Individual Mandates: A Legal "Bridge Too Far"

By now you’ve all heard that “ObamaCare was struck down.” As usual, little of what you’re hearing is right. So let’s go over several points, some of which are really quite fascinating, particularly Judge Roger Vinson’s deep understanding of his role as a judge.

1. First, unlike what I pointed out in my prior article on the ruling of the District Court in Virginia, this decision involves 26 states. Moreover:

● This decision, even more so than the Virginia decision, guarantees the Supreme Court will review this issue, because of the involvement of the states attorneys general.

● This decision gives more ammo to Senate Republicans, all 47 of whom openly support repeal. It also provides cover to any Democrats looking to save their political lives by voting for repeal. Joe Manchin (WVa) and Ben Nelson (Neb) specifically have been mentioned -- though both claim they only want to fix the law rather than repeal it.

2. It is worth noting that the arguments made and the Judge’s reasoning come down exactly as predicted in my March 2010 and May 2010 articles, and that the so-called legal experts (read: liberal propagandists) were not only wrong, but were so wrong as to constitute malpractice.

3. Vinson’s decision has two parts. The first part deals with the argument Congress violated the constitutional spending principle by forcing the states to expand Medicaid to the point where it will bankrupt the states. ObamaCare defenders argued that Medicaid is a voluntary program, and thus Congress may impose such requirements because states are free to back out if they think it will cost too much. The states countered that they can’t back out because they are effectively “coerced” into staying in Medicaid. Vinson rejects the coercion argument because every other court that’s looked at Medicaid has found it to be a voluntary program.

I think Vinson is wrong on this point, but I attribute this to a failure by the plaintiffs to properly brief this matter. Vinson seems a thoughtful judge, but it looks like the states just didn’t present much of an argument. Vinson sounds unimpressed with the evidence they offered and they apparently provided him virtually no legal support for their position. In fact, they entirely avoided the stronger Ninth and Tenth Amendment arguments, which were not briefed “except in a single passing sentence.” That’s attorney failure.

4. In the second part, Vinson strikes down the individual mandate. This is where things get interesting.

First, for history/legal buffs, Vinson delves into the entire history of the Commerce Clause and how (and why) it changed over time. Such an in-depth history is rare in District Court rulings, and what he presents is highly informative and quite accurate. Click here to read the decision.

Secondly, his reasoning striking down the individual mandate is impeccable. Vinson points out the cases cited by both sides, and he explains:

● That not a single case has ever held that Congress has the power to regulate “inactivity” under the Commerce Clause; and

● He rejects the ProObamaCare argument that inactivity constitutes activity. They claimed that it’s impossible to truly opt-out of healthcare and, thus, the uninsured are merely engaging in "future cost-shifting" because someone else will ultimately have to pick up the tab for their care when they get sick. He called this too attenuated; saying it was “a bridge too far” to use a person's decision now which might one day result in future cost-shifting which might affect interstate commerce as the basis for finding the current decision to involve engaging in interstate commerce -- especially since they may be wealthy enough to self insure, or charities may pick up the tab, or they may buy insurance before that happens. Thus, there are too many "ifs". He also notes that accepting this argument would give Congress unlimited power because anything could then be considered engaging in commerce:

Congress could more directly raise too low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market. Or. . . Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system. Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile --- now partially government-owned --- because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business.

Should Congress thus have power under the Commerce Clause to preemptively regulate and require individuals above a certain income level to purchase a home financed with a mortgage (and secured with mortgage guaranty insurance) in order to add stability to the housing and financial markets (and to guard against the possibility of future cost-shifting because of a defaulted mortgage), on the theory that most everyone is currently, or inevitably one day will be, active in the housing market?

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The problem with this legal rationale. . . is it would essentially have unlimited application. There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort.

● The ProObamaCare people also tried to squeeze this individual mandate through the “Necessary and Proper Clause,” which allows Congress to pass all laws that are necessary and proper to carry out its duties. But Vinson correctly notes that this clause cannot be used to justify unconstitutional laws.

5. Finally, we come to the most interesting aspect of this decision -- a true moment of judicial restraint. After finding the individual mandate unconstitutional, Vinson needed to decide if the rest of the statute could go into effect without it. This involves something called severability, which is a legal doctrine that holds that if the unconstitutional provision can be severed from the rest of the law, then it should be, and the rest of the law should go into effect.

Based on the history and the functioning of the act, Vinson concludes that severability is not possible. He notes, for example, the Congressional Record is full of statements about the true purpose of this act bring insurance reform and that the individual mandate was the key element of that reform. He notes that the defendants repeatedly stressed throughout the litigation that the individual mandate is “essential” to the Act. He also notes the failure to include the severability clause in the final draft, which is not fatal in and of itself, but which suggests that Congress viewed the entire Act as one piece.

Ultimately, however, his decision comes down to the fact that Vinson considers it impossible to separate the individual mandate from the Act, while still carrying out the purpose of the Act “as Congress intended.” In other words, the statute is “a carefully-balanced and clockwork-like statutory arrangement comprised of pieces that all work toward one primary legislative goal [which] would be undermined if a central part of the legislation is found to be unconstitutional.”

Vinson then shows a deep understanding of the role of the courts, when he concludes that this makes it impossible for him to carve out the individual mandate. Not only does he say that he doubts he could actually determine which portions of the Act depend on the mandate, but he says that this is not a proper role for the courts:

Cleanly and clearly severing an unconstitutional provision is one thing, but having to re-balance a statutory scheme by engaging in quasi-legislative “line drawing” is a “‘far more serious invasion of the legislative domain’” than courts should undertake.

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If Congress intends to implement health care reform --- and there would appear to be widespread agreement across the political spectrum that reform is needed --- it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not. It is Congress that should consider and decide these quintessentially legislative questions, and not the courts.

So when the media (and the Democratic PR machine) start running around calling this judicial activism, remember this quote. This is exactly how courts are supposed to act -- with judicial restraint by leaving the legislating to the Congress.

Finally, let me point out one irony. As an attorney, one of the most common mistakes I’ve seen has been attorneys who simply cannot let go of bad arguments. If the defendants had given up on the mandate, or simply not stressed its importance, Vinson may have just struck down the mandate and left the rest of the law in place. But like so many other bad attorneys I’ve met, they were not going to give an inch of ground if it killed them. And in this case, it did. It truly became a bridge too far.