ObamaCare Ruled Unconstitutional -- Again

A federal judge in Florida has ruled ObamaCare unconstitutional in its entirety.

U.S. District Judge Roger Vinson ruled that the reform law's so-called individual mandate went too far in requiring that Americans start buying health insurance in 2014 or pay a penalty.

"Because the individual mandate is unconstitutional and not severable, the entire act must be declared void," he wrote.

Looking down the page at Memeorandum I can't avoid the sense that the arguments waged for and against have the liberal reporters lined up against the decision while conservative legal talent is for it.

Greta Van Susteren, a Fox News analyst and a trial lawyer herself, called the decision "huge."

Judge Vinson's decision is the second ruling by a federal judge declaring the individual mandate unconstitutional, but the first judge to go one step further and throw the entire health care law out. The Florida lawsuit is also the biggest one out there, brought on by mostly Republican governors and attorneys general from 26 states.

If you don't think this is huge, listen to the states -- Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin and Wyoming.

But liberal non-lawyers criticized the decision, charging Judge Vinson with judicial activism for declaring it invalid in total.  Brian Beutler, a reporter for Talking Points Memo who graduated from U.C. Berkely with degrees in physics and astrophysics, called it "extreme activism."

Simply ruling against the mandate puts any judge on the opposite side of the vast majority of expert legal opinion. But given just such ruling, a less "activist" judge could have stricken just the mandate, along with directly relevant provisions -- like guaranteed issue and the ban on discrimination against people with pre-existing conditions. Vinson decided instead to "legislate from the bench" and scrap the subsidies, regulations, marketplaces, and other goodies the law creates that really have nothing to do with the mandate as well.

It's new frontiers in partisan judging.

With 26 of 50 state Attorneys General joining the suit to challenge ObamaCare, I wonder just where is this "vast majority of expert legal opinion" that he thinks is in favor of the individual mandate. 

Ezra Klein, progressive opinion blogger of the Washington Post, writes that this ruling puts Judge Vinson on the "far right."

The full ruling has a very Bush v. Gore feeling, as Vinson concedes that his position is activist in the extreme and a break from the court's usual preference for limited rulings, but says, in effect, that he's going to do it just this once. "This conclusion is reached with full appreciation for the 'normal rule' that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute," Vinson writes, "but non-severability is required based on the unique facts of this case and the particular aspects of the Act. This is not a situation that is likely to be repeated." Italics mine.

That puts Vinson on the far right of this debate: Previously, Henry Hudson had ruled the individual mandate unconstitutional but the rest of the law constitutional, and Norman Moon and George Steeh had ruled both the mandate and the rest of the legislation constitutional.

The lawyers at Power Line demolish Klein's argument.

Klein fails to acknowledge that the Democrats omitted a severability clause from the health care reform statute. (A severability clause says that if one or more provisions should be found invalid, the remainder nevertheless is intended to stand. Such clauses are common in legislation.) Judge Vinson pointed out the importance of the absence of such a provision in assessing Congressional intent:

The lack of a severability clause in this case is significant because one had been included in an earlier version of the Act, but it was removed in the bill that subsequently became law. "Where Congress includes [particular] language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the [omitted provision] was not intended." Russello v. United States, 464 U.S. 16, 23-24, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983). In other words, the severability lause was intentionally left out of the Act. The absence of a severability clause is further significant because the individual mandate was controversial all during the progress of the legislation and Congress was undoubtedly well aware that legal challenges were coming. Indeed, as noted earlier, even before the Act became law, several states had passed statutes declaring the individual mandate unconstitutional and purporting to exempt their residents from it; and Congress' own attorneys in the CRS had basically advised that the challenges might well have legal merit as it was "unclear" if the individual mandate had "solid constitutional foundation." See CRS Analysis, supra, at 3. In light of the foregoing, Congress' failure to include a severability clause in the Act (or, more accurately, its decision to not include one that had been included earlier) can be viewed as strong evidence that Congress recognized the Act could not operate as intended without the individual mandate.

I assume that Klein either didn't read Vinson's opinion, or, more likely, failed to acknowledge this discussion because he didn't understand it, notwithstanding the fact that it is perfectly clear.

Judge Vinson went on to note that the government's lawyers admitted that the statute's entire scheme of insurance regulation would fall without the individual mandate. This, too, was a strong argument against severability:

Moreover, the defendants have conceded that the Act's health insurance reforms cannot survive without the individual mandate, which is extremely significant because the various insurance provisions, in turn, are the very heart of the Act itself.

Again, Klein makes no mention of this important argument against severability.

Meanwhile over at Volokh Conspiracy there is a discussion between Ilya Somin and Owen Kerr.  Somin writes,

Today’s Florida district court ruling that the individual mandate is unconstitutional is by far the best court opinion on this issue so far. Judge Roger Vinson provides a thorough and impressive analysis of the federal government’s arguments claiming that the mandate is authorized by the Commerce Clause and the Necessary and Proper Clause, and explains the flaws in each.

While Kerr dIsagrees, I side with Power Line, Somin, and Van Susteren, as you might expect.  It's a huge decision, and it's the right one.  It's also my non-legal opinion that the Justice Department will not hurry this along to the Supreme Court for a final decision, believing as I do that a majority on the Court is likely to side with Judge Vinson.

Comments

[Mike in VT]

And it was ruled perfectly constitutional 2 times as well.
So what makes this ruling 'more valid' than those? Your personal bias?
it is a meaningless decision.

[Tom Bowler]

"And it was ruled perfectly constitutional 2 times..." by Democrats. So whose bias is it?

[Mike in VT]

"And it was ruled unconstitutional 2 times..." by Republicans.
One with a huge conflict of interest in the case. So whose bias is it?

[Tom Bowler]

What conflict of interest?

[Mike in VT]

Henry Hudson, the federal judge who ruled health care reform unconstitutional in Virginia has at least a $15,000 ownership interest in a GOP consulting firm called "Campaign Solutions, Inc."
Dedicated to overturning Healthcare Reform

If that isn't a conflict of interest, I don't know what is.

[Tom Bowler]

You're right. You don't know what is.

[Jane]

Actually it was never "ruled constitutional". Those 2 cases were decided on procedural rather than substantive grounds. So the good guys are 2-0.

I don't get the "judicial activism" argument. Does the left now believe referencing the Constitution is judicial activism?

[Tom Bowler]

The thing leftists have going for them is dishonesty. It gives them a huge advantage, you have to admit. They aren't constrained by truth or even consistency.

One thing they do is co-opt the popular words. Like the word "freedom". Our country was founded on principles of freedom. But the left takes the word "freedom" and promotes "freedom from want" and "freedom from fear" and "freedom from hate speech" or any other damn thing. The catch is that in order to gain those "freedoms" you have to concede a lot of real freedom. Which is what the left doesn't believe in at all -- real freedom.

They've begun using that trick with the phrase "judicial activism". No conservative wants judges making up the law in whatever way happens to suit the latest fad. And that has been the meaning of judicial activism -- making up the law. The majority of Americans consider such judicial activism a very bad thing.

So along comes the left and decides, "Hey, we can use that," and they apply "judicial activism" to the right. They don't really care it means. They'll come up with something.

Eureka! The very first sentence in Brian Beutler's The Extreme Activism Of Judge Vinson is "For most people, an "activist judge" is one whose opinions they don't agree with." Oh, really?!!

"When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

Hmmm. So it turns out Humpty Dumpty was a lefty. Who knew?