The 26 states that sued over the new federal health care law picked the perfect judge, Florida's Roger Vinson, for their case. Today he struck down the entire act, using shout-outs to the Tea Party and libertarian blogs. Let's explore.
Vinson is the second federal judge to rule at least part of the law unconstitutional, along with Judge Henry Hudson of Virginia. These are two of the more conservative judges in the country, so it's not especially surprising. Meanwhile, two more liberal judges have affirmed the law's constitutionality, so the score is now "tied." (As Ezra Klein describes it, "Whatever happens to the legislation at the end of the day, the clear level of politicization in the judiciary is getting its day in the sun.") There will be more rulings and appeals going forward, but this is going to land at the Supreme Court at some point within the next 100 years. And then the future of America's health care system will depend on how Justice Anthony Kennedy feels the morning he has to make a decision. What would his opinion look like if he's, say, hungover? Maybe we'll find out.
Vinson's ruling, though, voided the entire Patient Protection and Affordable Care Act over the individual mandate to purchase insurance, whereas Hudson just killed the mandate and left the rest to stand. That's rather bold! And he explains it with a nod to the Boston Tea Party and the platitudes of the current Tea Party:
It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.
If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be "difficult to perceive any limitation on federal power" [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.
It didn't help that the Obama administration approached universal coverage through the "commerce" of mandated for-profit insurance instead of, say, taxing people and then providing health services. But we all know the political realities. So when you defend it under the Commerce Clause before a judge like Roger Vinson who doesn't see the natural difference between health care — something that all humans will have to pay heavy costs for during their lifetimes — and every other form of "commerce," like the luxury product tea, then you're likely to get a hyperventilating ruling that claims there's no limit to what the federal government can do in any industry now.
How else did Judge Vinson make his ruling, though? Well, he watched a nifty video on the Reason magazine blog:
For example, in the course of defending the Constitutionality of the individual mandate, and responding to the same concerns identified above, often-cited law professor and dean of the University of California Irvine School of Law Erwin Chemerinsky has opined that although "what people choose to eat well might be regarded as a personal liberty" (and thus unregulable), "Congress could use its commerce power to require people to buy cars." See ReasonTV, Wheat, Weed, and Obamacare: How the Commerce Clause Made Congress All-Powerful, August 25, 2010, available at: http://reason.tv/video/show/wheat-weed-and-obamacare-how-t.
He also came up with a math equation. Did you know that zero times zero is zero? Roger Vinson knows this, and that's why you can't have health care:
For example, in contest to individuals who grow and consume marijuana or wheat (even in extremely small amounts), the mere status of being without health insurance, in and of itself, has absolutely no impact whatsoever on interstate commerce (not "slight," "trivial," or"indirect," but no impact whatsoever) —- at least not any more so than the status of being without any particular good or service. If impact on interstate commerce were to be expressed and calculated mathematically, the status of being uninsured would necessarily be represented by zero. Of course, any other figure multiplied by zero is also zero. Consequently, the impact must be zero, and of no effect on interstate commerce.
Whether you think it's enough to protect the law under the Commerce Clause or not, uninsured people do have an effect on interstate commerce. If there's a large population of uninsured folks in one place who get unpaid treatment in emergency rooms, then everybody else — taxpayers or policy holders elsewhere — pay more. Vinson, though, just writes a math joke.
He's right that the individual mandate is such a crucial part of the law's delicate insurance system that, if found unconstitutional, it could destroy the whole insurance system. But why void the entire act, of which there are other parts? What about the expansion of Medicaid to millions, or the many cost-control pilot programs?
It is a complicated issue, health care! And this bill has plenty of problems. But Vinson's "0 x 0 = Fuck Health Care" ruling is surely not what the Founding Fathers could have intended when they created a judicial branch.
See you in a few years, Justice Kennedy!