Yesterday I finally got around to reading Judge Vinson’s 78-page (!) opinion in which he held that Obamacare was unconstitutional. I am not a Constitutional lawyer, nor do I play one on TV (that would be fun, though!). In addition, there’s already plenty of analysis out there in the media, from lawyers and non-lawyers. Still, I think the opinion is worth reading and worth talking about, if only to spread the word that more and more smart people believe Obamacare is unconstitutional, and thereby add to the case for the legislation’s eventual repeal.
This post will consist primarily of a number of somewhat random comments about things I liked and didn’t like in the opinion. I skimmed the part of the opinion summarizing the history of the “evolution” of the Supreme Court’s interpretation of the Commerce Clause. I explain why I did this, below. I understand from John Eastman that Vinson gave an accurate summary of these developments in the law, and that Vinson even expressed some displeasure with the resulting expansion in the power of Congress to regulate. I will take Eastman’s word for that, as it’s not terribly important for my purposes.
But before I get to the particulars, here’s my overall estimation, now that I’ve had a day to think about it. When I first read the opinion, I was not pleased. I was not pleased that Vinson began by using an Originalist approach; I was not pleased that he seemed to concede the propriety of treating the Constitution as, in effect, a “living” document; I was not pleased that he implied that the Supreme Court could — in fact that he seemed to invite them to — eliminate the activity/inactivity distinction. I feared that the Supreme Court might just decide that, in our modern commercial age, yada, yada, yada, an economic decision can constitute “activity” for purposes of the Commerce Clause; I feared Vinson hadn’t done enough to prevent this. I found his basic argument — that, given the current state of Commerce Clause jurisprudence, if this law were to be upheld, no real distinction could be made between the “individual mandate” and anything else Congress wanted to make people do, and therefore, if this law were to be upheld, our government would no longer be a limited one whose powers are enumerated — terribly unsatisfying. But today, after sleeping on it (even if only for a few hours), and having a brief interchange with an actual Constitutional Lawyer, I realize that my expectations are unrealistic. This is about as good as one could expect.
Even if Vinson were an Objectivist, his job would be to apply the law, as it exists, to the facts of the case before him. Thus, even if he rejected the Originalist approach, he would still be stuck with the language of the Commerce Clause itself, plus all of the horrible precedent expanding Congress’s powers under that clause. Especially given that Vinson is a district court judge, it seems the best he can do is to explain why, in the context of this binding precedent, Obamacare goes too far, and is therefore unconstitutional. So, given that I’ve concluded this was Vinson’s assignment, is there something significant he could have done that would have been more satisfying to me? I did find his expressing “reluctance” in striking down the legislation to be annoying. I mean, at least he needn’t be reluctant! He is, after all, assuming he is right, saving us from a government whose powers are no longer enumerated and limited, right? He should be glad about this! I also was annoyed that he seemed to be inviting the Supreme Court, twice during the course of his opinion, to reformulate its Commerce Clause jurisprudence in a way that allows them to uphold this legislation. Nonetheless, what I realized today is that the only significant thing I found missing was some sort of argument as to why it must be an activity that Congress regulates under the Clause. I wanted some sort of positive justification for the activity/inactivity distinction. It was no good to just hang one’s hat on the idea that, if you get rid of this distinction, Congress could do whatever it wants. I needed more!
What sort of argument could one provide? Well, one could generalize from the arguments made by Eastman and, apparently, by some of the attorneys who argued the case before Vinson: that if this legislation were upheld, Congress could also require we eat broccoli, buy GM cars, etc. In other words, they could force us to do stuff, i.e., make us their slaves. So the distinction is: it’s OK if they just put limitations on/tell us how to do things that we voluntarily choose to do, but it’s not OK if they tell us that we have to do things we don’t choose to do. (See, below, where I call out Vinson for conceding that it’s “legitimate” for Congress to regulate certain things.)
When I realized that this is what I was groping for — some more abstract, nuanced, “sophisticated” argument distinguishing activity from inactivity and explaining why it’s OK to regulate activity, but not OK to compel activity, then I stopped. It is NOT OK to regulate activity! Even if the Constitution says so! Therefore, this great argument that I am looking for should never be written at all. And, in fact, it would just make the opinion worse — more unprincipled — than it already is if Vinson had belabored and defended this distinction. It’s a distinction that exists in the binding precedent. It can be used to stop the bleeding. End of story.
OK, with that off my chest, here are the comments I had as I read through the opinion, for those who are interested:
First, concerning Vinson’s summary judgment ruling, in favor of the federal government, on whether Obamacare violates the Spending Clause of the Constitution (pp. 6-12): Given the content of the 4-part Dole test that is at the heart of this inquiry, I was surprised that the states didn’t spend more than one page arguing that Obamacare violated one or more of these restrictions. Granted, the way those restrictions are worded, it seems like it would be hard to show that they’re violated by many of the power-grabbing pieces of legislation out there these days, but only one page?! And then I have a question: I understand that the states probably had a hard time marshaling enough evidence to meet the summary judgment standard with respect to their claim that Obamacare’s changes to the Medicaid program are “impermissibly coercive.” But I assume the states could still try and prove their case; doesn’t the ruling mean only that they have failed to win on summary judgment?
Nice that Vinson, in dicta, pointed out how the Founders did not envision a federal government fat with the money it stole from us in the form of taxes, and thereby able to manipulate states to do things its way by means of bribing them with our money. (p. 12 — Not quite his language, of course!) Also nice that he suggested the Supreme Court revisit its Spending Clause jurisprudence, given the dearth of authority in favor of the states’ argument, (p. 12) even though the states are clearly left with a “Hobson’s choice” under Obamacare (p. 7).
The standing issues aren’t terribly interesting, but it’s nice to actually read language from that statutes passed by Idaho and Utah (p. 17), designed to protect their citizens from penalties imposed by the United States government. Not only do those statutes give the states standing to challenge the individual mandate, which is in itself a good thing, it was nice to see the states standing up for the rights of their citizens. Hard to believe it’s come to this, however!
Commerce Clause argument regarding the “individual mandate”: The issue comes down to whether refusal to buy health insurance is (or will be thought to be by the relevant judges) “an activity substantially affecting interstate commerce.” If so, then our constitutional jurisprudence says that Congress has the power to regulate it and we’re screwed (p. 19). Note that the Commerce Clause was, at best, poorly drafted if the intention of the Founders was to prevent the states from interfering with the free market (p. 23). Congress should not be “regulating” “channels” or “instrumentalities of interstate commerce, or persons or things in interstate commerce” (p. 19). And it certainly shouldn’t have power to regulate something as vague as “an activity substantially affecting interstate commerce.”
On pages 20-22, we see Judge Vinson inquiring into the “original meaning” of, and even the “original purpose” of, using the word “commerce”. For problems inherent in this approach to Constitutional interpretation, I refer you to Tara Smith’s excellent article here. He leads up to the idea that the purpose of the commerce clause was to allow the federal government to prevent the states from imposing “trade restrictions and barriers” (p. 23).
Note at the top of p. 25 of the opinion, Vinson quotes from Justice Johnson in
Gibbons v. Ogden, who wrote, in part, that it was a “selfish principle” which would cause the states to enact tariffs and other barriers to trade. On any proper understanding of the word, “selfish,” it is not selfish to erect trade barriers. No, not even if you are a government bureaucrat who stands to receive large bribes in exchange for doing so.
The upshot: the original purpose of the Commerce Clause, as it relates to the states, was to prevent the states from erecting trade barriers against each other, which the Founders thought would eventually lead to war. So far so good. But wait.
On p. 26, Vinson says that, while this was the clause’s original purpose, this does not necessarily mean “that the power under the Commerce Clause was intended to (and must) remain limited” to this purpose. Even though, as Vinson acknowledges in his footnote on that page, that this is precisely what Madison intended. So, Vinson is now taking us into “Living Constitution” land…
On pp. 27-37, Vinson then proceeds to summarize the evolution of the Court’s commerce clause jurisprudence. I will skip over this because it’s depressing and, it appears, not very relevant to what follows. You might say that this section shows that the Court has held that Congress has tons of latitude to regulate all sorts of things (e.g., someone growing wheat on his own property and consuming it rather than buying it!) without running afoul of the Commerce Clause, so long as what is regulated is some kind of activity. And so the only thing that seems to be protecting us from Obamacare at the moment is a distinction between activity and inactivity, which is explored in the next section of the opinion.
Vinson begins the next section with the observation that an individual mandate to buy any good or service from a third party is “unprecedented,” and that this was noted by various of the government’s own experts who analyzed the legislation in advance of its adoption. (p. 38) Then he says that, while its being unprecedented is not alone enough to render it unconstitutional, the fact that it is unprecedented might indicate that Congress does not have the particular power at issue, on the idea that, if Congress did have this “attractive” power, certainly it would have grabbed it! (p. 39)
Still, because of the presumption of Constitutionality that attends every piece of federal legislation (Ugh! p. 39), Vinson says he will assume, for purposes of analysis, that it can be Constitutional, and then ask the requisite questions: First, “Is Activity Required Under the Commerce Clause?” (p. 39) and second, “Is the Failure to Purchase Health Insurance ‘Activity’?” (p. 44)
He concludes that, yes, there must be “some type of already-existing activity or undertaking” in order for Congress to be able to exercise its power under the Commerce Clause. Why? Because in all the cases in the past, there has always been such activity or undertaking, plus the language of the test which has been applied repeatedly by the Supreme Court always includes the word “activity.” So there.
But, seriously, there really isn’t much of an argument here. Besides saying that, if Congress is allowed to do this, “it would be virtually impossible to posit anything that Congress would be without the power to regulate,” (p. 43), and therefore we will have abandoned the idea of a government of enumerated powers, he still leaves open the idea that the Supreme Court could entirely reformulate its criteria for Congress’s proper exercise of power under the Commerce Clause and reject the whole activity/inactivity distinction. (p. 43) If the Court can reformulate it, and still make it sound like Congress’s powers are enumerated, then we are screwed. After all, as Vinson conceded earlier in the opinion, the Constitution can adapt to the changing times. And what is more “civilized” than following the trend of all the other mixed-state economies of the West and trying an experiment in socialized medicine?
In terms of whether failing to purchase health insurance is an “activity,” it’s funny (in a black humor kind of way) to note that the reason the government is able to argue that one’s failure to purchase insurance has effects on commerce, is because of mandates that Congress has already passed — e.g., the mandate that hospitals provide care, regardless of ability to pay.
I liked Vinson’s rejection of the government’s “uniqueness” argument (p. 49) — the idea that the health care market has unique attributes such that Congress should be able to regulate it without being held to the usual conception of what constitutes “economic activity.” The analogy Vinson draws to the arguments made and language used in Breyer’s Lopez dissent is effective. “Why can’t we have just this one more bit of power, just to deal with this “unique,” “rare,” “acute” problem? Pretty please?” (My paraphrase.) I also enjoyed Vinson’s analogy to the Lopez “piling inference upon inference” argument (p. 50). Summary: the only way that not having insurance will have a substantial effect on interstate commerce is if a bunch of contingencies occur (he listed five). Otherwise the effect is “zero.” I am not thrilled with Vinson’s concession, on p. 51, that Congress has the power to regulate the uninsured at the point in time when all (or some) of these various contingencies occur.
In the next section, Vinson rejects the government’s argument that those who fail to buy health insurance are making an “economic decision” that amounts to economic activity. He says that accepting such an argument would result in an “over-expansive Commerce Clause construction” because “There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort.” (p. 53).
Having concluded that the individual mandate fails as an exercise of Congress’s power under the Commerce Clause, he proceeds to decide whether it can be upheld under the “Necessary and Proper Clause” which allows Congress the power to make laws that are necessary in order for it to carry out its legitimate functions. Here, Vinson concedes that it is “legitimate” for the federal government to “regulat[e] the health care industry (including preventing insurers from excluding or charging higher rates to people with pre-existing conditions),” so the only thing he objects to is the idea that an individual mandate is “necessary and proper” for carrying out that legitimate function (or others like it). He conceded that it may be “necessary” because, as the government has said numerous times, the individual mandate is necessary to prevent the private insurance companies from going out of business, after being forced to give away so much free stuff to those with pre-existing conditions. It is not “proper,” however, because it allows Congress to go far beyond the “currently established ‘outer limits’ of the Commerce Clause.” Why? Because of the activity/inactivity distinction.
So, the mandate cannot be upheld under either the Commerce Clause or the Necessary and Proper Clause and is therefore unconstitutional. He also concludes that it’s not severable, given Congress’s own intentions, and given the tremendous difficulty in separating those provisions that are inextricably connected to the individual mandate from those that aren’t. In the process of discussing this difficulty, he gets in a couple of satisfying jabs regarding the number of provisions seemingly unrelated to healthcare, along with the tremendous unpopularity of this monstrosity.
Pessimistic conclusion (written yesterday, after I first read the opinion): If a foundational document is imperfectly written, as our Constitution is, one simply has no hope of being protected against incursions from the popular politics and morality of the day. Therefore, if our Supreme Court has enough altruists on the bench when this case reaches them, anything goes.
More optimistic conclusion (written today): Vinson did just about the best that any judge, today, could be expected to do, and has laid the groundwork for overturning this destructive piece of legislation. If so, this could buy us time to continue to work to save the culture and, one day, amend our founding documents.
Update: Those interested particularly in the issue of precedent may want to check out this blog post, in which the author argues that Vinson, in his Necessary and Proper Clause analysis, actually steps outside the realm of binding precedent and instead reaches his ruling based on “first principles,” which might make his ruling vulnerable to being overturned.