Legal experts pan Vinson Affordable Care Act decision
by Joan McCarter
Tue Feb 01, 2011 at 10:16:03 AM PST

The lawyers have given their reviews for the Florida decision striking down the Affordable Care Act, and they're brutal. At Talk Left, BTD wonders when "essential" doesn't not mean "necessary and proper":

In his decision striking down the health bill, Judge Vinson found it necessary to perform a double backflip and explain that while the individual mandate was "essential"to the Affordable Care Act, it was not Necessary and Proper to the implementation of the law....

What letter of the Constitution does the individual mandate violate? Vinson does not say. As for the "spirit," Vinson provides no ghostly clue as to what he is talking about. Vinson talks about monsters, not Constitutional provisions...

Chief Justice John Marshall, whose seminal McCulloch v. Maryland decision Vinson brazenly cites, saw it differently...

Alexander Hamilton would surely be surprised to see his name invoked to buttress Vinson's reasoning. In his defense of the constitutionality of the First Bank of the United States, Hamilton wrote in 1791:

[E]very power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society.

To find support for his radical view that legislative provisions "essential" to the effectuation of legitimate legislative ends that are not prohibited by the Constitution are not "Necessary and Proper," Vinson should look elsewhere than Hamilton and Marshall.

At Balkinization, Jack Balkin sees an activist judge at work.

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.

Andrew Cohen at the Atlantic finds a connection in Judge Vinson's hobby--he's president of the board of directors of the American Camellia Society--and his ideology, since the camellia produces tea leaves. "And what's a Tea Party, after all, without a healthy supply of tea leaves?"

"It is difficult to imagine," Judge Vinson wrote in his 78-page ruling, "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."

Tea Party analogy? Check. Head-scratching analysis? Check.... The uninsured can only have a "substantial effect on interstate commerce" -- and thus be regulated by Congress -- if they are subject to the precise conditions which exist today all over the country, and which prompted the Act in the first place. The judge acknowledges this point, to his credit, saying that the Congress would of course have the power to regulate the millions of people who meet his five criteria above. But he then concludes: "But, to cast the net wide enough to reach everyone in the present, with the expectation that they will (or could) take those steps in the future, goes beyond the existing 'outer limits' of the Commerce Clause" (emphasis in original).

I suspect there will be a million words of legal and political analysis over the logic and viability of that conclusion.

Scott Lemieux, echoing Jon Cohn highlights what could be the fatal flaw in the opinion.

Rather than make a more modest and plausible claim that the effect of the mandate on interstate commerce is insufficiently large or direct, Vinson makes a claim that is transparently false:

...the mere status of being without health insurance, in and of itself, has absolutely no impact whatsoever (not "slight," "trivial," or "indirect," but no impact whatsoever) on interstate commerce, 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 calculated mathematically, the status of being uninsured would be represented by zero.

This is quite remarkable. As Cohn notes, health insurers will be very surprised to know that the size and nature of their pool of insurees has no effect on their business -- it's simply a ludicrous argument. It's also worth noting that this assertion causes Vinson's opinion to collapse on itself. If the mandate has literally no impact on interstate commerce, then why isn't it severable from the rest of the bill?

But the most damning critique comes from Orrin Kerr at The Volokh Conspiracy. Kerr argues that Vinson's reliance on first principles rather than precedent is a problem:

Now letís return to Judge Vinsonís analysis of the Necessary & Proper Clause. The words of the relevant Supreme Court cases point to an extremely broad power, and Judge Vinson is supposed to be bound by those words. But Judge Vinson concludes that these words canít be taken at face value because ďto uphold [the mandate] via application of the Necessary and Proper Clause would [be to] . . . effectively remove all limits on federal power.Ē

....This might work as a Supreme Court opinion that can disagree with precedent. But Judge Vinson is just a District Court judge. And if you pair Justice Thomasís dissent in Raich with Judge Vinsonís opinion today, you realize the problem: 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.... [M]y point is that 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.

The Supreme Court might be likely to think Vinson should have been bound by Supreme Court precedent, as well.