The Ford Pinto Act: Is The White House Claim of “Activism” Fair?

Here is my column in USA Today (which was posted yesterday but will run in print on Monday) on the charge that Judge Vinson is an activist after his striking down of the entire health care plan. While I did not view the opinion as particularly strong in its substantive analysis and did not like the rhetoric flourishes (as discussed with Lawrence O’Donnell this week), I find the charge of activism to be a bit forced over the issue of severability.

Our Ford Pinto health care law takes a hit
By Jonathan Turley

Borrowing an attack that has more often been heard from Republican administrations, Stephanie Cutter, a senior adviser to President Obama, issued a statement denouncing Vinson as a “judicial activist.” That charge was quickly picked up by Democratic lawmakers. The evidence cited for this charge was the fact that Vinson “declared that the entire law is null and void even though the only provision he found unconstitutional was the (individual mandate) provision,” which requires every citizen to buy health insurance.

What the White House does not mention is that it played a game of chicken over health care with the court and lost a critical battle in Florida. Instead of inserting a “severability clause” designed to protect an act from this type of global rejection, the legislation was rammed through a divided Congress with diminishing public support.

The absence of the clause was just one of the flaws in this legislation, which even sponsors now admit must be amended to address serious problems ranging from paperwork overload to uncertain costs to questions over what plans will count under the law. Even for some of us who support national health care, the bill unnecessarily triggered the constitutional fight that led to its rejection in two federal courts. There were alternatives to achieve the same end, but what was lacking was a willingness to reconsider these provisions with the approach of the new Congress.

A standard feature

Yet the failure of lawmakers to insert a boilerplate severability clause is the most puzzling. The standard clause — pardon the legalese — states, “If any particular provision of this act, or the application thereof to any person or circumstance, is held invalid, the remainder of the act and the application of such provision to other persons or circumstances shall not be affected thereby.” It is generally on a short list of basic elements for legislation, such as putting a title and preamble on a bill.

The national health care bill contained such a provision, but it was removed before passage. Of course, even without such a clause, judges can still avoid striking down an entire law and confine their rulings to a specific provision. That is what Judge Henry Hudson did last year in Virginia after finding the individual mandate unconstitutional. Hudson was right to do so, in my view, but that does not make Vinson a judicial activist.

The charge of activism sounds like the lament of every bad gambler after being discouraged from playing a high-risk hand.
The risk was always there

Many — including yours truly — had raised concerns over the constitutionality of the individual mandate. Even the respected Congressional Research Service noted that such objections might have merit. Ultimately, public officials in 26 states have challenged the law.

Even if one accepts that the removal of the clause was just some colossal, inexplicable blunder, it was the blunder of the White House and Congress — not the courts. The result was a Ford Pinto law — a fast and cheap vehicle that would explode with even low-speed collisions.

The Justice Department undermined its own case by repeatedly warning Vinson in court that if he struck down the individual mandate, the law would be fundamentally crippled. Without the mandate (and young healthy people forced to buy insurance), the plan is fatally underfunded. It appeared to the court that the administration was arguing that it was an “all-or-nothing” proposition. Vinson’s ruling: Nothing it is.

Of course, the law could be ultimately saved by the U.S. Supreme Court, where it is clearly heading. In the end, however, it seems a bit forced for the Obama administration to throw around the old cry of “judicial activism” when it pushed through a law that removed the critical safety provision for severability.

The problem with games of chicken is that sometimes the other guy does not jump before the cliff.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.

19 thoughts on “The Ford Pinto Act: Is The White House Claim of “Activism” Fair?”

  1. The lights at the ends of the tunnel have come into view.

    They are getting brighter and brighter.

    They are the flashes of hydrogen bombs.

    On CSpan (1? 2?) earlier today. In paraphrase. When people’s expectations fail to be met drastically enough, revolution will happen.

    Revolution or evolution, which shall it be?

  2. Nal and Vince,
    well done here. I agree that Judge Vinson is an activist judge. How many times have we heard that phrase out of Republicans and Republican politicians from Congress to the White House? I think it is fine and correct to use that label here. I think the difference here with the fast and cheap law as it is referred to, is that this was the best the legislative process could pass, at this point in history. So I do not agree with the pinto analogy because Ford had all of the control in that situation and chose to go the route of saving money over lives. The health care reform bill was forged out of Republican ideas and passed Congress. As Nal correctly suggested, Congress is alwas divided and the Act does hav strong overall support when people are actually told what is in it.

  3. I remember seeing Lawrence O’Donnell introduce that piece on Tuesday night, where he laid much emphasis on the idea that you could predict a judge’s opinion by the President who appointed him, and he went on to say that the votes for Obama didn’t count, only Anthony Kennedy’s. I thought how similar that introduction sounded to the complaints in California about the overturning of Proposition 8.

    There attacks on the judiciary strike me as beside the point; there are valid legal questions here. Prof. Turley addressed those issues in his comment on MSNBC, and I hope nobody is going to accuse him of being part of a cadre of Republican stick-in-the-muds.

    Judges sometimes use unfortunate language in their rulings, and this is one such case. That probably doesn’t make much difference in the end, though.

  4. The law was written as it was and like any other contract dies with the interpretation….

  5. Blouise 1, February 3, 2011 at 11:26 am

    It would appear that the Judiciary of this nation have wrapped themselves in the robes of Monarchy.

    Down here in FLOREEDUH we have known this for a long time….;)

    So, since the severability clause was not simply forgotten but deliberately removed….why? by who? and to what purpose other than a deliberate brouhaha?

    ’cause it has seriously impacted the saveability of a whole lot of people…..

  6. should be: “some members”

    It would appear that some members of the Judiciary of this nation have wrapped themselves in the robes of Monarchy.

  7. It would appear that the Judiciary of this nation have wrapped themselves in the robes of Monarchy.

  8. The Professor’s analysis makes sense and, for me, it is hard to see the decision as activism. Of particular importance is that the Justice Dept. told the Judge it was “all or nothing.”

    The (perhaps harsh) reality is that the law is unlikely to work without the individual mandate because without it, many people would not buy insurance until they are sick. With that in mind (and accepting that the Justice Dept. was forthright) it seems clear that Congress consciously removed the severability clause.

    I am curious as to whether the Justice Dept. took the same approach (all or naught) in the case where the Judge did find the offending provision severable.

  9. Nal, very good point.

    Two of the four District Courts so far have upheld the law, and three out of four managed not to strike down the entire
    Act of Congress. Those three courts are part of the nonactivist judiciary.

    Also, the statement that “Even the respected Congressional Research Service noted that such objections [to individual mandaate] might have merit” is very incomplete, to say the least. The Judge cited a 2009 CRS Report, but not a comprehensive 2010 CRS Report for Congress providing a balanced constitutional analysis of the individual mandate provision as it was actually enacted. The Report canvassed all of the sources of congressional authority as well as possible constitutional limitations on that authority:

  10. There was no stay. There was no injunction. He issued a declaratory judgment that the entire Act was unconstitutional.

    He said it should be the equivalent of an injunction and apply to all federal officers.

    It seems he meant it to apply nationwide.

    One District Judge is now acting President.


    “Injunctive relief is an “extraordinary” [Weinberger v. Romero-Barcelo, 456U.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.”

    He enjoined the entire Act, presumably holding that even the Short Title was unconstitutional. Yet some argue that this was not judicial activism.

  11. … the legislation was rammed through a divided Congress with diminishing public support.

    Rammed through? Passed.

    Divided Congress? All Congresses are divided.

    Diminishing public support? Many important aspects of ACA have substantial public support.

  12. I thought he stayed his decision pending appeal. Did I hear wrong? If he didn’t stay his decision, it would only apply in his district anyway.

  13. Vinson’s decision is a classic example of activism and overreaching by a mere District Judge. If he believed the individual mandate was unconstitutional, he should have held it, and it alone, unconstitutional, and then stayed his ruling pending appellate review. If any Court is to set aside duly enacted legislation, it should be the Supreme Court.

    In our republican form of government, with its separation of powers, legislation is enacted by Congress, representing the people of all the States, and signed by the President, elected by the people of the nation.

    This judge was elected by no one. This case is not about the denial of a constitutional right to an individual. No one has yet been mandated to do anything. It seems to be and example of someone reviewing legislation, disagreeing with it on the merits, and substitution his view for those of the legislature under the guise of the Constitution, on the basis of novel constitutional theories.

    Years ago, Rehnquist decided that wage and hour laws were a bad idea for the States. He managed to get four Justice to agree with him in National League of Cities. He substituted his own policy predilections for the duly enacted laws of the United States. The result was a decision, in Stevens word, that held that a State, in all its majesty, could pay a substandard wage to the janitor in the State House. The Court just invented a doctrine out of thin air. It was so unworkable that it was reversed in Garcia in a matter of years.

    That is what the Supreme Court did 100 years ago in Lochner. It disagreed with the legislative limit on hours of work and struck it down. Well, as Holmes remarked, the Constitution did not enact Spencer’s Social Statics.

    A lot of neocons and others believe in market economy with religious fervor these days. Let them persuade the representatives of the people. Do not impose their whims by judicial fiat.

    Alexander Bickel called the judiciary the least dangerous branch, and argued for judicial restraint. Judge Vinson and his advocates, like Randy Barnett and Ilya Somin, are now supporting judicial review run rampant. This transforms the courts into a very dangerous branch.

    Text of Holmes in Lochner.

    This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics. The other day, we sustained the Massachusetts vaccination law. Jacobson v. Massachusetts, 197 U.S. 11. United States and state statutes and decisions cutting down the liberty to contract by way of combination are familiar to this court. Northern Securities Co. v. United States, 193 U.S. 197. Two years ago, we upheld the prohibition of sales of stock on margins or for future delivery in the constitution of California. Otis v. Parker, 187 U.S. 606. The decision sustaining an eight hour law for miners is still recent. Holden v. Hardy, 169 U.S. 366. Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. [p76] It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

  14. I agree, they can’t say they weren’t warned that this might happen.

    By the way in the UK a very small number of us are vaguely aware of the Ford Pinto as a car that was not modified or withdrawn from the home market by the Ford Motor Company because the company’s bean counters had calculated that fixing the problem of petrol tank ignition from rear shunts would be more expensive than handling any resulting lawsuits from aggrieved survivors and widows. After some reflection I eventually worked out the reason for your choice of title.

  15. On the issue of severability, I think the judge is wrong. 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.

    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:

    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 that 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 he 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. That may be like an advisory opinion to me, 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 their original intent for the US to put a man on the Moon?

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