The 78-page ruling in Florida by Judge Roger Vinson in a constitutional challenge brought by half the states against Obamacare is a deeply reasoned decision that is, I think, not only right on the law, but alongside the earlier Virginia decision declaring the ACA’s unconstitutionality, creates a splendid model for the ultimate ruling by the United States Supreme Court. Moreover, unlike the two pro Obamacare rulings, Judge Vinson took the time and made the effort to deeply explore the issues, rather than merely make short conclusionary assertions. In other words, the intellectual force of the anti Obamacare rulings are far heftier than their pro counterparts.
First, Vinson tackled the states’ claim that new unfunded Medicaid rules put them in a conundrum—either pay more for the program than they can afford or lose federal matching funds. The conundrum—disputed by the Feds—may or may not be real, but in any event, the Medicaid provisions are not unconstitutional. From the decision:
Rather, as Justice Cardozo cautioned in what appears to have been the first case to hint at the possibility of a coercion theory claim, “to hold that motive or temptation is equivalent to coercion is to plunge the law in endless difficulties.”...In short...upon full consideration of the relevant law and the Constitutional principles involved...I must conclude that this claim cannot succeed and that the defendants are entitled to judgment as a matter of law.
The question of the individual purchase mandate was then explored at far too great a length for me to get into here. But he succinctly stated the legal controversy:
At issue here, as in the other cases decided so far, is the assertion that the Commerce Clause can only reach individuals and entities engaged in an “activity”; and because the plaintiffs maintain that an individual’s failure to purchase health insurance is, almost by definition, “inactivity,” the individual mandate goes beyond the Commere Clause and is unconstitutional. The defendants contend that activity is not required before Congress can exercise its Commerce Clause power, but that, even if it is required, not having insurance constitutes activity. The defendants also claim that the individual mandate is sustainable for the “second reason” that it falls within the Necessary and Proper Clause.
Vinson then launches into a long discussion of the history of the purpose and scope of the commerce clause, noting that it has dramatically expanded over the country’s history from the simple elimination of trade barriers between states, to the eventual power to regulate the growing of wheat for personal use. (Aside: This was an egregious power, but the power is well and fully grabbed and that remains the state of the law binding on this court.)
Vinson explores more recent cases, including gun control rulings and eventually gets to the brick wall that, I believe, will cause Obamacare to crash and burn (my emphasis):
The threshold question that must be addressed is whether activity is required before Congress can exercise its power under the Commerce Clause...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.
Having found that activity is required for Commerce Clause analysis, the court explores whether not buying health insurance can be so defined because the area is “unique” in that almost everyone eventually requires medical care, meaning that even inactivity can be construed as activity:
Two things become apparent after reading these arguments attempting to justify extending Commerce Clause power to the legislation in that case, and the majority opinion (which is the controlling precedent) rejecting those same arguments. First, the contention that Commerce Clause power should be upheld merely because the government and its experts or scholars claim that it is being exercised to address a “particularly acute” problem that is “singular[ ],” “special,” and “rare” —- that is to say “unique” —- will not by itself win the day... 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.
Second, and perhaps more significantly, under Lopez the causal link between what is being regulated and its effect on interstate commerce cannot be attenuated and require a court “to pile inference upon inference,” which is, in my view, exactly what would be required to uphold the individual mandate.
Vinson acknowledges the policy purpose behind the mandate, but notes that the law is “a bridge too far” that “far exceeds the existing legal boundaries established by Supreme Court precedent.” In other words, good policy purposes do not equate with legal constitutional validity. That’s a point too often forgotten in these days of judicial activism.
After ruling that the law violates the Commerce Clause, Vinson found that the Necessary and Proper clause does not give the government power to bootstrap its powers to engage in otherwise unconstitutional impositions:
The Supreme Court has repeatedly held, and the emphasized text makes clear, that the Clause is not an independent source of federal power; rather, it is simply “a caveat that the Congress possesses all the means necessary to carry out the specifically granted ‘foregoing’ powers of [section] 8 ‘and all other Powers vested by this Constitution.’
And, since there was no severability clause, unlike the Virginia judge, this court struck down the entire law as invalid and void.
Finally,the media has reported that because the judge didn’t issue a formal injunction, the administration contends it can continue to implement the law anyway. But no injunction was necessary in a declaratory relief action, and moreover, Judge Vinson, perhaps naively, decided to treat the administration like mature adults who would follow the rule of law, rather than recalcitrant ideologues, who would try and wriggle out of his clear ruling. Read the following carefully. You don’t have to be a lawyer to know that the administration is prevented by the court’s ruling from further implementing the law. This comes at page 75 (my emphasis):
The last issue to be resolved is the plaintiffs’ request for injunctive relief enjoining implementation of the Act, which can be disposed of very quickly. Injunctive relief is an “extraordinary” [Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982)], and “drastic” remedy... It is even more so when the party to be enjoined is the federal government, for 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.” See Comm. on Judiciary of U.S. House of Representatives v. Miers, 542 F.3d 909, 911 (D.C. Cir. 2008); accord Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 n.8 (D.C. Cir. 1985) (“declaratory judgment is, in a context such as this where federal officers are defendants, the practical equivalent of specific relief such as an injunction . . . since it must be presumed that federal officers will adhere to the law as declared by the court”)...There is no reason to conclude that this presumption should not apply here.
That means that under the ruling, the law is void and cannot be implemented from this point forward. The Administration’s legal remedy is to seek a stay of the ruling pending appeal. It cannot just defy a federal court ruling. If it tries, the plaintiffs should go to court for the injunction and/or seek an order of contempt against the administration. Pretending that the ruling doesn’t change anything when it unequivocally does, would be both a petulant and extra legal approach to governance.
If the administration obtains a stay, it can proceed apace. If not, Obamacare’s implementation must cease. What if the administration not get its stay and still refuses to abide by the ruling? I don’t think that will happen, but if it did, I think it would be an impeachable offense. The rule of law must be followed.
Update: This story notes that the law would be unenforceable—absent a stay—only within the geographical boundaries of Judge Vinson’s jurisdiction—and that the law could be enforced in other areas, for example, where the law was upheld. That could be right. On the other hand, 26 states from all around the country were named plaintiffs, meaning they are direct parties—meaning the case clearly applies to actions within their borders. To say the least, it’s complicated.
There is so much uncertainty here, I think the entire appeals process should be fast-tracked directly to the Supremes.