The New Republic

Quite so. Vinson is a moron and the judicial right-wing is a fraud. Not because it is not right-wing but because there is nothing judicial about it. It bears no relationship at all to several centuries of American jurisprudence. It is pure outcome-driven nonsense. The defrauder and marauder-in-chief? Antonin Scalia, and his side-kick and lapdog, Clarence Thomas. Morons like Vinson figure, if Scalia and Thomas can do it, why can't they?

- roidubouloi

February 17, 2011 at 12:27am

Hudson J. ruled against the mandate but Judge Vinson J. struck down the whole law on the (for one) ground—stated most broadly— that the individual mandate is outside the scope of the Commerce Clause and is inextricable from the whole law. Obama argued of course that the mandate comes within the Commerce Clause. No question, insurance is commerce. But is not buying insurance commerce, since commerce involves economic activity? Hudson J. said that it wasn’t. The argument put to Vinson by Obama was that not buying health insurance was different from not buying other products because health insurance is "unique." The basis for the differentiation is that at some point each American will need and get health care. Absent insurance, their costs are shifted onto others. That has a substantialyl affects commerce, goes the argument. Vinson J. had none of this. He dismissed this differentiation by reasoning that "not consuming" other products—food, clothing shelter—is also unavoidable and can also substantially affect their related markets. Virtually all decisions, he said, have economic consequences and when put together (“aggregated”) with many similar decisions can affect price of that particular product or service and substantially affect interstate commerce. On the Necessary and Proper Clause, Vinson noted Scotus dicta that that clause does not provide legislative jurisdiction beyond the enumerated federal powers. Rather the clause, said Vinson, gives the legislature the power to choose how to exercise those powers. Obama argued the mandate is a necessary and proper means of carrying out its reforms in the health-insurance market. Since these reforms increase the cost of health insurance each person needs to buy it. Otherwise, people will wait matters out till they get sick. So, goes the argument, individual mandates are necessary and proper. Vinson J. had none of this either. He reasoned that while reforming an insurance market is within the Commerce Clause , the legislature can’t by statute create a market crisis in the insurance market and then piggy back on it to justify an otherwise unconstitutional mandate as "necessary and proper" to resolve the crisis. If it were otherwise, Vinson said, Congress could pass legislation calculated to do great harm and then resolve that harm by recourse to the Necessary and Proper clause—the greater the harm, the greater the power Congress could arrogate to itself. Vinson said that would distort the meaning of that clause and allow the legislature to skate past the powers specifically accorded to it.

- basman

February 17, 2011 at 2:53am

p.s. I never worked my way through Vinson's analysis of the tax argument.

- basman

February 17, 2011 at 2:54am

The present supreme court has proven itself quite adept at outcome prone decisions. Wasn't that at the heart of Gore v Bush. I am quite sure that the court will strike down the health care law and not mind the inherent contradictions flowing from that.

- paskunac

February 17, 2011 at 7:04am

I particularly enjoyed Vinson's discussion of the founders (mostly Madison and Hamilton) and the federalist papers, and whether the founders would approve the mandate. Of course, considering health care under the principles of originalism proves the fallacy of the latter, for how could anybody "know" what the founders might think about modern medicine, the standard treatment at the time being bleeding, often with the aid of leeches, to "cure" the patient. For those jurists with a preference for originalism, here's my proposal: you may employ originalism to discern the constitutionality of ACA but only if you agree that only those medical treatments employed in the 18th century will be used to treat you if you ever get sick or injured.

- rayward

February 17, 2011 at 7:35am

University Hospitals and The Cleveland Clinic both still have leeches in their pharmacy inventories today. (not that that is relevant to the discussion..but I thought it was interesting)

- John_Hart

February 17, 2011 at 9:27am

Thank you Basman. I am not arguing with you, but with Vinson. However I see that first: the government can force you to eat, wear clothes, and have shelter. Otherwise, they can lock you up and give you drugs to comply. Second, and this may be a political decision but the 2008 congress had the mandate to make it, ACA was in response to a crisis that was already happening. In this country, we do not deny people health care coverage if they can't afford it. However, the care is not optimal for the people who get it, yet costs more than it would if those people got earlier and better health care. Taxpayers, such as myself, pay for this care, so why can't we get the government to do something about it? The 'mandate' is not really a mandate at all, since a person neither goes to jail nor has his or her wages garnisheed to pay for health insurance. It would make more since to re-arrange the tax code so that health insurance gets a deduction, but an extra fee for *not* having insurance is the moral equivalent.

- polijunky

February 17, 2011 at 9:31am

I'm predicting Vinson as the next Supreme Court nominee by a Republican president. He'll bang a head of broccoli on the table during his confirmation testimony.

- bmoodie

February 17, 2011 at 9:37am

One of the canons of constitutional construction is the rule that there is a presumption of constitionality and that if there is any constitutional basis for a legislative enactment at all the legislation will be sustained, even if unvoiced or opposite views were voiced during the passage of the act. An example of this is seen in the cases involving installment of religious symbols on public lands where the courts have repeatedly sustained the 'secular' purposes of such installations even though the actual placement of the symbols involved specific references and appeals to particular religions. The concept explained by the court has been that if there "could" have been a secular purpose--but not stated, such purpose would sustain the act. It is apparent that Judge Vinson completely ignored these longstanding rules for how one evaluates a challenge to a statute. I suspect it will be on these kinds of violation of basic constitutional standards of construction that his ruling will have trouble on appeal. Whatever Congress may or may not have called the personal mandate penalty, if it could be a tax, it makes not difference to normal constitutional analysis.

- danbd

February 17, 2011 at 9:41am

I assume that the moron Vinson doesn't file his tax returns, didn't register for the draft, doesn't buy auto insurance as condition to the privilege of driving (as he would not buy health insurance in order to avoid the tax). After all, our government has no authority over his inaction. Didn't Madison say that, or think that, or wasn't there someone somewhere thinking that when the Constitution was being written, or maybe some guy in a tavern who complained about it back in 1788? Vinson is at his most moronic in arguing that whether Congress called the payment incident on the failure to buy health insurance a tax or not is relevant to its power to impose it. Here he invents an entirely new theory of constitutional law and of law generally, that the manner in which things are named is relevant to whether the legislature does or does not have the power to enact them. Some sort of theory of truth in constitutional labeling. If they imposed a tax and gave credit for it by way of subsidy to anyone who bought health insurance, no problem. If, on they other hand, they only impose it, and call it a penalty, in the case of those who don't buy health insurance, that's a constitutional problem. The failure to label according to Vinson's politics is an unbearable imposition on a free people. Congress is forbidden, somehow, from naming its actions for political impact. I suppose this means that if the Republicans successfully enacted that "Repeal the Job-Killing ACA" or whatever asinine title they gave it, it would be unconstitutional if it were demonstrated that the ACA created jobs, Congress having no power to obtain a legislative outcome by naming for political impact. It seems never have occurred to the moron that huge swathes of the tax code consist of credits toward taxes for doing or not doing various things. Obviously, the investment tax credit, for one, is unconstitutional. Or maybe Vinson is actually one of those libertarian wack-jobs who thinks the entire income tax is unconstitutional. God save these United States from the army of right-wing morons that besieges us.

- roidubouloi

February 17, 2011 at 9:46am

Is Chait really this stupid? What BS 1. The bill isn't a tax. Why? By definition. The word tax is never used in the bill. Congressional taxing authority is never cited. To be a tax a bill has to actually include the tax in the language of the bill. Duh!!! Even liberals must understand that the scope of a bill or contract defines the scope 2. Necessary and Proper only applies to enumerated powers and other consitutional powers-- read the constitution. 3. Inactivity is not the same as activity for commerce. Chait example of regulating inactivity -- enlist in military -- is an example of enumerated powers (raise an army) in constitution and doesn't apply to commerce clause. Another Chait error -- Vinson didn't rule that the entire law is unconstiutional -- he ruled that the individual mandate is unconstitutional and not severable, thus entire law is void. Nuance but important.

- mr_rationale

February 17, 2011 at 9:47am

paskunac is correct. While ridiculing the fallacies of Judge Vinson's analysis might be interesting academically or give us liberals reason to chuckle, what really matters is whether "the judicial wing of the conservative movement" currently in residence at the U.S. Supreme Court will cast aside all the facts and the law, as they did in Bush v. Gore, to strike down the Affordable Care Act. I believe they will do that, and like paskunac, I don't think they care a rat's ass about the inherent contradictions and strongly negative reactions that such a political decision will provoke.

- basile

February 17, 2011 at 9:48am

Dan is quite correct that the normal rules of constitutional construction not only do not consider the nomenclature relevant but will actually impute permitted purposes, if such reasonably exist, for legislation whether the legislature has done so or not, even where the legislators have mooted non-permitted purposes. Vinson seems to be ignorant of the entire body of constitutional law. So, maybe he isn't a moron. Maybe he just doesn't know anything whatsoever and is doing his best in the face of his crushing ignorance.

- roidubouloi

February 17, 2011 at 9:51am

"To be a tax a bill has to actually include the tax in the language of the bill. Duh!!!" Not according to American law as it existed up until Vinson. There is no obligation on the part of the Congress whatsoever to invoke any particular constitutional authority for its actions, either in legislation or in the course of debate or the writing of legislative history. You are excused for your ignorance rationale as there is no evidence that you ever attended law school. Vinson, on the other hand, is reputed to be a federal judge.

- roidubouloi

February 17, 2011 at 9:54am

"Inactivity is not the same as activity for commerce." Inactivity is not the same as activity, period. So what? Where necessary to the achievement of permitted purposes, the law can impose affirmative duties to do things, such as register for the draft or file a tax return. You have to label your products a certain way to put them in the stream of commerce. You have to do a variety of things for health and safety in the production of goods for consumption. You cannot merely fail to take these actions on the absurd thesis that the law cannot impose duties as well as prohibitions. There is no lack of authority of the legislature to impose affirmative duties and no ability to avoid them on the grounds that the law cannot regulate inaction.

- roidubouloi

February 17, 2011 at 10:04am

Unfortunately, basile, we have no control over whether the judicial wing of the conservative movement casts aside the facts and the law to obtain the outcome that conservatives want. They do this all the time which is why they are judicial frauds. We are limited to throwing verbal eggs at their corrupt behavior. Let us then do our civic duty and throw them as best we can.

- roidubouloi

February 17, 2011 at 10:11am

"It would make more since to re-arrange the tax code so that health insurance gets a deduction, but an extra fee for *not* having insurance is the moral equivalent." Moral equivalent is irrelevant, the question is how the court finds it to be. Democrats seriously screwed up in the first place by having a mandate instead of a deduction, if it had been the Republicans would have had nothing to sue over and there would be no Vinson.

- blackton

February 17, 2011 at 11:04am

I don't understand what the commerce clause means if this law is allowed to stand? The law as written sites as the Congress's authority the power the regulate interstate commerce. For the law to be constitutional the activity it regulates must be interstate commerce, no? If not, what does the commerce clause mean? If the Congress if given the commerce clause gives the Congress the power to regulate interstate commerce, then it must mean that Congress does not have the power to regulate things that are not interstate "engaging in interstate commerce," no? If the clause does not limit the power of Congress in any way, then why is it there? Of course the Congress does not want to order people to eat broccoli, but then 10 years ago it did not want to order people to buy health insurance. The Commerce clause surely cannot meant that Congress is merely prohibited from doing things that it does not want to do anyway. Of course the restriction is formalistic, but isn't that the point of a Constitution? It is a set of formal limitations on the power of governments. To say that some of those formal limitations can be ignored because the government would only want to go beyond them if it had a good reason to do so is to say that the formal limitations are not limitations at all. That they do not, for any practical purpose, exist. Surely we would not say of the 1st Amendment that it permits the Congress outlaw advocating Hasan al Banna's views because the Congress would only outlaw speech that is bad. And, likewise, we would not dismiss an argument against an interpretation of the 1st Amendment allowing the Congress to ban an unpopular and harmful religion on the grounds that such an interpretation would give Congress the power to outlaw any religion by blithely retorting, "No worries, the Congress would never ban popular, good religions." The point of a constitutional limitation is precisely that it makes what is popular or considered useful by any current majority irrelevant. Otherwise, what is the point of having a constitution at all?

- reinhmr

February 17, 2011 at 3:58pm

Blackton, I agree with you that it was inept, and in character, for the Dems not to have anticipated this attack and drafted accordingly. However, the fact remains that, until Vinson, the rule has always been that a court looks to find in the Constitution any source of authority for the action, not the description, even if Congress has failed to invoke any or has invoked the wrong authority. And it should not be forgotten that several federal courts have upheld the law and dismissed the arguments that Vinson approves as being unworthy of consideration, legalese for nonsense. Congress can make you pay for anything it wants. Whether it can force you to use what you have bought is another question. It can even make you pay for things that you personally are barred by law from using. It is, fundamentally, the taxing authority itself that is under attack by the libertarian morons like Vinson.

- roidubouloi

February 17, 2011 at 4:13pm

If the Obama administration is legally and politically astute, which we have every good reason to doubt, it will catalog a few thousand of the provisions of existing law, focusing particularly on provisions dear to the hearts of the Republican looters, that would be rendered invalid by the Vinson arguments. Then, if the Supreme Court morons should uphold Vinson, there will be a terrific roadmap for challenges to things Republicans like.

- roidubouloi

February 17, 2011 at 4:20pm

Danbd I’m not following your argument as it pertains to the Commerce Clause issue. I’m not saying your wrong; I’m just not understanding it. (Just to say, also, anything your country does to get closer to some version of single payer I think is a good thing—I’m Canadian.) But Vinson says on the mandate that Congress doesn’t have the power under the Commerce Clause to obligate every American simply by virtue of being an American to buy health insurance because not buying a product or a service—essentially doing nothing—is not a regulable "non activity" for commerce clause purposes. So I’m interested to be educated on the relevance to his reasoning of presumption of constitutionality. While I’m at it, another question I have never gotten an answer to is whether in American case law under the Commerce Clause the issue of forcing folks to buy a product or a service has ever been determined, or is Vinson right to say, as he does in his reasons, that the issue is one of first impression?

- basman

February 17, 2011 at 6:08pm

Every case except the purple cow case is to some extent a case of first impression. But the arguments accepted by Vinson were essentially mooted and rejected in the 1930s in the Supreme Court cases challenging social security, unemployment insurance, etc. We have, for example, a system in which the federal government collects unemployment taxes unless the state has a complying unemployment insurance system in which case the federal tax is reduced or eliminated. Sound familiar? Here's what Justice Cardozo, who makes Antonin Scalia and the poor Judge Vinson look like the numbskulls they are, had to say in 1937 in Steward Machine Company v. Davis: "The assailants of the statute say that its dominant end and aim is to drive the state legislatures under the whip of economic pressure into the enactment of unemployment compensation laws at the bidding of the central government. Supporters of the statute say that its operation is not constraint, but the creation of a larger freedom, the states and the nation joining in a cooperative endeavor to avert a common evil. Before Congress acted, unemployment compensation insurance was still, for the most part, a project and no more. Wisconsin was the pioneer. Her statute was adopted in 1931. At times bills for such insurance were introduced elsewhere, but they did not reach the stage of law. . . . Many held back through alarm lest in laying such a toll upon their industries, they would place themselves in a position of economic disadvantage as compared with neighbors or competitors [the same sort of free-rider problems with respect to insurance that the ACA is trying to solve]. See House Report, No. 615, 74th Congress, 1st session, p. 8; Senate Report, No. 628, 74th Congress, 1st session, p. 11. (9) Two consequences ensued. One was that the freedom of a state to contribute its fair share to the solution of a national problem was paralyzed by fear. The other was that in so far as there was failure by the states to contribute relief according to the measure of their capacity, a disproportionate burden, and a mountainous one, was laid upon the resources of the Government of the nation. The Social Security Act is an attempt to find a method by which all these public agencies may work together to a common end. Every dollar of the new taxes will continue in all likelihood to be used and needed by the nation as long as states are unwilling, whether through timidity or for other motives, to do what can be done at home. At least the inference is permissible that Congress so believed, though retaining undiminished freedom to spend the money as it pleased. On the other hand fulfillment of the home duty will be lightened and encouraged by crediting the taxpayer upon his account with the Treasury of the nation to the extent that his contributions under the laws of the locality have simplified or diminished the problem of relief and the probable demand upon the resources of the fisc. . . . The difficulty with the petitioner's contention is that it confuses motive with coercion. "Every tax is in some measure regulatory. To some extent it interposes an economic impediment to the activity taxed as compared with others not taxed." Sonzinsky v. United States, supra. In like manner every rebate from a tax when conditioned upon conduct is in some measure a temptation. But to hold that motive or temptation is equivalent to coercion is to plunge the law in endless difficulties." Here we see almost a perfect analog of the ACA designed to induce the states to create unemployment insurance by imposing an excise tax and then abating it if the state has its own system. Justice Cardozo relied on both the taxing authority as to the impost and the power of Congress to regulate the national economy to solve urgent problems that could not be solved by the states. But, of course, Cardozo was a judicial giant and now we have judicial pygmies. http://www.ssa.gov/history/supreme2.html

- roidubouloi

February 17, 2011 at 7:08pm

I cannot highlight stuff, but the sentence most relevant to the ACA is this: "On the other hand fulfillment of the home duty will be lightened and encouraged by crediting the taxpayer upon his account with the Treasury of the nation to the extent that his contributions under the laws of the locality have simplified or diminished the problem of relief and the probable demand upon the resources of the fisc." You buy your own health insurance, you reduce the global problem and lighten the probable demand on public resources. Hence, your tax is abated.

- roidubouloi

February 17, 2011 at 7:12pm

I would only add that the total time I spent on legal research to find that was under four minutes. I have no doubt that a thorough search would yield a great deal more.

- roidubouloi

February 17, 2011 at 7:13pm

Blackton: "Democrats seriously screwed up in the first place by having a mandate instead of a deduction" You nailed it. If dems didn't want this challenged, they shoudl have considered a few things 1) Make it palatable enough to a small number of republicans that they signed up and diluted whatever complaints were coming from the right. A few things like deductions instead of penalties, buying insurance across state lines (just to shut folks up about that), reform malpractice (just to shut folks up about that). These have little impact on the utility of the bill, and allow the bill to live to see another day. 2) Don't dump the costs you can't cover on states. That is why the states are suing. The feds couldn't make the long term budget balance, even with 10 years of revenue and 6 years of service. So, what did they do? Dumped financial burdens on the states. States get pissed and sue. This wasn't a few states. MOre than half took this position. 3) Write a law that is clear enough such that it can withstand scrutiny by 90% of judges that review it. Currently, this law has been reviewed by 6 judges, 3 have found big problems. That's pretty poor. 4) Don't ram it through using legislative procedure you wouldn't want used on you. it makes those you screwed want to screw you back that much harder. 5) Make sure people understand it such that 60-80% favor it. The ACA never enjoyed this. Easy enough.

- seattleeng

February 17, 2011 at 10:18pm

More seattle bullshit. 1. It was perfectly obvious that no Republican was ever going to support healthcare reform. Some of them even refused to commit to vote for bills they sponsored. Their marching orders were to stonewall for the sole purpose of denying the Democrats any bipartisan support for their bill. And that's what they did. The big mistake was negotiating ad nauseum with those perfect assholes. That's how Obama lost control of the debate, by pursuing the delusion of bipartisanship. 2. We have a federal system in which costs can be apportioned by the federal government to states. There is lots of precedent for this. 3. The reasons that Republican judges have found problems with the statute have nothing whatsoever to do with clarity or lack thereof and everything to do with politically motivated "judging" if it can even be called that. 4. Nothing was "rammed through" the legislature. Only normal procedures were used. 5. Almost nothing passed by the Congress has 60-80% support, certainly nothing done by Republicans. Indeed, they pride themselves on defying public opinion. 6. There were going to be Republican judicial challenges to this bill no matter what it said. Blackton's point is that the drafting should have been done to frustrate the inevitable challenges, and it should have been. However, that does nothing whatsoever to vindicate the absurd, unprecedented judicial nonsense of Vinson et al.

- roidubouloi

February 17, 2011 at 11:35pm

Roid, if you want to call something bullshit, then please at least pick something that 95% of people agree with you on. If something split 50/50 in the court of public opinion and by judges that have looked at it, then by definition it's not bullshit, and you calling it bullshit doesn't make it so. You might not like it, but that's different that bullshit, right?

- seattleeng

February 18, 2011 at 1:44am

It's bullshit, Seattle, because all untrue, as painstakingly explained. The essence of rightwing dementia is the conviction that if enough people can be made to believe anything on a given day it becomes reality. But it doesn't. The real world continues on it way according to it's own laws notwithstanding rightwing psychosis, which is why you all land us in one colossal mess after another.

- roidubouloi

February 18, 2011 at 8:59am

Roid, the people on the right believe the decisions you favor are just as wrong, and they can stack up any number of law books to make their case too. Quit trying to reduce the opposition argument to absurdity, and acknowledge is has some valid points, and then attack those without the hysterics. Save the hysterics for things like 9/11 truthers and the birthers.

- seattleeng

February 18, 2011 at 11:46am

One of the arguments against the Viet Nam war was that Congress never declared war, so it was unconstitutional. The conservative counter-argument (and, so far as I know, the one that won) was that every time Congress, which has the power of the purse, passed a budget that funded the war, it had in effect carried out such a declaration, whether or not it said it was doing so under its war making power. No formal "declaration of war" such as called for in the Constitution was required. For conservatives now to say that, because it was not called or labeled a tax, the individual mandate does not and cannot come under the taxing power given Congress by the Constitution, is simply hypocrisy.

- timteeter

February 18, 2011 at 4:50pm

Polijunky: Hope not too late, but in answer to your arguments: 1. The general argument from compulsion does not seem persuasive to me. There is of course no question your federal government when it has legal grounds—i.e. under one of the heads of power given to it—can compel conduct. But this assertion does not necessarily meet Vinson’s reasoning. The assertion that peoples’ decisions not to buy insurance have an impact on other people costing billions of dollars in shifted costs requires government action, i.e. the mandates, is not a necessarily a case for constitutional legitimacy. For the underlying reasoning is that nearly everything that people do or choose not to do has a big economic impact—consider the “aggregation” point—and therefore is capable of groundig Commerce Clause regulating jurisdiction.But, seemingly, “regulating” means, in the context of commerce, to make rules for activities freely undertaken. For what is commerce but a mode of freely undertaken activity? So while in other contexts, the legislature has the plenary power to compel action in the service of an enumerated power, I still await an example of Congress under its Commerce Clause power compelling every American simply by virtue of being an American to enter into a contract for the purchase of a good or a service. The Commerce Clause doesn’t seem to me to give Congress the power to compel people to engage in undesired economic activity, buy a product or a service, outside the context of their engaging in commerce generally. Your Congress can’t, I wouldn't think, force people to engage in commerce--to buy insurance or anything else. Your Constitution reflects a vision of limited, specified federal powers. If the legislature can force people to buy things, it can do anything, without limit. That’s Vinson’s point: if Congress can do that, what can't it do? 2. Your second point isn’t a legal argument. As I noted, I live in Canada and think single payer heath provision a good thing and am against making "for profit" the core of a health care system. The oddity/irony is that , as I understand it, single-payer would be authorized under your Congress’s power to raise revenue and spend it on the general welfare (Article 1, Sec. 8)). 3. I’m not aware of any argument framed for or against obamacare that doesn’t see the mandates, which is how they are universally described, as not being an instance of compulsion. One is statutorily told to do something—to buy a contract of health insurance— and are penalized if they don’t do it. I think the issue is better joined if the mandate is recognized as such and the argument proceeds from there.

- basman

February 18, 2011 at 8:22pm

So a public option is far more easily defensible at law than a mandate. Moral: Democrats should have gone whole hog.

- TNR.Reader

February 19, 2011 at 2:22am

No, seattle, they do not have a point. They cannot stack up any law books or precedents. Vinson's arguments are, in the context of American law, absurd. Basman, no less a luminary than Benjamin Cardozo answered your point in 1937. See above. Putting a price on undesirable behavior is economic regulation precisely because it is intended to influence economic choice AND to exact from those who impose certain burdens on society a contribution to their social cost. The federal government forces everyone who works to contribute toward a nationally administered pension system. They have no choice. They are not obliged, however, to partake of the benefits and Congress could surely, if it chose to do so, exempt people who contribute to a private pension. No one is compelled by ACA to have insurance. They are compelled to contribute to the cost of health care either by paying premiums or by paying the federal government. They need not take the benefits.

- roidubouloi

February 19, 2011 at 2:37am

Hey Roi, I'm glad you said my name. I missed in this thread your previous posts addressed to points I was trying to raise. Thanks for that. Let me go through what you posted a bit. It takes me some time to work through these arguments, unschooled in them as I am. I asked to be educated about some of the legal specifics of these issues. No doubt I will be.

- basman

February 19, 2011 at 12:21pm

I look forward to hearing what you think. Given the less than a thimble I know about Canadian law, I would say you are doing rather well.

- roidubouloi

February 19, 2011 at 1:28pm

settleeng: "Currently, this law has been reviewed by 6 judges, 3 have found big problems. That's pretty poor." It's not pretty poor when you consider that some of the plaintiffs went forum-shopping: they filed their cases in districts where they had the best chance of drawing conservative judges. So if one believes that judges motivated by more than purely legal considerations (as Chait is arguning), then the ability to forum-shop makes the "3 out of 6" stat meaningless because we have a far from random set of judges. And I'll pile on on Vinson's excuse for not calling the penalty a "tax" because Congress didn't use the term. Courts look to substance, not labels, for their legal analysis. If Congress passes a law taking another 1% of everyone's income but says it's a fish, its use of the term does not make it an unconstitutional fish. It's clearly an action within the constitutional power of Congress, and judges who are interested in the law will see it as such. Yes, dissembling is a terrible problem in politics. But it's a political problem, not a legal one. Misrepresentation has nothing to do with the constitutionality of whatever was actually passed. Vinson's obvious error is that people who feel they've been misled have recourse at the ballot box. It's up to voters, not judges, to hold representatives accountable for discrepancies between what they say and what they do.

- dsimon

February 20, 2011 at 3:07pm

There's one hack here engaging in "transparently result-driven ideological polemic," but it's Jonathan Chait, not Judge Vinson. Every judge has agreed that the mandate is not justified by the taxing power. Perhaps Chait, a career journalist, should not pretend to be an expert on law or economics.

- msplatypus

March 6, 2011 at 5:16pm