It has not been a good week for Obamacare. Another court ruled that the bill was unconstitutional, while it took a party-line vote in the U.S. Senate to avoid a legislative repeal. Meanwhile, chipping away at the legislation began, with the Senate voting to repeal one of the bill’s most unpopular provisions, a requirement that businesses file 1099 tax forms on even small purchases. Supporters of the bill are bailing as fast as they can, but the ship is sinking rapidly.

Today POLITICO Arena asks:

Ex-VP Al Gore says the snowstorms that paralyzed much of the U.S. this week are more evidence of manmade global warming. “The scientific community has been addressing this particular question for some time now and they say that increased heavy snowfalls are completely consistent with what they have been predicting as a consequence of man-made global warming.” Do you agree?

My response:

A scientific hypothesis that’s essentially unfalsifiable — cold corroborates “global warming,” heat corroborates it, nothing really falsifies it — is worse than useless. It’s a scientific poseur, properly classified as a belief system, like religion. And the implication that there’s an optimal earth temperature, or range of temperatures, or that global warming is destructive, not possibly beneficial, is just further evidence that there’s more going on here than pure science.

Throw in beliefs about the human contributions to “global warming” and the policy recommendations that follow — massive shifts toward wildly expensive command-and-control energy systems, the effect on the world’s poor notwithstanding — and the politics of the matter come into view. Let’s remember that Al Gore, who never missed an opportunity to expand government, was once an ethanol evangelist, a posture he’s recently admitted was connected mainly with presidential politics in Iowa — now that ethanol has been shown to have negative environmental consequences. Frankly, I’ll stick with Punxsutawney Phil.

Judge Roger Vinson’s decision on Monday that ObamaCare is unconstitutional in its entirety has sparked a lively debate at Cato and in the country as well about precisely what the practical effect of the decision is, pending a final ruling by the U.S. Supreme Court, which may be a year or more in the offing.

Obviously, the Obama administration and the states have already begun implementing parts of the law. Yet the Washington Post reports this morning that Wisconsin Attorney General J.B. Van Hollen, one of the parties to the suit, “issued a stern statement” following the decision:

“This means that, for Wisconsin, the federal health care law is dead,” and his state “was relieved of any obligations or duties” to carry out the statute.

Other attorneys general and governors have taken a variety of positions about the decision’s effect. Meanwhile, the Obama administration is proceeding with its implementation plans, and has indicated that it will seek a stay of Judge Vinson’s decision.

The problem that my colleague Bob Levy and I see with seeking a stay, however, is that Judge Vinson’s ruling declared ObamaCare unconstitutional; but the judge did not issue a formal injunction. Our colleagues Michael Cannon and Ilya Shapiro have endorsed one plausible reading of that ruling — i.e., absent a court-issued stay, ObamaCare cannot be further implemented. That interpretation may be correct, but the administration and others disagree, and the issues are murky.

What would the remedy be if the federal Department of Health and Human Services were to continue implementing ObamaCare? If an injunction had been issued, HHS officials might be found in contempt of court. But without an injunction, there is no obvious remedy.

Moreover, a single district court in a single state might not be empowered to foreclose nationwide implementation of a federal statute. After all, two other district courts have upheld ObamaCare’s constitutionality. Suppose each of the 26 states in the Florida case had filed separate suits. Suppose further that 25 of the 26 suits had been dismissed, but one outlier court had held that ObamaCare was unconstitutional. Would that court’s order effectively require HHS to abandon the legislation? Surely, proponents of ObamaCare would have a valid argument that start-and-stop implementation might be chaotic.

Because the issues are complex and unclear, the better outcome would be for the 11th Circuit Court of Appeals to clarify the effect of Judge Vinson’s ruling. And given the manifold implementation uncertainties surrounding the serious constitutional questions, affecting so many people and institutions, private and public, Judge Vinson’s decision should be put on a fast track to the Supreme Court.

Addendum: Further on the practical effect of Judge Vinson’s declaring ObamaCare unconstitutional — whatever it may be — it is reasonable to argue that the 26 plaintiff states in the Florida case need not, for now, take any action mandated by the statute. Any attempt by the federal government to force compliance by one of the recalcitrant states would likely result in further litigation that might have the salutary effect, at least, of clarifying this confusing situation.

The Tennessee ACLU sent a letter to public schools warning them not to celebrate Christmas as a religious holiday. The Tennessee Fusion Center (H/T Uncle) put the communication on its map of “terrorism events and other suspicious activity”:

“ACLU cautions Tennessee schools about observing ‘one religious holiday,’” the website’s explanation reads.

Also among the map’s highlights: “McMinn County Teen Brings Gun to School,” and “Turkish National Salih Acarbulut Indicted in Chattanooga for Alleged $12 million Ponzi Scheme.”

Mike Browning, a spokesman for the Fusion Center, said “that was a mistake” to label the ACLU letter as a suspicious activity. He said the Fusion Center meant to use the icon that means merely general information. The icon was changed after the ACLU sent its news release, he said.

“It’s still on the map,” Browning told The City Paper. “It has been reclassified into the general information category.”

But a look at the website shows there is no icon for general information. Instead, the icon for the ACLU letter now signifies “general terrorism news,” according to the website’s legend.

This follows a long line of fusion center and DHS reports labeling broad swaths of the public as a threat to national security. The North Texas Fusion System labeled Muslim lobbyists as a potential threat; a DHS analyst in Wisconsin thought both pro- and anti-abortion activists were worrisome; a Pennsylvania homeland security contractor watched environmental activists, Tea Party groups, and a Second Amendment rally; the Maryland State Police put anti-death penalty and anti-war activists in a federal terrorism database; a fusion center in Missouri thought that all third-party voters and Ron Paul supporters were a threat; and the Department of Homeland Security described half of the American political spectrum as “right wing extremists.”

The ACLU fusion center report and update lay out some good background on these issues, and the Spyfiles report describes how monitoring lawful dissent has become routine for police departments around the nation. Cato hosted Mike German, a former FBI counterterrorism agent and co-author of the ACLU fusion report at a forum on fusion centers, available here.

Today POLITICO Arena asks:

Does WikiLeaks founder Julian Assange deserve a Nobel Peace Prize, as Norwegian parliamentarian Snorre Valen urges, calling him “one of the most important contributors to freedom of speech and transparency”?

My response:

A Nobel Peace Prize for Julian Assange? Please! He’s a fence for stolen goods. Transparency has its place. But nations, like individuals and private organizations, need to conduct their business with varying degrees of confidence. Look at Egypt at the moment, where American, Egyptian, and other officials are conducting delicate negotiations in the context of a potentially explosive situation. Only the most naive would expect those to be fully transparent. That’s why all nations have strict rules about classified materials.

Is classification abused? Of course it is. In my experience in government, far too much was classified, often for the wrong reasons. But that’s hardly ground for abandoning classification. And if we have a classification system, it has to be enforced. If the alleged source of the WikiLeaks trove, Pfc. Bradley Manning, is proven guilty, he should be fully punished. It’s unclear whether our law can reach Assange, but surely he should not be honored, whatever incidental good may have come here and there from his duplicity. Not only would awarding him the Nobel Peace Prize dishonor the prize and so many who’ve received it before him, but it would contribute to undermining the very system of confidential communications that is essential to peace. The very idea should be put to rest, in the name of peace.

It’s hard to get too excited about a district court decision — this is one of several, and will be superseded by circuit and eventual Supreme Court decisions — but this decision in Florida v. U.S. Dept. of Health and Human Services is remarkable. Most notably, the 78-page ruling is well theorized and engaging (Vinson’s opus is a joy to read compared to most stuff I have to wade through to understand what the courts are doing) and sets the stage for the appellate writings to come. It puts “facts on the ground,” if you will. 

No higher courts are bound but they are influenced. Judges, like anyone else, don’t want to reinvent the wheel where they don’t have to. So the circuit courts and even the Supremes will say all this in their own words but don’t for a second think they ain’t payin’ attention. I can’t cite you statistics about justices being influenced by district (or even circuit) court opinions, but it would be laughable to think that the outcome before the Court would be the same regardless of how the decisions on the merits before several thoughtful district judges went.

Read on for highlights from Judge Vinson’s magisterial opinion (to which I initially responded here and whose immediate consequences I analyzed here). Page numbers are in parentheses after each quote.

Setting the stage:

This case is not about whether the Act is wise or unwise legislation, or whether it will solve or exacerbate the myriad problems in our health care system. In fact, it is not really about our health care system at all. It is principally about our federalist system, and it raises very important issues regarding the Constitutional role of the federal government. (2)

On the scope of the Commerce Clause:

Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States.[FN14]

 [FN14]… Here, people have no choice but to buy insurance or be penalized. And their freedom is actually more restricted as they do not even have a choice as to the minimum level or type of insurance to buy because Congress established the floor. A single twenty-year old man or woman who only needs and wants major medical or catastrophic coverage, for example, is precluded from buying such a policy under the Act. (38)

The distinction between activity and inactivity:

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 … 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. See id. at 592 (quoting Hamilton at the New York Convention that there would be just cause to reject the Constitution if it would allow the federal government to “penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals”) (Thomas, J., concurring). (43)

On the government’s argument that health care is “unique” because nobody can “opt out” of this market:

After all, there are lots of markets — especially if defined broadly enough — that people cannot “opt out” of. For example, everyone must participate in the food market. Instead of attempting to control wheat supply by regulating the acreage and amount of wheat a farmer could grow as in Wickard, under this logic, Congress could more directly raise too low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market. Or, as was discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system. Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile — now partially government-owned — because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business. (46)

Uniqueness is not an adequate limiting principle as every market problem is, at some level and in some respects, unique. (49)

On the government’s argument that the not buying health insurance is an “economic decision” that, in the aggregate, substantially affects interstate commerce:

The problem with this legal rationale, however, is it would essentially have unlimited application. There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort. The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that — when aggregated with similar economic decisions — affect the price of that particular product or service and have a substantial effect on interstate commerce. To be sure, it is not difficult to identify an economic decision that has a cumulatively substantial effect on interstate commerce; rather, the difficult task is to find a decision that does not. (53)

The important distinction is that “economic decisions” are a much broader and far-reaching category than are “activities that substantially affect interstate commerce.” While the latter necessarily encompasses the first, the reverse is not true. “Economic” cannot be equated to “commerce.” And “decisions” cannot be equated to “activities.” Every person throughout the course of his or her life makes hundreds or even thousands of life decisions that involve the same general sort of thought process that the defendants maintain is “economic activity.” There will be no stopping point if that should be deemed the equivalent of activity for Commerce Clause purposes. (55)

On the Necessary and Proper Clause:

The Necessary and Proper Clause cannot be utilized to “pass laws for the accomplishment of objects” that are not within Congress’ enumerated powers. As the previous analysis of the defendants’ Commerce Clause argument reveals, the individual mandate is neither within the letter nor the spirit of the Constitution. To uphold that provision via application of the Necessary and Proper Clause would authorize Congress to reach and regulate far beyond the currently established “outer limits” of the Commerce Clause and effectively remove all limits on federal power. (62)

Why the entire 2,700-page piece of legislation must fall:

In the final analysis, this Act has been analogized to a finely crafted watch, and that seems to fit. It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. … The Act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker. (73–74)

In sum, notwithstanding the fact that many of the provisions in the Act can stand independently without the individual mandate (as a technical and practical matter), it is reasonably “evident,” as I have discussed above, that the individual mandate was an essential and indispensable part of the health reform efforts, and that Congress did not believe other parts of the Act could (or it would want them to) survive independently. I must conclude that the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit. (74)

Concluding thoughts:

Regardless of how laudable its attempts may have been to accomplish these goals in passing the Act, Congress must operate within the bounds established by the Constitution. Again, this case is not about whether the Act is wise or unwise legislation. It is about the Constitutional role of the federal government. (75–76)

[FN 30] On this point, it should be emphasized that while the individual mandate was clearly “necessary and essential” to the Act as drafted, it is not “necessary and essential” to health care reform in general. It is undisputed that there are various other (Constitutional) ways to accomplish what Congress wanted to do. (76)

The opinion is breathtaking. I’ve read it three times now and each time come away with the realization that this judge intuitively “gets” what it is that Cato (including myself) have been saying all along. And this despite our not having filed a brief in this particular court!

As I continue digesting Judge Vinson’s ruling, I notice two key things beyond the facts that the “individual mandate is unconstitutional”:

1. In performing his severability analysis — determining which parts of the overall legislation survive — the judge threw out all of Obamacare:

In sum, notwithstanding the fact that many of the provisions in the Act can stand independently without the individual mandate (as a technical and practical matter), it is reasonably “evident,” as I have discussed above, that the individual mandate was an essential and indispensable part of the health reform efforts, and that Congress did not believe other parts of the Act could (or it would want them to) survive independently. I must conclude that the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit. The individual mandate cannot be severed. This conclusion is reached with full appreciation for the “normal rule” that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute, but non-severability is required based on the unique facts of this case and the particular aspects of the Act. This is not a situation that is likely to be repeated.

2. In discussing whether to issue an injunction — a judicial command to do or refrain from doing something — the judge determined that his declaratory judgment in this context was the same as an injunction. That is, a federal court saying that a piece of legislation is unconstitutional is effectively the same as a decision mandating the government to act:

Declaratory judgment is, in a context such as this where federal officers are defendants, the practical equivalent of specific relief such as an injunction … since it must be presumed that federal officers will adhere to the law as declared by the court. [Quoting a D.C. Circuit opinion written by none other than then-Judge Antonin Scalia]

In short, if I read the opinion (plus this final judgment) correctly — quite apart from both the lofty philosophical principles I applaud Judge Vinson for adopting and the nitty-gritty technical details of his individual mandate analysis — Obamacare is dead in its tracks. Now, Judge Vinson himself or the Eleventh Circuit (or even the Supreme Court) may issue an emergency stay of this or any other part of the ruling, but as of right now, the federal government must stop implementing Obamacare.

NB: The New York Times and Washington Post report that Judge Vinson has already stayed his own ruling pending appeal, but this is an incorrect reading of the opinion, for the reasons stated above. Moreover, the court’s docket, which is now closed for the day, contains no such stay — nor has plaintiffs’ counsel received notice of one.

Update: For further developments on the practical effects of Judge Vinson’s ruling, see “ObamaCare After Judge Vinson’s Ruling” and “After Florida, What’s to Be Done about ObamaCare?”