Wonkbook: What the Vinson ruling means
Wonkbook today has plenty of analysis -- both political and legal -- of Judge Vinson's ruling against the Affordable Care Act. The bottom line of much of it is that the fate of the legislation is now, as it was last week, in the hands of Anthony Kennedy.
That's likely to be true. But the fact that the Supreme Court will still have the ultimate word on this does not mean nothing changed yesterday. Vinson's ruling, which was much more extreme and sweeping than previous rulings, opened up the right side of the debate. So now there are two possible questions the Supreme Court must decide on. The first is the basic legitimacy of the legislation. Many Court-watchers expect that the question will be decided on a 5-4 split, with Kennedy proving the deciding vote. If five justices -- or more -- say the law is constitutional, their work is done. But if five or more say the individual mandate is not constitutional, then a second question emerges: Is the mandate severable, as Judge Hudson thought it was? If the Court says it is, then the vast bulk of the legislation remains intact, and the only real question is whether congressional Republicans are open to crafting some sort of replacement to the provision if it proves needed in 2015 or 2016 or 2017. If the Court says it's not, and voids the entirety of President Obama's most important legislative achievement, that's a decision with much more far-reaching consequences.
Most Court-watchers I've spoken to think it very unlikely that Vinson's ruling will stand. The bigger danger, they say, is that Vinson's ruling will make Hudson's ruling seem more modest and appealing. But there's a good chance that whatever the decision is, it will come in 2012, while Barack Obama is campaigning for president and his supporters are at their most activated. In that environment, an adverse ruling could radicalize liberals toward the Court in much the way that Roe radicalized conservatives. This case puts the Supreme Court more firmly at the center of a major and polarizing political issue than they've been in recent memory. The long-term consequences of an aggressive ruling in that context will also be weighing on Kennedy and his colleagues as they grope their way to a decision.
The Vinson Ruling
Florida district court judge Roger Vinson has ruled all of health care reform unconstitutional, report N.C. Aizenman and Amy Goldstein: "A federal judge in Florida on Monday became the first to strike down the entire law that overhauled the nation's health-care system, potentially complicating implementation of the statute in the 26 states that brought the suit...As the judge ruled in the Virginia case, Vinson held that Congress overstepped its authority by compelling nearly all Americans to be insured or pay a fine. But Vinson went further: Likening the law to 'a finely crafted watch' in which 'one essential piece is defective and must be removed,' he ruled that the insurance mandate cannot be separated from the rest of the statute and therefore the entire law must be voided."
Read the full ruling: http://scr.bi/eI6Oqg
Democrats' legislative sloppiness provided an opening for the decision, writes David Weigel: http://slate.me/eaUzjw
The rulings have been surprisingly political, writes Jonathan Cohn: "There’s what looks like a shout-out to the Tea Party--specifically, a reference to the American Colonists' outrage over the tax on tea. (Page 42.) There’s the gratuitous reference to General Motors as “partially government-owned.” (Page 45.) And there’s the use of President Obama’s campaign rhetoric against the law Obama now supports. (Page 68). Nor is the first time a judge invalidating the Affordable Care Act may have tipped his political hand. Henry Hudson, the federal judge who issued a narrower ruling against the law late last year, noted in his decision that the bill was rushed through the legislative process--which is a strange way to describe a law nearly fourteen months in gestation, unless you are trying to argue there was something fundamentally illegitimate about the process that produced it.
Vinson's argument that the individual mandate is non-severable derives from the administration's argument that the individual mandate is non-severable, writes Peter Suderman: "Vinson concludes that 'the individual mandate is indisputably necessary to the Act’s insurance market reforms, which are, in turn, indisputably necessary to the purpose of the Act.' Essentially, the administration's lawyers argued that the health care law wouldn’t work without the mandate, and Vinson took them at their word."
The decision relies on weak originalist arguments, writes Mark Hall: "The same Founders wrote a Constitution that allowed the federal government to take property from unwilling sellers and passive owners, when needed to construct highways, bridges and canals. But Judge Vinson dismissed those and other examples with the briefest of parenthetical asides: '(all of [these] are obviously distinguishable)' (p. 39). Instead, he twice cites and quotes the lower court opinion in Schechter Poultry (pp. 53, 55), which struck down the National Industrial Recovery Act, at the height of the Great Depression and the pinnacle of Lochner jurisprudence. Still, it’s fair enough to conclude, absent controlling precedent, that being uninsured might not constitute interstate commerce. What’s harder to swallow is the judge’s rejection of the Necessary and Proper Clause."
Vinson got it right, writes Ilya Somin: "As Vinson explains, both the 'economic decisions' argument and the 'health care is special' argument ultimately amount to giving Congress the power to mandate virtually anything, and therefore conflict with the text of the Constitution and Supreme Court precedent. I addressed both arguments in more detail here. Judge Vinson also notes that the scenarios he raises are not merely a 'parade of horribles,' but have a realistic basis, a point that I discussed in this recent post. Turning to the Necessary and Proper Clause, Judge 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."
Vinson's argument ignores precedent, writes Orin Kerr: http://bit.ly/hfGLxa
The ruling violates opinions Justices Scalia, Roberts, and Kennedy have written, writes Simon Lazarus: "Today's decision in Florida federal district court striking down the Affordable Care Act in its entirety would effectively shred the Constitution as it has been interpreted, applied, and endorsed across a broad ideological spectrum for the last three-quarters of a century -- since the New Deal -- and, actually, dating back to Chief Justice John Marshall's expansive interpretations of the constitutional provisions directly at issue here...Among those who have joined in rejecting the century-old, long-defunct decisions on which Judge Roger Vinson's decision rests, are Justices Scalia, Kennedy, and Chief Justice Roberts. They will have to twist their prior decisions and statements into pretzels in order to rule the individual mandate or other ACA provisions unconstitutional."
The reaction to the decision shows you can't take the Constitution away from politics, writes Mark Tushnet: http://bit.ly/hnwsn7
The ruling on severability relies on evidence from the Family Research Council, an anti-gay hate group, writes Igor Volsky: "The most surprising part of Judge Roger Vinson’s ruling was his argument that the individual mandate was not severable from the health care law as a whole and must therefor bring down the entire Affordable Care Act...In fact, as Vinson himself admits in Footnote 27 (on pg. 65), he arrived at this conclusion by 'borrow[ing] heavily from one of the amicus briefs filed in the case for it quite cogently and effectively sets forth the applicable standard and governing analysis of severability (doc. 123).' That brief was filed by the Family Research Council, which has been branded as a hate group by the Southern Poverty Law Center (SPLC)."
Indie pop interlude: Papercuts' "Do What You Will".
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Still to come: The White House is pushing to increase investment in start-ups and small businesses; Senate Democrats are ready for a fight on the Constitutionality of health care reform; GOP governors are pushing for an end to teacher tenure; the administration wants to end billions in oil subsidies; and elderly elephants listen to Beethoven.
The White House wants to boost investment in start-ups and small businesses, reports Perry Bacon: "The Obama administration, continuing its recent pro-business push, is launching a new campaign Monday to increase investment in start-up companies and small businesses. The White House has enlisted Steve Case, the co-founder of AOL, and Carl Schramm, who runs a group that encourages entrepreneurship called the Kaufman Foundation, to head the 'Startup America Partnership.' The two men will lead a privately funded board that will encourage large companies and foundations to provide seed money to start-ups. The Obama administration Monday also will announce a series of ideas to encourage innovation and entrepreneurship that it will include in its federal budget proposal to be released Feb. 14."
Egypt's unrest is continuing to hurt the global economy: http://wapo.st/eM95Wh
Direct bank negotiations are more effective at resolving mortgages than HAMP, report Robbie Whelan and Anthony Klan: "As the federal government's flagship mortgage-modification program comes under scrutiny for failing to meet its goal of helping three to four million troubled homeowners, state-level efforts to boost modifications appear to be picking up momentum. The Treasury reported Monday that the government's Home Affordable Modification Program, or HAMP, had provided permanent help to 521,630 homeowners since the program began in spring 2009. By comparison, over the same period, banks negotiating directly with borrowers have made about two million permanent loan modifications outside the government's program."
More people have lost homes during the crisis than gained them during the boom, reports Dawn Wotapka: "The meltdown of the U.S. mortgage market and rising foreclosures have wiped out more homeowners than were created in the 2000-07 housing boom, some industry watchers say, the latest indication of the severity of the housing bust. In the fourth quarter of 2010, 66.5% of Americans owned homes, down from 67.2% a year earlier and the lowest rate since the end of 1998, according the Census Bureau. During the boom, when easy credit made mortgages available with less regard for income or ability to pay, the ownership rate surged to a record 69.2% in 2004's second and fourth quarters and stayed near that level until the recession deepened."
Taxes need to go up if the budget is to be sustainable, writes Jeffrey Sachs: "The truth of US politics today is simple. The key policy for the leaders of both political parties is tax cuts, especially for the rich. Both political parties, and the White House, would rather cut taxes than spend more on education, science and technology, and infrastructure. And the explanation is straightforward: the richest households fund political campaigns. Both parties therefore cater to their wishes. As a result, America’s total tax revenues as a share of national income are among the lowest of all high-income countries, roughly 30%, compared to around 40% in Europe. But 30% of GDP is not enough to cover the needs of health, education, science and technology, social security, infrastructure, and other vital government responsibilities."
Across-the-board cuts won't make government more efficient, writes Louis Gerstner: "Americans do not want only a smaller government; they want a more productive government. We do not want simply to decrease our taxes by, say, 5%, as nice as that sounds. We also want 100% of our tax dollars to be working as effectively as possible. In short, we need to reinvent government...A truly effective organization needs incremental investments in programs that drive innovation and higher productivity. Moreover, I've learned that across-the-board cuts are almost guaranteed to reduce morale, promote short-sighted choices, and encourage accounting gimmicks that send people looking for loopholes instead of creative solutions."
Adorable children with adorable animals interlude: A Japanese girl plays with her pet chipmunk.
Senate Majority Whip Dick Durbin is calling a hearing on the constitutionality of health care reform, reports Shira Toeplitz: "Minutes after a Florida judge ruled that the health care law passed last year is unconstitutional, Senate Majority Whip Dick Durbin announced he will chair a hearing this week on whether the law is constitutional. Durbin’s announcement is the first indication that Senate Democrats are willing to entertain a debate on whether the law is constitutional, taking critics of the law head-on. Senate Republicans have repeatedly called for a vote to repeal the law, but Senate Majority Leader Harry Reid has refused to take it to the floor in the upper chamber - saying he wants no part at all in getting rid of the law passed last year. The House voted earlier this month to repeal the entire bill, which is considered to be the landmark legislation of President Barack Obama’s tenure in office so far."
All Senate Republicans have signed on to a bill repealing health care reform: http://politi.co/h6aGmt
GOP governors are aiming to end teacher tenure, report Trip Gabriel and Sam Dillon: "Seizing on a national anxiety over poor student performance, many governors are taking aim at a bedrock tradition of public schools: teacher tenure...Now several Republican governors have concluded that removing ineffective teachers requires undoing the century-old protections of tenure. Governors in Florida, Idaho, Indiana, Nevada and New Jersey have called for the elimination or dismantling of tenure. As state legislatures convene this winter, anti-tenure bills are being written in those states and others. Their chances of passing have risen because of crushing state budget deficits that have put teachers’ unions on the defensive."
Harry Reid has taken Social Security "off the table" for cuts, reports Brian Beutler: "At an event with progressive activists last week, Senate Majority Leader Harry Reid took major Social Security cuts and privatization completely off the legislative table. 'As long as I'm the Majority Leader, I'm going to do everything within my legislative powers to prevent privatizing or eliminating Social Security,' Reid said. 'I'll simply say it's off the table.'...Reid's been a pretty staunch defender of Social Security, but this statement goes a bit further than previous ones. Most recently, on Meet the Press, he said he wouldn't be a part of any effort to undermine the program. But now, he's taken privatization and raising the retirement age off the table."
Democrats are getting aggressive on spending fights: http://wapo.st/gbHVLo
The "state most likely to go bankrupt" is none of them, writes Elizabeth McNichol: " State debt levels aren’t particularly high by historical standards. States are in no danger of defaulting on their debt, as the phrase 'going bankrupt' suggests. In the second quarter of calendar year 2010, state and local government outstanding debt stood at 16.7 percent of GDP, up from a recent (and relatively brief) low of 12 percent in 2000 but similar to the average levels from the mid-1980s to the mid-1990s. The vast majority of this debt is long-term, fixed rate debt used to finance infrastructure projects. Over the last century, only one state has defaulted on its general obligation debt: Arkansas in 1934, during the depths of the Great Depression. In most states, bonds have the first call on revenues."
Elderly animals listening to classical music interlude: Beethoven's Sonata Pathétique played for old elephants, for some reason.
The Obama administration is pushing to eliminate billions in oil subsidies, reports John Broder: "When he releases his new budget in two weeks, President Obama will propose doing away with roughly $4 billion a year in subsidies and tax breaks for oil companies, in his third effort to eliminate federal support for an industry that remains hugely profitable. Previous efforts have run up against bipartisan opposition in Congress and heavy lobbying from producers of oil, natural gas and coal. The head of the oil and gas lobby in Washington contends that the president has it backward -- that the industry subsidizes the government, through billions of dollars in taxes and royalties, not the other way around. But even as the president says he wants to do away with incentives for fossil fuels, his policies continue to provide for substantial aid to oil and gas companies."
Sen. Jay Rockefeller (D-WV) has introduced a bill delaying the EPA's climate rules for two years: http://bit.ly/fR3thQ
Sen. John Barrasso (R-WY) has introduced a bill blocking EPA action on the climate permanently, reports John Broder: "Senator John Barrasso, Republican of Wyoming, introduced legislation on Monday to block the Environmental Protection Agency from taking any action to regulate greenhouse gases to address climate change...The Barrasso bill would overturn the agency’s 2009 finding that carbon dioxide and other greenhouse gases are harmful to public health and the environment. It would pre-empt any action by the E.P.A. to limit greenhouse gas emissions without specific Congressional authorization. It would forbid the use of several landmark federal laws for the purpose of dealing with global warming, including the Clean Air Act, the Clean Water Act, the National Environmental Policy Act and the Endangered Species Act."
The Senate is working with Obama on hashing out a "clean energy standard", reports Andrew Restuccia: "Senate Energy and Natural Resources Committee Chairman Jeff Bingaman (D-N.M.) is working with the White House to iron out the details of a broad proposal to require that 80 percent of the country’s electricity come from 'clean' sources. President Obama outlined the proposal in his State of the Union address last week, but offered few details. He called for 80 percent of the country’s electricity to come from 'clean' sources like wind, solar, natural gas, nuclear and coal with carbon capture technology. Bingaman has been reluctant to endorse a so-called 'clean energy standard,' instead underscoring his support for a 'renewable electricity standard,' which focuses strictly on renewable energy."
Closing credits: Wonkbook is compiled and produced with help from Dylan Matthews, Mike Shepard, and Michelle Williams. Photo credit: White House.
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