Two days ago, I wrote about Florida District Judge Vinson's opinion voiding most of Obamacare. This post responds to Anony's praise for the ruling.
While I agree it's a well-written decision, Judge Vinson's opinion has some legal weaknesses:
1) As Sue mentioned, it panders to Justice Kennedy by quoting his concurring opinions. See Slip Op. at 40, 54. Although two justices almost certainly will favor similar limits on the reach of the "commerce clause," see Alderman v. United States, No. 09-1555 (Jan. 10, 2011) (Thomas, J. dissenting from denial of cert., joined by Scalia, J.), I'm not positive about the Chief and Alito. And, in any event, the play for Justice Kennedy so obvious as to alienate him.
2) The opinion is a bit fast-and-loose on the "necessary and proper" clause analysis in not genuinely applying Supreme Court precedent.
3) It is overly political, as the example I cited about footnote 30 on Obama's change in position shows. This is un-judicial.
4) I'm torn about the opinion's sweeping view on severability. It is controversial--and close to the edge. Even absent an explicit severability provision, statutes are not presumed not to be severable. The exception is where "it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, [and] what is left is fully operative as a law."
Obamacare without the mandate unquestionably would be a readable statute, able to be applied and interpreted. But Judge Vinson focused on the Congressional finding that the mandate was "essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold," PPACA, Section 1501(a)(2)(I) (page 144). According to Vinson, this meant the provision was essential to almost all of Obamacare as a whole.
The Judge is right as a matter of policy, and thus Vinson was unwilling to re-write other provisions to make them workable absent the mandate. On the other hand, such policy determinations are best left to the legislature, not the Courts, meaning the ruling borders on judicial activism. The more conservative course would have been to stick with legal severability and let Congress decide next steps absent the mandate.
Conclusion: Anony may be right--Vinson's view may command Justice Kennedy's fifth vote. But, like MaxedOutMama, I'd rather this be solved in Congress as opposed to courts.