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The White House’s (Counterproductive) Critique of Judge Vinson's Ruling

8:19 AM, Feb 2, 2011 • By JEFFREY H. ANDERSON
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It was entirely predictable that, if United States District Court Judge Roger Vinson ruled that ObamaCare was unconstitutional, the Obama administration would accuse Judge Vinson of partisanship. What wasn’t so predictable was that the administration’s own response would so compellingly support Vinson’s ruling.

The White House’s (Counterproductive) Critique of Judge Vinson's Ruling

Judge Vinson’s ruling had two key parts: First, he ruled that ObamaCare’s individual mandate — its requirement that all Americans buy federally approved health insurance — is an attempt to compel commerce, not to regulate it, and thereby exceeds Congress’s power “To regulate Commerce…among the several States.” Second, because the rest of ObamaCare can’t realistically function — and wouldn’t realistically have been passed — without the individual mandate, that mandate cannot be surgically extracted from the center of the act, leaving the surrounding parts intact; rather, the mandate’s invalidation must invalidate the entire act.

This is especially true, Judge Vinson writes, because ObamaCare doesn’t have a severability clause: a clause specifying that if one part of the act is thrown out, the rest needn’t be thrown out along with it. As Judge Vinson observes, ObamaCare not only lacked such a clause in its final version, but it did have one in an earlier version — which suggests that Congress deliberately took it out.

In response to the second part of Judge Vinson’s ruling, Stephanie Cutter, an assistant to the President and the White House’s deputy senior advisor, writes on the White House blog, “[T]he judge declared that the entire law is null and void even though the only provision he found unconstitutional was the ‘individual responsibility’ provision.”

Cutter’s complaint seems to pose a good question: Why invalidate an entire 2,700-page act when the individual mandate is “the only provision” that clearly (in the judge’s estimation) must go? Cutter, inadvertently, proceeds to answer that question:

The Affordable Care Act…bans insurance companies from discriminating against people with pre-existing conditions. However, unless every American is required to have insurance, it would be cost prohibitive to cover people with pre-existing conditions.

Here’s why: If insurance companies can no longer deny coverage to anyone who applies for insurance – especially those who have health problems and are potentially more expensive to cover – then there is nothing stopping someone from waiting until they’re sick or injured to apply for coverage since insurance companies can’t say no. That would lead to double digit premiums increases – up to 20% – for everyone with insurance, and would significantly increase the cost [of] health care spending nationwide. We don’t let people wait until after they’ve been in a car accident to apply for auto insurance and get reimbursed, and we don’t want to do that with healthcare. If we’re going to outlaw discrimination based on pre-existing conditions, the only way to keep people from gaming the system and raising costs on everyone else is to ensure that everyone takes responsibility for their own health insurance.

So, in Cutter’s own words, without the individual mandate, ObamaCare would be “cost prohibitive,” “would lead to double digit premiums increases,” and “would significantly increase the cost [of] health care spending nationwide.” In fact, “the only way” to make it all work is to enforce the individual mandate. In other words, without its unconstitutional cornerstone, ObamaCare would be much more of a disaster than it already is.

In light of Cutter’s observations, Judge Vinson’s subsequent choice after having found the individual mandate to be unconstitutional was (A) to invalidate the entire act and punt it back to Congress (which he did); (B) to leave us with an act that even the Obama administration says would result in “double-digit premium increases,” “significantly” higher nationwide health costs, and a decimated insurance market — an act that, in such form, clearly would not have passed the House (where it passed with only three votes to spare as it was) or the Senate (where it passed with no votes to spare); or (C) to cherry pick among the other parts of the act, deciding, as if a legislator (or as the Legislator) what parts should be scrapped, and what parts should be kept, regardless of whether Congress would have voted for the resulting judge-determined hodgepodge or not. It would seem that Judge Vinson made the right call, as well as the one most befitting the role of a judge.

As for the first part of Judge Vinson’s ruling, Cutter replies,

“Those who claim that the ‘individual responsibility’ provision exceeds Congress’ power to regulate interstate commerce because it penalizes ‘inactivity’ are simply wrong. Individuals who choose to go without health insurance are actively making an economic decision that impacts all of us. People who make an economic decision to forego health insurance do not opt out of the health care market. As Congress found, every year millions of people without insurance obtain health care they cannot pay for, shifting tens of billions of dollars in added cost onto those who have insurance and onto taxpayers. There can be no doubt that this activity substantially affects interstate commerce, and Congress has the power to regulate it.”

Cutter deliberately blurs the distinction between regulating actions that people choose to undertake, and requiring them to take action that they don’t choose to undertake. She suggests that because one person’s decision not to buy health insurance has an impact on other people (which it does), the government therefore must have whatever power it needs to act on the matter — especially since “tens of billions of dollars” are involved. But that’s simply an assertion that such power would (in her estimation) be good, not a defense of its constitutional legitimacy. The only basis that Cutter gives for why she thinks Congress has this power is that nearly everything people do, and much that they decide they’d rather not do, substantially affects interstate commerce — and therefore can be regulated as interstate commerce.

This is reminiscent of the exchange between Obama Supreme Court nominee (and now Justice) Elena Kagan and Senator Tom Coburn (R., Okla.), at Kagan’s nomination hearing. Coburn asked Kagan whether Congress could constitutionally pass a law ordering Americans “to eat three vegetables and three fruits, every day,” explicitly asking, “[D]oes that violate the commerce clause?” Despite having multiple chances to do so, Kagan would only grant that such an act would be “senseless,” not that it would be unconstitutional.

Judge Vinson wasn’t asked to rule on the forced eating of fruits and vegetables, but his ruling on the forced purchase of health insurance prompted Cutter to accuse him of “judicial activism” and “judicial overreaching.” This is certainly ironic. In the debates over the proper role of the courts in construing the Constitution, one side believes in applying the document’s plain, commonsense, historically understood meanings, asserting that while the circumstances to which the Constitution must be applied are always changing, its meanings are not. As the great Justice Joseph Story put it, the Constitution “is to have a fixed, uniform, permanent construction. It should be, so far at least as human infirmity will allow, not dependent upon the passions or parties of particular times, but the same yesterday, to-day, and for ever.”

The opposite side believes in applying notions of “legal realism” or flexibility when reading the text, and of looking beyond the text as necessary. It believes in a “living Constitution,” which means, as Justice William Brennan put it, “judicial power resides in the authority to give meaning to the Constitution,” for “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone.” Or as President Barack Obama put it (when he was a senator), in “truly difficult” cases, one must apply “one’s deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one’s empathy.” Justice Story would have said that one’s deepest values and core concerns have no place in applying a document written by others. Nevertheless, it’s clear which side of this debate the President is on.

President Obama’s progressive allies share his skepticism about — or indifference toward — a fixed, knowable Constitution. The New Republic’s Jonathan Cohn writes, “I don’t think the constitution [small “c”] has some unambiguous, values-free meaning.” Cohn continues, “It’s up to the judges to decide which precedents matter more. And that’s a decision bound to reflect their values. All of which is a long way of saying that judges can do whatever the heck they want.” The Washington Post’s Ezra Klein adds, “The issue with the Constitution is that the text is confusing because it was written more than 100 years ago.” (One might say that it was written even before then.) In response to Judge Vinson’s ruling, Klein resorts to simply making things up, writing (without basis), “Vinson concedes his position is activist in the extreme.”

In light of all this, it’s tempting to say that if the Obama administration’s hand, accustomed to feeding judicial activism, has now been bitten by it, this is cosmic justice. But that’s not actually what has happened here. Rather, Judge Vinson’s ruling represents the triumph of judicial deference to the Constitution as written, a philosophy that the Obama administration rejects.

What’s really happening here is this: The administration wants the courts to issue activist rulings on ObamaCare. Not all activist rulings usurp legislative power, in the spirit of Roe v. Wade. Some extend legislative power, and the administration wants the courts that rule on ObamaCare to apply that sort of activism — defying the plain, commonsense, historically understood meaning of the Constitution in the process.

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