Federal judge Roger Vinson, of the Northern District of Florida. has ruled that the entire “Patient Protection and Affordable Care Act”, a.k.a. Obamacare, is unconstitutional. I’ve only just had a quick look at the ruling, but it appears that the reasoning goes like this:
The individual mandate — the part of the law that compels individuals to purchase health insurance whether they want to or not — is, everyone agrees, absolutely necessary for Obamacare not to be a fiscal catastrophe right out of the box. Therefore, its inclusion has been justified by the bill’s supporters on the basis of the “Necessary and Proper Clause”. That’s the clause in Article I, Section 8, in which the Constitution, after enumerating the limited powers granted to Congress, grants it also the power:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
In Judge Vinson’s ruling, he notes the concern that the Framers had about this clause. He quotes Hamilton, writing in Federalist 33:
These two clauses [the Necessary and Proper Clause, and the Supremacy Clause] have been the source of much virulent invective and petulant declamation against the proposed Constitution. They have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane; and yet, strange as it may appear, after all this clamor, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence, that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth, which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specific powers.
The concern here is that an unrestrained Congress can use the Necessary and Proper Clause to concatenate legislative acts so as to far exceed its enumerated powers. Vinson cites Jefferson, who wrote:
Congress are authorized to defend the nation. Ships are necessary for defense; copper is necessary for ships; mines necessary for copper; a company necessary to work mines; and who can doubt this reasoning who hasever played at “This is the House that Jack Built?”
Judge Vinson also quotes Justice Anthony Kennedy, who has said from the bench that the Necessary and Proper Clause “must be controlled by some limitations lest, as Thomas Jefferson warned, congressional powers become completely unbounded by linking one power to another ad infinitum’.
Vinson suggests that to understand the proper limits we turn to Chief Justice Marshall, who wrote in McCulloch v. Maryland that:
Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, whichare plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
[However,] should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land.
In Judge Vinson’s opinion, the individual mandate oversteps this threshold. He writes:
The Necessary and Proper Clause cannot be utilized to “pass laws for the accomplishment of objects’ that are not within Congress’ enumerated powers. As the previous analysis of the defendants’ Commerce Clause argument reveals, the individual mandate is neither within the letter nor the spirit of the Constitution. To uphold that provision via application of the Necessary and Proper Clause would authorize Congress to reach and regulate far beyond the currently established “outer limits’ of the Commerce Clause and effectively remove all limits on federal power.
In some cases the Court would look for “severability” — meaning that in a spirit of restraint, it would attempt to declare only certain provisions of a legislative Act unconstitutional, and spare the rest. But in Judge Vinson’s opinion this is not applicable here:
The question of severability ultimately turns on the nature of the statute at issue. For example, if Congress intended a given statute to be viewed as a bundle of separate legislative enactment or a series of short laws, which for purposes of convenience and efficiency were arranged together in a single legislative scheme, it is presumed that any provision declared unconstitutional can be struck and severed without affecting the remainder of the statute. If, however, the statute is viewed as a carefully-balanced and clockwork-like statutory arrangement comprised of pieces that all work toward one primary legislative goal, and if that goal would be undermined if a central part of the legislation is found to be unconstitutional, then severability is not appropriate. As will be seen, the facts of this case lean heavily toward a finding that the Act is properly viewed as the latter, and not the former.
So, out goes the whole lot. Sounds about right.
I’ve only just skimmed this ruling, so won’t comment further; I’m sure we’ll be hearing a great deal more about it shortly.
You can read the whole thing here.
— Update: More analysis, from Daniel Foster at NRO, here — including another section I skimmed right over, about regulating inactivity under the Commerce Clause.
15 Comments
Vinson makes a reasoned argument, but it’s worth pointing out that the four lower court opinions issued thus far have split two and two. There is established precedent (most notably Wickard v. Filburn) which supports the opposite case. So none of this means a lot until it gets to the Supreme Court. Given the fact that we have a Court which is controlled by the hard right, my guess is that Vinson’s opinion will be confirmed.
However, it is hard to think of a more reasonable solution for uninsured patients than this one. As things currently stand, when an uninsured person shows up at the hospital, the hospital has two choices: treat him or refuse treatment and let the patient die. Since the latter option is abhorrent — do we agree on that? – the hospital eats the cost and then passes it along to taxpayers and other patients.
When they are not talking about “exceptionalism,” conservatives love to talk about “personal responsibility.” Obamacare forces each individual to be responsible for their own insurance, so the rest of the population is not forced to subsidize those who are irresponsible. Why should I have to pay for medical care for someone who chooses to roll the dice on health insurance, and then his Mini Cooper slams into a Ford Explorer?
If there is a better solution to providing medical care for the uninsured, I am eager to find out what it would be.
Just to be clear, as things currently stand, when an uninsured person shows up at the hospital, EMTALA kicks in. The hospital MUST provide care to stabilize the person’s condition.
I’m not defending the status quo, but it’s important to get the facts right, however absurd they might be.
Peter, I know you believe the Commerce Clause is infinitely elastic (you’ve said as much), but this is very different from the disgraceful Wickard ruling.
Regardless of the general merits of Obamacare (let’s just say we see it somewhat differently, and save ourselves hours of typing), it was folly for the drafters of the bill to add the individual mandate as a mandate; it would have been far more defensible from a Constitutional perspective to make it a tax, with an exemption for those who buy insurance.
Well, that’s part of the legal argument which the administration is making – that between a tax and a mandate is a distinction without a difference. Functionally you have the same thing, with the same results, which is enforced by the same government agency.
No, you can’t be all loosey-goosey like that with Constitutional law and precedent. That would open the door to pretty much unlimited coercive power in the hands of Congress. If they wanted a tax, they should have made it a tax.
You can’t just smoke a bone, write some legislation, mosey over to the Supreme Court, go “oh well, you know, what-EV-errr…” roll your eyes, and expect the Justices just to cut you some slack.
Amusingly, the reason they didn’t make it a tax was obviously because it would have been political suicide to vote for such a thing — it would have led to the Democrats getting hammered in the upcoming midterms — and it would have been so unpopular that they would have had to ram it through all on their own, without any bipartisan support.
There is nothing sloppy or loosey-goosey about the legal arguments supporting mandates. Like all interesting legal issues, there are strong arguments on both sides. As noted above, it’s a split decision thus far. Neither side has a case which is dispositive.
While the legal issues will take a few years to resolve, the policy issues are immediate. Health care is a messy problem with no easy or obvious solution, and I give the Democrats a lot of credit for tackling it. Obviously, reasonable people can disagree on whether it is the right approach or not. You have routinely vilified Obamacare as a “monstrosity,” but have yet to suggest something else to take its place. Name calling is neither constructive nor helpful. However, being the wonderful human being that I am, I will give you an opportunity to redeem yourself in front of your readership with two simple questions.
If a sick or injured person without insurance shows up at a hospital, should he receive care? If so, who should pay for it?
It seems pretty loosey-goosey to me to make no distinction between invoking the Commerce Clause to regulate commercial activity, and to compel it. Apparently Judge Vinson thought so too.
How to pay for emergency care is another matter (and arguably not a Federal matter at all). But Judge Vinson is quite right not to allow this sort of precedent, which would, for the reasons he outlined and conservatives have been pointing out all along, would be a staggering blow to the essential notion of enumerated powers and limited government. If they can do this, there’s pretty much nothing they can’t do.
While I realize that you’re not a big fan of the Wickard case, it is established law. Wickard found that economic activity which is entirely within a single state is nonetheless covered by the commerce clause, because it has effects on interstate commerce (in this case, the price of wheat). If an individual declines health insurance and his care is paid for by others, it has an obvious effect on the price of health care.
The state mandates automobile owners to buy insurance. The obvious difference between auto insurance and health insurance is that owning a car is optional. However, it is an uncontested instance where the state compels commercial activity. So the state has the right to mandate insurance coverage, and the constitutional question is whether this right can be applied universally or only to selected groups (e.g, car owners).
As for whether the Necessary and Proper Clause covers things like insurance mandates: this argument has been going on for centuries, and we won’t settle it here. My view is that providing health care is an essential function of government, and hence its regulation is both necessary and proper.
While the problem of the uninsured is “another matter,” I would humbly suggest that you cannot have a rigorous or meaningful critique of Obamacare without suggesting some other plan which would go in its place. Simply calling it a monstrosity is not an effective argument against it.
This isn’t like Wickard, which punished what it saw as a commercial activity. This is the opposite of that; it punishes inactivity.
The state car-insurance laws say “if a car is to be driven on our public roads, we insist that it be insured.” That’s all. One is free NOT to drive a car, and not to buy insurance.
You’ve already told us that you believe the Commerce Clause to be infinite in scope (a terrifying view, and utterly at odds with the intent of the Framers), so I’m not surprised that you take the view that you do, especially if you view the provision of health care as an essential role of the Federal government, which I do not. So there probably isn’t enough common ground here for a productive conversation. I’m content to let justice prevail in the Court.
The Commerce Clause is not infinite. It does not extend to legislation which is improper or unnecessary.
If health care is not an “essential role” of government, then who should be responsible for paying for life-saving health care of uninsured patients?
And how do we decide what is “improper” or “unnecessary”? You said yourself you thought the Commerce Clause was “infinitely elastic”.
Somehow the nation muddled along for over two hundred years without the universal provision of health care being considered an essential role of the Federal government. We can continue to discuss our options, but this bill needs to go.
Infinitely elastic within the bounds of propriety and necessity. Reasonable people can disagree about where the boundaries are. One man’s fish is another man’s poisson.
Health care has been an “essential role of the Federal government” for at least as long as Medicare, Medicaid, and VA hospitals have been around. Government has also been involved in providing care for the uninsured on a de facto basis for many years. Obamacare is an effort to rationalize the system so the government is not involved by default. The “variety of options” proposed by Obamacare opponents have been minimal, at best. Absent a meaningful alternative, those who attack Obamacare bear the burden of explaining why the status quo is superior to the health care reforms which were enacted last year.
Well, that’s what we’re doing. I am looking forward to hearing what the reasonable people at the Supreme Court have to say.
Um, because those “reforms” are a gigantic, budget-busting addition to an already tottering Federal entitlement program, and apparently unconstitutional besides? Medicare and Medicaid are already bankrupting us, without adding more of the same.
Look, I agree with you that the provision of care to the uninsured is a vexatious problem. It is also a problem whose acuteness varies a great deal from place to place, and state to state. But why should it be that every vexatious problem, in particular those that vary regionally, must be solved by the Federal government? And if the problem can’t be solved at the Federal level by anything other than a disaster like Obamacare, then maybe it’s time to admit that the Federal government simply can’t solve every human problem, and address every human want.
As I said in my first comment, regarding Obamacare: “let’s just say we see it somewhat differently, and save ourselves hours of typing.” I still think that’s a good idea; we are never going to agree about this.
We’ll get another crack at the problem once this bill is struck down, as now seems likely.