Friday, February 04, 2011

Vinson's View

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.


suek said... always have Jackson's "Let them enforce it" attitude, but in this case, the states might well just simply ignore. We do live in interesting times.

Still, regarding the severability issue...if it's _not_ an issue, why do they bother ensuring that it's attached to most laws?

suek said...

Oh and...

As I understand it, the severability issue was initially included in the law, and was later removed. Does that removal come into play??

Carl said...

Sue: You're right that a severability clause initially was included and then removed. You're also right that when Congress explicitly rejects a particular approach, courts can assume that such rejection was intentional and is meaningful. Here, however, since the law is that statutes normally are severable whether or not such a clause is included, I don't think that logic works--and, to his credit, Judge Vinson didn't really rely on such simplistic reasoning.

Bob in LA said...


I would like a legislative solution, but a smackdown from the supremes on congressional authority would help "fix congress" to borrow and apply correctly an overused phrase with respect to health care.

Placing limits on congress' power is exactly what we need.

MaxedOutMama said...

Carl - if the reasoning on Necessary and Proper is wrong, the decision is entirely wrong.

Carl said...

M_O_M: Yup. While I like Vinson's "originalist" approach (relying on the Federalist, etc.), it's arguably improper, as Orin Kerr writes on Volokh Conspiracy:

"But there’s a technical problem here that I want to draw out: Judge Vinson is only a District Court judge. Under the principle of vertical stare decisis, he is bound by Supreme Court precedent. See, e.g, Winslow v. F.E.R.C., 587 F.3d 1133. 1135 (D.C. Cir. 2009) (Kavanaugh, J.) ("Vertical stare decisis -- both in letter and in spirit -- is a critical aspect of our hierarchical Judiciary headed by 'one supreme Court.'") (citing U.S. Const. art. III, § 1). And when Supreme Court precedent conflicts with original meaning, Judge Vinson is bound to follow the former. Of course, that doesn’t mean a District Court can’t discuss the original meaning of a constitutional provision in his opinion. But where the original meaning and case precedents conflict, the judge is stuck: Because he is bound by Supreme Court doctrine, the judge has to apply the doctrine established by the Supreme Court and has to ignore the original meaning."

Carl said...

Bob in LA: I'm all for limits on Congressional power--the ones set forth in the Constitution. And I agree that, given the narrow grant of Federal authority under the 10th Amendment, those limits should be construed strictly. So, it's just that (though I dislike the policy embodied in Obamacare), I'm not convinced that "commerce" doesn't encompass an obligation to purchase something. In other words, I question whether a line can be drawn voiding the mandate without being overbroad.

suek said...

If the SC rejects it and rules it constitutional, it's going to give a whole new meaning to "Eat your peas and carrots" ...

Bob in LA said...


Lets make a distinction between what one 'could read into the 10th Amendment' and what the framers intended with the 10th amendment. In the former case, you can read it to mean anything you want it to, including that Commerce means regulating individual choice.

In the latter, it's pretty clear they didn't intend for the federal government to use the 10th amendment to exercise control on individual choice. Indeed, they absolutely intended we should be free from that crap. If I'm wrong, point me to document the framers wrote that supports your view.


OBloodyHell said...

> I'm not convinced that "commerce" doesn't encompass an obligation to purchase something. In other words, I question whether a line can be drawn voiding the mandate without being overbroad.

I'm with bob on this one, Carl.


1) Identify the document or missive between them which could justify this assertion.


2) Describe the logical construct by which it can be shown that there is a clear contradiction if one does not take that view.

Carl said...

Bob & OBH: Actually, the Constitution doesn't say anything about "individual choice" or an "obligation to purchase something." What it does do is give Congress (and therefore the Federal Government, as opposed to the states), plenary authority "to regulate commerce with foreign nations, and among the several states." Art. I, Sec. 8, cl. 3. So the question is whether the grant of exclusive authority over interstate commerce covers an obligation to participate in commerce pursuant to an otherwise lawful Congressional exercise of its powers?

Nothing in the text of the clause makes such a distinction. And, as I have written, the Supreme Court has never said this, and only one appellate decision has come close to addressing this--and was ambiguous. So it's nearly a case of first impression--albeit one guided by prior Supreme Court rulings such as Gonzales v. Raich (Commerce Clause authorized Federal ban on pot sales) and Wickard v. Filburn (Ohio farmer growing wheat for his own use (to feed his pigs and to make flour for home use) covered by Federal wheat marketing quotas). And, if an activity is "interstate commerce," the Supreme Court says:

As we have previously explained, "[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States." New York v. United States, 505 U.S. 144, 156 (1992). Regulation of national bank operations is a prerogative of Congress under the Commerce and Necessary and Proper Clauses. See Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 58 (2003) (per curiam). The Tenth Amendment, therefore, is not implicated here.

Watters v. Wachovia Bank, Part III, No. 05-1342 (2007).

My points are these: (1) the text of the Constitution doesn't distinguish between action and inaction; (2) nor does Supreme Court precedent; and (3) nor does the Tenth Amendment apply if the activity is within Congressional commerce jurisdiction. So, as a lawyer opposed to judicial activism, I'm not sure the commerce clause can be read to void the mandate.

Mind you, I would be pleased at such a result--even though I fear the reasoning it might require. And I continue to predict that the case will be won by the advocate who proposes the most reasonable limits on his position--how far does the commerce clause go if it covers an obligation to engage in commerce?

suek said...

>>to regulate>>

Does not mean "to establish". How can you "regulate" what does not exist?

Bob in LA said...

Carl, you have neatly avoided the question I raised on framers intent, and instead focused on the practical aspect of law formed by judicial activists and decisions. At least you didn't pick on my confusing the commerce clause with the 10th amendment.

Granted practical aspects are relevant, but even OBH is agreeing with me, the framers never intended the federal government to regulate individual choice, and certainly not MANDATE individual choice. Can't we get back to Basics?

I'll echo Suek's comment as well.

Carl said...

Bob and Sue: In part, it's because the "originalist" interpretation of the Constitution to which I subscribe emphasizes the original meaning of the text, not what the draftsmen intended. See this article at 1183. In this sense, Constitutional interpretation is different from statutory interpretation. And, considering the text, there's no way to tell whether "commerce" should cover a mandate to enter into commerce. Indeed, I doubt the framers even considered it.

I'm willing to concede that the Framers might agree with you were they living today. But, the Court's job is to interpret the words of the Constitution, based on the original meaning of the text. And, at the end of that inquiry, I think there's no clear answer--which is why I still think the mandate might be upheld.

Anonymous said...

Carl, you have my sympathies. Professors Amar and Tribe have now weighed in on the side you're supporting. Now, having them agree with you is not invalidating, but . . . you have my sympathies.