Experts Tear Down Judge Vinson's Activist Health Care Ruling

February 03, 2011 11:19 am ET

In the wake of Judge Roger Vinson's decision striking down the Affordable Care Act, legal scholars and policy experts from across the political spectrum have dissected the ruling — and rejected it wholesale. Both conservative and liberal legal experts find Vinson's interpretation of the Constitution and disregard for precedent unconvincing, while wonks hear echoes of Bush v. Gore in his 'just-this-once tone,' and see Vinson's GOP background in his unabashed shout-outs to the Tea Party and right-wing Family Research Council.

In Ruling Entire Law Unconstitutional, Vinson Violated "Normal Rule" On Partial Invalidation

Vinson Ruled The Individual Mandate Invalidates The Entire Health Care Law. According to the Washington Post: "As the judge ruled in the Virginia case, Vinson held that Congress overstepped its authority by compelling nearly all Americans to be insured or pay a fine. But Vinson went further: Likening the law to 'a finely crafted watch' in which 'one essential piece is defective and must be removed,' he ruled that the insurance mandate cannot be separated from the rest of the statute and therefore the entire law must be voided." [Washington Post, 2/1/11, emphasis added]

  • Loss Of Democrats' Senate Supermajority After Scott Brown's Election Prevented Issues Like Severability From Being Fixed In Conference. From Slate:

One year ago, in the aftermath of Republican Scott Brown's upset win in the Massachusetts Senate race, Democrats faced a dilemma. They lacked the votes to pass a massive health care overhaul, which had already been passed by the House and Senate but would need to be approved again by both if it were changed in conference committee. They had two options. They could scrap the bill entirely and try to get through a few popular reforms. ... Or the House could ram through the Senate's version of the bill, with no public option and a host of the other problems that crop up in months of messy infighting and committee work.

Democrats chose the second option. The bill became law. ... The bill passed by the House and Senate did not include a severability clause. Most big pieces of legislation include such a clause, which typically explains that "invalidity or unenforceability of one or more provisions of this Agreement shall not affect any other provision of this Agreement." [Slate, 1/31/11]

Legal Expert: Despite Absence Of Severability Clause, "The Normal Rule Is That Partial Invalidation Is The Required Course." As Talking Points Memo reported prior to Judge Vinson's ruling:

The good news for supporters of the ACA, according to one leading expert on the reform plan and the suits against it, is that — even under the worst case scenario — most of the law will likely remain intact. The bad news is that some of its most important and popular provisions could become ensnared by a ruling against the mandate, and nixed by the court.

"If there were a severability clause, it would mean that the court could strike down a particular provision of the law, and the rest of the law would remain in place," says Timothy Jost of Washington and Lee University. "[However] since there is no severability clause, it does not necessarily mean that if the court strikes down a particular provision the rest of the law collapses.... the normal rule is that partial invalidation is the required course." [Talking Points Memo, 11/30/10, emphasis added]

Former HHS Official Explains Absence Of Severability Clause Is Due To "Understanding" That Courts "Try To Make The Rulings Have The Least Impact." From Slate: "I asked Neera Tanden, who's now the chief operating officer at CAP but who was a senior adviser at the Department of Health and Human Services during the passage of the bill, why there was no severability clause. 'One of the reasons there was not was that there was a keen understanding in the process that courts generally have a deferential view of severability and try to make the rulings have the least impact,' she said. 'And that took the pressure off the severability clause.'" [Slate, 1/31/11]

NYT: Vinson "Reads Too Much Significance" Into "Error" Of Severability Clause Omission. According to a New York Times editorial: [Judge Vinson] reads too much significance into the fact that the Democrats failed to include a 'severability clause' to ensure that if any provisions were found to be invalid then the rest of the law would be unaffected. He believes this shows that Congress recognized the act wouldn't work without the mandate. It seems much more likely that it was an error in the closing Congressional struggle." [New York Times, 2/1/11]

Legal Experts Tear Down Vinson's Argument On "Necessary And Proper Clause"

Vinson Rejects Congressional Power To Enact Health Care Under 'Necessary And Proper' Clause. According to the Washington Post: "Vinson also rejected the government's argument that Congress also was justified in imposing the insurance mandate under the clause empowering Congress to make all laws "necessary and proper" to carrying out its enumerated constitutional powers." [Washington Post, 2/1/11]

Reagan Solicitor General: Based On Necessary And Proper Clause, "I Am Quite Sure That The Health Care Mandate Is Constitutional." According to Charles Fried, former Solicitor General to President Ronald Reagan:

I am quite sure that the health care mandate is constitutional. ... My authorities are not recent. They go back to John Marshall, who sat in the Virginia legislature at the time they ratified the Constitution, and who, in 1824, in Gibbons v. Ogden, said, regarding Congress' Commerce power, "what is this power? It is the power to regulate. That is — to proscribe the rule by which commerce is governed." To my mind, that is the end of the story of the constitutional basis for the mandate.

The mandate is a rule — more accurately, "part of a system of rules by which commerce is to be governed," to quote Chief Justice Marshall. And if that weren't enough for you — though it is enough for me — you go back to Marshall in 1819, in McCulloch v. Maryland, where he said "the powers given to the government imply the ordinary means of execution. The government which has the right to do an act" — surely, to regulate health insurance — "and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means." And that is the Necessary and Proper Clause. [...]

I think that one thing about Judge Vinson's opinion, where he said that if we strike down the mandate everything else goes, shows as well as anything could that the mandate is necessary to the accomplishment of the regulation of health insurance. [Charles Fried Testimony to Senate Judiciary Committee via ThinkProgress, 2/2/11, emphasis added]

Conservative Legal Expert: Under Existing Doctrine, Mandate "Readily Fits" Under Necessary And Proper Clause. According to George Washington University law professor Orin Kerr: "The current state of Commerce Clause doctrine is that there are certain largely symbolic limits on federal power but those limits are relatively minor: As Justice Thomas put it, Congress can regulate virtually anything. Judge Vinson says that this cannot be the law because it would make the federal government too powerful. But Judge Vinson does not consult existing doctrine before declaring the principle, and that's the problem: If you take existing doctrine seriously, it readily fits the mandate under the Necessary and Proper clause." [Volokh Conspiracy, 1/31/11, emphasis added] 

Kerr: "Vinson's Argument On The Necessary And Proper Clause Is Not Persuasive." According to George Washington University law professor Orin Kerr: "I think Judge Vinson's argument on the Necessary and Proper Clause is not persuasive [...] Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way. ... Judge Vinson should not have used a first principle to trump existing Supreme Court caselaw when that principle may not be consistent with existing caselaw. Either Justice Thomas is wrong or Judge Vinson is wrong, and Judge Vinson was not making a persuasive legal argument when he followed the first principle instead of the cases. Because Judge Vinson is bound by Supreme Court precedent, I would think he should have applied the cases." [Volokh Conspiracy, 1/31/11, emphasis added]

Legal Scholar: Vinson's Reasoning Against "Necessary And Proper" Argument "Is A Virtual Tautology." According to law professor Mark Hall:

Still, it's fair enough to conclude, absent controlling precedent, that being uninsured might not constitute interstate commerce. What's harder to swallow is the judge's rejection of the Necessary and Proper Clause. In refusing to sever the individual mandate, he not only concedes the mandate "is indisputably necessary to the Act's insurance market reforms, which are, in turn, indisputably necessary to ... what Congress was ultimately seeking to accomplish," he astonishingly devotes about ten pages (63-74) to hammering home the mandate's necessity. [...] So if the mandate is so clearly necessary, why is it not "proper." The answer, as in Virginia's Judge Hudson's opinion, is a virtual tautology: because the Commerce Clause does not permit it.  [...]

[I]n brief: none of this is consistent with Comstock, which allows the federal government to commit mentally ill former prisoners to civil treatment, despite the clear absence of any general federal civil commitment power. And this is inconsistent with Lopez and with Justice Scalia's concurrence in Raich, which note that regulation, otherwise forbidden, of local noneconomic activities, can be justified when this is "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." [Health Reform Watch, 1/31/11, emphasis added]

Analysts Disagree With Vinson That Being Uninsured Has "No Impact" On Interstate Commerce

Vinson: "Being Without Health Insurance, In And Of Itself, Has Absolutely No Impact Whatsoever On Interstate Commerce." Judge Vinson's opinion states:

[T]he mere status of being without health insurance, in and of itself, has absolutely no impact whatsoever on interstate commerce (not  "slight," "trivial," or "indirect," but no impact whatsoever) — at least not any more so than the status of being without any particular good or service. If impact on interstate commerce were to be expressed and calculated mathematically, the status of being uninsured would necessarily be represented by zero. Of course, any other figure multiplied by zero is also zero.

[Florida Northern District Court Ruling, State of Florida v. U.S. Department of Health and Human Services, 1/31/11, emphasis added]

Conservative Legal Scholar: Regulating "Economic Inactivity" — i.e. Being Uninsured — Is Not "Too Far From Commerce To Regulate." From Greg Sargent's Washington Post blog:

New York University law professor Rick Hills describes himself as a "registered Republican and outspoken conservative," but he maintains that the primary argument conservatives use against the mandate — that it's unconstitutional to regulate economic inactivity by forcing people to buy insurance, as Judge Vinson ruled — is bunk.

Hills frames the question this way: If the federal government can't tell people they don't have the right to refuse to buy insurance, then why was it okay for the federal government to regulate people's "pacifism," i.e., their refusal to fight in wars? Why is it okay for the government to regulate people's refusal to serve on juries? [...]

"If the draft is constitutional, it's constitutional to ban inaction," he said. "Congress can ban inaction, assuming that it's necessary and proper to regulate interstate commerce."

Hills took the comparison a step further, in order to debunk the claim by some conservatives that economic inactivity is too removed from commerce — or economic activity — to regulate.

"If economic inactivity is too far from commerce to regulate, then why isn't defense inactivity — also known as pacifism — too far from defense to regulate?"

"We can forbid pacifism in order to raise an army," he concluded. "So why can't we forbid economic inaction in order to regulate interstate commerce?" [Washington Post, 2/2/11, emphasis added]

Vinson's Argument That Being Uninsured Has "No Impact Whatsoever" On Interstate Commerce Reveals His "Ignorance Of Policy Reality." Jonathan Cohn of The New Republic writes:

The other striking thing about Vinson's ruling is his reasoning on interstate commerce — and its apparent ignorance of policy reality. Vinson says the mandate is unconstitutional because, in effect, the link between insurance status and interstate commerce is too weak:

...the mere status of being without health insurance, in and of itself, has absolutely no impact whatsoever on interstate commerce (not "slight," "trivial," or "indirect," but no impact whatsoever) — at least not any more so than the status of being without any particular good or service. [Emphasis in original]

Again, this is just wrong, as anybody who understands the health care market will tell you. From my January article on the case:

Researchers at the nonpartisan Urban Institute, which has developed its own mathematical model of the health care market, have run simulations on how the Affordable Care Act would play out without the individual mandate. They found that an additional 18 million people would end up without insurance. [The New Republic, 1/31/11]

Vinson's Argument On Interstate Commerce Refutes Decision On Severability. According to Scott Lemieux of The American Prospect: "If the mandate has literally no impact on interstate commerce, then why isn't it severable from the rest of the bill? Vinson's argument that the mandate can't be severed from the rest of the ACA is actually reasonable — but that's because the mandate is essential to making the rest of the bill work, as without a mandate insurance premiums would immediately skyrocket and make the system unsustainable. But he can't have it both ways." [The American Prospect, 2/1/11]

More Holes In Vinson's Argument

Vinson Invented Judicial Consensus On ACA's Purported Violation Of Congress' Power To Levy Taxes. The New Republic's Jonathan Cohn notes: "Defenders of the Affordable Care Act (myself among them) argue that the power to impose the mandate lies in two parts of the Constitution: the power to levy taxes and the power to regulate interstate commerce. Vinson rejects the tax argument and, in explaining his rationale, suggests that even the two judges who upheld the mandate agreed with him on this. But this is incorrect. Judge George Steeh, the federal judge from Michigan, declared that the plaintiff's tax argument — i.e., the assertion that the law was beyond the boundaries of congressional authority to tax — was 'without merit.'" [The New Republic, 1/31/11]

Vinson's Decision Contains Contradictory Assessments Of The ACA's Economic Impact. From The New Republic's Jonathan Cohn:

Vinson asserts that the decision not to carry health insurance has "zero" economic impact. But then, literally a paragraph later, he acknowledges that uncompensated care for the uninsured transfers $43 billion in costs to the rest of society. Later, he goes so far as to recognize that requiring people to get insurance is 'necessary' for carrying out the universal coverage scheme Congress determined it wanted.

So if Vinson admits all of these things, why did he bother first to assert that forgoing coverage has 'zero' impact? He's drawing a distinction between present and future commercial activity that doesn't make a ton of sense to me. ... My guess, honestly, is that Vinson is desperate to play down the link between decisions to forgo insurance and the impact on other people's premiums— a link that history and scholarship have established firmly. And that's because the link, if real, would place it within most contemporary understandings of the Commerce Clause's reach. [The New Republic, 2/1/11, emphasis added]

Vinson's Decision "Exhume[s] Long-Dead And Discredited Doctrines" Like Those Used To Overturn Laws Prohibiting Child Labor. According to Simon Lazarus, Public Policy Counsel for the National Senior Citizens Law Center: "Today's decision in Florida federal district court striking down the Affordable Care Act in its entirety would effectively shred the Constitution as it has been interpreted, applied, and endorsed across a broad ideological spectrum for the last three-quarters of a century — since the New Deal — and, actually, dating back to Chief Justice John Marshall's expansive interpretations of the constitutional provisions directly at issue here. This decision, along with Judge Henry E. Hudson's recent decision to strike essential parts of the ACA, exhume the long-dead and discredited doctrines that the pre-New Deal Supreme Court deployed to overturn laws that prohibited child labor, prescribed minimum wage levels and maximum hours." [American Constitution Society law blog, 1/31/11, emphasis added]

Cohn: Vinson's Citation Of CBO And CRS As Legal Authorities Is A "Conspicuously Weak" Argument. The New Republic's Jonathan Cohn notes:

It's up to the judges to decide which precedents matter more. And that's a decision bound to reflect their values. All of which is a long way of saying that judges can do whatever the heck they want.

Well, almost anything. Most judges at least try to ground their rulings in the language of the Constitution, as interpreted in modern times. My colleague Jeffrey Rosen, who knows far more on these subjects than I do, has argued persistently and elegantly for this sort of judicial restraint.

And you can tell when judges are struggling to be so restrained. It's when they make conspicuously weak arguments. A prime example in Vinson's decision is his frequent citation of reports from the Congressional Budget Office and Congressional Research Service. Both agencies are respected arbiters of policy but Vinson, strangely, cites their interpretations of law — which is a little like asking Ruth Bader Ginsburg to produce actuarial tables on the long-term solvency of Social Security." [The New Republic, 2/1/11, emphasis added]

Critics Suspect Partisan Motivations In Vinson's Decision

Klein: Vinson's Invalidation Of Entire Law Puts Him "On The Far Right Of This Debate." According to the Washington Post's Ezra Klein:

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: Previously, Henry Hudson had ruled the individual mandate unconstitutional but the rest of the law constitutional, and Norman Moon and George Steeh had ruled both the mandate and the rest of the legislation constitutional. [Washington Post, 2/1/11, emphasis added]

Balkin: Severability Ruling Suggests "Something Other Than The Dispassionate Application Of The Law." Yale constitutional law professor Jack Balkin writes on his blog:

It is hard to see Judge Vinson's opinion on the question of severability as entirely unaffected by partisan considerations, just as it is hard to reach the same conclusion about the 5-4 decision on the remedy in Bush v. Gore. When a judge informs you that a particular decision is unique, and unlikely ever to be repeated again — a ticket good for this day only — one begins to suspect that something other than the dispassionate application of the rule of law is going on. And of course, there is a remarkable congruence between what the Republican Party wants and what Judge Vinson has done (not to mention what the conservative majority did in Bush v. Gore).

The Republican Party does not want to excise the individual mandate but keep the most popular features of the ACA; it wants to get rid of the entire statute. This is something that Judge Hudson, who also declared the individual mandate unconstitutional in Virginia v. Sebelius, was unwilling to provide. In these "unique" circumstances, however, Judge Vinson was happy to be of service. [Balkinization, 1/31/11]

NYT: Vinson's Ruling "Breathtaking Example Of Judicial Activism And Overreach." According to a New York Times editorial:

A ruling by a Federal District Court judge in Florida that the entire health care reform law is unconstitutional was a breathtaking example of judicial activism and overreach.

It is hard not to believe this decision was driven at least in part by ideology. At one point the judge, Roger Vinson, who was appointed by Ronald Reagan, gives a gratuitous bow to Tea Party conservatives by citing the original Boston Tea Party in a discussion of opposition to unlimited governmental powers Judge Vinson is way out on a limb in attempting to throw out the whole law, a primary goal of the Republican Party. [New York Times editorial, 2/1/11]

Legal Scholar: Vinson's Opinion Rife With "Partisan Rhetoric And Sloppy, Talk-Radio Reasoning." According to University of Baltimore constituational law professor Garrett Epps: "Judge Vinson's opinion, with its partisan rhetoric and sloppy, talk-radio reasoning, will not form the template of any eventual Supreme Court opinion. That part of the opinion is an embarrassment, not because I disagree with the conclusion but because — like some of the opinions of the late Justice William O. Douglas or the late Chief Justice Warren Burger — it reflects delusions of grandeur, the manic enthusiasm of a judge settling old scores." [The Atlantic, 2/2/11]

Vinson 'Borrowed Heavily' From Family Research Council's Amicus Brief.  According to ThinkProgress: "FRC President Tony Perkins is taking credit for his organization's influence on Vinson. In a statement released yesterday, Perkins pointed out that 'Judge Vinson quoted Klukowski (pg. 32 and footnote 27 on pg. 64) in his opinion. Judge Vinson wrote that he borrowed 'heavily' from FRC's amicus brief and said the brief 'quite cogently and effectively sets forth the applicable standard and governing analysis of severability.'" [ThinkProgress, 2/1/11]

  • The Family Research Council Is Designated A Hate Group By SPLC. From ThinkProgress: "The FRC has been labeled a hate group by the Southern Poverty Law Center (SPLC) and if Vinson is using their rational in this case, he should at least be aware of group's history of questionable legal conclusions and anti-gay bigotry." [ThinkProgress, 2/1/11]
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