[Guest post by Aaron Worthing; if you have tips, please send them here.]
First, the good. There is good, straightforward discussion of the case at the Wall St. Journal. And Law.com is always good for providing quality legal reporting. They also give us an update on other cases involved in Obamacare:
The 4th Circuit just last week set an expedited briefing and argument schedule for its review of the two Virginia cases: Sebelius v. Commonwealth of Virginia, and Liberty University v. Geithner. All briefing is to be completed by April 18 with a hearing date for May 10-13. Both cases will be heard on the same day, according to that court.
The Michigan case — Thomas More Law Center v. Obama — is now before the 6th Circuit. Briefing was completed last week, but no argument date has been scheduled.
A case is also pending in the 9th Circuit — Baldwin v. Sebelius, which a district court dismissed for lack of standing.
That last bit should be remembered the next time someone claims that the fact that a lot of other cases have been dismissed matters. There are a lot of ways to dismiss a case without reaching the question of whether the mandate is constitutional. As for standing, there can be rational debate about whether it exists now (I believe it does), but there is no question that the first time they try to enforce the mandate, that person will have standing. So standing is a significant issue in and of itself, but it’s inevitable that sooner or later someone will have it.
Of course law.com also missed a case, discussed here, where they used Roe v. Wade to attack Obamacare. I haven’t heard anything about this case for a while, so I will try to learn more and post on it.
Now the criticisms. The first is Jack Balkin, a Constitutional Law Professor at Yale Law School and frankly I am disappointed in this post from him.
In it he first recites the myth that Bush v. Gore was saying it was not setting a precedent, by quoting this passage: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” And thus the left, for well over ten years, have turned a simple and logical statement that election law is complicated, and thus each inquiry is individualized and fact-intensive, into a claim that this doesn’t count as precedent. It isn’t what the court said, and indeed the courts have regularly cited Bush v. Gore as precedent in about two hundred cases, according to Fastcase and even more according to Google.
And then Balkin turns around and tries to claim that this element, that wasn’t actually in Bush v. Gore, is present in Vinson’s decision, by quoting this line:
The individual mandate cannot be severed. 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, 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.
(emphasis added by Balkin). But this supposedly ominous statement is nothing more than an assessment of how likely it is that the judge will be faced with an analogous situation. As he wrote just before the cherry-picked section:
In sum, notwithstanding the fact that many of the provisions in the Act can stand independently without the individual mandate (as a technical and practical matter), it is reasonably “evident,” as I have discussed above, that the individual mandate was an essential and indispensable part of the health reform efforts, and that Congress did not believe other parts of the Act could (or it would want them to) survive independently.
Isn’t it reasonable to say he isn’t likely to see a situation like that again in his life? A situation where 1) Congress forgets (or intentionally leaves out) a severability clause in 2) a massive statute, 3) the keystone of which is a provision 4) which represented a literally unprecedented grasp for power? This is not a common occurrence and pointing that out doesn’t mean the judge has suddenly declared his ruling to have no precedential value.
For years I thought of Professor Balkin as inconsequential. Now I am convinced he is just a hack.
Speaking of hacks, Think Progress has come up with another “scandal.” The judge borrowed texts from a brief from the Family Research Council that the Southern Poverty Law Center calls a hate group!