Analysis of Florida Obamacare Ruling: An Enlightened Decision (Update: Jennifer Rubin States the Obvious)
[Guest post by Aaron Worthing; if you have tips, please send them here.]
Update: To Glenn, thanks for the Instalink.
Update (II): Jennifer Rubin catches something I missed.
Update (II): Ilya Somin has analysis, here.
My title is kind of a pun because one thing that leaps out at the start is that Vinson is not giving a simple rote discussion of the case law. He takes time to discuss the views of the founders and the entire evolution of law under the Commerce Clause, and in many ways is trying to mimic the great jurists of the past. He is, in that way, a man of the Enlightenment—consciously paying attention to the values of that period. Thus, “enlightened” in that sense, if not enlightened in the ordinary meaning of the word.
Consider this passage, for instance, in the opinion:
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,”…, and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.
Now compare it to this section from Marbury v. Madison, discussing the theory that the Courts should obey a statute even if it is unconstitutional:
This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.
But the Great Chief Justice (John Marshall) and Judge Vinson are asking the same basic question. It is a variation of the question “if they can do this, what can’t they do?” Only it adds an additional wrinkle, asking, “if they can do this, then why does the constitution pretend to limit the power of the Federal Government at all?”
There are several passages that also strike me as persuasive. For instance, most of the time discussion of the historical meaning of the Commerce Clause is not very useful because we have passed those limits ages ago. But this line gives any reasonable reader pause at the threshold the Democrats have breezed past:
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.
And it touches on a point I made. If Obamacare is legal, then Congress essentially has the power to ban boycotts:
I mean consider a simple example. Rosa Parks one day decides she is not giving up her seat to a white man even though a law purports to require her to, and as a result, she is arrested. In response Martin Luther King, Jr. and many others lead a boycott of the bus system. But, according to the court in Liberty University [a case upholding the mandate], Congress could pass a law requiring every person to use a city bus for transportation where it is available, and thus outlaw the Montgomery Bus Boycott.
The judge does not, as I did in that post, fully develop this right to boycott argument, but instinctively the judge understands it.
There were a few lines that struck me as rhetorical “shots” (if you excuse my metaphorically violent language) at different targets, which I don’t approve of as a lawyer (although part of me smiles anyway). For instance, at one point he confronted the argument that, in theory, sooner or later we will all need health care, pointing out that the same could be said about food. Then he writes:
Or, as was discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system.
Now, show of hands, is there anyone here who doesn’t think this was sparked by this?
And when discussing whether the mandate was necessary to the law as a whole, the judge seemed to take a shot (oh, there I go using that word again) at Obama himself in Footnote 30:
On this point, it should be emphasized that while the individual mandate was clearly “necessary and essential.” to the Act as drafted, it is not “necessary and essential” to health care reform in general. It is undisputed that there are various other (Constitutional) ways to accomplish what Congress wanted to do. Indeed, I note that in 2008, then-Senator Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that “if a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house..”
That seems to be an attempt to throw (candidate) Obama’s word’s in the face of (President) Obama. And at the same time, passages seem to be designed specifically to appeal to Justice Kennedy with six citations of his discussions of the limits of federal power. It’s a great tactic to appeal to Justice Kennedy, but this judge should not be engaged in that tactic. Of course there is no line that is so clearly a shot (gasp) or what have you, but it’s a disquieting trend in the decision.
Next , it’s worth noting that the government kind of screwed itself when talking about the application of the necessary and proper clause. First, they tried to argue that the mandate was lawful under the necessary and proper clause. I have written about this argument before:
[O]n the surface, there is some appeal to using the Necessary and Proper Clause. As I have said, and the Feds have argued, if the mandate is struck down and the rule on pre-existing conditions and similar provisions are retained, then this would implode the health insurance business. So that seems kind of necessary, right? But we will see in a moment, that isn’t enough.
And it was not enough for Judge Vinson, either, writing:
One of the amicus curiae briefs illustrates how using the Necessary and Proper Clause in the manner as suggested by the defendants would vitiate the enumerated powers principle (doc. 119). It points out that the defendants.’ Are essentially admitting that the Act will have serious negative consequences, e.g., encouraging people to forego health insurance until medical services are needed, increasing premiums and costs for everyone, and thereby bankrupting the health insurance industry — unless the individual mandate is imposed. Thus, rather than being used to implement or facilitate enforcement of the Act.’s insurance industry reforms, the individual mandate is actually being used as the means to avoid the adverse consequences of the Act itself. Such an application of the Necessary and Proper Clause would have the perverse effect of enabling Congress to pass ill-conceived, or economically disruptive statutes, secure in the knowledge that the more dysfunctional the results of the statute are, the more essential or “necessary” the statutory fix would be. Under such a rationale, the more harm the statute does, the more power Congress could assume for itself under the Necessary and Proper Clause.
Then he says:
Ultimately, the Necessary and Proper Clause vests Congress with the power and authority to exercise means which may not in and of themselves fall within an enumerated power, to accomplish ends that must be within an enumerated power.
Which I read as being essentially the same as my argument:
The correct reason why the necessary and proper clause will not avail the government requires us to look at that constitutional language again: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” (emphasis added). In other words it is not just a power to do something that is generally “necessary and proper,” but only to “carry into Execution” a valid exercise of congressional power.
I go on to explain that the mandate does not carry the other powers into execution; it just mitigates the damage of a valid provision of the law.
Look, I am not saying the judge read anything I wrote. In fact I am positive he didn’t. I am just saying he and I think alike.
But as I said, the government screwed itself with this argument, and here is the reason why. After striking down the mandate the court considered whether the law is severable. Now there are several interesting notions here. First, the court noted that not only was there no severability clause, but Congress cut it from a previous draft and knew (or should have known) that the mandate was controversial and likely to be challenged in court. The court then concludes that the decision to leave out the severability clause might have been intentional.
Which again bears some resemblance to my previous writing on the subject:
And of course there is a policy reason for not wanting a severability clause, and therefore believing its exclusion was intentional. As the administration admits above, without the mandate, many provisions of this law would drive the insurance industry out of business. But if the severability clause was inserted, it might very well mean that these industry-destroying provisions would remain in place. So by leaving out the severability clause, they might have in fact saved the insurance industry.
But the court also notes that if there is no severability clause it doesn’t mean that you automatically assume that the entire statute rises and falls as a whole. Instead, the issue falls back on the default rules:
it’s a two part test: does the rest of the law even work without the invalid portion? And if it does, is it still the case it is evident that but for this provision, Congress would not have passed this law?
And that is exactly where the government screwed itself with its necessary and proper clause argument. They failed to convince the court that the law was necessary to carry the valid provisions into execution, but in their attempt, they succeeded in convincing the court that it was necessary to avoid serious disaster in the insurance industry and thus they made it obvious that without the mandate, this law would not have passed. Indeed, it is such a clear logical blunder, you wonder if it actually was a blunder—or did Obama administration lawyers decide they would prefer to tank the entire law rather than see it enacted without the mandate?
(Well, either that or the lawyers involved are morons. And given some recent professional experience, I am more open to that argument than ever.)
Also, it should be noted that a few commentators have considered the failure of the anti-Obamacare forces to obtain an injunction against the act as some kind of victory. It really isn’t. Instead the court reasoned that a judgment declaring the law to be unconstitutional is sufficient relief to the plaintiffs because “there is a long-standing presumption that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction.” (internal quotation marks removed.) In other words, he felt that the Federal Government would try to obey the law without the court formally ordering its obedience. But believe you me, if the Obama administration ignores this ruling, the court can and certainly will revisit the matter and issue an injunction.
Finally, on a note of style, I will say that compared to the previous Virginia case striking down Obamacare, this decision exhibits far better writing. Judge Hudson in Virginia seemed to constantly say, “well, the plaintiffs say this and the defendants reply with that” and never made it clear what, if any, of their reasoning he agreed with. By comparison Judge Vinson has written an opinion that sets out exactly what he thinks of the law and does so with some eloquence. While I do not appreciate what appears to have been pot-shots at Justice Kagan and President Obama, I think overall this is a far more sound and persuasive opinion.
Update: Jennifer Rubin points out the obvious. The severability argument is not a crazy decision by the judge. It was conceded by Obama Administration lawyers:
In considering this issue, I note that the defendants have acknowledged that the individual mandate and the Act’s health insurance reforms, including the guaranteed issue and community rating, will rise or fall together as these reforms “cannot be severed from the [individual mandate].”
Which means I have egg on my face for missing that. Oh well.
She argued that the Obama Administration didn’t see this coming. Really? Obama was a constitutional law professor. Are you telling me he wasn’t good at that job, either? Forget the validity of his birth certificate, are we sure his Harvard Law diploma is genuine?
[Posted and authored by Aaron Worthing.]