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ObamaCare Held Unconstitutional: The Brilliant Decision

Only one who simply doesn't care about individual rights could read Judge Vinson's decision and still believe the individual mandate is constitutional. (Also read: "McConnell to attach ObamaCare repeal to FAA bill today")

by
Dan Miller

Bio

February 1, 2011 - 12:00 pm

In a seventy-eight page order released on January 31, Judge Vinson of the United States District Court for the Northern District of Florida, Pensacola Division, held the mandatory medical insurance provisions of ObamaCare unconstitutional as exceeding the powers of the federal government under the Commerce Clause. Finding the mandatory insurance provisions not severable from the remainder of ObamaCare, he declared it unconstitutional in its entirety and granted summary judgment in favor of the plaintiffs and against the defendant federal government.

In most respects, Judge Vinson’s opinion tracks that of Judge Hudson in the Virginia case finding that there is no basis in the Commerce Clause of the Constitution upon which to justify it. Unlike Judge Hudson, Judge Vinson held that the mandatory medical insurance requirements are the keystone of ObamaCare, needed to fund it. He did not consider it his prerogative to attempt to rewrite the legislation and hence held that the whole thing must fall.

Judge Vinson’s decision provides many reasons why the mandatory medical care provisions of ObamaCare exceed the powers granted to the Congress under the Commerce Clause in ways never previously attempted. Congress has never sought to impose a requirement that individuals cease the inactivity of not purchasing something and undertake the activity of doing so. He provided a lengthy analysis of what the Commerce Clause originally meant, i.e. regulating “Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” and discussed the ways in which it has been judicially engorged:

There is no doubt historically that the primary purpose behind the Commerce Clause was to give Congress power to regulate commerce so that it could eliminate the trade restrictions and barriers by and between the states that had existed under the Articles of Confederation. Such obstructions to commerce were destructive to the Union and believed to be precursors to war.

Then came the New Deal and other legislation of the 1930s and later; things changed substantially, to the point that growing small quantities of wheat for private use was held to be covered and later growing marijuana for purely intrastate use as permitted by California was held to be covered. The theory was essentially that activities such as these, while infinitesimal in isolation, would have substantial impacts on interstate commerce if engaged in by many people.

Then, in 1995 in United States v. Lopez, the Supreme Court considered the constitutionality of the Gun Free School Zones Act of 1990, which criminalized the possession of a firearm in a school zone. The Court observed:

Even in cases which had interpreted the Commerce Clause … expansively, every decision to date had recognized that the power granted by the Clause is necessarily “subject to outer limits” which, if not recognized and respected, could lead to federal action that would “effectually obliterate the distinction between what is national and what is local and create a completely centralized government.” … Consistent with those limits, the Lopez Court stated “we have identified three broad categories of activity that Congress may regulate under its commerce power.” … The “substantially affects” category was the one at issue there, and in holding that the statute did not pass muster thereunder, the Supreme Court focused on four considerations: (i) the activity being regulated (guns near schools) was not economic in nature; (ii) the statute did not contain jurisdictionally limiting language; (iii) Congress did not make any formal findings concerning the effect of the regulated activity on commerce; and (iv) the connection between that activity and its effect on commerce was attenuated.

As for the fourth consideration, the Court impliedly conceded the claims by the government and the dissent that: (1) gun-related violence is a serious national problem with substantial costs that are spread throughout the population; (2) such violence has adverse effects on classroom learning (which can result in decreased productivity) and discourages traveling into areas felt to be unsafe; all of which, in turn, (3) represents a substantial threat to interstate commerce.

The Lopez Court made a point to “pause to consider the implications” of such arguments, however. … It found that if such theories were sufficient to justify regulation under the Commerce clause (even though their underlying logic and truth were not questioned), “it is difficult to perceive any limitation on federal power” and “we are hard pressed to posit any activity by an individual that Congress is without power to regulate.”

To accept such arguments and uphold the statute, the majority concluded, would require the Court … to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.

Id. at 567-68; see also id. at 578, 580 (explaining that it is the Court’s duty to “recognize meaningful limits on the commerce power” and intervene if Congress “has tipped the scales too far” as federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom”) (Kennedy, J., concurring) (emphasis added)

Judge Vinson then proceeded with a similar analysis of the 2000 Supreme Court case of United States v. Morrison challenging the Violence Against Women Act of 1994. In essence, although violence against women is bad and harms interstate commerce (women brutally attacked might, one assumes, forebear from buying shoes for awhile), it had been held otherwise to have nothing to do with interstate commerce.

In Gonzales v. Raich (2005), the Supreme Court seemingly reverted to providing expansionist interpretations of the Commerce Clause, holding that the intrastate growth of marijuana in California for medicinal purposes (lawful under California law and generally unlawful elsewhere) for the use of two seriously ill women for medicinal purposes and not to be sold interstate or intrastate was within Congressional power under the Commerce Clause. The Court found in the Commerce Clause the power to “regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce.” (emphasis added).

In applying precedent to the case before him, Judge Vinson noted that the Congressional Research Service had advised the Congress when it was considering ObamaCare that the insurance mandate was “novel” and “unprecedented,” presenting a “most challenging question.” These factors clearly required further analysis but did not mandate a finding of unconstitutionality. In the end, he concluded that there must be a determination, as yet unavailable from the Supreme Court which has considered only activity, of whether activity is needed or whether inactivity suffices:

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. 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” … and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.

Judge Vinson then considered whether the failure to buy medical insurance constitutes activity for Commerce Clause purposes and concludes that it does not. The government contended that everybody someday needs medical care and, should they be unable or unwilling to purchase it, some entity in effect has to purchase it for them. Judge Vinson did not buy that analysis:

As was discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system. Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile — now partially government-owned — because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business. . . .

In response to the government’s contention that a “decision” not to engage in economic “activity” is tantamount to economic activity, Judge Vinson observed:

“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.

He also rejected government reliance on the “necessary and proper clause,” holding that under applicable precedent it permits only those governmental intrusions which are “necessary and proper” for governmental actions permitted elsewhere under the Constitution.

Somewhat humorously, he noted that the government essentially admitted that without the insurance purchase mandate:

… the Act will have serious negative consequences, e.g., encouraging people to forgo health insurance until medical services are needed, increasing premiums and costs for everyone, and thereby bankrupting the health insurance industry. … 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.

Judge Vinson accordingly held the insurance mandate unconstitutional as outside the authority of the Congress under the Commerce Clause. Having done so, he noted that although an early version of ObamaCare had had a severability clause (a very common inclusion in legislation to save its major parts from total destruction should some small part of it be held unconstitutional), the enacted version has none. He further held that the insurance mandate was, for all practical purposes, not severable from the rest of ObamaCare and that the latter must fall with the former. The government had acknowledged that the insurance mandate was “absolutely necessary for the Act’s insurance market reforms to work as intended.” To attempt to sever other parts would require substantial rewriting of all of ObamaCare, not a proper judicial function.

Finally, Judge Vinson held that there was no need to issue an injunction against implementation of ObamaCare, noting that “there is no reason to conclude that … [the] presumption [that the federal government will not ignore a federal court decision and proceed as though it had not been issued] should not apply here. Thus, the award of declaratory relief is adequate and separate injunctive relief is not necessary.”

The case will doubtless be appealed and make its way eventually to the Supreme Court.

Dan Miller graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He retired from the practice of law in Washington, D.C., in 1996 and has lived in a rural area in Panama since 2002.
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