[Guest post by Aaron Worthing; if you have tips, please send them here.]
Update: Legal Insurrection links. Professor Jacobson absolutely can’t get over the “mental activity” line and has a pretty funny line about Patrick.
Of course ironically, D.C. is the only place in mainland America where the Federal Government actually has enough power that Obamacare might be constitutional, given that it is technically Federal Territory. But that is not relevant to this case. This case involves residents of North Carolina and Texas and possibly other states, so it is not about the Federal Government’s unique dominion over the District of Columbia.
I haven’t read it over yet, but I will soon and let you know what I think. You can read it for yourself, here.
Update: And here’s the analysis.
One thing that leapt out at me is that the judge has clearly read all of the different cases. Vinson’s opinion figures fairly prominently both on the issue of taxation and issues that are less controversial, such as standing.
This case involves a number of individual plaintiffs, as opposed to any states or institutions. To me, that creates a bit of a standing issue and ripeness issue. The mandate doesn’t come in until 2014. By then we might have repealed the law. So how exactly is this case ripe? How can we say that this injury is anything but speculative? Bluntly, I think this kind of litigation should have waited until at least 2013.
By comparison with the state-based cases, standing was clearer. They were already having to deal with budget cuts and other requirements under Obamacare, and that established a concrete and definite injury to remedy. But, on the other hand, they could base their challenge to those other laws on the theory that the mandate is unconstitutional and cannot be severed. It’s a bit “Rube Goldberg” but it works.
Weirdly, the judge decides the issue of tax authority last, and largely says that Judge Vinson was right on the taxation issue, pretty much adopting his argument wholesale. You will recall that I blogged about his decision on taxation here. What is weird about that is by then the judge already decided to dismiss the complaint, meaning she already upheld it under the Commerce Clause. So why bother? But she would hardly be the first judge to needlessly rule in the alternative.
The meat of the opinion is the Commerce Clause stuff. The chief logical “move” in that section comes at page 35 when she says:
When considered together, as they must be, Wickard, Lopez, Morrison, and Gonzales establish three major lines of inquiry…. First, the Court must consider whether the decision not to purchase health insurance is an “economic” one, like the activities in Wickard and Gonzales, or a “non-economic” one like those in Lopez and Morrison.
Notice what she is doing there. She is pretending that the Commerce Clause is about regulating economic decisions. Which means apparently she cares if Laurence Tribe grants her his approval, because it is exactly what he said in his op-ed. He tried to pretend the commerce power was about regulating decisions and not commerce.
But after a while she forgets her spin, writing, for instance:
These two cases establish that (1) the activity subject to regulation under the Commerce Clause must be economic in nature, (2) the link between the activity and interstate commerce must not be too attenuated, and (3) other activities may be upheld if they are an essential part of a larger regulatory scheme.
So once again she is talking about activities.
How does she solve that problem, then? By making her most frightening gambit. She claimed that Congress has the right to regulate mental activity that has an economic effect.
Oh, you think I am kidding? Well, dear reader, here’s a direct quote:
As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress’s power…. However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.
You have to think that somewhere Rep. Dennis Kucinich is wrapping his head in tinfoil at the thought that Congress now has power to regulate “mental activity.”
And in the end you already know why this fails as logic. Because by the same reasoning, I am engaged in the mental economic activity of not buying a GM car, so surely that activity can be regulated by forcing me to buy one. To be blunt, I think this “mental activity” argument is so specious it harms her case. I can almost hear Scalia mocking the concept as mercilessly as he did the Defenders of Wildlife in Lujan v. Defenders of Wildlife (“Respondents’ other theories are called, alas, the ‘animal nexus’ approach…”). It literally fails the laugh test.
She also deals with the Necessary and Proper Clause. She believes the necessity merely has to be “in the air” to borrow an old legal cliche. I rebutted that view, here. It is not enough for it to be necessary, but that it be necessary to carry into execution the other powers of the constitution. Mitigating the economic fallout from another part of the statute doesn’t count.
The only other interesting argument is the claim that the Religious Freedom Restoration Act claim. Unlike the Liberty University case, which at least accidentally touched on the more serious issue how this obliterates the right to boycott, two of the plaintiffs here argue that they believe solely in looking to God for their care. This is a tough argument to make, because for starters it makes no frickin’ sense as theology. There, I said it. God gave us a brain, He wants us to use it. It’s one thing to believe God will help you in a pinch or when medical science is failing. But if you think that God will just save you from every problem, well, heck, why do you even eat? I mean if God will magically cure any cancers, why not expect Him to fill your belly, too? At least then you will know if you are wrong a little faster.
Of course a judge isn’t supposed to get into that kind of religious debate, but I can’t help but believe that the judge isn’t at least thinking that sort of thing, and with every bit of her being resisting the urge to roll her eyes.
But as for legal reasoning, the judge rightly asks how these men’s religious faiths are even burdened? I mean it comes down to the belief that they will be forced to buy a product they will never use. Well, that does stink, but I fail to see how this forces you to accept care in violation of your faith.
Anyway, there is no denying that this is a victory for the pro-Obamacare forces and Politico notes that this is another Democratic appointee upholding it. But I suspect the holding on standing is a significant weak point and even if not, her “mental activity” line may have positively harmed her side of the argument. And of course as the split decisions pile up the pressure on the Supreme Court to settle this matter increases.
Hopefully they will expedite review of all of these decisions and decide the cases this year. Companies and states need to be able to plan. This uncertainty needs to end.
[Posted and authored by Aaron Worthing.]