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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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“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.

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