Conservative judge stays his ruling on health care reform’s unconstitutionality

by Russell's Rants

Originally posted March 4, 2011

healthcare_law_image1Federal District Judge Roger Vinson of Pensacola on Thursday stayed his own previous ruling striking down the Health Care “Affordable Care” Reform Act pending what he hopes to be a fast-tracked appeal. In doing so, he has become an advocate of what he characterizes as his strong belief in the unconstitutionality (and non-severability) of the individual mandate in the Act as beyond Congress’ powers under the Commerce Clause of the Constitution. He has enough awareness, however, of the 3 other district court judges who have upheld the constitutionality of the Act to realize that it will likely take the Supreme Court to make the final decision on the Act. He predicts a split-ruling by the Supreme Court but clearly thinks he’s going to win there (despite prior rulings by Justice Kennedy, and even Justice Scalia, that would indicate otherwise). So he is conditioning his stay on the Obama Administration making an expedited appeal, essentially mandating the timeframe for the appeal to proceed.

Judge Vinson has taken the opportunity of the government’s motion for clarification to both reiterate the basis for his original ruling and take notice of various political events that occurred after he issued it in late January 2011. He apparently reads his own press as he notes discussion of his so-called “broccoli mandate” analogy (i.e., that requiring citizens to purchase to health insurance is the equivalent of forcing them to eat broccoli as part of an anti-obesity campaign) in testimony before the Senate Judiciary Committee. Interestingly, he alludes to but then fails to answer a more recent ruling by Judge Gladys Kessler of the District of Columbia that health care is different than broccoli because medical care providers must give emergency care free-of-charge to the uninsured. The the individual mandate is aimed at preventing free-loaders who would otherwise make the cost-shifting choice to let others pay for their health care when they eventually need it – as we all will at some point in our lives. Judge Vinson takes a second bite at the broccoli but doesn’t chew.

The heart of Judge Vinson’s decision to stay his ruling rests upon his inability to predict ultimately how the various courts of appeal and Supreme Court will decide on the constitutionality of the Affordable Care Act.

I cannot say that the defendants do not have a likelihood of success on appeal. They do. And so do the plaintiffs. Although I strongly believe that expanding the commerce power to permit Congress to regulate and mandate mental decisions not to purchase health insurance (or any other product or service) would emasculate much of the rest of the Constitution and effectively remove all limitations on the power of the federal government, I recognize that others believe otherwise. The individual mandate has raised some novel issues regarding the Constitutional role of the federal government about which reasonable and intelligent people (and reasonable and intelligent jurists) can disagree. To be sure, members of Congress, law professors, and several federal district courts have already reached varying conclusions on whether the individual mandate is Constitutional. It is likely that the Courts of Appeal will also reach divergent results and that, as most courtwatchers predict, the Supreme Court may eventually be split on this issue as well. Despite what partisans for or against the individual mandate might suggest, this litigation presents a question with some strong and compelling arguments on both sides. Ultimately, I ruled the way I did, not only because I believe it was the right overall result, but because I believe that is the appropriate course for a lower court to take when presented with a (literally) unprecedented argument whose success depends on stretching existing Supreme Court precedent well beyond its current high water mark and further away from the “first principles” that underlie our entire federalist system.

Judge Vinson goes on to weigh the relative injuries to the parties – whether in allowing the some 450 preliminary steps for implementation of the Act to proceed or to stop them in their tracks – and finds, on balance, in favor of a stay. He notes there his ruling is only binding on the 26 states that are parties to his litigation. But one of the states is Michigan, where another District Court Judge has already ruled the Affordable Care Act to be constitutional – so it’s unclear which ruling governs. And there is dissention among the ranks of the plaintiffs in Judge Vinson’s case. Some have said publicly that they will immediately halt implementation of the Act in light of his ruling, but eight have suggested that, out of an abundance of caution, they will continue its implementation while the case winds through the appellate courts. There is even one intra-state conflict. While the Attorney General of the state of Washington (who is a party plaintiff) opposes a stay of the ruling, the Governor of Washington favors continued implementation of the Act. (Guess which one’s the Democrat and which one’s the Republican!)

Not content that his job was done, Judge Vinson concludes his stay ruling by demanding that the case be “immediately appealed and pursued in the most expeditious and accelerated manner allowable.”

Tongue planted firmly in his cheek, the Judge says,

[T]he legal issues specific to this case have already been fully and very competently briefed. With a few additional modifications and edits (to comply with the appellate rules), the parties could probably just change the caption of the case, add colored covers, and be done with their briefing.

Therefore, he grants the motion to stay, but conditions it on the government both filing a notice of appeal within 7 days and seeking expedited appellate review. It will be interesting to see how the government reacts and whether it seeks different immediate relief from the 11th Circuit Court of Appeals.

Judge Vinson says his concern is the intermediate effect of the Act which “seeks to comprehensively reform and regulate more than one-sixth of the national economy” (an observation strikingly at odds with his fundamental ruling that the Act has an insufficient nexus to interstate commerce). A cynic might say, especially in light of the seemingly political observations in his rulings, that the Judge’s real concern is the politics health care reform – as his fast-track schedule might put the issue before the Supreme Court for a decision during the 2012 presidential campaign. Judge Vinson is the judicial equivalent of Scott Walker – a committed ideological conservative, wanting to take us back to the days of social Darwinism before the New Deal and in a hurry to get there.