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Posted at 10:56 AM ET, 02/ 1/2011

The fight over health-care reform is more political than legal

By Adam Serwer

If there's one thing that's clear from Florida Judge Roger Vinson's polemical ruling against health-care reform, it's that the fight over the Affordable Care Act is more a political battle than a legal one.

Judge Vinson adopted Judge Henry Hudson's "inactivity" distinction to dodge the legal precedent established by Gonzales v. Raich, a distinction that will allow Justice Antonin Scalia to avoid the legal implications of his own jurisprudence when the ACA finally comes up for review. But Vinson's ruling is remarkable because of how much of its arguments are so explicitly reflective of contemporary political ones.

The key difference between Vinson's ruling and Hudson's is that Vinson went farther than Hudson in overturning the entire law and not just the individual mandate based in part on Democrats' failure to include a severability clause. That places Vinson to the right of Chief Justice John Roberts, but, as Ezra Klein notes, Vinson explicitly offers the caveat that "This is not a situation that is likely to be repeated." That throwaway line echoes a similar one in Bush v. Gore, a ruling so nakedly partisan and situational that the high court itself has orphaned it, never citing it since.

Vinson provides other explicit nods to his partisan inclinations. He winks at President Obama's most visible public opposition, citing the original Boston Tea Party, and pulls out his originalist ouija board, declaring that James Madison and Alexander Hamilton would have opposed ratification of the Constitution had they known the individual mandate might someday become law. This tracks closely with conservative arguments that the individual mandate, once touted by the "far left" Heritage Foundation, reflects the sinister, un-American perversions of the liberal influence on public discourse rather than liberals scuttling their own policy instincts and adopting a conservative route to ensuring universal coverage.

We know, of course, that the founders did not actually share the policy preferences of contemporary partisan Republicans, and that among the founding fathers were men like Thomas Jefferson and John Adams, who were open to the idea of government ensuring access to health care.

Vinson also declares that failing to buy health insurance has "no effect on interstate commerce." Steve Benen notes that this argument that is just demonstrably wrong unless one adopts a novel and relatively Clintonian definition of "impact." Everyone's health-care costs go up when people without insurance get sick and have to be treated in the emergency room.

That's the problem the mandate was created to solve. In response, Vinson adopts the conservative thought experiment that that the individual mandate could lead to the government forcing you to eat your vegetables. "Congress could require that people buy and consume broccoli at regular intervals," Vinson writes, 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."

This is meant to be a clever response to the idea that the health insurance market has particular qualities that justify the mandate. The only problem is that the argument doesn't track -- food is not like health insurance because waiting until you're starving to eat doesn't make the price of potatoes go up for everyone else. To borrow an argument made by Alex Koppelman, taxpayers already foot the bill for agriculture subsidies that manipulate us into buying cheaper, unhealthier food.

Of course, the mandate itself is a tax (although the administration has tried to have it both ways on this point) and not only does Article I explicitly give the federal government power to levy taxes, regulate commerce among the several states, and provide for the general welfare, using the tax code to manipulate public behavior is nothing new. As libertarian writer Tim Lee wrote weeks ago, if courts want to overrule the individual mandate, they have to explain why "coercing people to buy health insurance is more objectionable than coercing them to have children, pay tuition, take out a mortgage, or install solar panels on their house." Who knew we'd already been living in a tyrannical dystopia?

But Vinson's partisanship doesn't obscure or change the very real problem liberals have in offering a concise response to concerns that their interpretation of the Commerce Clause gives the government limitless power. The individual examples of apocalyptic "mandates" are easily dispatched one at a time, but collectively the slippery slope argument has power. Vinson's ruling reflects an explicit understanding among conservatives that legal fights are not so much won or lost on matters of legal precedent, but also on the field of public opinion, and that swaying the views of Justice Anthony Kennedy, whose opinion is ultimately the only one that matters, is most effectively done by portraying the mandate as a grave, un-American injustice -- a yoke of oppression the American people are dying for the Supreme Court to lift.

Simply dismissing the "broccoli mandate" as silly or citing legal precedent won't be enough to win that argument -- liberals need to find a concise way to articulate both why the individual mandate is constitutional and why it doesn't simply open the door to limitless government abuse, and thus far, they haven't found one.

By Adam Serwer  | February 1, 2011; 10:56 AM ET
Categories:  Health reform  
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Comments

It is not a tax. We would not have come to this dilemma if it were a tax.

Posted by: mark_in_austin | February 1, 2011 11:04 AM | Report abuse

Adam, is there any truth in that the mandate can't just be via the courts? I understand this is legislating from the bench as would be repealing the entire law which usually gets conservatives in a tissy but if removing the mandate must be done, so be it.

The good this law will do for many far outweighs the mandate imho but if the mandate must go, it must go.

I honestly don't know enough to determine how removing the mandate will impact everyone else's insurance rates. Sure, I hear folks echoing what they've been told but with how political this is and how many different people have a skin in the game, it's near impossible to determine who's being honest about rate hikes without a mandate or no rate hikes, etc or the fact that the mandate can or can't be stripped out. So my questions are this.


1) Can the mandate be removed from the courts?

2) If not, maybe a compromise can be worked out in Congress to remove the mandate. Have the Senate draft it up and let the Republicans vote it down.

3) If the mandate is removed, will everyone's rates really go up? If so, how much?

I'd be willing to pay a little more if millions more were insured tbh.

Posted by: mikefromArlington | February 1, 2011 11:17 AM | Report abuse

"can't just be via the courts?"

Should have been can't just be STRIPPED out via the courts.

Posted by: mikefromArlington | February 1, 2011 11:18 AM | Report abuse

Democratic Fanaticism Versus Republican Fecklessness

Judge Roger Vinson deserves the thanks of all productive, American citizens. Going against the relatively recent notion of preserving constitutional parts of an otherwise unconstitutional law, he has issued a ruling reflecting properly formulated contingency-management consistent with scientific methodology ... in this case, don’t reward undesirable legislative and regulatory behavior, you’ll only get more of it.

True to form, the ideological Democrats are denouncing the decision. The feckless Republicans are applauding it and offering a cowardly patchwork-approach to perpetuate current medical delivery, thereby, maintaining a system politically-motivated and politically-manipulated.

America needs neither. America needs comprehensive reform that is constitutional, faithful to American tradition, and scientifically-based and scientifically-driven. A detailed blueprint for such reform has been available for more than fifteen years but politically ignored.

“An error lurking in the roots of a system of thought does not become a truth simply by being evolved.”
- John Frederick Peifer

With that quote begins "Healthcare Reform D.O.A." published in 1994 in opposition to ClintonCare (out-of-print; available via the Internet). In 1995, the book received nominations for two, national awards by the American Risk & Insurance Association.

Constitutionally-consistent, universal coverage. Single payer. Private sector. Competition. Individual responsibility. Scientifically-based and scientifically-driven. Acceptable to insurance-companies. Level of interest by politicians ... then or now? Zero.

Liberal, conservative, or independent, most Americans agree that the current system is cost-inefficient. It must be changed before it bankrupts the country. Neither Republican patchwork nor Democratic ObamaCare can remedy the situation.

Admittedly, ObamaCare is the worse. It essentially is a tax-oriented law wrapped in “healthcare-reform”. It will increase the power of the Internal Revenue Service and unleash 16,000 new agents upon the American public. Its ills reflect fundamental and fatal flaws that cannot be remedied by evolution through incremental modifications. Wisely, Judge Vinson elected not to try.

Fortunately, there is a better way ... via Science. America needs a system of medical delivery built on a scientifically-based foundation and operated within a scientifically-driven framework (See Chapter 17 in the recent novel, "Inescapable Consequences" (www.inescapableconsequences.com). Without such a system, who will suffer most? As always, the patients. For a tale of one man’s challenge facing a diagnosis of prostatic cancer in the currently fragmented system created by politicians, bureaucrats, lawyers, economists, and self-styled healthcare-gurus, visit www.nationonfire.com.

Posted by: mossgr | February 1, 2011 11:31 AM | Report abuse

@ mike -- the mandate is needed only b/c of the guaranteed issue provision. the penalty is just to keep people from gaming the system and waiting until they get sick to purchase coverage, which 1) insurers will be required to provide and 2) without traditional underwriting. they can base premiums on age, smoking (?) and maybe one or two other things. but health condition isn't one of them.

i personally think the penalty is too small to have the desired effect. obnce they max out in 2016, it's about $700 a year or 2.5% of income, whatever is higher. so if someone is making $100,000 -- that's 2500 penalty, about 200 a month. even at 30k a year, that's a penalty of 750 a year. way cheaper than an insurance policy. so this is really a tax on those who could pay out of pocket and go without. make 500k a year? much cheaper to buy a plan than pay a $12,500 penalty

depending on how premiums shake out, there's a real possibility that it makes sense to just pay the penalty and then sign up for coverage if you get really sick. bank the "premiums" yourself and pay out of pocket until you need coverage.

Posted by: NoVAHockey | February 1, 2011 11:33 AM | Report abuse

mossgr is right when he says:

"It will increase the power of the Internal Revenue Service and unleash 16,000 new agents upon the American public."

Run for the hills folks for you will soon be locked up in FEMA camps! Beck was right!

Posted by: mikefromArlington | February 1, 2011 11:35 AM | Report abuse

I don't think there's a slippery slope. The bulwark against over-reaching mandates is that any Congressional mandate must actually regulate commerce. Now, one might argue that this just replaces one slippery slope for another. But there is a robust line of case law defining and limiting what constitutes "regulating commerce." This is the limit put in the Constitution by the founding fathers; it is not up to us to create other limits -- such as requiring Congress to regulate only activity, not inactivity -- which are not in the Constitution.

Posted by: lucasblower | February 1, 2011 11:41 AM | Report abuse

The mandate is there because it is the only way to have a health insurance system based on the private sector. It is there to counteract two bad outcomes--free riders and insurance bought only by the sick that is accordingly very high priced. If the mandate and the anti-abuse provisions go, the private insurance model will also ultimately go.

The only alternative to the individual mandate is Medicare for all, which is clearly constitutional. The individual mandate is the insurance co's idea. It is the pro-business solution. Roberts is a smart guy, smart enough to see that.

If he doesn't, we will see Medicare for all in Obama's second term, as soon as the Dems take the House. Which they may well do in 2012.

Posted by: Mimikatz | February 1, 2011 11:46 AM | Report abuse

PRINCETON, NJ -- About 7 in 10 national adults, including 88% of Republicans, say it is important that Republican leaders in Congress take the Tea Party movement's positions and objectives into account as they address the nation's problems. Among Republicans, 53% rate this "very important."..........GALLUP

Looks like the people have spoken. They want the anti-Obamacare, TEA PARTY ideas incorporated into the federal government.

The people know that Republicans are the only ones responsible enough to try to put a stop to the budget busting madness.

The people are trusting and relying on Republicans to oppose the Obamacrats at every turn. Republicans will do well to honor that trust.

Posted by: battleground51 | February 1, 2011 11:48 AM | Report abuse

Vinson is right,but he is also wrong.

Forcing people to buy health care is unConstitutional. It can lead to unacceptable levels of governement interference in private lives.

On the other hand, we, as taxpayers and as users of hospital facilitiesd, are already paying for the uninsured to use hospital emergency rooms.

We nedd some sort of health law. If this one is bad law, then it must re repalced by a bettter law.

The issue will not go away. Both parties need to addrress it, and share in its solution.

Posted by: samsara15 | February 1, 2011 11:51 AM | Report abuse

mossgr wrote:It will increase the power of the Internal Revenue Service and unleash 16,000 new agents upon the American public.
-------------------------
Can anyone tell me why providing health care services to citizens should involve adding 16,000 IRS jobs? Tsk tsk that silly nanny govt at it again. With today's future budget cuts it should be the automatic kiss of death for any new form of legislation if it requires new federal jobs be added.

Posted by: Desertdiva1 | February 1, 2011 11:53 AM | Report abuse

Isn't there also a democratic barrier to the slippery slope? In other words the slippery slope argument is based upon the idea that a democratically elected government will go to "x" extreme so that is why we need to stop it. It has taken at least over fifty years (at least since the Truman Administration) for a national health care policy to be inacted that would call for the coverage of just about all Americans. The current fight and the 2010 Midterm Elections shows that politicans take great risk when using the "power of government" to enact certain goals for the nation. So I ask, how realistic would it be for a law to pass the House of Representatives, get 60 votes in the Senate, and signed by the President that would call on using the power of government to force people to "eat their vegitables?" To me this isn't slippery slope, but a vast mountain to climb.

Posted by: smith6 | February 1, 2011 11:56 AM | Report abuse

Isn't there another caveat based on religious grounds also? For example, people who eschew medical treatment based on their religious beliefs are they required to buy medical coverage? If they are, then what impact does that have on their 1st Amendment rights? This entire thing is getting convoluted and might as well start all over crafting another ACA.

Posted by: draw984 | February 1, 2011 11:58 AM | Report abuse

Isn't there another caveat based on religious grounds also? For example, people who eschew medical treatment based on their religious beliefs are they required to buy medical coverage? If they are, then what impact does that have on their 1st Amendment rights? This entire thing is getting convoluted and might as well start all over crafting another ACA.

Posted by: draw984 | February 1, 2011 11:59 AM | Report abuse

Isn't there another caveat based on religious grounds also? For example, people who eschew medical treatment based on their religious beliefs are they required to buy medical coverage? If they are, then what impact does that have on their 1st Amendment rights? This entire thing is getting convoluted and we might as well start all over again crafting another ACA.

Posted by: draw984 | February 1, 2011 12:01 PM | Report abuse

Operators of big businesses insist on having it their way in any argument with the people they employ. On the one hand benefits are inadequate so as to keep the bottom line healthy. On the other hand the hired help must falsely acknowledge they enjoy working in a place that repeats the refrain "we didn't hire you to think -- do as you are told." It is a game played endlessly by authoritarians who can justify anything using words that only superficially make sense. And so this right wing judge intends to give health insurance companies their death panels back because the U.S. Constitution, he asserts, does not give Congress the power to force individual Americans to buy health insurance. Actually, to provide for the common welfare, Congress should institute rational (i.e. well-managed, effective, cost contained, scientifically-based) provision of health care that avoids eventual recourse to fully tax supported end-of-life visits to hospital emergency departments. Failure of an emergency department to provide, at any cost, end-of-life care would revile This Christian Nation. And so America's right wingers will provide no doctor's visits and no pills that maintain health but will pay any price for heroic measures once the citizen becomes sick enough to die. Jesus thinks that's just great. Apparently.

Posted by: BlueTwo1 | February 1, 2011 12:03 PM | Report abuse

So Says the Judge - with an INJUNCTION

(5) Injunction

The last issue to be resolved is the plaintiffs’ request for injunctive relief enjoining implementation of the Act, which can be disposed of very quickly. Injunctive relief is an “extraordinary” [Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982)], and “drastic” remedy [Aaron v. S.E.C., 446 U.S. 680, 703, 100 S. Ct. 1945, 64 L. Ed. 2d 611 (1980) (Burger, J., concurring)]. It is even more so when the party to be enjoined is the federal government, for there is a long-standing presumption “that officials of the Executive Branch will adhere to the law as declared by the court.

As a result, the declaratory judgment is the functional equivalent of an injunction.”

See Comm. on Judiciary of U.S. House of Representatives v. Miers, 542 F.3d 909, 911 (D.C. Cir. 2008); accord Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 n.8 (D.C. Cir. 1985) (“declaratory judgment is, in a context such as this where federal officers are defendants, the practical equivalent of specific relief such as an injunction . . . since it must be presumed that federal officers will adhere to the law as declared by the court”) (Scalia, J.) (emphasis added).


BUT - The White House Says :

The White House officials said that the ruling would not have an impact on implementation of the law, which is being phased in gradually. (The individual mandate, for example, does not begin until 2014.) They said that states cannot use the ruling as a basis to delay implementation in part because the ruling does not rest on "anything like a conventional Constitutional analysis." Twenty-six states were involved in the lawsuit.

Then - The Constitution says (Separation of Powers)

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

Which Means :

-unless the Obama Administration either stands down now or files an appeal and seeks a stay and stands down until said stay is granted, if it is, then they have indeed crossed the line.

Posted by: mdsinc | February 1, 2011 12:08 PM | Report abuse

"Food is not like health insurance because waiting until you're starving to eat doesn't make the price of potatoes go up for everyone else."

One problem with Adam's argument here is that the ACA *still* leaves millions uninsured - so costs will inevitably keep rising.

The ACA does not provide universal coverage. 1) It leaves millions without insurance. 2) It also leaves millions others without insurance who don't qualify for subsidies and choose to pay the fine. 3) It also leaves (potentially) millions of undocumented aliens without coverage.

Even the mandate doesn't solve the problem of the uninsured raising the costs for everyone else.

Posted by: sbj3 | February 1, 2011 12:10 PM | Report abuse

@battleground

You have zero credibility on this blog.
If you want to post your specious crap at least provide a link to your "Gallup" poll with highlights that back what you're saying.

In the meantime if you are a serious player perhaps you'd like to "explain" what all these surveys and polls done by groups, left, right and center including physicians groups.

And so Battleground if you have a brain interpret these polls for us.

http://www.wpasinglepayer.org/PollResults.html

Posted by: rukidding7 | February 1, 2011 12:15 PM | Report abuse

The reason the ACA is so convoluted and inefficient and includes the mandate is because of the demands of the health care industry and the insurance industry lobbyists.

The only rational solution is a universal national health insurance plan paid for by taxes. Extend Medicare to all citizens, allow Medicare to negotiate with all providers, and ban Congress from meddling with the plan, specifically to prevent Congress and its lobbyists from corrupting it as they will otherwise do.

Posted by: Chagasman | February 1, 2011 12:17 PM | Report abuse

The Democrat media is in full, frontal defensive mode for their beloved Obamacrats. They are trying to make America forget the NOVEMBER REVOLUTION of 2010 and the crushing defeat the Obama-Pelosi regime took and the real expectations of the people of America.

Barack "Hosni" Obama is turning his nose up at America while he pretends to move to the middle even though America is definately RIGHT-of-CENTER.

It's all a flim-flam with a delicate balancing act in the middle. An illusion meant to influence the weak willed and weak minded.

Posted by: battleground51 | February 1, 2011 12:19 PM | Report abuse

Your article over health-care reform is more political than factual.

I don't need to be told what to do by the government and they don't have that power.

Posted by: shadrico | February 1, 2011 12:19 PM | Report abuse

@sbj

All excellent points!

Posted by: rukidding7 | February 1, 2011 12:20 PM | Report abuse

We already have nearly "limitless government abuse."

Posted by: foofoofoo | February 1, 2011 12:20 PM | Report abuse

All, check this out, David Shuster is launching a new political/investigative Web site:

http://wapo.st/eEITMK

Posted by: Greg Sargent | February 1, 2011 12:28 PM | Report abuse

battleground writes
"PRINCETON, NJ -- About 7 in 10 national adults, including 88% of Republicans, say it is important that Republican leaders in Congress take the Tea Party movement's positions and objectives into account as they address the nation's problems. Among Republicans, 53% rate this "very important."..........GALLUP

Looks like the people have spoken. They want the anti-Obamacare, TEA PARTY ideas incorporated into the federal government."


With all due respect, I think you may be misreading the results. It says 7 in 10 want Republican leaders to consider the TEA party positions. It does not say that all leaders should consider TEA positions. For the 88% of Repubs that feel this way, its likely a genuine feeling that the TEA platform (not that it can be stated definitively) is important. But for the Dems & moderates, they likely want Repub leaders to promote the TEA platform knowing it will further marginalize the GOP as a scarily reactionary, uber-conservative ideologically driven organization that ignores the potential negative impacts of their policy proposals.

Its not unlike the Dems that want to see that politician the coverage of whom is boycotted this month nominated for POTUS.

Posted by: bsimon1 | February 1, 2011 12:35 PM | Report abuse

My problem with opposition to the HRC is that it’s purely political. Most are against it solely because it was passed by Pres. Obama and the Democrats. They forget, or don’t care that it was an attempt to address a real and serious problem. The spiraling cost of health care could not be sustained. Going back to before HRC is ruinous to the country. Again, it seems those in opposition could not care less. Their reply is that we should start over. Why? Can we expect better results with the Republicans in charge? If so, what are some of their ideas that realistically address the problem? If we start over will the Democrats cooperate with the Republicans in Congress? Why should they? All the while the problem persists. I am perfectly willing to consider a replacement for the HRC but I’d like to see and assess the alternative. So far the Republicans don’t have one. Their only interested is in repealing the HCA. When in charge they had no answers to the nation’s problems (except going to war), but they are united in their opposition to any attempts to address them. The Republican approach is immature, childish and a real danger to this nations viability.

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

"I am perfectly willing to consider a replacement for the HRC but I’d like to see and assess the alternative."

PPACA's biggest flaw is that it builds on the employer-based system. It's 2nd biggest flaw is that it continues the trend of treating insurance as pre-paid health care. These are both the wrong way to go about financing health care. Insurance should be about unknown, catastrophic medical costs, not low co-pays for doctor visits, prescriptions and prevention. PPACA also does nothing to address the biggest driver of health costs -- end of life care.

Instead of focusing on comfort and compassion at the end of life, we're pouring resources into making sure 90-year-olds make it to 90.5

Posted by: NoVAHockey | February 1, 2011 12:47 PM | Report abuse

Perhaps some of the citics of the ruling of Judge Vinson should read it. They don't seem to take the words for their plain meaning. The law is unconstitutional because it stretches the commerce clause to its breaking point, beyond the breaking point. The federal government CANNOT compel individuals to do something, like buy insurance. The states can. Real simple. He even gave you a primer on the Constitution, legislative history and the meaning of the Constitution, if you will read it.

Posted by: cccarol | February 1, 2011 12:47 PM | Report abuse

One good solution for this problem would be universal health care. This would be paid for by taxes. There is simply no reason that the United States the wealthiest nation in the world has so many who are without access to health care. The health insurance industry is a broken and corrupt institution in which a large proportion of the funds paid for health care goes instead to the insurance broker to pay for bloated salaries and bonuses for executives. In addition the growth of for profit hospitals has added to the cost of health care without delivering the more or better service.
A meaningful discussion of health care reform would include a discussion of controlling health care costs of providing clinics to care for patients who may go the the emergency room for non emergency issues.Another topic would be preventive medicine and also the costs financially as well as in human costs of not providing health care for small ailments for example strep which can progress to larger and even permanent disabilities if not treated properly. Such illnesses can also be spread to others if left untreated.
It is short sighted for GOP supporters to oppose a health care plan for all citizens. Lack of proper health care poses an national security threat as it could have in the case of the Swine Flu scare. It is time to be realistic about this issue rather that to argue for withholding medical services from people who are too poor with with the argument that they are somehow undeserving or lowlifes because they can't afford care.

Posted by: OhMy | February 1, 2011 1:04 PM | Report abuse

In the largest sense this is a political matter since Obamacare violates the US Constitution and rejecting the scheme in toto is not only appropriate it is necessary to curb a run amok government and a power mad White House occupant. Also defining federal mandates to the state without funding is unconstitutional - as are all federal mandates not welcomes by the state. It is time to put Obamacare and Ohama extremes under control. Oh yes, and the rum amok government includes both parties and any so-called independent office holders.

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

The author tainted his stand when he implies that Bush vs. Gore was a patrician decision in favor of Bush. The hanging chad circus was a total nonsense which the Gore camp initiated. And the liberal FL high court was allowing it to proceed despite the objection from FL chief justice. The US high court was wise to step in. Mind you too that it was the vote from O’Conner that tilted the balance and her votes were widely considered independent. It was patrician alright. But in liberal’s eyes, it was patrician in favor of Bush. The truth is that the high court properly intervened and the "justice" was done.

Posted by: indi2 | February 1, 2011 1:11 PM | Report abuse

As a liberal I'm delighted with Judge Vinson's ruling (even though I think he's wrong). ObamaCare is I hope SOTUS deep-sixes ObamaCare too. Only then can we get a truly affective government-run universal health care system that works.

I'm curious, though, what if SCOTUS upholds Vinson. What about Social Security? Isn't that a program where the federal government requires people to buy something (a future annuity) they might not want, with a penalty if we refuse to pay into it?

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

The question is not whether failing to buy health insurance affects interstate commerce. The question is whether failing to buy health insurance *is* interstate commerce. The Constitution doesn't give the federal government the right to regulate activity that affects interstate commerce. It only gives it the right to regulate interstate commerce itself.

An individual who chooses not to buy health insurance may be affecting interstate commerce, but by definition they are not engaging in interstate commerce.

Posted by: sacon71 | February 1, 2011 1:30 PM | Report abuse

"Isn't that a program where the federal government requires people to buy something (a future annuity) they might not want, with a penalty if we refuse to pay into it?"

Social security is a straight up tax. and there's no guarantee of benefits, so you're not buying anything or being penalized for anything. there's no penalty for refusal, b/c you can't refuse outside of some very narrow reasons.

Posted by: NoVAHockey | February 1, 2011 1:32 PM | Report abuse

PPACA's biggest flaw is that it builds on the employer-based system. It's 2nd biggest flaw is that it continues the trend of treating insurance as pre-paid health care. These are both the wrong way to go about financing health care. Insurance should be about unknown, catastrophic medical costs, not low co-pays for doctor visits, prescriptions and prevention. PPACA also does nothing to address the biggest driver of health costs -- end of life care.
Instead of focusing on comfort and compassion at the end of life, we're pouring resources into making sure 90-year-olds make it to 90.5
Posted by: NoVAHockey
________________________

Very well said. I would gladly trade paying $100 for a doctor visit (or whatever it costs) once or twice a year for a lower cost of insurance. Each health insurance policy should be written with the individual needs in mind, much as an auto or homeowners insurance is. We are all paying into the pool, but choosing our coverage options. With small kids, I would value a lower co-pay for a broken arm and a higher co-pay on other types of care. But as of now, I don't have that choice. I'm left with the one size fits all that my employer gives me.

@Trakker - No, SS wouldn't be affected. It's a tax that anyone who works pays. I wouldn't like it, but if the Government made everyone pay an employment tax for health care and had a single payer system, it would likely be legal. The problem here is a tax that is used as a negative incentive to get people to participate in commerce, and that hasn't been done before.

Posted by: Bailers | February 1, 2011 1:54 PM | Report abuse

If the "broccoli mandate" is silly explain Obama and the democrats obsession with the amount of salt people put on their french fries.

Posted by: peterg73 | February 1, 2011 2:03 PM | Report abuse

@ indi2, I think you meant to write "partisan", not "patrician", though some feel that the Supreme Court has become too patrician, so maybe that is what you intended. Regardless, your analysis of the Court's decision in Bush v. Gore is simplistic. Officials in Florida were attempting to carry out a recount according to the laws of the state. The GOP responded by sending the so-called Brooks Brothers Brigade to intimidate the election workers, a fact that you failed to mention. The Supreme Court chose to exercise unprecedented judicial activism by hearing the case and overturning the decision of the state supreme court. These actions were inconsistent with the Republican belief in judicial restraint and states' rights, but since the outcome favored the GOP candidate, the Court's activism was rationalized as being "best for the country".

If the Court rules that health care reform as it's currently written does not violate the Constitution, and is therefore legal, I hope that the GOP will again support the Court's decision...but I wouldn't be surprised if they strongly object.

Posted by: PhilM22 | February 1, 2011 2:08 PM | Report abuse

You want affordable healthcare? Since most on this blog decry the cost of " making sure 90-year-olds make it to 90.5", then simply change existing Medicare rules, diverting the savings to Medicaid. Subtract the cost of illegal care from any loans/grants to Mexico or country of origin; or take vouchers for oil for care of said individuals. Buy insurance across state lines. "Loser pays" in tort cases. Mandatory arbitration for those on government healthcare programs (medicare, medicaid). Separate court system (such as is seen with Patents, Family law, Maritime law) for medicine.
However, all the above will piss off lawyers- good luck.

Posted by: wizardman1 | February 1, 2011 2:21 PM | Report abuse

Why bother finding "a concise way to articulate both why the individual mandate is constitutional"

This is a political fights. We need to go after these activist judges who are bought by deep pocket social engineers. How much is this judge paid to send every year 44000 people to their death?

Posted by: tchanta | February 1, 2011 2:53 PM | Report abuse

Adam misses the point entirely. What we ordinary citizens want is to be left alone to solve our own problems. The government has so lied to us about the New Deal and the Great Society and the cost therein that now we just want to be left alone.

Posted by: ronc3 | February 1, 2011 3:36 PM | Report abuse

@ sacon71:

You are close, but not quite right. Commerce Clause jurisprudence clearly allows Congress to regulate "activity, that, in the aggregate, has a substantial effect on interstate commerce." (There are three general categories that fall under the scope of the Commerce Clause--this is one). The issue here is the word "activity."

@Trakker, @ Bailers,

Bailers has it semi-right as well. Social Security is a tax--it is constitutional under the Tax and Spend clause--it does not rely on the Commerce Clause. The "negative incentive tax" explanation is a bit misleading I think. The penalty vs. tax distinction is more apt. Were this a tax--the Tax and Spend Clause would be a constitutional basis for the law. But because it is a "penalty", the Government must rely on the Commerce Clause--which is where they are running into trouble.

@PhilM22

I think you, and many others, are mischaracterizing "judicial activism." Judicial activism, a/k/a "legislating from the bench" is when a judge departs from the Constitution and established precedent in order to "make new law" from the bench.
Here, Judge Vinson went through all of the Commerce Clause cases, and realized that the high-water mark of the CC was in Wickard and Raich. As previously noted, they allow for Congress to regulate all "activity" that substantially affects interstate commerce. In order to uphold this law, that would have to be extended to all "activity and inactivity" that substantially affects interstate commerce.

Basically, Judge Vinson simply declined to extend the reach of the Commerce Clause, and in doing so, refused to "make new law"--his actions were the very definition of judicial restraint.

Posted by: Johnny_Lawrence | February 1, 2011 4:00 PM | Report abuse

The problem is that progressives have begun to believe that what they thought they knew was actually true. The Commerce Clause has already been stretched MUCH farther than Madison and Hamilton intended; making it meaningless altogether requires amending the Constitution, something the left wing has been unable or unwilling to do since 1971.

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

Adam's screed is, as usual, a mess.

"...Bush v. Gore, a ruling so nakedly partisan and situational that the high court itself has orphaned it, never citing it since."

Actually, it was 7-2 that the recount was unconstitutional, with liberals Breyer and Souter agreeing. They differed with the other 5 only in remedy. They would have ignored the certification deadline and remanded for full recount (which Bush would have won), but that was a moot point since it could never have been completed.

"That places Vinson to the right of Chief Justice John Roberts, but, as Ezra Klein notes, Vinson explicitly offers the caveat that "This is not a situation that is likely to be repeated." "

Absurd. Those cases have nothing to do with each other. Read in Judge Steeh's opinion upholding ACA what he said -- and quoted the O Admin saying -- about the indispensability of the mandate to the entirety of ACA.

"Vinson provides other explicit nods to his partisan inclinations."

A reference to the original Boston Tea Part is an explicit partisan nod now? (What is an explicit nod anyway? An explicit hint?) Naturally, you have no response to the point he actually made -- that the country was founded for freedom from mandates.

"The only problem is that the argument doesn't track -- food is not like health insurance because waiting until you're starving to eat doesn't make the price of potatoes go up for everyone else."

You are being deliberately obtuse. His point is health food and health care costs. Those who eat veggies impose lower costs than those who eat cheeseburgers. Voila, there's your impact on commerce.

"Of course, the mandate itself is a tax (although the administration has tried to have it both ways on this point) and not only does Article I explicitly give the federal government power to levy taxes, regulate commerce among the several states, and provide for the general welfare, using the tax code to manipulate public behavior is nothing new."

No, it's not a tax, and the Dems explicitly denied it was a tax.

And you've hopelessly mangled Art I Sec. 8. There is no general power to "provide for the general welfare." Moreover, the taxing power is defined and confined.

All of which suggests that the only thing Adam gets right is the end:

"liberals need to find a concise way to articulate both why the individual mandate is constitutional and why it doesn't simply open the door to limitless government abuse, and thus far, they haven't found one."

That's because there isn't one. One would think that an admission like this would not be preceded by paragraphs of frothing denunciation of an opinion that agrees.

Posted by: quarterback1 | February 1, 2011 4:11 PM | Report abuse

As a liberal I'm delighted with Judge Vinson's ruling (even though I think he's wrong). ObamaCare is I hope SOTUS deep-sixes ObamaCare too. Only then can we get a truly affective government-run universal health care system that works.

I'm curious, though, what if SCOTUS upholds Vinson. What about Social Security? Isn't that a program where the federal government requires people to buy something (a future annuity) they might not want, with a penalty if we refuse to pay into it?

Posted by: Trakker
===========================================
Classic. Only a liberal would attempt to justify a new bloated gov't entitlement that is sure to bankrupt the country by citing an existing bloated gov't entitlement that is already bankrupting the country.

Posted by: peterg73 | February 1, 2011 5:26 PM | Report abuse

Adam Serwer: "liberals need to find a concise way to articulate both why the individual mandate is constitutional and why it doesn't simply open the door to limitless government abuse, and thus far, they haven't found one."
---------

Oh, yes they have, even if Serwer doesn't know about it: During George Washington's presidency, Congress enacted a law requiring citizens to buy their own weapons and ammunition (for those "well-regulated militias" nobody's supposed to notice). Then, during the John Adams administration, a law was enacted requiring merchant seamen to pay for, of all things, HEALTH INSURANCE!

Over 200 years later, we have yet to labor under the yoke of tyranny that Washington's and Adams' "socialism" should have produced according to the GOP gospel. It's beyond me why nobody in the Democratic leadership or writers like Serwer are discussing these mandates or are unaware of them.

I don't have the link off hand for the George Washington mandate, but you can find the articles about this on Think Progress if you do a little searching.

Here's a link to an article about the Adam's mandate:

http://open.salon.com/blog/paul_j_orourke/2010/03/24/news_pres_signs_h-care_insurance_mandate-212_years_ago

Posted by: Spacer | February 1, 2011 5:32 PM | Report abuse

Ever wonder about all the free stuff you see on the web? It appears like everybody wants to give stuff away for nothing, nada, zilch. But are these items truly free of charge? If so, how can these companies afford to give away all of these coupons and samples? It’s truly all about you, the consumer. We live in a very competitive world marketplace place. The internet has upped the ante in terms of who could be seen and heard via all with the mass media. Now companies need to make lots of noise and this is one way that can do it. One of the best place on the web is called "123 Get Samples" and get your free stuffs

Posted by: jackiemichel2 | February 2, 2011 3:18 AM | Report abuse

Your closing paragraphs are good but some of the earlier paragraphs are misleading:

There was no precedence dodging. Vinson's overriding point was that the major precedent is the "inference on inference" test and since the mandate/PPACA failed that test he had no choice but to rule it unconstituional. Vinson said if SCOTUS or a consitutional amendment changed that rule (or decided Vinson was wrong and that it did meet the test or that the test wasn't the major precedent), so be it; he -- a district judge -- can't rule against such settled law.

As for the severability issue, the fact that it was not there was secondary (did you read the opinion or are you just going by what Ezra Klein said it said who is depending on what some professor at Georgetown said it said but not quoting him accurately?). Vinson gave an example where he could have severed parts of the PPACA from the mandate (e.g., the $600 1099 requirement on businesses) but instead he accepted the Obama administration's arguments (he even cited one by candidate Obama himself, albeit it was the candidate's argument against a mandate) that the law could not function without the mandate. In fact Vinson specifically noted that the lack of a severability clause -- even the fact that the Congress chose to remove the severability clause that had been in an early version of the legislation -- was not an issue.

You are right to make the "its a tax argument, and therefore OK for Congress to enact." It's true that Congress could have passed such a tax-based healthcare law (if it have gotten Nelson, Landrieu, Lincoln and about a half dozen other Democratic-party senators from red states to vote for such a tax) but both Congress (had it in and took it out during passage) and the President (famously to George Steph. on ABC) said it wasn't a tax. This was a key component of the Eastern Virginia case but apparently the Justice Department did not even bring it up in the Pensacola case. It's not mentioned in Vinson's decision (again, did you read the decision?)

PPACA supporters should take the taxation route and do the honest Johnsonian thing instead of depending on all the budgetary sleight of hand and the Cornhusker amendment and the Louisiana Purchase and the executive order on abortion funding. Repeal PPACA. Then, propose a law that raises the Medicaid tax from 3% to 12% or whatever it would take. Apply the tax to all income not just employment income. (Note what many single-payer proponents are arguing for is Medicaid for all, not Medicare for all -- anyone on Medicare knows what I mean).

Propose such a law as LBJ did and see if it flies.

-- Dennis Byron

Posted by: byrondennis | February 2, 2011 7:45 AM | Report abuse

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