I’m still reviewing the 200 plus page majority opinion from Judges Joel Dubina and Frank Hull, but here’s the conclusion summarizing the court’s findings:

We first conclude that the Act’s Medicaid expansion is constitutional. Existing Supreme Court precedent does not establish that Congress’s inducements are unconstitutionally coercive, especially when the federal government will bear nearly all the costs of the program’s amplified enrollments.

Next, the individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and cannot be sustained as an exercise of Congress’s power under the Taxing and Spending Clause. The mandate is denominated as a penalty in the Act itself, and the legislative history and relevant case law confirm this reading of its function.

Further, the individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional. This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives. We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers. “Uniqueness” is not a constitutional principle in any antecedent Supreme Court decision. The individual mandate also finds no refuge in the aggregation doctrine, for decisions to abstain from the purchase of a product or service, whatever their cumulative effect, lack a sufficient nexus to commerce. [fn omitted]

The individual mandate, however, can be severed from the remainder of the Act’s myriad reforms. The presumption of severability is rooted in notions of judicial restraint and respect for the separation of powers in our constitutional system. The Act’s other provisions remain legally operaive after the mandate’s excision, and the high burden needed under Supreme Court precedent to rebut the presumption of severability has not been met.

While this is welcome news I wouldn’t celebrate just yet, we’ve still got a long way to go. If nothing else this ruling makes it more likely that this case is headed to the Supreme Court.

Random thoughts:

• Nancy Pelosi wasn’t kidding when she said we had to pass it to find out what was in it… The majority opinion is 207 pages long, most of it is devoted to explaining how the law the works.
• This is the first time a judge appointed by a Democrat has ruled against the individual mandate… Judge Hull was appointed by Bill Clinton, while Judge Dubina is a George H.W. Bush appointee.
• The court didn’t buy the Obama administration’s argument  that the individual mandate is an exercise of the governments taxing powers.  I might be wrong on this, but I think every court that’s considered the matter has ruled against the government on that point.
• The Court points out on page 171 that if it were to accept the Obama administration’s interpretation of the Commerce Clause would mean a limitless federal power:
  

  The federal government’s assertion of power, under the Commerce Clause, to issue an economic mandate for Americans to purchase insurance from a private company for the entire duration of their lives is unprecedented, lacks cognizable limits, and imperils our federalist structure.

• The court basically punted on the issue of severability:
  

  The presumption of severability is rooted in notions of judicial restraint and respect for the separation of powers in our constitutional system. The Act’s other provisions remain legally operative after the mandate’s excision, and the high burden needed under Supreme Court precedent to rebut the presumption of severability has not been met.

  Maybe I’m missing something, but it’s my layman’s understanding the standard for “presuming” something being “severable” in a law is that it includes a specific severability clause. Regardless from what I remember, the government’s argument to Judge Vinson was that the individual mandate was not severable, it was necessary for the law to function as intended.

The complete ruling is here.

Today’s ruling in a lawsuit filed the attorneys general and governors from 20 states is similar to the ruling issued by Judge Henry Hudson in December, which found the individual mandate violates the Constitution. Judge Vinson’s  ruling goes further and effectively strikes down the entire Health Care Reform law — which because of the hasty way in which the law was cobbled together lacks severability.

I’m still waiting for a copy of the ruling, but David Weigel points out the money graf:

Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void. This has been a difficult decision to reach, and I am aware that it will have indeterminable implications. At a time when there is virtually unanimous agreement that health care reform is needed in this country, it is hard to invalidate and strike down a statute titled “The Patient Protection and Affordable Care Act.”

Frankly, I’m not the least bit surprised by Judge Vision’s ruling, the President’s health care reform was cobbled together and rushed through Congress in manner that paid little or no attention to the will or concerns of the people and ignored Constitutional limits on governmental power.

Now would be a good time for the President and congressional leaders to admit “The Patient Protection and Affordable Care Act” is bad law and repeal it. They can can then begin work on a replacement that can crafted in the full light of day.

Update: The Heritage Foundation notes:

Today’s decision should be a major source of concern for the Obama administration for at least five reasons.

First, the parties involved. This case involves a majority of the states (26), and the National Federation of Independent Business.  If not completely unprecedented, the very fact that more than half the states marched into federal court on behalf of themselves and their citizens to challenge an unconstitutional federal program falls into the category of “beyond any recent memory.”  The sheer magnitude of the parties involved guarantees that the courts on appeal will pay particular attention to this case.

Second, the case creates a very bad trend for the administration.  Those courts which have taken the time to more fully develop the record in the case, and to have more briefing and hearings (Virginia and Florida), have ruled Obamacare unconstitutional.  This is important because, contrary to the White House spin, litigation is not a scoreboard.  It is not enough to say that you have won some and lost some.  Some district court wins “count” more, because they are more indicative of what is likely to come next.  Here, the cases the administration has lost have been better developed, have significant and sophisticated parties, and are in a better position for appeal than the more cursory cases that they have won at more preliminary stages.

Third, the case strikes down the whole of Obamacare based on the unconstitutionality of the mandate.  The administration has tried to have it both ways on this one, with the President and key proponents arguing how essential the mandate is, while the Justice Department arguing at times that it was absolutely essential, and at times that it was severable.  If the DOJ really wanted to keep the bill severable, perhaps they should not have argued in court that removing the mandate while maintaining the remaining requirements of the bill would “inexorably drive [the health insurance] market into extinction.”  Those who would falsely accuse the Judge of overstepping his bounds must recognize both the standards for severability, which he properly applied, and the damning concession made on this point by the Justice Department.

The fourth problem for the Obama DOJ: Judge Vinson’s decision is thorough, well-reasoned, and likely will be very persuasive to appellate judges, and eventually Justices, who review the case.  He was judicious, ruling against the states on the spending clause claim and for them on the Commerce Clause.  The most important document in any appeal is the decision below, and Judge Vinson’s will give the court of appeals much to consider.  Put simply, Vinson has just made the Obama DOJ’s job much more difficult.

The fifth problem, the Judge granted declaratory relief to the parties, which includes 26 states.  Because the entire act was struck down, the future requirements to expand Medicaid programs will be suspended, at least as to these 26 states, and these states will be relieved of their obligation to make plans for such expansion in the immediate future.  At a time when many states face insolvency, the removal of this burden is welcome news.  The Obama administration, rather than fight the relief for these 26 states, should extend it to all 50 until the case is finally resolved.

Update II:  Sen. Jim DeMint tweets:

All Republican Senators have now joined to cosponsor the bill to repeal ObamaCare, S.192

Update III: The DOJ is preparing to appeal Judge Vinson’s ruling and the White House has described the ruling as “odd and unconventional” and “overreaching“… Funny, I’d call Obamacare a grossly overreaching federal power grab that ignores Constitutional limits on federal power.

Related

• Key Excerpts From Monday’s Health-Care Ruling – Wall Street Journal Law Blog
• Judge uses Obama’s words against him – Washington Times
• The Constitutional Moment – The Wall Street Journal
• ObamaCare and the Two Kennedys – William McGurn, Wall Street Journal

Twelve people were killed and at least 31 were wounded when a soldier went on a shooting rampage at the Fort Hood U.S. Army base at Fort Hood Texas on Thursday, base commander Lieutenant-General Bob Cone said.

Cone told reporters at the base that the gunman was killed in the attack at the facility, the biggest military base in the world and a prime point of deployment for U.S. operations in Iraq and Afghanistan.

Two other soldiers were apprehended as suspects.

Cone said the shooting took place at a “Soldier Readiness Facility” where soldiers preparing for overseas deployment were getting last-minute medical checkups. The shooting took place at about 1:30 p.m. CST.

“The shooter was killed. He was a soldier. We since then have apprehended two additional soldiers that are suspects. There were eyewitness accounts that there may have been more than one shooter,” Cone said .

ABC News is reporting the shooter has been identified as Major Nidal Malik Hasan, a convert to Islam:

The suspected gunman was identified by ABC News as Major Nidal Malik Hasan.

The shooter was killed and two other suspects, who are also soldiers, have been apprehended, Lt. Gen. Robert W. Cone said.

The gunman reportedly used two handguns.

Update (6:15 p.m.): CBS News is reporting that Maj. Hasan, 39, was a a licensed psychiatrist from Silver Spring, Md. He was apparently scheduled to deploy to Iraq and was upset about it.

Update (6:50 p.m.): The Austin American-Statesman is reporting that the two suspects arrested shortly after the shooting have apparently been  released. The Statesman also points to an AP report questioning what Hasan’s religion was or whether he was a convert.

Update ( 7:30 p.m.): The guys over at This ain’t Hell have some how gotten their hands on a copy of Hasan’s ORB… Contrary to media reports he’s never been deployed overseas. I guess that blows the PTSD theory out of the water…

Additional updates here…

Related

• Army: 12 dead, 31 hurt in attacks at Fort Hood – Associated Press
• 12 dead Fort Hood shootings – United Press International

Right now it looks like the bill is going to pass there are 57 yes votes with three Democrats (including Brown) left to vote.)

Erstwhile Republicans Arlen Specter, Susan Collins and Olympia Snowe have all voted yes.

More to come…

Update (6:52 p.m.): Kirsten Gillibrand (D-NY) – Aye… They need 2 more reach the 60 votes needed for passage.

Update (8:05 p.m.): It’s all but done… 59 yeas, just waiting on Brown to make it official. I can’t help but think the framers are turning over in their graves.

The final tally was 246-183, with 7 Democrats joining all 176 house Republicans in voting no. 1 Democrat voted present.

Update: Here’s a list of the Democrats who voted against the bill:

Bobby Bright, Alabama
Peter DeFazio, Oregon
Parker Griffith, Alabama
Walt Minnick, Idaho
Collin Peterson, Minnesota
Heath Shuler, North Carolina
Gene Taylor, Mississippi

Daniel Lipinski of Illinois was the Democrat who voted present.

The Senate vote is expected at around 5:30pm Eastern.

Here’s the Via Drudge:

For Immediate Release:
Thursday, February 12, 2009

Senator Gregg Statement on His Withdrawal for Consideration of U.S. Commerce Secretary

Sen. Gregg stated, “I want to thank the President for nominating me to serve in his Cabinet as Secretary of Commerce. This was a great honor, and I had felt that I could bring some views and ideas that would assist him in governing during this difficult time. I especially admire his willingness to reach across the aisle.

“However, it has become apparent during this process that this will not work for me as I have found that on issues such as the stimulus package and the Census there are irresolvable conflicts for me. Prior to accepting this post, we had discussed these and other potential differences, but unfortunately we did not adequately focus on these concerns. We are functioning from a different set of views on many critical items of policy.

“Obviously the President requires a team that is fully supportive of all his initiatives.

“I greatly admire President Obama and know our country will benefit from his leadership, but at this time I must withdraw my name from consideration for this position.

“As we move forward, I expect there will be many issues and initiatives where I can and will work to assure the success of the President’s proposals. This will certainly be a goal of mine.

“Kathy and I also want to specifically thank Governor Lynch and Bonnie Newman for their friendship and assistance during this period. In addition we wish to thank all the people, especially in New Hampshire, who have been so kind and generous in their supportive comments.

“As a further matter of clarification, nothing about the vetting process played any role in this decision. I will continue to represent the people of New Hampshire in the United States Senate.”

Ed Morrissey is spot on:

Wow.  This is an embarrassment for Obama, and might imperil the stimulus package, if Gregg has any influence over the waverers.  The decision to strip him of authority over the census looks like the last straw, however — as it should have been.

I don’t see any need for analysis Sen. Gregg’s statement lays it out pretty clearly. Frankly, I’m not surprised Gregg decided to bow out I thought it was an odd marrige to start with. The only question is what influence if any will Gregg’s decision have on the waverers.