Posted by
Bill Crawford on Sunday, February 06, 2011 5:44:50 PM
The Roger Vinson ruling is just another step on the way to the Supreme Court. It can go Appellate Court and then end up in Washington in a year or so (late this year at the earliest), or it could get fast tracked. This decision practically guarantees the White House will not want such a track. They will want to run out the clock as long as possible, and hopefully watch some more of the Bill get implemented.
Just as the White House ran into problems in earlier adjudication because they said publicly that premiums for the mandated health care was not a tax and then argued that it was in court in hopes of making a case that it was covered by the Commerce Clause, Vinson used White House statements that the mandate was essential to the workability of the package to Constitutionally dump the entire plan, not just the mandate.
I am not the lawyer and when I read over the damned thing last year, it never would have occured to me that there was no "Severarbility Clause" in it- meaning that you could not legally allow the rest of it to stand alone if you decided the mandate was unconstitutional. Knowing it now, it would seem that this was done deliberately, but I wouldn't venture to guess why.
What this decision means is that when it reaches the Supreme Court, they will now be forced to either agree with it or find a reason to show why such a severability should be there anyway. It means that it is more likely that the whole Bill will either pass muster or die en toto. This is bad news for it's supporters, who were left to react by either attacking the qualifications of Judge Vinson or resurrect the new Left counter attack, stating that he is "activist".
Which brings me again to the definition of it's use by the Right. Judicial activism is using the bench to create legislation that would not otherwise see the light of day in a legislature. There is no such creation here. Vinson does not suggest any, either. He basically punts it back to Congress and says that it is no good, and here is why. Try it again if you want to. This is the very definition of judicial review set by Justice Marshall in the early 19th century.
You are welcome to your talking points, folks. You are not welcome to reset reality with them. Try again.