions (boy, we're a sick lot, huh)?

Only FSU's Franita Tolson, who is an Assistant Professor up in Tally (though she's on tenure track and we hope she gets there).

I'm happy to see Professor Tolson voice her opinion, but what the hail happened to the faculties of the University of Miami, Nova, FIU, Gainesville etc.?

Nobody at any of these esteemed institutions has an opinion on one of the more pressing legal issues of the day?

In unrelated news, it seems none other than Steely Dan has written a song to our very own Godwhacker!

Check it out above.

(No word yet on whether an ode to swlip is forthcoming.)

How to Become a Federal Judge.

You know that judge out in Virginia who just struck down the individual mandate in the new health care law?

The one who owns a stake in a GOP consulting firm that has directly worked against health care reform?

Turns out he wrote a memoir(!) in which very candidly explains -- boasts(?) -- about how he got to become a federal judge:

After Congress created a new judgeship for the Richmond Division in the Eastern District of Virginia in 2001, Hudson expressed his interest and picked up the support of the state's two Republican senators.

Hudson's description of the selection process candidly acknowledges its political nature. "Campaigning for a federal judgeship is almost as challenging as running for political office," he writes. "Rather than court voters, aspirants solicit endorsements from influential political activists with close ties to the senators, particularly the activists who raise the big money.

"That is where 20 years of active service to the Republican party, and helping in the various campaigns of each senator, paid dividends and gave me the edge," he said.

It's good to be the King!