The Other McCain

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Steady Development In The Virginia Lawsuit To Declare ObamaCare
Both An Exercise In Foolishness And Un-Constitutional, But Mostly Un-Constitutional

Posted on | July 2, 2010 | 7 Comments

by Smitty (h/t Bill Dupray @ Liberty Pundits

Bill Dupray introduces the jurisprudence upon which much could hinge:

Judge Henry Hudson, a Bush appointee and former U.S. Attorney in the high-profile ‘Rocket Docket’ in the Eastern District of Virginia is a very solid judge. Many Virginia lawyers, including your[s] truly and Doug Mataconis, practiced before him when he was a Circuit Court judge in Fairfax County. I agree with Doug that regardless of the outcome of the ruling itself, it will be very well thought out. To put it bluntly, Judge Hudson is no slouch.

I think the key point here is that he bears no Ivy League taint.
At the WaPo, we get some insight into how it went on Thursday, 01 July:

In front of a packed courtroom — with spectators overflowing into a second room and supporters of the federal law demonstrating outside — attorneys for the Obama administration responded that the Virginia suit has no merit and should be tossed out of court. They said the law’s mandate that Americans buy health insurance was well within Congress’s constitutional power.
District Court Judge Henry E. Hudson said he will decide within 30 days whether to allow the case to proceed.

Cucinnelli is a man of conscience:

“If I think something violates the U.S. Constitution and I sit on my hands, then I am abandoning my oath of office,” Cuccinelli said at a news conference after the hearing.

In contrast, Gentleman Jim Moran (D-ummkopf, VA-8) offered this:

. . .U.S. Rep. Jim Moran (D) called Cuccinelli’s legal interpretation “nuts.”
“He’s a radical in terms of his interpretation of the constitution. There’s just so much precedent for doing the kinds of things that are entailed in health care reform,” Moran said.

Precedent, Mr. Moran? Let’s look at Article 5, shall we?

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Maybe we’re just not looking closely enough to see Mr. Moran’s point. Let’s try again. Oh, yes, towards the end:

. . .no amendment which may be made prior to the year one thousand eight hundred and eight shall in any Manner affect the first and fourth clauses in the ninth section Of the first aRticle; ANd that no state, without Its consent, Shall be depRived of Its equal suffraGe in tHe senaTe.

Well, that sort of justifies the entire Progressive agenda, doesn’t it?
Past the sophomoric humor is a point: Moran’s argument that “so much precedent” exists as to be tantamount to an Article 5 Amendment would, itself, be a Constitutional Amendment. For an elected Representative like Moran even to attempt such an argument is both a rectal pluck and a violation of his oath to defend that Constitution; can we impeach Gentleman Jim right now, please?
The first of the two WaPo articles has this gem. Getchell is the VA attorney, Gershengorn is the Federal one:

At its core, the legal debate will turn on whether a person who has chosen not to buy insurance is engaged in economic activity that can be regulated by Congress as interstate commerce.
Getchell argued that a person who has chosen to go without insurance is not engaging in economic activity and cannot be forced into the insurance marketplace. “No post-modernist playing with language can turn inactivity into economy activity affecting interstate commerce,” he said.
Gershengorn countered that an uninsured person will eventually require health care. Going without health insurance is not inactivity, he said. It’s just choosing not to pay for health care, a decision that shifts a $43 billion-a-year burden from the uninsured to the insured.

So, Mr. Gershengorn, health, like nutrition, is not a private matter. Elena Kagan thinks that the question of whether something is Constitutional or not is separate from whether it is stupid, (h/t BlogProf):Given the abject economic idiocy of the policy endorsed by this Congress and Administration, I guess she is beholden to the very moronic law she decries, if she wants a job. Filling out a trifecta of lame, we can add Axelrod to Moran and Kagan, also via BlogProf.
David Axelrod has ‘feelings’ about accomplishments such as ObamaCare:

The Daily Show With Jon Stewart Mon – Thurs 11p / 10c
David Axelrod Unedited Interview Pt. 2
Daily Show Full Episodes Political Humor Tea Party

In summary, real Americans at Tea Parties around the country need to continue to call the bluff on Progress, un-Constitutional nonsense. We also need to support Ken Cuccinelli and like-minded patriots all around. And before you get bummed out about this endless stream of intellectual flaccidities, avail yourself of Bill Whittle’s latest essay on PJTV. In summary, Bills prescription for Americans is:
All ahead, full-tilt boogy.

Update: Fausta has a ObamaCare great repeal video.

Update II: Transcript of Whittle’s excellent essay.



7 Responses to “Steady Development In The Virginia Lawsuit To Declare ObamaCare
Both An Exercise In Foolishness And Un-Constitutional, But Mostly Un-Constitutional”

  1. Roxeanne de Luca
    July 2nd, 2010 @ 3:15 pm

    American and WCL? Monica Goodling started off there. For all of its non-elite ranking, it’s an excellent school that is, from what everyone says, a really good place to go to law school. Students like each other, and there’s a lot of opportunities for students to succeed in ways that go beyond getting As.

    One of my profs in law school is a judge on the Rocket Docket. Those people do not take crap from anyone; E.D. Va. is a well-run machine. I’m glad that the ObamaCare challenge will be heard there.

  2. Estragon
    July 3rd, 2010 @ 2:06 am

    It’s going to be interesting to read the logic of any decision which finds the individual mandate to fall with the commerce clause powers. Despite Moran the moron’s ranting to the contrary, there is no precedent for this being used to force someone not engaged in an economic activity to do so against their will.

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