If you are a regular reader, you’ve probably noticed I’ve been phoning it in lately. Humblest apologies. I’ll spare you the excuses and the boring details of my everyday life (which form the basis of said excuses).
Instead I’ll bore you with legal stuff.
I finally got around to reading Judge Vinson’s opinion in Florida v. The United States Department of Health and Human Services. You know, the one that ruled Obamacare entirely unconstitutional. If you haven’t read it yet, consider starting with the quotes and snippets below. It’s a cliffnotes version, done purely as a public service of course. All bolding is mine.
The biggest issue is whether Congress can regulate interstate commerce by making you buy something. Obviously, Congress thinks it can:
The defendants contend . . . that despite the inarguable presence of activity in every Supreme Court case to date, activity is not required under the Commerce Clause. See Def. Mem. at 31 (maintaining that “there is no ‘activity’ clause in the constitution”). In fact, they go so far as to suggest that to impose such a requirement would be bold and radical. According to the defendants, because the Supreme Court has never identified a distinction between activity and inactivity as a limitation on Congress’ commerce power, to hold otherwise would “break new legal ground” and be “novel” and “unprecedented.” See Def. Opp. at 1,2, 16. First, it is interesting that the defendants — apparently believing the best defense is a good offense — would use the words “novel” and “unprecedented” since, as previously noted, those are the exact same words that the CRS and CBO used to describe the individual mandate before it became law.
Ha. Isn’t this a common leftist tactic? When arguing absolutely any political point whatsoever, they typically claim that the conservative side is guilty of whatever the left is actually doing. Anyhoo, next comes the part where Judge Vinson says STFU. Okay, I’m paraphrasing:
Furthermore, there is a simple and rather obvious reason why the Supreme Court has never distinguished between activity and inactivity before: it has not been called upon to consider the issue because, until now, Congress had never attempted to exercise its Commerce Clause power in such a way before.
Next, he discusses the point which simply cannot be logically refuted: there has to be a limit to government control. If there is no limit, then the federal government is totalitarian. If this insurance mandate is not the limit, then what is?
If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power”[Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended. See id. at 592 (quoting Hamilton at the New York Convention that there would be just cause to reject the Constitution if it would allow the federal government to “penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals”) (Thomas, J., concurring).
The defendants argued that being uninsured for healthcare is “activity” under current Commerce Clause jurisprudence. Their argument was partially based on the following logic: living humans are always susceptible to unpredictable illness and injury, therefore no one can“opt out” of the health care market. Judge Vinson points out the natural conclusion to this argument:
First, it is not at all clear whether or why the three allegedly unique factors of the health care market are Constitutionally significant. . . . After all, there are lots of markets — especially if defined broadly enough — that people cannot “opt out” of. For example, everyone must participate in the food market. Instead of attempting to control wheat supply by regulating the acreage and amount of wheat a farmer could grow as in Wickard, under this logic, Congress could more directly raise too-low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market.
So there you have it. Why not? If they can make you buy health insurance, why not make you buy wheat bread? Or broccoli? Or a house?
The defendants also argued that the failure to get insurance is an activity because it is an “economic decision” to pay for medical expenses later rather than now. This is the argument that won the day for Obamacare in the Liberty University and Thomas More Society cases. All Judge Vinson has to do in order to disprove this argument, is carry the logic a bit further down the road:
The problem with this legal rationale, however, is it would essentially have unlimited application. There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort. The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that — when aggregated with similar economic decisions — affect the price of that particular product or service and have a substantial effect on interstate commerce. To be sure, it is not difficult to identify an economic decision that has a cumulatively substantial effect on interstate commerce; rather, the difficult task is to find a decision that does not.
And in a footnote: “As was discussed at the hearing, even personal decisions about whether to marry, whom to marry, or whether to have children could also be characterized as ‘economic decisions.'”
The important distinction is that “economic decisions” are a much broader and far-reaching category than are “activities that substantially affect interstate commerce.” While the latter necessarily encompasses the first, the reverse is not true. “Economic” cannot be equated to “commerce.” And “decisions” cannot be equated to “activities.” Every person throughout the course of his or her life makes hundreds or even thousands of life decisions that involve the same general sort of thought process that the defendants maintain is “economic activity.” There will be no stopping point if that should be deemed the equivalent of activity for Commerce Clause purposes.
As to the argument that the insurance mandate is a “necessary and proper” element to Obamacare, Judge Vinson explains:
One of the amicus curiae briefs illustrates how using the Necessary and Proper Clause in the manner as suggested by the defendants would vitiate the enumerated powers principle (doc. 119). It points out that the defendants’ are essentially admitting that the Act will have serious negative consequences, e.g., encouraging people to forego health insurance until medical services are needed, increasing premiums and costs for everyone, and thereby bankrupting the health insurance industry — unless the individual mandate is imposed. Thus, rather than being used to implement or facilitate enforcement of the Act’s insurance industry reforms, the individual mandate is actually being used as the means to avoid the adverse consequences of the Act itself. Such an application of the Necessary and Proper Clause would have the perverse effect of enabling Congress to pass ill-conceived, or economically disruptive statutes, secure in the knowledge that the more dysfunctional the results of the statute are, the more essential or “necessary” the statutory fix would be. Under such a rationale, the more harm the statute does, the more power Congress could assume for itself under the Necessary and Proper Clause. This result would, of course, expand the Necessary and Proper Clause far beyond its original meaning, and allow Congress to exceed the powers specifically enumerated in Article I. Surely this is not what the Founders anticipated, nor how that Clause should operate.
Once the insurance mandate was found to be an unconstitutional abuse of legislative power, the next question was whether this invalidates the whole law or just part of it.
At this point comes a morsel of delicious comedy: the defendants unwittingly argued against severing the insurance mandate and upholding the rest of Obamacare. You see, the defense argued that the mandate is both necessary and proper by asserting “again and again that the individual mandate is absolutely ‘necessary’ and ‘essential’ for the Act to operate as it was intended by Congress.”
“I accept that it is,” Judge Vinson responded before getting to the severability issue.
So, if the mandate is really so crucial to the law, then the whole law is gonna have to go in the round file.
Anyway, reasonable folks like me kept saying that the Obamacare bill was just too dang long, but nobody wanted to hear it. Well, what do you think about your long-ass bill now, statists?
Going through the 2,700-page Act line-by-line, invalidating dozens (or hundreds) of some sections while retaining dozens (or hundreds) of others,would not only take considerable time and extensive briefing, but it would, in the end, be tantamount to rewriting a statute in an attempt to salvage it, which is foreclosed by Ayotte, supra. Courts should not even attempt to do that.
A thorough and excellent opinion, this is. I do have one criticism, though. The judge seems remarkably naive when he writes about
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”) (Scalia, J.) (emphasis added). There is no reason to conclude that this presumption should not apply here.
Uh, there is too a reason to not presume things, Judge: these people are completely drunk on power.