A number of constitutional scholars have weighed in on Judge Roger Vinson’s ruling that struck down the entire Affordable Care Act, mostly finding it flawed if not absurd. Yale Law School Professor Akhil Reed Amar writes about the ruling in the Los Angeles Times, and presents a number of reasons why Vinson doesn’t know the Constitution from refrigerator mold.
The first argument is that, as a lower court judge, Vinson has no authority to completely ignore Supreme Court precedents. This same argument can be found in many other dissections of Vinson’s opinion, including one at Volokh Conspiracy, by Orin Kerr —
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.
Back to Professor Amar. The central issue, Amar says, is how much power the Constitution gives to Congress. Amar cites the landmark case McCulloch vs. Maryland (1819):
In McCulloch, when states’ rights attorneys claimed that Congress lacked authority to create a federal bank, Chief Justice John Marshall famously countered that the Constitution gives Congress implied as well as express powers. Marshall said that unelected judges should generally defer to elected members of Congress so long as a law plausibly falls within Congress’ basic mission. Though the words “federal bank” nowhere appear in the Constitution’s text, Marshall explained that Congress nevertheless had the power to create such a bank to facilitate national security and interstate commerce. Other words not in the Constitution include “air force,” “NASA,” “Social Security,” “Peace Corps” and “paper money,” but all these things are constitutional under the logic of McCulloch. Obamacare is no different.
I’d rather he didn’t call the Affordable Care Act “Obamacare,” but I’ll overlook that for now. Then Professor Amar looks at the Commerce Clause —
Obamacare regulates a healthcare industry that obviously spans state lines, involving billions of dollars and millions of patients flowing from state to state. When uninsured Connecticut residents fall sick on holiday in California and get free emergency room services, California taxpayers, California hospitals and California insurance policyholders foot the bill. This is an interstate issue, and Congress has power to regulate it.
Even were it conceded that a particular piece of Obamacare regulates a wholly intrastate matter, that piece is OK so long as it is a cog within a truly interstate regulatory regime. In 2005, the court allowed Congress to criminalize private possession of homegrown marijuana plants because, even if these plants did not themselves cross state lines, a blanket prohibition was part of a legal dragnet regulating a genuinely interstate black market in drugs.
I liked this part —
Laws may properly regulate both actions and inactions, and in any event, Obamacare does not regulate pure inaction. It regulates freeloading. Breathing is an action, and so is going to an emergency room on taxpayers’ nickel when you have trouble breathing.
Amar says that, strictly speaking, the ACA does not mandate the purchase of insurance. It just says that you either purchase insurance or pay a tax. Apparently Vinson found that this tax does not fall under the powers given to Congress to levy taxes, a argument that Amar finds bizarre.
Finally, after that and some other good points, Amar adds —
In 1857, another judge named Roger distorted the Constitution, disregarded precedent, disrespected Congress and proclaimed that the basic platform of one of America’s two major political parties was unconstitutional. The case was Dred Scott vs. Sanford, involving a slave who sued for his freedom because he had lived with his master in places where Congress had banned slavery. In an opinion by Chief Justice Roger Taney, the court not only ruled against Scott, saying that even free blacks were not citizens and therefore had no right to sue; it also declared the Missouri Compromise, which had outlawed slavery in Northern territories, unconstitutional.
Naturally, the rightie blogosphere, the Cato Institute, and rightie media generally are going nuts over that last paragraph and tearing it to shreds, while mostly ignoring the rest of the column. They are basically taking it as an insult. One guy wrote
Amar starts out by saying his students know more about the Constitution than Judge Vinson, but what I wonder is whether Amar’s students will, like their teacher, use false analogies, set up straw men, ignore their opponents’ arguments, and resort to the equivalent of childish name-calling.
BTW, the same guy who wrote the sentence above crafted a rebuttal to Amar that consists entirely of false analogies, straw men, and ignoring Amar’s arguments. The rebuttal is anal beyond words and reveals the writer has no grasp whatsoever of health care issues and how the Affordable Care Act addresses them. I don’t have time to take the whole thing apart, but for example —
“There is nothing improper in the means that Obamacare deploys,†he writes. “Laws may properly regulate both actions and inactions…” Of course, that part’s true, but it’s beside the point. Congress doesn’t have a general power to write laws; it only has power to “regulate commerce…among the several states.†If the founders had intended to give Congress a general power to write laws, they would have. But what they chose to do instead was to give Congress specific, limited powers. The question here is whether a law that forces people to engage in commerce qualifies as a “regulation of commerce.†Amar merely dodges that question.
Amar doesn’t dodge the question of the commerce clause at all, as you can see by the parts I have already excerpted above.
Get this —
“…and in any event,†he continues, “Obamacare does not regulate pure inaction. It regulates freeloading. Breathing is an action, and so is going to an emergency room on taxpayers’ nickel when you have trouble breathing.â€
Think about that: breathing is an action. Does Amar believe that Congress can put conditions on your choice to breathe?! There’s a word for governments that require every citizen to do something as a condition of continuing to breathe. The word is not “freeâ€!
Did I say this guy was anal beyond words? I mean, how stupid do you have to be to have so totally missed the point? The point, of course, is that the individual mandate addresses the issue of cost shifting caused by uninsured people who can’t pay for their own care. The costs are shifted to taxpayers and to the insured — hospitals pad their bills to make up for uncompensated cost, and that cost is passed on to the people who pay padded insurance premiums. But it’s an extremely inefficient and costly way to provide health care. Seeing to it that most people are insured should (the CBO says) bend the curve on health care costs. And this is central to what the Affordable Care Act is trying to do — keep skyrocketing health care costs from bleeding our economy dry. And this makes it a perfectly reasonable thing to be regulated under the commerce clause, since it impacts the entire American economy and the commerce thereof.
But Mr. Anality continues, saying that “Nor is Amar’s reference to emergency rooms relevant. Obamacare has nothing whatsoever to do with this.” Like most righties, he can’t see how things interconnect. The Affordable Care Act probably doesn’t directly address the mandate for federally funded emergency rooms to at least stabilize everyone who comes through the door, even if they can’t pay. But one of the obvious effects of getting more people insured is to relieve the stress on emergency rooms and get people care in a more cost-effective way.
Update: Some of you will appreciate this — “Health Care Challenge in Florida: Blotting Out the Necessary & Proper Clause” by Simon Lazarus at the American Constitution Society.
