United States District Court Judge Roger Vinson has struck down the entirety of the National Health Care law (The Patient Protection and Affordable Care Act) as unconstitutional. What is most interesting is his decision that the entire act had to be struck down because of the individual mandate provision’s unconstitutionality. Vinson grants declaratory relief but declines to grant injunctive relief.
Joined by governors and attorneys general from 26 states, the Florida challenge was broader than the recent Virginia challenge — that led to the striking down of the individual mandate provision. I have previously written about my own concerns over the constitutionality of that provision.
The decision of Judge Vinson will only increase the already high likelihood that the Supreme Court will review the controversy. The two major decisions in Virginia and Florida will be reviewed by two different courts of appeal. Two other rulings (supporting the law) are also moving toward the Supreme Court.
The rule also represents a rejection of the Administration’s effort to avoid review by challenging the standing of the state attorneys general. Ironically, I reviewed the Bond v. U.S. (09-1227) case in my Supreme Court class today. That case involves a woman who challenged her conviction on federalism grounds. The Third Circuit ruled that only states and state officials could challenge federal laws on federalism grounds. The Obama Administration (correctly in my view) switched sides before the Court and ended up arguing for the Bond that she did have standing. This could prove an important term on standing doctrine. The conservatives justices have been generally hostile to standing and have gradually carved out individuals and groups who can seek review of some laws.
Judge Vinson ruled that he could not treat the individual mandate provision as severable and thus (after agreeing with Judge Hudson in Virginia that the provision is unconstitutional) he struck down the entire act. He stated: Judge Roger Vinson said as a result of the unconstitutionality of the “individual mandate” that requires people to buy insurance, the entire law must be thrown out:
“I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate. That is not to say, of course, that Congress is without power to address the problems and inequities in our health care system. The health care market is more than one sixth of the national economy, and without doubt Congress has the power to reform and regulate this market. That has not been disputed in this case. The principal dispute has been about how Congress chose to exercise that power here.”
The court notes that Congress elected not to include a severability clause despite the fact that one was in an earlier version of the law — setting itself up for such a total rejection of the law.
The decision is a strong expression of federalism, starting with Madison’s famous statement from the Federalist Papers 51:
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal
controls on government would be necessary. In framing a government which is to be administered by men over
men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next
place oblige it to control itself.
The problem is the lack of a limiting principle in the arguments in favor of the law. Vinson notes:
The problem with this legal rationale, however, 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 decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a
morning cup of coffee also have a financial impact that — when aggregated with similar economic decisions — affect the price of that particular product or service
and have a substantial effect on interstate commerce. To be sure, it is not difficult to identify an economic decision that has a cumulatively substantial effect on
interstate commerce; rather, the difficult task is to find a decision that does not.
He notes the political pressure in the case: “Because the individual mandate is unconstitutional and not severable, the
entire Act must be declared void. This has been a difficult decision to reach, and I am aware that it will have indeterminable implications. At a time when there is
virtually unanimous agreement that health care reform is needed in this country, it is hard to invalidate and strike down a statute titled “The Patient Protection and
Affordable Care Act.”
In rejecting an injunction, the court indicates that declaratory and injunctive relief should be essentially fungible:
The last issue to be resolved is the plaintiffs’ request for injunctive relief enjoining implementation of the Act, which can be disposed of very quickly. Injunctive relief is an “extraordinary” [Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982)], and “drastic” remedy [Aaron v. S.E.C., 446 U.S. 680, 703, 100 S. Ct. 1945, 64 L. Ed. 2d 611 (1980) (Burger, J., concurring)]. It is even more so when the party to be enjoined is the federal government, for there is a long-standing presumption “that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction.” See Comm. on Judiciary of U.S. House of Representatives v. Miers, 542 F.3d 909, 911 (D.C. Cir. 2008); accord Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 n.8 (D.C. Cir. 1985) (“declaratory judgment is, in a context such as this where federal officers are defendants, the practical equivalent of specific relief such as an injunction . . . since it must be presumed that federal officers will adhere to the law as declared by the court”) (Scalia, J.) (emphasis added). There is no reason to conclude that this presumption should not apply here. Thus, the award of declaratory relief is adequate and separate injunctive relief is not necessary.
I doubt the Administration will view it that way. They have two decision upholding the law and two rejecting the law on the district level. They are not likely to view themselves constructively enjoined.
Here is the entire decision by Judge Vinson: Vinson
Jonathan Turley
The waivers are designed to preserve stability in the insurance market until new state-run insurance exchanges open in 2014.”
It failed. There is no stability in the insurance market. Rates are going up and they are dropping people. Unfortunately for some who like their plan they won’t be able to keep it but there’s a new government program that they can sign up for.
Something like 80 years ago, a relative of mine (an uncle?) was in the merchant marine. I have known of the Merchant Marine Hospitals since I was rather young.
When I learned that the health care legislation included mandatory purchase of commercial insurance, I was astonished by the thought that such a mandate would make the insurance unconstitutional.
A single payer mutual system, not for profit, might do absolute wonders for people’s health and overall productivity.
Toward the end of the eighteenth century, the merchant marine was a critical industry in terms of the national interest.
Now, what industry is not critical to the national interest?
What was it I heard on some broadcast, and who said it? Something like, the rich are rich because the poor are poor…
One person steals 90 percent of the productivity of ten other people, the one person need not be productive to become very wealthy. Sounds a tad like reserve banking?
Perhaps there is something worth learning?
Merchant mariners did have decent care in terms of community standards of care, at reasonable cost. Perhaps there is something worth remembering that has been almost forgotten…
While I agree with Prof Volokh on most things (and it would be an act of supreme courage, folly, or ignorance to gainsay him)…
The federal government may, however, impose an additional income tax surcharge of, say, $5000 on anyone earning more than $100,000. But allow a 100% tax deduction (up to $5000) for anyone buying private health insurance.
That’s not “mandating” it. It’s similar to the system in Australia.
Disclaimer:
I’m Australian.
Obamacare as originally framed bore a very strong resemblance to the current Australian system, much as the Bill of Rights bore a strong resemblance to Queen Anne’s Bill of Rights (1689)
See http://en.wikipedia.org/wiki/Bill_of_Rights_1689
Anyway, the Australian system, while imperfect, works rather better than either the Canadian or UK systems. Miles better than the current US system (or lack thereof).
However… it was altered, changed, re-written etc so God alone knows what’s in it. Most, if not all, of the good bits were removed due to pressure by one special interest group or another, and a lot of rubbish inserted. To call it a “legislative abomination”, no matter how well-intentioned, is not hyperbole.
Then there’s the 750+ “exceptions” that have been granted to various special interest groups so they don’t have to comply with its more onerous provisions for the foreseeable future. The SEIU is just the most blatant example.
But constitutional? Parts may not be, it’s so complex I don’t know how anyone can tell that just yet, but on the whole, I think it is. Conceptually it is, even if the execution is not.
Here’s an interesting post from The Volokh Conspiracy on the 1798 act: http://volokh.com/2010/04/02/an-act-for-the-relief-of-sick-and-disabled-seamen/
Zoe,
Wickard v. Filburn is interesting because at it’s heart it poses the question: how tightly can Congress regulate interstate commerce?
If Congress can micromanage and fix prices, then the case was rightly decided — farmers all growing extra wheat for the use of their families and livestock would have an effect on the price of both wheat and meat.
Of course, taxing people who fail to buy health insurance is yet another few step removed from even that effect on commerce.
Wickard v. Filburn was possibly the worst SCOTUS decision since Dredd Scott.
Exactly. Wickard v. Filburn was decided so broadly, that there are few limitations on the scope of Federal legislation. SCOTUS should reverse. I don’t think they will, still we can but hope.
If they do though, there’s still a good argument that the Federal Govt has powers under the constitution to enact health care laws (specifically). It could be argued that it merely extends “An Act for the Relief of Sick and Disabled Seamen.” (July 1798) to all citizens. That such a law was deemed constitutional by those who framed the constitution is a powerful, and I think unimpeachable, argument.
Lotta,
I am not as optimistic as you that if the mandate is declared unconstitutional by the Supremes that it could lead to an honest discussion of the need for a public option or medicare for all program. I wish it would, but the Republicans in the Congress will not give that victory to Obama even if the country suffers. They are bound and determined to buck him at every turn and with the money behind them, why should they change course? Besides, I think the Supremes will find the entire bill Constitutional, but they will take their sweet time to decide when it does come to them. I wouldn’t be surprised to see a decision fairly close to the 2012 elections maybe even after the elections. Of course, the timing would be a coincidence.
You know, I think this may be a good opportunity to go back to square one and do it right if the Supreme court finds against the mandate. The Congress will have to then revisit healthcare in a substantive way. Maybe if the debate is honest this time and no deals are made prior to even considering the matter, there would be a chance for real healthcare reform. Single payer or Medicare for all, or at least a public option (again, a Medicare buy in) can get a fair shot at passage.
If nothing happens or the reform is weakened then at least people will know who the enemies of reform are. That might be a good thing for 2012.
Bdaman: here is why waivers are given from your own link.
From Bdman’s linked article: “The waivers have been granted to hundreds of so-called “mini-med” plans that offer limited health coverage to employees. The waivers are designed to preserve stability in the insurance market until new state-run insurance exchanges open in 2014.”
Kind’a friendly to employees and employers including Employers like McDonalds (which also got a waiver), a marvelously successful, large corporation, not some nickel and dime outfit laboring to make ends meet. “McDonalds Corp. has warned federal regulators that it could drop its health insurance plan for nearly 30,000 hourly restaurant workers unless regulators waive a new requirement of the U.S. health overhaul.”** Strong-arm much?
Posting the list of unions only is disingenuous to the point of propaganda and I’m glad Rafflaw called you out on it.
The list of companies exempted when there were only a couple of hundred is interesting. It includes: various cities, Catholic Charities of the Diocese of Albany, Heritage Christian Services, Mounds View Public Schools, North State Bank, medical services groups, management groups, a county; you name a catagory of business and it’s on the list and several example from each catagory are represented. Thats from when there was only 222 exemptions granted. The list is linked below.****
What’s your agenda in picking out the unions, shouldn’t unionized employees have access to health care? Should they be treated differently than McDonalds employees? Should their management be treated differently?
**Wall Street Journal: Business/Health section, Sept. 30, 2010
****http://www.hhs.gov/ociio/regulations/approved_applications_for_waiver.html
OT, completely, but this made my blood absolutely boil.
This is the kind of maladaptive and evil shit that happens when people operate solely off profit motives:
100 dogs in Canada killed after business slows
From the article: “Marcie Moriarty says some dogs were shot, while others’ throats were slit before their bodies were pitched into a mass grave.”
Further proof that greedy people suck and have all the compassion of stone.
W=c,
Car insurance is state regulated. Owning a car is optional. However, technically speaking you can own a car without insurance, you just won’t be able to get it tagged and face a ticket and/or license suspension if stopped. There are PI attorneys who deal with this situation everyday.
As far as vaccinations go? Who forced you to have a vaccination? No one can force medical treatment upon you. They can try, but absent extenuating circumstances that would be legal rationale for a court order – like you’re a minor with non-compliant parents in a matter of life or death? As an adult, you are always free to refuse treatment including vaccinations.
Thank, eniobob, for the comment above at 3:37 PM.
I still believe legislatures, not courts, should deal with issues of economic regulation. I think political developments in 2010 and 2011 have vindicated my view. There was an election in 2010 and some of the membership and leadership of the national government changed. The House has already voted in 2011 to repeal the health care law. There is also a move to repeal individual provisions of the law that may create problems. The political process is working.
The Florida decision is not the last word, since the district courts are now evenly divided. The constitutional law professors of America are also divided. See, for example:
http://balkin.blogspot.com/2011/01/halls-new-article-on-commerce-clause.html
On the issue of severability, I think the judge is wrong. It is true that the law did not contain a severability clause providing that invalidation of one provision should not affect the validity of the remaining clauses. But neither did it have a “non-severability” clause. Congress can provide that if one provision of a law in struck down, then the remainder is invalid also, but it did not do so in this law. So, in the absence of express instructions from Congress, the court could have inferred that the rest of the law should remain valid after the invalid individual mandate was struck down.
A lot of cases have held that legislation duly enacted by Congress and signed by the President comes to the courts with a presumption of constitutionality. The court should have considered this and left the valid parts of the law in effect.
In general, the issue may not even be ripe for decision, since no one has been forced to buy insurance yet. The standing of the state governments seems suspect, since none of them are directly affected as yet. It might be better to decide the individual mandate when an individual is actually mandated.
There is a lot of lofty discussion about the Constitution. On the other hand, these cases may just involve a bunch of politicians elected to the state legislatures, along with the governors and attorneys general, who simply seem to have a disagreement with another bunch of politicians elected by the very same people to the Congress and the White House. I think it is better for those people themselves to decide these issues by electing representatives, not for a handful of unelected jurists.
Even the judge seems to realize that the decision is just a bump in the road to the Supreme Court. He supposedly struck down the entire law, but he refused to enjoin its operation, so it continues to stand. No one seems to be affected by the ruling. That may be like an advisory opinion and Article III may not allow such an advisory opinion.
The enumerated powers of Congress include the powers to tax, to regulate commerce, and to make all laws necessary to carry the enumerated powers into effect. The Founders framed these powers in general terms with very few specific limitations, thus making those powers very broad. The so-called “original intent” of the Framers is very difficult to divine 220 years later, since we cannot read their minds retroactively and discern their views on matters they never dreamed of. Was it within the original intent for the US to put a man on the Moon?
100 bucks says Charles Koch paid off this judge, too. Just wait and see.
so how come I can be forced to purchase car insurance?
forced to have vaccinations I don’t want?
…just wondrin….
“no we are that way because 100 years of progressive thought has brought this country to it’s knees.”
We are there because of the tireless efforts of conservatives and corporatists to undo the restrictions on corporate participation in government placed there by FDR in the wake of the failed Business Plot of 1933 and the market crash of 1929.
“just goes to show what a bunch of sellout graft whores we have holding office in this country and why America is no longer a shining light of freedom and human/civil rights.”
no we are that way because 100 years of progressive thought has brought this country to it’s knees.
James M: which enumerated power allows Obamacare?
Mike Appleton:
“The so-called “free market” has not solved the problem because insurers will not sell protection to those most likely to need medical care.”
there is no “free market” in insurance, it is a heavily regulated industry.
The poor don’t die, they are taken care of by charging the rest of us 50 bucks for 2 aspirin.
Government run single payer health care is socialized medicine. What else is it? Over 50% of the population doesn’t want it. If you want single payer, form a corporation and insure the other 50% of the population that does. No one is stopping you. It should work, you would have a huge pool of insureds. You can make it non-profit and charge whatever your pool can pay.
“quite common”
sorry, dining and typing do not mix
For a singular example . . .
Family sues insurer who denied teen transplant. These kinds of stories are quire common.
And for larger statistical depth? The insurance industry and their lapdog politicians – you know, fascist politicians – have conspired to keep data about deaths directly attributable to bad faith denial of coverage (which includes refusal to provide coverage, bad faith denial of coverage under pretense or technicality, refusal to defend policyholders against lawsuits, exclusions or denial of full benefits and excessive or unwarranted delays in paying claims) out of the public eye. . . mainly to keep insurance company executive from being dragged from their offices and burned in the streets. The main reason this kind of data isn’t readily publicly available is that it would be tantamount to an admission of guilt by insurance companies. But let’s just say that the problem is a common enough problem that there are many law firms who specialize in this type of litigation. However, Harvard did a wonderful study showing the impact of no insurance coverage on mortality. It doesn’t paint a pretty picture either.
Researchers from Harvard Medical School say the lack of coverage can be tied to about 45,000 deaths a year in the United States — a toll that is greater than the number of people who die each year from kidney disease.
The NYT has a direct link to the Harvard study. It’s in .pdf form.
Also, what both Dr. McHugh and Mike A. said. It should also be noted that in most Western countries, health care is considered a basic human right. In this country, FDR even explicitly called health care a basic human right in a 1944 speech to Congress. That “our” government is 60 plus years later still protecting private profits over advancing our rights to be at least equal with that of our allies citizenry just goes to show what a bunch of sellout graft whores we have holding office in this country and why America is no longer a shining light of freedom and human/civil rights.