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Posted at 10:32 AM ET, 02/ 1/2011

The 'weak link' in Vinson's decision

By Ezra Klein

In Wonkbook today, I linked to a couple of legal analyses of Judge Roger Vinson's decision, including one by Ilya Somin that explained Vinson's reasoning this way. "Vinson concedes that the individual mandate is 'necessary' under existing Supreme Court precedent, but argues that it isn’t 'proper' because the government’s logic amounts to giving Congress virtually unlimited power. I think this is exactly right." It's worth quoting Vinson himself on this point:

The defendants have asserted 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. Nevertheless, the individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be “proper.”

That thinking is the "weak link" in Vinson's case, writes Somin's co-blogger Orin Kerr. It's really not up to Vinson overturn existing Supreme Court precedent in favor of his personal interpretation of the intent of the Founders. Kerr continues:

Judge Vinson is just a District Court judge. And if you pair Justice Thomas’s dissent in Raich with Judge Vinson’s opinion today, you realize the problem: Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way. Remember that in Raich, the fact that the majority opinion gave the federal government the power to “regulate virtually anything” was a reason for Justice Thomas to dissent. In Judge Vinson’s opinion, however, the fact that the government’s theory gave the federal government the power to “regulate virtually anything” was a reason it had to be inconsistent with precedent.

Obviously, I’m not arguing that Judge Vinson was bound by Justice Thomas’s dissent. Rather, my point is that Judge Vinson should not have used a first principle to trump existing Supreme Court caselaw when that principle may not be consistent with existing caselaw. Either Justice Thomas is wrong or Judge Vinson is wrong, and Judge Vinson was not making a persuasive legal argument when he followed the first principle instead of the cases. Because Judge Vinson is bound by Supreme Court precedent, I would think he should have applied the cases.

If you want to follow this argument a bit further, Simon Lazarus delves into more detail on the some of the past rulings and statements that Roberts, Kennedy and Scalia would have to wipe away to rule against the Obama administration in this case. The result, he says, would be not just a ruling against the legislation, but a ruling that would "exhume the long-dead and discredited doctrines that the pre-New Deal Supreme Court deployed to overturn laws that prohibited child labor, prescribed minimum wage levels and maximum hours."

My understanding is that many libertarians and conservatives would like to see the Supreme Court return to a limited understanding of the Commerce Clause closer to what prevailed in the past. But until now, the Supreme Court hasn't shown much interest in that project. In theory, they're more persuaded by the precedent they've signed their names to than to the first principles that Vinson invoked in his decision. But in practice, on this particular case, for this particular law? Who knows.

By Ezra Klein  | February 1, 2011; 10:32 AM ET
Categories:  Legal  
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"But until now, the Supreme Court hasn't shown much interest in that project."

I've had a class with one of the justices, and they seemed *extremely* interested in overturning/re-defining existing Commerce Clause jurisprudence (but very-appropriately wouldn't comment on HCR).

I understand the Justices are very smart people, but we follow precedent for a reason -- to keep them in check when they think their interpretation of the Constitution ought to trump the past rulings of other very smart Justices. Even if one believes that the facts here are a little different than other cases, our precedent should at least be engaged with more thoroughly.

Instead, it seems like the right is more concerned with arguing loudly about *their* reading of the Constitution, or with throwing newfangled justifications at the thing and seeing what sticks (eg, Randy Barnett).

Posted by: Chris_ | February 1, 2011 10:59 AM | Report abuse

I still don't get why the individual mandate is such a big deal. You'll pay $600 more in taxes if you don't have health insurance, but you already pay $1,000 more in taxes if you don't have a kid thanks to the child tax credit. Yet no one talks about the brutal oppression of the government -forcing- you to have children.

The government creates incentives through the tax code all the time. If the law said "everyone pays $600 more in taxes, and those who have insurance get a $600 tax credit", there would be no question whatsoever about its legality.

Posted by: FormerSwingVoter | February 1, 2011 11:34 AM | Report abuse

^^ Taxing and spending powers are pretty broad --> . The Government's argued the same thing that you do ( The problem is that some judges and some conservatives see this as a penalty, not a tax.

Under the Commerce Clause, Congress can't regulate non-economic activity. Conservatives say "not choosing to buy insurance" is not an economic activity and leads to a slippery slope (

Everyone else, including conservatives who supported this sorta thing in the 90s, think it's "insurance" that's being regulated -- you're either paying up-front w/ a mandate or paying (way more) in the ER, driving up premiums. So there's arguments under both Clauses for ACA, and I think they're both persuasive.

Posted by: Chris_ | February 1, 2011 11:48 AM | Report abuse

i wonder how much of this opposition revolves around it being called a "mandate" instead of a "tax" which is basically what it is. i find it astonishing that a federal judge is arguing that congress doesn't have the power to levy taxes. i'm sure folks who are opposed to the law would still be opposed to it, but would judges be going out of their way to call it unconstitutional?

Posted by: freaktown | February 1, 2011 11:51 AM | Report abuse

"i find it astonishing that a federal judge is arguing that congress doesn't have the power to levy taxes."

Yeah, it's sorta crazy. But that way of looking at it would appeal to Scalia -- someone who despite his super-conservative worldview -- is also very respectful of institutions, procedure and precedent. ( That bodes well for the ACA, I hope.

Posted by: Chris_ | February 1, 2011 12:02 PM | Report abuse

"I still don't get why the individual mandate..."

- First, it's about politics and defeating Obama more than it is about proper governance. The GOP has acted this way since at least 1992.

- Second, the US is in the throes of a tax revolution. Americans simply do not want to increase taxes, and that is why Obama made his tax pledge. The mandate is a tax, so is considered evil, even if it might actually help the country. This is also why we won't have a carbon tax, or VAT, or any other tax increase in the near future, though our budget is busted and we are at war around the world.

Posted by: lauren2010 | February 1, 2011 12:22 PM | Report abuse

"I find it astonishing that a federal udge is arguing that congress doesn't have the power to levy taxes."

Taxes are paid to Tsy (or state or local tax commissioners). This mandate requires payments to private insurance companies. Perhaps you don't see the difference, but apparently Judge Vinson did.

Was there another way? Of course and there still is The Social Security Act (of which Medicare is a part) with its social insurance programs funded by payroll taxes has always been upheld by the courts. I'll leave it to Pat Moynihan to explain its secret, google 'Social Security Saved; (OK, I'll tell you ,"the taxing power is sufficient for everything you want and need").

Posted by: beowulf_ | February 1, 2011 12:36 PM | Report abuse

Now that's cheeky! Mr. Klein's now forced to cite the evil, stupid Justice Thomas in a dissenting opinion.

Posted by: ElmerStoup | February 1, 2011 1:26 PM | Report abuse

Ezra, this is a flagrant mischaracterization of Judge Vinson's decision. He's not overturning any precedent because there is none:

As Judge Vinson found, "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....In every Supreme Court case decided thus far, Congress was not seeking to regulate under its commerce power something that could even be arguably said to be "passive inactivity." (p. 41 of the decision).

Posted by: michaelh81 | February 1, 2011 1:58 PM | Report abuse

Actually, liberals selectively love the commerce clause of the past. If Congress passed a law outlawing abortion under the commerce clause because low fertility levels were hurting the economy, where do you honestly think Kennedy, Breyer and et al would come down? Do you think a lot of liberals agree with the Raich decision? Of course not.

Posted by: cdosquared5 | February 1, 2011 2:14 PM | Report abuse

michaelh, you have violated the first rule of commenting on this blog... only make ezra look bad through snide remarks and jokes. That way he can still console himself with the veneer of intellectual superiority. But don't make it readily apparent that he doesn't do basic research before posting, like he's Dave Weigel!

Rule #2 - Make gratuitous put downs of Dave Weigel whenever possible.

Posted by: cdosquared5 | February 1, 2011 2:26 PM | Report abuse

michaelh81, like every single other Supreme Court case ever, the mathematically exact issue of this case has not been decided on.

But has the general framework of the Commerce Clause been laid out? Yes. According to the bar exam materials I've been studying non-stop 24/7, the Commerce Clause allows regulation of the channels and the instrumentalities of interstate commerce, and economic activities that have a substantial effect on interstate commerce.

If you asked anyone who's against the ACA whether "not selling wheat you grew" on your land had a "substantial impact" on interstate commerce, most people would say "well, no, that's inaction and unconstitutional."

Except, that's exactly what Wickard v. Filburn said -- the cumulative impact of individuals' decisions would mess up the market. I don't see how that's any different from someone's decision not to buy insurance.

To get around this, conservatives say that "not buying" is the same as "doing nothing." Except, that still sounds like Wickard to me, and that's still good law. If it were something like "not eating broccoli" or "not supporting Obama," those don't sound economic to me. The point of the Commerce Clause is to regulate interstate commerce where decisions to do and not do economic activities affect that interstate commerce. (as US v. Lopez most clearly shows)

More here.... very accessible stuff -->

Posted by: Chris_ | February 1, 2011 5:56 PM | Report abuse

I asked the following hypothetical above (see here Congress imposes an additional flat income tax equivalent to the size of the penalty on everyone in the country, and then exempts people from that tax (or gives them a tax credit) if they have health insurance meeting the minimum standards set by ACA.

A number of commentators responded with something like “that would be constitutional, but that is not what the bill did.” Which is obviously true (there are Supreme Court cases detailing the difference between regulatory penalties and taxes, plus the incidence of the tax/subsidy switches from the inactivity to an activity), but that kind of misses the point.

What I was trying to get at was that while LEGALLY there is a difference, FUNCTIONALLY it would have the same effect. Remember you are not sent to jail if you violate the individual mandate, you just have to pay a penalty. If the tax in my hypothetical was precisely the same size as the penalty, then everyone would have the exact same incentive that they have under the ACA. The CBO even estimates that the ACA will only cover like 95% of the population, because some percentage of the population will choose to pay the fine instead of buying insurance.

I think this raises two important ideas. First, it shows how the legal distinction that opponents are trying to make between inactivity and activity is totally nebulous. If the government is not allowed to penalize inactivity, then it can just incentivize the opposite activity. Its been conservative mantra for decades that the incidence of the tax is irrelevant to the actual costs (which is true), so why can’t we see the individual mandate in the same light of merely being another way to allocate resources.

Second, it begs the question – and this is what I don’t understand and want somebody to help me with – of why anybody would care and why there SHOULD be a legal distinction??? The government, even if opponents are successful at the Supreme Court, would still have the constitutional power to do things that have the exact same FUNCTIONAL effect. You will have no greater liberty, because the decisions you can make and the incentives you have to make them won’t have changed.


Posted by: AFoolsGame | February 1, 2011 6:12 PM | Report abuse

"why anybody would care and why there SHOULD be a legal distinction"

Well, there's plenty of lefty academics that say there shouldn't be a legal distinction, because they put more faith in Congress to be responsive to the people. I think that SSRN article above may go into that (I haven't read it in a while though..)

But yeah, I think there *should* be a distinction. Look up US v. Lopez -- about a school gun law Congress based on the Commerce Clause. I think that was *rightfully decided* -- sure, gun violence (or schools in general) affects interstate commerce. But was that bill *really* about the economy, or economic decisions that affect interstate commerce? That's a little hard to swallow. So that law was struck down.

So yeah, while Congress can condition money or enact subsidies or whatnot under the T&S Clause (which it should've done here), it can't regulate every type of activity under the CC clause -- it keeps Congress from directly controlling (rather than influencing w/ taxes) non-economic things, and I think that's a good thing.

To finally answer you question, I think the ideological opposition comes from a "slippery slope" fear brought on by Lopez-like worries that the government will start regulating everything. If you think that the ACA mandate a) isn't a tax and b) it isn't economic, you'd think this was a Lopez-like overreach. But your example itself shows the functional sameness between the two methods, which shows it's a proper economic activity to be regulated under the CC .....

Posted by: Chris_ | February 1, 2011 6:40 PM | Report abuse

Chris, non-activity cannot be regulated as activity because in theory it may be tied to some future activity at some later date for some percentage of people. That's too slippery a slope, and COMPLETELY unprecedented, not merely lacking an exact precedent.

Posted by: michaelh81 | February 1, 2011 9:55 PM | Report abuse

Why should there be a legal distinction between activity and inactivity?

Think about it this way:
Is NOT pushing someone out of the way of a speeding train (assuming there is no risk to oneself) morally equivalent to PUSHING someone in front of a speeding train?

If your answer is 'no', then activity and inactivity are not morally equivalent, and should not be treated as equivalent under the law.

This is important, since the effect of the individual mandate is essentially to force healthy people to take an action (pay for insurance) which is designed to result in the provision healthcare to anyone who is ill, not just those who purchased insurance beforehand (because of guarenteed issue).
It's NOT about covering one's own future risks, it's about forcing healthy low-risk individuals to pay for the healthcare of others.

In other words, to force individuals push other people out of the way of metaphorical speeding trains.

If you can't countance the argument that NOT saving someone from a speeding train is equivalent to murder, then you cannot morally justify using the individual mandate to force the healthy to pay for the sick.

Posted by: tjk1 | February 2, 2011 1:40 AM | Report abuse

Judge Vinson's decision is correct and will be upheld. The federal government does not have unlimited power, nor should it. The drafters of our constitution were well aware of the dangers of concentrating too much power in the federal government. The ninth and tenth amendments were written to make it clear that the feds did not control everything.

I am one of the uninsured, and I pay my own medical bills, do not go to the E.R., and have enough house equity to pay the expenses of an unforeseen illness. There are many people like me. The suggestion that uninsured people are a bunch of deadbeats or leeches is political propaganda, designed to brainwash you into supporting this health care bill.

The bill is poorly designed and is not what the American people want. The bill is unconstitutional because it would give the federal government too much power in violation of the 10th amendment.

People need to stop using the "commerce clause" to justify federal incursion into every area of our lives. That chicken feed case from the 1940s was wrong. A farmer's use of chicken feed has nothing to do with interstate commerce.

I can see from the comments on here that most of you are "progressives" who will disagree with my point of view. I went to law school in Berkeley, California in the 1970s and studied the constitution under some fine professors, and I believe that my analysis is good. I am not a right-winger. I am a student of history, and I recognize that too much power in one place is a dangerous thing. I read "Dr. Zhivago" and it illustrated how the acts of well-meaning young idealists can turn into something they didn't want at all, a totalitarian regime. We are in danger of having that in this country, and I will do all I can to stop it.

Posted by: ducksgirl | February 2, 2011 4:43 PM | Report abuse

"Freaktown" says: "i find it astonishing that a federal judge is arguing that congress doesn't have the power to levy taxes."

The mandate is not a "tax" because a tax must ultimately be paid to the governmental taxing authority and not remain in the hands of a private party, such as an insurance company, which provides a good or service. For instance, sales taxes are collected by businesses, but remitted to the taxing authority.

Get the difference now? The mandate was set up this way to avoid the single payor issue, which was what your president really wanted but could not have achieved.

Posted by: questioneverything | February 4, 2011 8:08 PM | Report abuse

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