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Posted at 2:50 PM ET, 02/ 1/2011

Yet another gaping hole in Vinson's ruling?

By Greg Sargent

NYU law professor Rick Hills finds what looks like another gaping hole in Judge Vinson's ruling yesterday that the individual mandate -- and by extension the entire Affordable Care Act -- is unconstitutional.

Judge Vinson writes on page 62 of the ruling that the goal of "excluding or charging higher rates to people with pre-existing conditions" is clearly "legitimate" and "within the scope of the Constitution." He clarifies this by indicating that the means to that end must not be inconsistent with the "spirit" of the Constitution. But that end, he says, is valid.

Then, on page 63, Vinson writes that the defendants are right to assert that the individual mandate is "necessary" and "essential" to realizing that same end.

And yet, Vinson then goes on to conclude that "the individual mandate falls outside the boundary of Congress' Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers."

Which prompts this rejoinder from Professor Hill:

Huh? How can a means that is conceded to be necessary for a legitimate end not be within Congress' implied powers to pursue that end?

Now, in case you're tempted to dismiss this argument as coming from a pointy-headed east coast liberal professor, please note that conservative legal writer Orin Kerr has reached a similar conclusion about this part of Vinson's decision.

Kerr argues that there's nothing in Supreme Court caselaw that justifies Vinson's conclusion that the individual mandate falls "outside the boundary" of the commerce clause, and bluntly characterizes Vinson's argument here as the "weak link" in his decision.

********************************************************

UPDATE, 3:03 p.m.: Let me try to be a bit clearer about Kerr's argument. He's saying that Vinson's contention that the means (the mandate) to a legitimate end is outside the boundary of the commerce clause, and therefore not legitimate, is based on "first principles," and not on existing Supreme Court caselaw.

That seems to dovetail with Professor Hill's argument: That Vinson's contention that the mandate is not legitimate, even though it's necessary to accomplish a constitutionally legitimate end, is wholly arbitrary.

By Greg Sargent  | February 1, 2011; 2:50 PM ET
Categories:  Health reform, Supreme Court  
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Comments

"bluntly characterizes Vinson's argument here as the "weak link" in his decision."

Much of it was copy/pasted from Family Research Counsel text. What do you expect?

http://thinkprogress.org/2011/01/31/vinson-frc/

Posted by: mikefromArlington | February 1, 2011 3:03 PM | Report abuse

Aside from the legal matters (which I'm unqualified to say much about)... that this justice is operating as a political agent ought not to surprise. The Federalist Society has been, for many years, organizing and training conservative lawyers to carry their politics into the courtroom...

"Our Purpose

Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law.

-The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Society seeks both to promote an awareness of these principles and to further their application through its activities.

-*This entails reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law. It also requires restoring the recognition of the importance of these norms among lawyers, judges, law students and professors.* In working to achieve these goals, the Society has created a conservative and libertarian intellectual network that extends to all levels of the legal community."

http://www.fed-soc.org/aboutus/

Posted by: bernielatham | February 1, 2011 3:05 PM | Report abuse

I don't think "gaping hole" quite covers it. This is more like a goatse in Vinson's ruling.

Posted by: JennOfArk | February 1, 2011 3:07 PM | Report abuse

OT - whoever at FOX is leaking internal documents is still at it (or MM is doing a slow release)...

http://tpmdc.talkingpointsmemo.com/2011/02/fox-news-editor-pushed-emphasis-on-obama-socialism-ahead-of-2008-election.php?ref=fpa

Posted by: bernielatham | February 1, 2011 3:13 PM | Report abuse

unless I'm misreading you, vinson is saying that that "excluding or charging higher rates to people with pre-existing conditions" is constitutional and the individual mandate is a necessary means to achieve that goal.

that doesn't mean the mandate itself is constitutional, just that he appreciates that it is central to the goal. probably why he struck down the whole law.

Posted by: NoVAHockey | February 1, 2011 3:13 PM | Report abuse

"whoever at FOX is leaking internal documents is still at it"

Maybe it was Major Garrette. He seemed like one of the few apart from Shepard Smith that has any bit of integrity left.

Posted by: mikefromArlington | February 1, 2011 3:17 PM | Report abuse

Nova, see Kerr on this. the decision that the mandate is unconstitutional is not based on any precedent. it's a statement of first principles...

Posted by: Greg Sargent | February 1, 2011 3:19 PM | Report abuse


Someone give one example where the Federal government, using its power to regulate interstate commerce, forced individual economic activity and penalized you if you didn’t want to participate in said economic activity. I find NO example where the Federal government has done this.


A farmer once WANTED to grow wheat and that act therefore came under Federal regulations. Once harvested, wheat is indistinguishable from similar wheat grown in other places and therefore can be regulated by the Federal government.

A sick woman once WANTED to grow pot for a medical condition and this act also fell under Federal jurisdiction. Pot has a substantial interstate trade (though illegal) and is indistinguishable from pot grown in other locations and therefore subject to Federal jurisdiction.

In neither case did the person in question say they didn’t want to engage in an activity and the Government said ‘you must participate or we will fine you’. All the Government said was if you want to participate we have rules and regulations you must follow.


ALL previous expansions of commerce clause authority involved Federal regulations of persons that wanted to participate in an activity, ObamaCare and the mandate is MUCH different and a new BIG expansion of the commerce clause.


Posted by: bcarte1 | February 1, 2011 3:25 PM | Report abuse

thx -- the Kerr post and your update cleared up my confusion.

Posted by: NoVAHockey | February 1, 2011 3:25 PM | Report abuse

@Greg: Also see Adler's reply to Kerr.

"I also think Orin’s argument that the individual mandate must be constitutional under existing precedent because dissenting justices argued that such precedents allow the federal government to regulate “virtually anything” is problematic. First, Orin is relying upon the opinions of dissenting justices, when the majority opinion in Raich maintained that limits on federal power remained. Second, the argument assumes what is at issue: Whether the failure to purchase government-approved health insurance is an activity that can be regulated. In other words, one of the questions in the case is whether inactivity is anything at all, or the absence of something that can be regulated. I agree with Orin that Raich is a problematic precedent, but I am not convinced it controls the outcome of this case."

http://volokh.com/2011/02/01/does-judge-vinsons-opinion-impose-a-major-limit-on-federal-power/

Posted by: sbj3 | February 1, 2011 3:26 PM | Report abuse

OT - whoever at FOX is leaking internal documents is still at it (or MM is doing a slow release)...

http://tpmdc.talkingpointsmemo.com/2011/02/fox-news-editor-pushed-emphasis-on-obama-socialism-ahead-of-2008-election.php?ref=fpa

Posted by: bernielatham | February 1, 2011 3:13 PM

....................


I had read that report over on TPM. Did you catch the part where the Fox News editor was instructing staff to focus attention on Barack Obama's "white ex-girlfriend".

Does anyone know if they did in fact play up that angle?

Posted by: Liam-still | February 1, 2011 3:31 PM | Report abuse

The Repugs making the arguments against the individual mandate or the lack of a severability clause are again being disingenuous. Fact is they could not care less about the legal points; their only concern is that these faults in the law may provide a reason to strike down the entire law. That is their only desire; defeat of HCR just to deprive the President and/or the Dems a victory. They should say this up front each and every time.

Posted by: GabsDaD | February 1, 2011 3:47 PM | Report abuse

What's amusing about all this nonsense is that both legal rulings that attempt to void the HCR law have different, but equally flawed logic at their core...and in both cases the giant hole in the judge's argument is found pretty quickly by law experts on both sides.

Posted by: TheBBQChickenMadness | February 1, 2011 3:48 PM | Report abuse

@Liam - Not so far as I have been able to determine.

Posted by: bernielatham | February 1, 2011 3:58 PM | Report abuse

What GabsDad said at 3:47...it cuts to the chase and reveals what is really going on here! The R's are still simply working OT for Obama's Waterloo the nation's populace be damned!

Posted by: rukidding7 | February 1, 2011 4:09 PM | Report abuse

Why, if such mandates to regulate economic inactivity are Constitutional, and fit within "Necessary and Proper," then our unemployment problem is immediately solved! Congress can simply mandate that everyone must have a job by March 31, 2011, and we can report 0% unemployment by the second quarter of this year.

Posted by: MKS1 | February 1, 2011 4:11 PM | Report abuse

The only holes around here are in the heads of those that would hand unlimited power to the federal government under the guise of the commerce clause ... for ANY reason.

Posted by: madhtr | February 1, 2011 4:15 PM | Report abuse

I want to personally apologize to everyone for the Canadian air.

Posted by: bernielatham | February 1, 2011 4:16 PM | Report abuse

OT: "Senate leaders from both political parties have agreed to hold a vote on legislation repealing President Barack Obama's health care overhaul -- a top priority of GOP congressional leaders. The vote will likely be held either Tuesday or Wednesday."

http://edition.cnn.com/2011/POLITICS/02/01/health.care/index.html
(via hotair)

Posted by: sbj3 | February 1, 2011 4:17 PM | Report abuse

"unlimited power"

That's a proper, careful and accurate description. Why, they could even make Rush Limbaugh unfat!

Posted by: bernielatham | February 1, 2011 4:23 PM | Report abuse

sbj,

Reid agreed to a vote on the repeal because he knows it will fail.

Posted by: suekzoo1 | February 1, 2011 4:26 PM | Report abuse

@sue: "Reid agreed to a vote on the repeal because he knows it will fail."

I know that.

Posted by: sbj3 | February 1, 2011 4:29 PM | Report abuse

"That's a proper, careful and accurate description. Why, they could even make Rush Limbaugh unfat!"

unfat? that's unpossible.

Posted by: NoVAHockey | February 1, 2011 4:30 PM | Report abuse

He is permanently embiggened?

Posted by: bernielatham | February 1, 2011 4:33 PM | Report abuse

All, a very interesting new gambit by Republicans in the health wars

http://voices.washingtonpost.com/plum-line/2011/02/wisconsin_attorney_general_hea.html

Posted by: Greg Sargent | February 1, 2011 4:36 PM | Report abuse

Yes. Too much time with his ranch dressing hose.

Posted by: NoVAHockey | February 1, 2011 4:37 PM | Report abuse

"I want to personally apologize to everyone for the Canadian air."

No need.

Please send more...the taos are rolling up to Lake Placid on Thurs night. Champagne powder ontoppa Whiteface baby!

I love all you hosers, and your air.

Posted by: tao9 | February 1, 2011 4:46 PM | Report abuse

@tao - When you get back, let me know what conditions you found. Any worries you'll not be able to arrive?

Posted by: bernielatham | February 1, 2011 4:56 PM | Report abuse

In general, I'm for the health care reform.

But I disagree with Hill.

A legitimate end does not justify a necessary but illegitimate means if the legitimate end is in itself not necessary.

Posted by: j3hess | February 1, 2011 5:27 PM | Report abuse

I agree with j3hess.

However, I would add that it is true even if achieving the "legitimate end" is absolutely necessary. You do not resort to violating the U.S. Constitution (or any law) to achieve that necessary end. There is always another way (a legal way)to get to that necessary end.

Posted by: reginalewis1 | February 1, 2011 8:38 PM | Report abuse

Come on... where'd this guy get his credentials to be a professor? Cracker Jacks? The ruling is clearly saying that the only way that Congress could get the CBO to give a positive cash flow for this Bill was to add the mandate.

It is ridiculous for anyone to claim that there could be a savings associated with adding children to age 25 plus everyone with pre-existing conditions. Those increase costs... the mandate brings 32 million new people paying fines or forced purchase of policies.

Force = Communism, he went beyond Socialism with this law.

Posted by: melon_51 | February 1, 2011 9:27 PM | Report abuse

Come on... where'd this guy get his credentials to be a professor? Cracker Jacks? The ruling is clearly saying that the only way that Congress could get the CBO to give a positive cash flow for this Bill was to add the mandate.

It is ridiculous for anyone to claim that there could be a savings associated with adding children to age 25 plus everyone with pre-existing conditions. Those increase costs... the mandate brings 32 million new people paying fines or forced purchase of policies.

Force = Communism, he went beyond Socialism with this law.

Posted by: melon_51 | February 1, 2011 9:28 PM | Report abuse

Meanwhile, in an alternate "ends-justify-means" universe, if the government can force Americans to buy any other product, such as a health insurance policy, what is to stop them from forcing you to buy a gun (like in Switzerland)?

Five South Dakota lawmakers have *introduced legislation* that would require any adult 21 or older to buy a firearm “sufficient to provide for their ordinary self-defense.”

The bill, which would take effect Jan. 1, 2012, would give people six months to acquire a firearm after turning 21. The provision does not apply to people who are barred from owning a firearm.

Nor does the measure specify what type of firearm. Instead, residents would pick one “suitable to their temperament, physical capacity, and preference.”

*Illustrating Pelosi-Care absurdity by being aburd.*

Posted by: KaddafiDelendaEst | February 2, 2011 9:56 AM | Report abuse

Why is it so hard for Mr. Sargent to understand this? It is entirely possible for a goal to be constitutional while the means/method for obtaining it run afoul of the constitution.

An example would be fighting crime. The goal of reducing violent crimes is not prohibited by the Constitution. But if Congress or a state passed a law confiscating the firearms of all citizens including lawfully owned guns, this would violate the constitution.

This is a poor attempt by Mr. Sargent to refute a ruling he disagrees with. Surely he can come up with something less pathetic than this.

Posted by: octopi213 | February 2, 2011 11:32 AM | Report abuse

"Someone give one example where the Federal government, using its power to regulate interstate commerce, forced individual economic activity and penalized you if you didn’t want to participate in said economic activity. I find NO example where the Federal government has done this."
-- bcarte1 February 1, 2011 3:25 PM

Then either your research skillz and/or your law library are woefully inadequate.
Here are three:

"President George Washington signed a law that required much of the country to purchase a firearm, ammunition, and other equipment in case they needed to be called up for militia service. Many of the members of Congress who voted for this mandate were members of the Philadelphia Convention that wrote the Constitution."
"The Affordable Care Act is not even the only federal law requiring someone to carry insurance... [T]he Flood Disaster Protection Act requires many homeowners to carry flood insurance."
"In July of 1798, Congress passed – and President John Adams signed - 'An Act for the Relief of Sick and Disabled Seamen.' The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance."

The first two paragraphs are from the Center for American Progress, a liberal group, so no doubt some won't accept them (despite the fact that they're reporting facts, not opinions; we've seen plenty of conservatives simply ignore inconvenient facts). But that last paragraph is from the well-known commies at Forbes.
Your apologies are accepted, bcartel -- and please tell us you're not an attorney?
But, you, melon, have just called the Father of our Country a Commie (3/4 of a century before the word existed); nothing but sabers at dawn will answer for that. Have your seconds ready.

Sources:

http://www.americanprogress.org/issues/2011/01/clearly_constitutional.html

http://blogs.forbes.com/rickungar/2011/01/17/congress-passes-socialized-medicine-and-mandates-health-insurance-in-1798/

Posted by: smartalek | February 2, 2011 1:31 PM | Report abuse

He was citing United States v South-Eastern Underwriters which established that the government can make certain health care regulations and also the Reich decision that regulatory jurisdictions have limits. This is really, really simple. The government has the right to regulate health care, but like all federal powers it has concurring limits in the same constitution. If you use a tiny shred of formal logic, if the power to regulate X has no limits in the rest of the constitution then any conceivable law or regulation would be constitutional. This is why the phrase "necessary and proper" is used, because there are things that would not be necessary and proper. After all, a variable that can only have one value is not a variable at all.

Posted by: gorak | February 8, 2011 8:28 PM | Report abuse

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