JONATHAN COHN JANUARY 31, 2011
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Federal Judge Roger Vinson has ruled against the Affordable Care Act, striking down not just the individual mandate but the rest of the law, as well. Vinson had made his skepticism of the law very clear during oral argument, so the ruling isn't surprising, although his decision to invalidate the entire statute goes farther than the decision by Judge Henry Hudson, the federal judge who invalidated the law last last year.
Vinson did not halt implementation of the law. (That would have been surprising.) And, to be clear, two other federal judges have ruled the law is constitutional while about a dozen more have dismissed lawsuits without even hearing. The final word, almost certainly, will come from the Supreme Court. And it could be two years before a case reaches that far.
I've only skimmed the decision very quickly. Once I've read it more carefully, I'll (hopefully) have more intelligent things to say. But, at first glance, two things leap out at me.
Defenders of the Affordable Care Act (myself among them) argue that the power to impose the mandate lies in two parts of the Constitution: the power to levy taxes and the power to regulate interstate commerce. Vinson rejects the tax argument and, in explaining his rationale, suggests that even the two judges who upheld the mandate agreed with him on this. But this is incorrect. Judge George Steeh, the federal judge from Michigan, declared that the plaintiff's tax argument--i.e., the assertion that the law was beyond the boundaries of congressional authority to tax--was "without merit."
The other striking thing about Vinson's ruling is his reasoning on interstate commerce--and its apparent ignorance of policy reality. Vinson says the mandate is unconstitutional because, in effect, the link between insurance status and interstate commerce is too weak:
...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. [Emphasis in original]
Again, this is just wrong, as anybody who understands the health care market will tell you. From my January article on the case:
When doctors and hospitals give uncompensated care to people without insurance, these providers of care pass along higher prices to everybody else who pays, and those higher prices show up as either larger taxes, larger insurance premiums, or larger out-of-pocket expenses. In addition, if people know they can get insurance even if they have pre-existing conditions, some will wait until getting sick before buying insurance. That upsets the delicate actuarial balance of insurance plans, which depend on premiums from healthy people to offset the costs of the sick. Premiums end up rising even more.
Researchers at the nonpartisan Urban Institute, which has developed its own mathematical model of the health care market, have run simulations on how the Affordable Care Act would play out without the individual mandate. They found that an additional 18 million people would end up without insurance. Jonathan Gruber, an MIT economist and respected authority in his own right, determined that without a mandate, premiums for people buying coverage on their own would be 27 percent higher. Gruber has advised health care reformers, including the architects of the Affordable Care Act. But the nonpartisan Congressional Budget Office got similar results from its calculations. And while economic models can certainly be wrong, these results are consistent with real-world experience: In those states where laws already require insurers to sell to anybody but insurance enrollment is not compulsory, premiums have gone way up.
Again, I'll have more to say soon. In the meantime, keep in mind that the plaintiffs got the results they wanted in part because they got the judge they wanted. Bill McCollum, Florida's attorney general, and his allies didn't file the case before the federal court in Tallahassee. They filed the case in nearby Pensacola. I assume (although I can't be sure) that's because it increased their chances of getting a conservative judge, like Vinson.
In any event, it's just one decision among several. And it ultimately matters only insofar as the Supreme Court decides to embrace it.
21 comments
I can't see the difference between coercing me to pay for medical insurance and coercing me to pay for the Iraq war. So, does this put an end to criminal tax cases because you can't coerce people to pay for things they don't want? Or is it now a matter of specific nonpayment, like specifically medical insurance vs. a general funding of government? What if a tax evader objects to funding the whole government? Look out, there's going to be an earthquake in the law.
- Nusholtz
January 31, 2011 at 4:21pm
The tease for your note says in effect "don't worry about it." My question is why not? Does someone have a pipeline into how Justice Kennedy will rule that I don't know about?
- basman
January 31, 2011 at 4:23pm
I'm with basman; if this is going to boil down to Kennedy, I think the ACA is toast.
- GSpinks
January 31, 2011 at 5:06pm
Sad that the SP is so predictable as to be borderline useless.
- WandreyCer
January 31, 2011 at 6:23pm
GSpinks: "if this is going to boil down to Kennedy, I think the ACA is toast.: I don't think so at all. I think the final vote could be 6-3 or even 7-2 to uphold the ACA. And Scalia may vote to uphold it. From http://www.law.duke.edu/news/story?id=2952&u=11: "At the Supreme Court, Scalia is known for adhering to textual interpretation. Siegel, a constitutional law scholar and former Supreme Court clerk, asked Scalia to expound on his statement that he was 'an originalist, not a nut.' "'When I say 'I'm not a nut,' Scalia replied, 'I mean I accept as a limitation on the interpretive philosophy of originalism that you must accept, as a limitation on any interpretive philosophy, stare decisis. "' … I’m not going to rip out every non-originalist decision between the Warren court and now. I’m not about to tell the people of North Carolina that the First Amendment of the Federal Constitution does not bind their government. I mean, you know, that fight’s over, it’s been half a century under the Incorporation Doctrine. I’m not going to rip that out. I’m basically saying, you know, enough is enough, just let’s not do it anymore.'"
- dsimon
January 31, 2011 at 6:25pm
dsimon I really have no idea what your Supreme Court will do, and I hope the health care legislation in your country gets ruled eventually to be constitutional. But if you peruse Vinson's decision stare decisis may both be less important and go the other way here because in a sense the central issue can characterized as a one of first impression--is "activity" a condition precedent to regulation under the commerce power--and because recent judicial push back against an expanded commerce power can be read as supporting the ratio of Vinson's reasoning on the issue of reach of the commerce power vis a vis activity: that Congress cannot regulate inactivity and that the decision not to buy a good or a service is inactivity for Commerce Clause purposes.
- basman
January 31, 2011 at 7:53pm
I'm confused by your statement about Vinson's rejection of the tax argument. If the Michigan judge declared the argument "without merit," how is this different from rejecting it? Or did he reject the argument that it should be rejected?
- letsinb
January 31, 2011 at 7:58pm
...Sad that the SP is so predictable as to be borderline useless... What's the "SP": just askin'?
- basman
January 31, 2011 at 8:02pm
Sorry basman, I'm too tired to be posting tonight. I meant SC. But it is hardly useless. I'm just grumpy and angry about this ruling and how politicized the Supreme Court has become.
- WandreyCer
January 31, 2011 at 8:58pm
Okay thanks for the clarification anyway.
- basman
January 31, 2011 at 9:10pm
To be fair, Vinson does address the issue of the cost of uncompensated care, etc., but he draws a distinction between the immediate impact and the anticipated future impact: "But, to cast the net wide enough to reach everyone in the present, with the expectation that they will (or could) take those steps in the future, goes beyond the existing 'outer limits' of the Commerce Clause..." I'm a bit puzzled by this because the regulation of wheat discussed in the Wickard decision also anticipated that the farmer wouldn't by wheat on the market due to his decision to grow wheat at home. Anyways, the judge also draws a comparison to the housing market and the "food market" as markets that humans can't reasonably expect to avoid during their lives on earth. (Of course, there are people who are homeless, but normally at some point of being so they break the law, I guess.) Not saying it's convincing, but it is an interesting comparison.
- ulexamp
January 31, 2011 at 11:59pm
Whoops, screwed up the underline tag on that quote. The second underlined portion should end at "future."
- ulexamp
February 1, 2011 at 12:00am
Basman- I think the activity/inactivity distinction is a canard. If we are talking about the government compelling, rather than prohibiting, action, the government does the former all the time, e.g., forcing automobile manufacturers to install catalytic converters or to reach certain fuel-efficiency levels, or forcing industry to implement certain measures to protect the environment, or forcing the food industry to make certain disclosures about it the composition of its products; one could make a very long list. I suppose the argument might be that, in the examples I cite, the various actors have chosen to enter a certain market, e.g., automobile manufacturing, and, having done so, their activities may be regulated by both prohibitory and mandatory means; whereas American taxpayers have not necessarily chosen to enter any market that should subject them to regulation regarding the purchase of health insurance. But I am not sure that mode of analysis would stand up under existing commerce-clause precedent. And even if it would stand up, I think a fair argument could be made that we all necessarily are in the healthcare/medical care market -- virtually all of us will consume medical services sooner or later. Dhurtado
- NR143296
February 1, 2011 at 7:32am
I can't see the pertinence of your examples and the counter argument you cite against that kind of compunction seems right. Wha you cite seem diffferent in quality and in kind. As for turning non activity into activity for your Commerce Clause purposes, I found the judge's reasoning, as a sheer matter of legal reasoning, rejecting the fdereal position fairly persuasive. As a matter policy I favour Obama's tilt at health care reform and am sorry that political realities seem to constrain his efforts (like no public option.) I like the single payer system in my country. But the problem is trying to fit the round peg of of health care reform into the square peg of for profit health insurance provision. The legal contortions are evidence of the difficulty: no activity need for C.C. regulation; and if needed, doing nothing is activity. You'd have to be a lawyer to come up with that. Let's to see what Kennedy J. says.
- basman
February 1, 2011 at 11:50am
If anyone comes back here, I read this somewhere else on activity/inactivity: .....I am surprised that no scholar has yet realized that the activity-inactivity issue was definitively explicated in the colloquy between two of the greatest American thinkers, Groucho and Chico Marx (founders of the only true Marxism) here posing as the characters “Captain Spaulding” and “Emanuel Ravelli” in their intellectually profound and monumental work Animal Crackers. Their key insights appear in the excerpt below: Spaulding: … What do you fellows get an hour? Ravelli: Oh, for playing we getta ten dollars an hour. Spaulding: I see...What do you get for not playing? Ravelli: Twelve dollars an hour. Spaulding: Well, clip me off a piece of that. Ravelli: Now, for rehearsing we make special rate. Thatsa fifteen dollars an hour. Spaulding: That’s for rehearsing? Ravelli: Thatsa for rehearsing. Spaulding: And what do you get for not rehearsing? Ravelli: You couldn’t afford it...Heh...you see, if we don’t rehearse, we don’t play...And, if we don’t play...That runs into money. *** Ravelli: Yesterday, we didn’t come. You remember, yesterday we didn’t come? Spaulding: Oh, I remember... Ravelli: Yeah, that’s three-hundred dollars. Spaulding: Yesterday you didn’t come, that’s three-hundred dollars? Ravelli: That’s three-hundred dollars. Spaulding: Well, that’s reasonable. I can see that alright. Ravelli: Now...today, we did come. That’s uh... Spaulding: That’s a hundred you owe us. Ravelli: Say, I bet I’m gonna lose on the deal...Tomorrow, we leave. That’s worth about... Spaulding: A million dollars! Ravelli: Yeah, that’s alright for me, but I gotta partner! ———— This should certainly clear things up for everyone. I think all will now agree that the issue has only one reasonable answer....
- basman
February 1, 2011 at 10:10pm
I'm not sure why you don't see the pertinence of my example Basman. "Regulating inactivity" is just a disingenuous way of characterizing a mandatory regulation, as opposed to a prohibitory regulation. Our regulatory state is rife with mandatory regulations. So the argument that the ACA mandate exceeds the federal government's power under the commerce clause cannot plausibly be based on the mandatory/prohibitory distinction. While the argument might be made that mandatory regulation are permissible only where an individual has chosen to engage in the regulated business, that argument would be inapplicable here because all of us do engage in the consumption of medical services. Thus, the argument is not that doing nothing is activity. The argument is that consumption of medical services is an activity. Dhurtado
- NR143296
February 1, 2011 at 10:50pm
Let’s be plain spoken here. A prohibition stops us from doing something whereas a mandate requires us to do something. You cite examples of constitutionally grounded law compelling various classes of people or entities to do various things *in the course of their commerce,* (assuming of course, as I do, that yours are Commerce Clause examples.) You recognize this seeming obvious distinguishing difference yourself when you say: ...the various actors have chosen to enter a certain market, e.g., automobile manufacturing, and, having done so, their activities may be regulated by both prohibitory and mandatory means; whereas American taxpayers have not necessarily chosen to enter any market that should subject them to regulation regarding the purchase of health insurance.... But you attempt to explain away the force of what you recognize by saying that that line of argument or distincttion—being in the midst of commerce—wouldn’t stand up under current Commerce Clause case law. While admitting that what I know about current Commerce Clause jurisprudence comes only from reading, once, and not so closely, Judge Vinson’s review of some of those cases, I don’t know why it wouldn’t stand up. About the furthest expansion, from what I read, of Commerce Clause regulation of mimimal activity, went to telling farmers not to grow broccoli or some such on the basis of the aggregation principle. Between telling farmers not to grow some thing, not to do certain things in the course of their trade seems a far cry from mandating all people merely by virtue of being Americans to buy health insurance. I understand, I think, that the third category of thing Congress can regulate under its Commerce Clause power ,and the one that forms the issue in the litigation, is regulating intrastate non commercial activities that substantially affect interstate commerce. But as Vinson notes, this third category still seems to require *activities* as a condition precedent to Congressional regulation. That’s why I think the examples you cited are inapposite. The argument that eventually all individuals will need health care constitutes them as involved in the *activity* of deciding not to purchase or deferring their purchase of, insurance, or framed differently, constitutes them as involved in the consumption of heath services, albeit deferred, contingent and indeterminate, seems conceptually different from your examples of mandating classes of people or entities to do certain things in the midst of their commerce. (Your possibly better examples would be ones of regulating intrastate conduct or practices that can be said to substantially affect interstate commerce, but those are not the examples you chose.) That’s another problem with your brief analysis insofar as it’s pinned on the examples you cited. You elide the distinction the judge decisively deals with between present activity and future contingency—needing health care at some indeterminate point in the future—the latter according to Vinson not constituting activity. Here, as opposed to your speculation that ongoing commerce grounding either regulatory mandates or prohibitions might not stand up under Commerce Clause jurisprudence, (even given the third category of what can be regulated and thus assuming more telling examles on your part) the better view, based on Vinson’s opinion at least, it seems, is that invoking future, indeterminate contingent use and then reasoning back to a set of economic consequences violates the SCOTUS sanction of piling inferences on top of inferences in order to reach regulable activity under your Constitution's Commerce Clause. Perhaps, you could cite a case that is mostly closely analogous, if not right on all fours, with the proposition you are advancing concerning future but contingent occurrences constituting regulable activity.
- basman
February 2, 2011 at 2:33am
...About the furthest expansion, from what I read, of Commerce Clause regulation of mimimal activity, went to telling farmers not to grow broccoli or some such on the basis of the aggregation principle.. Actually it seems there was one at the heights of the Clause's expansiveness telling farmers not to consume their own grown wheat.
- basman
February 2, 2011 at 12:22pm
test
- basman
February 4, 2011 at 3:43pm
test
- basman
February 4, 2011 at 6:38pm
dhurtado wake me if you ever get back here.
- basman
February 4, 2011 at 6:39pm