TRB FEBRUARY 10, 2011
When U.S. District Court Judge Roger Vinson ruled last week that the individual mandate—and hence, the entire Affordable Care Act (ACA)—violates the Constitution, right-wingers were entitled to feel giddy. But they want more than giddiness at the prospect that ideologically friendly judges may win for them what they lost at the ballot box in 2008. They want intellectual respect, too. Most of the legal profession had, until recently, dismissed lawsuits against the ACA as nutty, a fantasy of right-wing judicial activism. “Suddenly,” gloated libertarian law professor Randy Barnett, “they had to take these arguments seriously.”
The legal experts were wrong, but Barnett fails to locate their error. The mistake wasn’t in failing to take the intellectual merits of the conservative case against the ACA seriously. Their mistake was taking right-wing jurists too seriously—thinking of them as judges who happened to have a conservative point of view, rather than as the judicial wing of the conservative movement.
Judge Vinson’s ruling is a transparently result-driven ideological polemic. The individual mandate is a financial penalty levied on people who do not buy health insurance. One justification for this provision is Congress’s authority to tax. Vinson nixed that in a preliminary ruling: Congress did not call the financial penalty a tax, he concluded. Why should political rhetoric be legally binding? Because, Vinson argued:
Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an “Alice-in-Wonderland” tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check.
If you’re looking for a legal argument here, there isn’t one. Vinson thinks it would be unfair for Congress to evade Fox News anti-tax demagoguery. And, if Vinson thinks something is unfair, then it must violate the Constitution.
So scratch the tax authority. There’s also the constitutional clause allowing Congress to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers.” Vinson concedes Congress can regulate the national health insurance market. So isn’t the individual mandate “necessary and proper” to carry that out?
No, Vinson argues. The mandate “cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be ‘proper.’” So, he argues, if you start from the premise that any law that exceeds Vinson’s idea of limited government is unconstitutional, then clearly such a law isn’t “proper,” and therefore it’s—unconstitutional. Yes, that’s circular reasoning.
Even if you reject the tax argument and the Necessary and Proper clause, there’s one more authorization for the individual mandate: the Commerce clause. Regulating the national insurance market clearly falls within the category of regulating interstate commerce, right? Uh-uh, writes Vinson. He concedes that Congress may be able to regulate all sorts of economic activity—even picayune activities like growing marijuana for personal medical use—but waves that away by making a novel distinction between regulating activity and regulating “inactivity.” Vinson asserts that no precedent exists to regulate inactivity. (He’s wrong: Congress has prohibited other kinds of inactivity—not getting a vaccine, not joining the military, and many others.)
Proceeding from this imaginary premise, Vinson argues that the Commerce clause couldn’t possibly allow regulation of inactivity, because that would mean Congress could force you to consume broccoli or buy a G.M. car. Seeming to realize how absurd this sounds, Vinson sonorously argues that such possibilities “are being discussed and debated by legal scholars.” He proceeds to cite, as evidence, a segment from ReasonTV. This is just one of many points at which Vinson’s ruling becomes indistinguishable from a dorm-room bull session among members of the College Republicans.
Animating Vinson’s desperate legalisms is a recurrent idea that is perfectly in tune with the contemporary right-wing mood: the confident assertion that the country’s founding principles are synonymous with the Republican economic agenda. “It is difficult to imagine,” Vinson declares, “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.”
The narrow fallacy is that the American Revolution was a revolt against taxation as opposed to a demand for political representation. The broader fallacy is Vinson’s assumption, common on the right, that the Founding Fathers must have agreed with him and, therefore, that because this policy unduly upsets him it must violate the Constitution.
Second, Vinson’s polemic reflects the right’s apocalyptic fears in the age of Obama. Conservatives see President Obama’s agenda not as an embrace of previously bipartisan ideas, or even an incremental victory for liberalism, but as a break-point between freedom and tyranny. “If Congress has the power to compel an otherwise passive individual into a commercial transaction, it is not hyperbolizing to suggest that Congress could do almost anything it wanted,” he warns.
In reality, health insurance is a massive business in which the actions of all people are far more tightly linked than in almost any kind of market. As a result, the exit of healthy people from an insurance pool can cause a spiral of collapse in a way that is true of no other market. Broccoli consumption, meanwhile, has only the faintest impact on health care spending. The market for G.M. cars does not suffer from adverse selection.
Vinson’s argument amounts to little more than imagining some implausible end that would result from allowing the individual mandate—an end Congress would never legislate and the courts would never allow—and then insisting that, to avoid such a fate, he must undertake a wild flight of judicial activism in the opposite direction.
Viewing the individual mandate as a step into the abyss of unlimited government power has it backward. The better question would be, if Congress can’t regulate the national insurance market, what can it regulate?
Jonathan Chait is a senior editor for The New Republic. This article ran in the March 3, 2011, issue of the magazine.