Judge Vinson’s History Lesson

This past Sunday, Sen. Charles Schumer (D-NY) was waxing eloquent in a CNN interview about the need to increase the debt ceiling in the face of Republican demands for offsetting spending reductions – or else they would vote against it – when he launched into a long soliloquy, concluding with this remarkable statement:

“… so I would urge my Republican colleagues, no matter how strongly they feel … you know we have three branches of government, we have a House, we have and Senate, and we have a President, and all three of us are going to have to come together and give some, but it is playing with fire to risk the shutting down of the government, just as it is playing with fire to risk not paying the deficit.”

What is “remarkable” here is Schumer’s constitutional understanding of the tri-partite structure of American government. Assuming he was listening to his own words, neither he nor CNN host, Candy Crowley, made an effort to correct his excision of the Judiciary.

Last year, after the healthcare law had been rammed through the House, a reporter had the audacity to ask Her Imperial Highness, Speaker Pelosi, if she thought the law was constitutional. “Are you serious? Are you serious?” she said twice, incredulous that anyone would question her on the point. Since she never answered the question, it’s uncertain whether she was incredulous that the law’s constitutionality would be questioned or incredulous that laws had to pass constitutional muster.

Then there was the outburst from Rep. James Clyburn (D-SC) last year when he declared to a fellow House member on the Republican side that "there's nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do." Clyburn’s attitude fits nicely with Rep. Pete Stark (D-CA) who responded to a constituent’s skepticism that an individual mandate was constitutional by confidently saying, "The federal government can do most anything in this country."

My all time favorite display of constitutional illiteracy was the House member who said on national TV that the healthcare hijacking was in compliance with the “good and necessary” clause of the Constitution, blissfully ignorant that there is no such clause.

I recalled these unhappy examples of Congressional constitutional vacuity as I read the 78-page ruling that US. District Court Judge Roger Vinson handed down this week, finding the ObamaCare individual mandate unconstitutional – which made the entire law void. Judge Vinson’s arguments are a joy to read, harking back to citations of Madison and Hamilton from the Federalist Papers and quotations from Jefferson. He obviously knows more about the Constitution and the zeitgeist of the late 18th century than the boneheads who legislated this monstrosity. They would be well instructed to read his ruling before they try again – or pass any other law for that matter.

Vinson is a judge steeped in the history and tradition of the Constitution, learned in the framing and purpose of the Constitution. I can think of no better way to present the scholarship of his decision than with excerpts from his arguments rather than paraphrasing them. My blog posting of January 8, 2011, Our Amazingly Elastic Commerce Clause, will provide a background for the central issue of his ruling, so I’ll not repeat the Framer’s intention in writing Article I, Section 8 of the Constitution.

Judge Vinson begins:

"This case is not about whether the Act is wise or unwise legislation, or whether it will solve or exacerbate the myriad problems in our healthcare system. In fact, it is not really about.......our healthcare system at all. It is principally about our federalist system, and it raises very important issues regarding the Constitutional role of the federal government."

"The Framers believed that limiting federal power, and allowing the ‘residual’ power to remain in the hands of the states (and of the people), would help ‘ensure protection of our fundamental liberties’ and ‘reduce the risk of tyranny and abuse.’

"As Chief Justice Marshall aptly predicted nearly 200 years ago, while everyone may agree that the federal government is one of enumerated powers, 'the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, so long as our system shall exist.' This case presents such a question."

"There is a simple and rather obvious reason why the Supreme Court has never distinguished between activity and inactivity before: it has not been called upon to consider the issue because, until now, Congress had never attempted to exercise its Commerce Clause power in such a way before."

"It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting --- as was done in the Act --- that compelling the actual transaction is itself 'commercial and economic in nature, and substantially affects interstate commerce', it is not hyperbolizing to suggest that Congress could do almost anything it wanted.

"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.

"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, (quoting Hamilton at the New York Convention that there would be just cause to reject the Constitution if it would allow the federal government to “penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals”).

"Preliminarily, based solely on a plain reading of the Act itself (and a common sense interpretation of the word ‘activity’ and its absence), I must agree with the plaintiffs’ contention that the individual mandate regulates inactivity."

"If Congress asserts power that exceeds its enumerated powers, then it is unconstitutional, regardless of the purported uniqueness of the context in which it is being asserted."

"The Commerce Clause originally applied to the trade and exchange of goods as it sought to eliminate trade barriers by and between the states. Over the years, the Clause’s reach has been expanded from covering actual interstate commerce … to intrastate activities that substantially affect interstate commerce.

"It has even been applied to activities that involve the mere consumption of a product (even if there is no legal commercial interstate market for that product). To now hold that Congress may regulate the so-called ‘economic decision’ to not purchase a product or service in anticipation of future consumption is a ‘bridge too far.’ It is without logical limitation and far exceeds the existing legal boundaries established by Supreme Court precedent.

"Because I find both the 'uniqueness' and 'economic decision' arguments unpersuasive, I conclude that the individual mandate seeks to regulate economic inactivity, which is the very opposite of economic activity. And because activity is required under the Commerce Clause, the individual mandate exceeds Congress’ commerce power, as it is understood, defined, and applied in the existing Supreme Court case law."

"The defendants have asserted again and again that the individual mandate is absolutely 'necessary' and 'essential' for the Act to operate as it was intended by Congress. I accept that it is. Nevertheless, the individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be 'proper.'"

"In the final analysis, this Act has been analogized to a finely crafted watch, and that seems to fit. It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. It cannot function as originally designed.

"There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions --- which, as noted, were the chief engines that drove the entire legislative effort --- for me to try and dissect out the proper from the improper, and the able-to-stand-alone from the unable-to-stand-alone.

"Such a quasi-legislative undertaking would be particularly inappropriate in light of the fact that any statute that might conceivably be left over after this analysis is complete would plainly not serve Congress’ main purpose and primary objective in passing the Act.

"The statute is, after all, called “The Patient Protection and Affordable Care Act,” not “The Abstinence Education and Bone Marrow Density Testing Act.” The Act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker.

"If Congress intends to implement healthcare reform --- and there would appear to be widespread agreement across the political spectrum that reform is needed --- it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not. It is Congress that should consider and decide these quintessentially legislative questions, and not the courts.

"In sum ... the individual mandate was an essential and indispensable part of the health reform efforts, and … Congress did not believe other parts of the Act could (or it would want them to) survive independently.

"I must conclude that the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit. 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."

"CONCLUSION

The existing problems in our national health care system are recognized by everyone in this case. There is widespread sentiment for positive improvements that will reduce costs, improve the quality of care, and expand availability in a way that the nation can afford. This is obviously a very difficult task. Regardless of how laudable its attempts may have been to accomplish these goals in passing the Act, Congress must operate within the bounds established by the Constitution.

"Again, this case is not about whether the Act is wise or unwise legislation. It is about the Constitutional role of the federal government.

"For the reasons stated, I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate. That is not to say, of course, that Congress is without power to address the problems and inequities in our health care system. The health care market is more than one sixth of the national economy, and without doubt Congress has the power to reform and regulate this market. That has not been disputed in this case. The principal dispute has been about how Congress chose to exercise that power here.

"Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.

"This has been a difficult decision to reach, and I am aware that it will have indeterminable implications. At a time when there is virtually unanimous agreement that health care reform is needed in this country, it is hard to invalidate and strike down a statute titled ‘The Patient Protection and Affordable Care Act.’ As Judge Luttig wrote for an en banc Fourth Circuit, 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.’”

Judge Vinson concludes by stating “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,” quoting Supreme Court Justice Scalia on that point. Vinson therefore continues, “There is no reason to conclude that this [Scalia’s] presumption should not apply here. Thus, the award of declaratory relief is adequate and separate injunctive relief is not necessary.” However, the Obama White House has made it clear it has no intention to recognize Vinson’s declaratory judgment as the equivalent of an injunction, and is proceeding with the implementation of ObamaCare.

The Appeals and Supreme Courts are not bound by the Vinson decision, but they are influenced by it. Higher court judges pay attention to lower court arguments, particularly well-reasoned arguments like this one. The Left, which confidently persuaded itself it would win all of the four cases involving suits against ObamaCare, has now lost two and is particularly concerned about the thoughtfulness in this ruling. They would be foolish to think higher courts reach decisions by disregarding those of lower courts and starting from zero. Most of the higher court judges were once lower court judges who took their craft seriously.

Still, it is difficult to predict the outcome of the inevitable Supreme Court ruling. Judge Kagan has refused to recuse herself, although she clearly participated in this case in her former life as Solicitor General. And with the Court evenly divided on the left and right, Justice Kennedy is once again the swing vote.

In a way it is sad that a case which will decide if Congress can forever more do whatever it wants will be decided by one person.