Federal district court judge Roger Vinson issued his ruling today on summary judgment motions in the Florida case, State of Florida v. United States Department of Health and Human Services, in which 26 states allege that Obamacare is unconstitutional. Judge Vinson agreed with their arguments and granted summary judgment in favor of plaintiffs.
Judge Vinson’s ruling evens the score at 2-2; two federal courts have upheld the act against constitutional challenges, while two have now found it to be invalid. The ultimate decision will be made, of course, by the Supreme Court, some time in the next few years.
Judge Vinson held that the Commerce Clause cannot be stretched so far as to require individual Americans to buy health insurance approved by the government. This conclusion may not seem surprising to those who simply read the clause–It gives Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”–but beginning in the 1930s, broad interpretations of the clause have greatly expanded federal powers. Still, Judge Vinson was certainly correct in saying that “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.”
Judge Vinson held that valid legislation under the Commerce Clause must regulate an “activity:”
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 — as was done in the Act — 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. … 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.
He next rejected the federal government’s claim that failing to buy health insurance is an activity:
The Commerce Clause originally applied to the trade and exchange of goods as it sought to eliminate trade barriers by and between the states. Over the years, the Clause’s reach has been expanded from covering actual interstate commerce (and its channels and instrumentalities) to intrastate activities that substantially affect interstate commerce. It has even been applied to activities that involve the mere consumption of a product (even if there is no legal commercial interstate market for that product). To now hold that Congress may regulate the so-called “economic decision” to not purchase a product or service in anticipation of future consumption is a “bridge too far.” It is without logical limitation and far exceeds the existing legal boundaries established by Supreme Court precedent.
Because I find both the “uniqueness” and “economic decision” arguments unpersuasive, I conclude that the individual mandate seeks to regulate economic inactivity, which is the very opposite of economic activity. And because activity is required under the Commerce Clause, the individual mandate exceeds Congress’ commerce power, as it is understood, defined, and applied in the existing Supreme Court case law.
Judge Vinson concluded by finding that the individual mandate is such an essential and intertwined aspect of the statute’s overall regulatory scheme that it cannot be severed from the rest of the statute, and, therefore, Obamacare in its entirety is unconstitutional.
Based on existing Supreme Court precedents, Judge Vinson’s opinion strikes me as well-reasoned. But this case is different from any that have yet come before the Court, and the Court could go either way. The final decision will be essentially political.
While everyone purports to agree in principle that our federal government is one of limited, enumerated powers, the true liberal position is that there are no limits at all on what the federal government can do, except as set forth in the Bill of Rights. Thus, the delineation of the role and powers of the national government, as laid out in the main body of the Constitution, is ignored. On the other hand, the amendments are selectively given an expansive reading where necessary to prevent the government from doing something that liberals do not think is appropriate (e.g., enforcing laws against abortion). Affirming Obamacare would represent a new high-water mark for that philosophy.
SCOTT adds: Two notes: 1) Judge Vinson did not just strike down the individual mandate. One of the most interesting aspects of Judge Vinson’s decision is its striking down of the Obamacare law in its entirety because of its lack of a severability provision. 2) The final decision rendered by the Supreme Court may be “essentially political,” but a truly constitutional resolution of the case is attainable. I think it would look like Judge Vinson’s.
UPDATE by JOHN: I’ve often said that I think the Washington Post is the most respectable voice of the Democratic Party, but that paper’s instant analysis of Judge Vinson’s decision, by Ezra Klein, is pathetic. Klein has no legal training, and it shows. His reaction to the decision is shrill, partisan, and unencumbered by any knowledge of the law:
More surprising is that he’s decided that the presence of the mandate means the rest of the law is unconstitutional, too, which is an extremely radical step. The full ruling has a very Bush v. Gore feeling, as Vinson concedes that his position is activist in the extreme and a break from the court’s usual preference for limited rulings, but says, in effect, that he’s going to do it just this once. “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,” Vinson writes, “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.” Italics mine.
That puts Vinson on the far right of this debate….
Of course, Judge Vinson did not “concede that his position is activist in the extreme…” Klein just made that up. Klein’s discussion of the severability issue is frankly ignorant, and while he quotes briefly from Judge Vinson’s opinion, he shows no sign of actually having read it in its entirety.
Klein fails to acknowledge that the Democrats omitted a severability clause from the health care reform statute. (A severability clause says that if one or more provisions should be found invalid, the remainder nevertheless is intended to stand. Such clauses are common in legislation.) Judge Vinson pointed out the importance of the absence of such a provision in assessing Congressional intent:
The lack of a severability clause in this case is significant because one had been included in an earlier version of the Act, but it was removed in the bill that subsequently became law. “Where Congress includes [particular] language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the [omitted provision] was not intended.” Russello v. United States, 464 U.S. 16, 23-24, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983). In other words, the severability lause was intentionally left out of the Act. The absence of a severability clause is further significant because the individual mandate was controversial all during the progress of the legislation and Congress was undoubtedly well aware that legal challenges were coming. Indeed, as noted earlier, even before the Act became law, several states had passed statutes declaring the individual mandate unconstitutional and purporting to exempt their residents from it; and Congress’ own attorneys in the CRS had basically advised that the challenges might well have legal merit as it was “unclear” if the individual mandate had “solid constitutional foundation.” See CRS Analysis, supra, at 3. In light of the foregoing, Congress’ failure to include a severability clause in the Act (or, more accurately, its decision to not include one that had been included earlier) can be viewed as strong evidence that Congress recognized the Act could not operate as intended without the individual mandate.
I assume that Klein either didn’t read Vinson’s opinion, or, more likely, failed to acknowledge this discussion because he didn’t understand it, notwithstanding the fact that it is perfectly clear.
Judge Vinson went on to note that the government’s lawyers admitted that the statute’s entire scheme of insurance regulation would fall without the individual mandate. This, too, was a strong argument against severability:
Moreover, the defendants have conceded that the Act’s health insurance reforms cannot survive without the individual mandate, which is extremely significant because the various insurance provisions, in turn, are the very heart of the Act itself.
Again, Klein makes no mention of this important argument against severability.
The Post headlines Klein’s piece “GOP judge rules against Affordable Care Act.” This headline, combined with Klein’s ill-informed “analysis” of the opinion, is about the lowest possible form of commentary on a judicial decision. The Post owes its readers better than this.
JOHN adds ONE MORE THING: Scott writes: “The final decision rendered by the Supreme Court may be ‘essentially political,’ but a truly constitutional resolution of the case is attainable.” I agree, of course. But I think a truly constitutional resolution of the case would require unraveling a long history of judicial approval of federal overreaching and a return to a standard that is within shouting distance, at least, of the language of the Commerce Clause.
OK, JUST ONE MORE: There is, obviously, considerable humor value in seeing a kid who is on record as believing that the Constitution is too “confusing” to be understood, since it is more than 100 years old, trying to critique the constitutional analysis of a federal judge with almost 40 years of experience as a lawyer and 27 years as a judge. But is the Washington Post really in the business of providing its readers with that sort of amusement?
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