Vinson said the government even conceded that its interpretation of the Commerce Clause to support the individual mandate "breaks new legal ground" and is "unprecedented." He concluded, "If it has the power to compel an otherwise passive individual into a commercial transaction with a third party ... 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."
Vinson also turned the government's logic on its head in his ruling that the mandate is not severable from the rest of the legislation. On the one hand, the government maintained the mandate couldn't be severed from the rest of the bill because it was essential to the operation of the entire health care reform program. But then the government argued conversely that the mandate was severable because the 2,700-page bill contained many provisions only tangentially related to health care. Severing the mandate was also impossible, Vinson said, because he would then have to rule on how doing so affected each of the hundreds of provisions in the law. Doing that, Vinson argued, would require him to exceed his own authority as a judge by acting as a legislature.
Ultimately, these issues will likely be decided by the nine justices of the Supreme Court -- unless the 112th Congress beats them to it. The House already has voted to repeal the measure, and in the Senate, all 47 Republicans have co-sponsored Sen. Jim DeMint's bill to do the same. With public opinion running strongly against Obamacare, several Senate Democrats facing re-election battles in 2012 may join them in voting for its demise.