JONATHAN COHN JANUARY 31, 2011
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.