The New Republic

Activist judges for me, not for thee.

- GSpinks

January 31, 2011 at 5:01pm

The opinion has to be read to be believed (or not). The Judge does identify Madison and Hamilton as authorities. Of course, we don't know what they may have thought about medicine today, considering that the standard treatment in their time was leeches. But here's the great hypocrisy of those who would return us to the 18th century: the biggest fear then was a standing army, not just the cost, not just the potential for mischief, but troops posted in homes. I mentioned this because Pensacola is one giant military base (courtesy of "He Coon" Sykes, who represented the area from Madison and Hamilton's day until the late 20th century, a very long time indeed). So the good Judge sees no contradiction between residing in the epicenter of the current military state and opposition to middle of the road health care reform, and actually believes he is following the wishes of the Founders.

- rayward

January 31, 2011 at 5:20pm

Yet we cannot disregard a faction in power increasingly ready to rely solely on their own facts to evaluate in their own logic how to proceed. Consider Congress stymied by an impending, inescapable decision to raise the national debt limit. Consider John Bolton afforded sole expert role by FOX News for explaining the Egyptian turmoil. Consider a Supreme Court justice dismissive of tradition and contemporary concerns about instructing Members of Congress in the whys and wherefores of constitutional interpretation. All these and much more are cloaked in the mantle of "conservative" dogma by the dogmatists themselves. A closed loop of learning and policy formulation. "Activist" judiciary isn't the half of it

- lespin

January 31, 2011 at 5:40pm

Yeah the opinion is super dumb. In the quote that Cohn cites it appears that "in and of itself" is doing a hilarious amount of work. He does acknowledge in the next sentence or so that "if an uninsured person gets sick then it "does" affect interstate commerce." The logic is the same as me saying: "if i shoot a gun at someone, in and of itself, my pulling the trigger will not harm them. But I do acknowledge that there will be a chain reaction causing a bullet to fly out of the gun which may well harm them."

- BlueCivic

January 31, 2011 at 5:52pm

And now you see 30+ years of conservative rule writ large. Get used to it.

- tnmats

January 31, 2011 at 5:56pm

Typical liberal cognitive disonance. Point 1: The fine is not a tax Is the fine for non purchase of insurance a penalty, as seems to be the case, or a “tax,” as the Obamacare defenders now claim. This is an important question because it will be easier to toss a penalty as unconstitutional, than a tax. The court determined that it appears to be a penalty, because: 1.Congress did not call it a tax; 2.“Congress did not state that it was acting under its taxing authority, and, in fact, it treated the penalty differently than traditional taxes;” 3.There was a lack of a “statutorily-identified revenue-generating purpose.” And here’s some very good language on that issue (p.28 of ruling): 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” tack9 and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check.

- mr_rationale

January 31, 2011 at 6:17pm

Point 2: The individual mandate is deeply flawed and won't stand up to scrutiny: The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive. As the nonpartisan CBO concluded sixteen years ago (when the individual mandate was considered, but not pursued during the 1994 national healthcare reform efforts): “A mandate requiring…all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

- mr_rationale

January 31, 2011 at 6:21pm

Re: mr rationale: your 2nd point It is absolutely impossible to opt out of the health care market. By virtue of being alive you will engage in it. Opting not to enter the health care market without insurance is an activity that is Congress can certainly regulate under the Commerce clause.

- BlueCivic

January 31, 2011 at 6:32pm

Further, even assuming that deciding not to purchase health insurance is "inactivity" (which I do not concede) the Supreme Court has never held that inactivity cannot be regulated. And if inactivity has a substantial impact on interstate commerce I would bet heavily that it would be held to be regulateable. Also, even assuming that a straight up mandate is unconstitutional (which I obviously do not concede) Congress can likely require states to force their citizens to get health insurance by conditioning federal money on that requirement. This is very likely to be held Constitutional under the power that Congress has to put conditions on grants to states.

- BlueCivic

January 31, 2011 at 6:38pm

I think I figured it out. Mr_Rationale is actually Chait in disquise having fun. Nothing else makes any sense, certainly not Mr_Rationale.

- Nusholtz

January 31, 2011 at 6:41pm

Typical cognitive dissonance from very badly written Heritage software. The Grover Norquists we will ever have with us, and we know what they will say, but Roger Vinson is a US District Court judge. The Peter Principle is at work here.

- liberalref

January 31, 2011 at 6:50pm

It is not legal to be alive, apparently.

- Sophia

January 31, 2011 at 7:09pm

The four federal district court judges have ruled predictably, and I suspect I know how 8 of the Supremes will rule - proving once again that it's Justice Anthony Kennedy's country and we just live in it.

- bjones

January 31, 2011 at 7:47pm

More clowns, now it's climate/environment - with oil hitting $101/barrel (great guys! awesome job!) http://uk.news.yahoo.com/18/20110131/tsc-senators-vow-to-strip-obama-climate-e123fef_1.html

- Sophia

January 31, 2011 at 8:06pm

Actually, I think I am paying for a subscription to read the scribblings of clowns. A federal judge sitting for twenty seven years is described as if he was Hannity. Maybe Cohn of Chait will get off their dead asses and have one of the thousands of liberal lawyers in D.C. look the man up in the Almanac of the Federal Judiciary and fax them a copy of the impressions of him provided by lawyers who practice before him. Their anonymous comments might not tell us whether Judge Vinson's decision today ultimately will be upheld but it would shed useful light on whether we are viewing the work of a sound senior federal judge or a fascist lunatic. While they are at it the lawyers might do some research on how frequently Judge Vinson is reversed by his Court of Appeals. If they really have time on their hands they could inform us of all the precedents where a penalty has been upheld as a tax.

- lsernoff

January 31, 2011 at 10:20pm

If this is such a 'No-Brainer' decision, why are 26, the majority of the states suing the Federal Government?

- CRS9TNR

January 31, 2011 at 10:34pm

Typical cut-and-paste from Mr_r. Regarding point 2, mr_r has again failed to attribute his text, which is directly from the judge's decision. So apparently he's arguing that the judge's reasoning is right because the judge said so. And he notably left out the judge's own follow-up, which undermines his own point: "Of course, to say that something is 'novel' and 'unprecedented' does not necessarily mean that it is 'unconstitutional' and 'improper.' There may be a first time for anything." As for point 1, the reasoning is just wrong. Something is what it is, and what you call it doesn't affect its constitutionality. If Congress said the law was a fish, it wouldn't make it an unconstitutional fish. If people felt they were misled by Congress as to the nature of the legislation, "the safeguard that exists to keep their broad power in check" is at the ballot box, not through the judiciary. Constitutionality depends on what a law does, not on what someone calls it. Finally, the tax code penalizes people for "inactivity" all the time. Some people get tax breaks because they can deduct their home mortgage interest. That means everyone else is effectively penalized for not having a mortgage. Or consider that Congress could just raise everyone's taxes by the amount of the penalty, and then give a tax credit for people with insurance. That would create the exact same result and is clearly constitutional. I doubt that issues of constitutionality would turn over such niceties of form. BlueCivic: "the Supreme Court has never held that inactivity cannot be regulated. And if inactivity has a substantial impact on interstate commerce I would bet heavily that it would be held to be regulateable." Indeed, some people argue that that's exactly what the Supreme Court did in the seminal Commerce Clause case Wickard v. Filburn (1942), where the Court ruled that a person's decision not to put wheat into interstate commerce could be regulated because the existence of the wheat would still affect the nationwide price. It's hard for me to see how that's so different from the decision not to have health insurance, which impacts the costs you and I pay when these people get treated in the ER.

- dsimon

February 1, 2011 at 12:20am

CRS9TNR: "If this is such a 'No-Brainer' decision, why are 26, the majority of the states suing the Federal Government?" First, I don't see anywhere in the post that calls the issue a "no-brainer." I think most people do see an argument, but just don't think it's a winner. And some state AGs are suing because they don't like the law in general or the mandate in particular, and it's worth taking a shot even if the chances of succeeding are not very good.

- dsimon

February 1, 2011 at 12:42am

All eyes will be on Justice Kennedy when it reaches the high court. I would happily bet a hundred dollars that Kennedy sides with the right if he doesn't have a grandchild with a pre-existing condition. Remember Gore v Bush and Citizen's United. And then the problem of health care remains. What future president and congress would want to wade into those waters again?

- paskunac

February 1, 2011 at 6:47am

But Isernoff, you don't speak to the judge's ruling in your post at all - only that he's been on the bench for 20 years and perhaps out of respect we should ask his co-workers what they think of him. Relevance? JC's post was about the specifics of this ruling, not the judge's career. There are many Federalist Society ideologues on the bench who still manage to hand down intelligently reasoned rulings. This was not one of them. Regardless of this man's history (and I'm more than open to hearing about it), this ruling is so feeble, it insults the intelligence. What does this say about about conservatives? That they don't even feel the need to bother to make sense from a Federal bench attemping to strike down major legislation? And what is this man doing pontificating on policy in the middle of his ruling? What business of it is a judge to do so? The arrogance boggles.

- WandreyCer

February 1, 2011 at 7:31am

More confusion and liberal cognitive dissonance about the commerce clause (see ** 'excerpt below") If you can twist yourself into believing that a decision not to purchase a good in anticipation of future consumption is economic activity - then why not require everyone to purchase a gun in anticipation of future reduced crime rates. The facts/studies are conclusive on this topic, and the cost/benefit better. To believe a liberals interpretation of the commerce clause means that Gov can regulate anything and everything they desire. Not a great day for freedom or the 80% of the voters who don't work for the Gov. ** “The Commerce Clause originally applied to the trade and exchange of goods as it sought to eliminate trade barriers by and between the states. Over the years, the Clause’s reach has been expanded from covering actual interstate commerce (and its channels and instrumentalities) to intrastate activities that substantially affect interstate commerce. It has even been applied to activities that involve the mere consumption of a product (even if there is no legal commercial interstate market for that product). To now hold that Congress may regulate the so-called “economic decision” to not purchase a product or service in anticipation of future consumption is a “bridge too far.” It is without logical limitation and far exceeds the existing legal boundaries established by Supreme Court precedent.”

- mr_rationale

February 1, 2011 at 9:32am

And I cut & paste as a service to this blog. The liberal advocate bloggers here do a terrible job of looking for dis-confirming views/data/facts. I guess part of their job description. For example, to consult with liberal law professors who agree with your politics and then report that all other legal dissent is silly/clown-like is stupid and irresponsible. Reality will intrude.

- mr_rationale

February 1, 2011 at 9:40am

Wandreycer: As a retired lawyer who spent a good deal of time during his career getting paid to predict how judges would rule, I learned a thing or two. First, I always checked the Almanac of the Federal Judiciary to gather other lawyers' take on a judge. Whether he or she was considered fair, attentive and dignified or a petty autocrat was often more predictive than which president had nominated the judge. Second, I checked the judge's incidence of reversals. A judge who is frequently reversed is usually lazy and careless or an ideologue. There aren't too many of either type on the federal bench. Most Republican appointees are not members of the Federalist society and most Democrats are not donors to Move-On. For every true right-winger there is a Jack Weinstein, who, like Chait, Cohn and you, thinks policy is the be-all. The vast majority of judges will not hesitate to reach an outcome they personally regret if sound precedent takes them there and will not fear to overturn a flawed statute whose intent they personally favor. The political decision to structure the mandate as a penalty rather than a tax may prove fateful.

- lsernoff

February 1, 2011 at 10:04am

Isernoff - that actually is interesting stuff in a general sense. I just don't see how any of it is relevant to JC's post, it feels like a change of focus from specific to general. The question is: was this ruling on this case logically sound? The answer by any objective measure is absolutely not - it doesn't even make the effort to be factually accurate. That alone is an insult to his his seat. I look forward to his history as a judge on another thread, where it might be more relevant. I also stand by my disgust as his dead giveaway pontificating on policy, which is none of his professional business. I disagree about your Federalist Society take as well. I would go so far as to say most federal judges who self-identify as conservative in the US are affiliated, at minimum, with the Federalist Society. Although I will say not all of them rule ideologically, as this judge clearly did. It's not always a black mark at all.

- WandreyCer

February 1, 2011 at 11:31am

mr_r: "And I cut & paste as a service to this blog." It's not cutting and pasting that's the problem. It's the failure to both use quotes and attribute sources. People shouldn't put text in place that then appears to be their own when it isn't. Your last quote, while in quotes, still doesn't tell us where it comes from (it's again from Judge Vinson's decision). As a service to this blog, please provide references so we don't have to redo the work. "If you can twist yourself into believing that a decision not to purchase a good in anticipation of future consumption is economic activity - then why not require everyone to purchase a gun in anticipation of future reduced crime rates. The facts/studies are conclusive on this topic, and the cost/benefit better." First, the studies on this topic have been heavily disputed. But regardless, it would be perfectly permissible to give tax credits for gun purchases, so why not would a tax penalty permissibly do the same thing? I don't see a response to the argument that Congress could just raise everyone's taxes by the amount of the no-health-insurance penalty and then give a credit for those who have insurance, which would produce the exact same result. Why should constitutionality turn on such arcane formalities? And again, as I wrote above, the ability to regulate a decision not to engage in an activity is not "unprecedented," since the decision not to sell wheat across state lines is exactly what was at issue in Wickard v. Filburn. I think the judge is just wrong here. "to consult with liberal law professors who agree with your politics and then report that all other legal dissent is silly/clown-like is stupid and irresponsible." I never said other legal dissent is silly. I think there are arguments on the other side and take them seriously, but think they're wrong on this issue and provided reasons. And I haven't seen my arguments addressed; just repeating the argument on one side doesn't explain why the argument on the other side is flawed.

- dsimon

February 1, 2011 at 2:45pm