His track record is less than admirable.
Wednesday’s decision upholding the constitutionality of the Affordable Care Act was, importantly, the first appellate ruling on the law, as well as the first not to be decided along partisan lines.
The debate over the Affordable Care Act's constitutionality moved into another courtroom on Wednesday. This time it was a panel of judges from the 11th Circuit, in Atlanta, listening to an appeal of the most sweeping decision of all: Judge Roger Vinson’s decision invalidating not just the individual mandate but the entire law. How’d it go? That really depends on whom you ask.
Northwestern law professor Andrew Koppelman has an excellent essay making the case that the Affordable Care Act is not just Constitutional but obviously so, and arguments to the contrary not merely unpersuasive but absurd. His conclusion: What will the Supreme Court do?
In case you haven't checked the front page today, my TRB column is up, about the whackadoodle attempt to overturn the Affordable Care Act on Constitutional grounds: 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.
One of the striking things about Roger Vinson's ruling striking down the Affordable Care Act -- which I appraise rather critically in my latest TRB column -- is that there are three distinct legal rationales for the law, and Vinson's ruling finds a way to reject all three of them. One rationale is Congress's authority to tax, which Vinson rejects by deciding the penalty on people who go without health insurance is not a tax.
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.
Read part 1 of this argument here. The conservative legal brief against the Affordable Care Act rests heavily on a simple proposition. Government can’t make us obtain private insurance because, as the argument goes, that would be forcing us to buy a private product. Politically and constitutionally, it may be an effective argument. But do the law's harshest critics, the ones screaming about tyranny, actually believe that?
Is there an honest constitutional argument against the individual mandate? Of course there is. The constitution is ambiguous and open to conflicting interpretations. But are the people making constitutional arguments against the mandate being honest? Count me as very skeptical. As you probably know by now, many of the conservatives in high dudgeon about the individual mandate had no problem with it when it was a staple of Republican health care proposals.
Are there any conservative legal scholars out there who dislike health care reform on the merits but still think the individual mandate is perfectly constitutional? There's Harvard Law Professor Charles Fried, for one. Earlier today, at a Senate Judiciary Committee hearing on the constitutionality of the health care bill, Ronald Reagan's old solicitor general called the soundness of the mandate a "no-brainer." Fried opened his testimony by burnishing his conservative bona fides: "I come here not as a partisan for this act. I think there are lots of problems with it.