Activist judge Roger Vinson's ruling makes George Washington unconstitutional

By Nicholas Wilbur

I'm not an ambulance chaser, nor am I a judge. I can't even claim sidekick status to a comic book superhero who rights the wrongs of America with his doctorate in constitutional law.

But riddle me this, Batman: If the president signed a law forcing every American to purchase a rifle and ammunition in preparation for a possible call to active military duty, but the Constitution specifically forbade forcing Americans to purchase ammunition, could a federal judge then overturn the entire law – including the rifle mandate – on the basis that only the ammunition portion of the law was illegal?

A judge in Florida has ruled against President Obama's health-care reform law, saying that the provision that forces Americans to buy health insurance is a breach of Congress' constitutional authority. He did not argue the illegality of the law's other provisions. He said only that the mandate (the ammunition provision, in this seemingly left-field metaphor) was unconstitutional.

Federal district judge Roger Vinson argued that, "[b]ecause the individual mandate is unconstitutional and not severable, the entire act must be declared void."

It would be easy to brand this 70-year-old, bachelor's degree-educated wannabe Tea Partier as a kook who admitted to relying on the legally insignificant analyses of a known hate group to craft his ruling. Rest assured, his education, his age, and his apparent bias do not play into my critique. Calling Vinson a geriatric Frankenstein pig fucker with shit for brains would not be a merit-based evaluation of his mental capacity, his overall intelligence, and his cognitive ability to perform the duties expected of a judge, which is why I'm not arguing that he's a pig fucker. I'm merely asking how a man tasked with interpreting the legality of public policy can denounce every aspect of a law on the basis that one aspect of it is, in his opinion, unconstitutional.

Rather than rule only against the mandate portion of the law, as was the expectation and the precedent set in a mirror ruling made by a federal judge in Virginia, Vinson, a Ronald Reagan appointee, instead threw out the entire law on the basis that all the reforms will fail without the mandate. Granted, President Obama's health-care law doesn't include a "severability clause" that would allow the judge to strike down a portion of the law without invalidating the entire law, but if Vinson believes the entire law is illegal, then why didn't he issue an injunction against the policy and immediately halt its implementation?

First of all, we must ask if the health-care law itself would be invalidated without the mandate, as that is the basis for Vinson's ruling. It turns out several states have created laws banning insurance companies from denying coverage based on pre-existing conditions. Also, Vinson did not rule that the provision in the law that allows children to stay on their parents' insurance plans until age 26 was unconstitutional. These provisions would still be in place without the mandate. They would still be legal.

It doesn't require a magnifying glass to read between the lines of Vinson's ruling. He's saying what even the president has said – that without the mandate, the bill would fail. But failure, in this sense, means it wouldn't generate the revenue predicted, it wouldn't achieve the coverage rates predicted, and it wouldn't lower costs for individual insurance consumers as predicted.

The question, however, is not whether or not the bill is effective. It is the job of Congress, of lawmakers, policy experts, and legislative analysts to determine the effectiveness of a bill. The question is, when did it become the job of a judge, of an interpreter of the law, to decide effectiveness?

We talk often, and we often talk vehemently, about "activist" judges. Any leftist who angers the right is an activist judge. Any right-winger who pisses off the left is an activist judge. In most cases, these are ideological critiques, not merit-based evaluations.

This, I think, is one of the few cases where the "judicial activism" argument holds water. It would not be inappropriate for a federal judge to air his personal views that health-care reform would be cheapened without a mandate. We wouldn't balk at the observation, as the president and nearly every Democrat in Congress has already admitted as much. But is it appropriate that a judge has shot down an entire law based on the personal evaluation of how effective a law would be without the one portion he has deemed unconstitutional?

That's the question. I'm open to critiques.

As for my seemingly unrelated metaphor of the rifle and ammunition mandates, that actually happened. It was, in fact, one of the framers of the Constitution, George Washington, who forced every American to arm himself. In a way, this was health-care insurance, 1770s-style. No judge ruled it unconstitutional. Probably few citizens deemed the mandates unjust. It was logical to protect oneself. And in that sense, its no different than modern health-care reform.

(Cross-posted from Muddy Politics.)

Right-wing Republican judge rules health-care law unconstitutional

By Michael J.W. Stickings

So what else is new?

Republican-appointed judges, embracing conservative judicial activism (even if they would deny it), are ruling against the Affordable Care Act and basing their decisions on spurious legal reasoning:

A second federal judge ruled on Monday that it was unconstitutional for Congress to enact a health care law that required Americans to obtain commercial insurance, evening the score at 2 to 2 in the lower courts as conflicting opinions begin their path to the Supreme Court.

But unlike a Virginia judge in December, Judge Roger Vinson of Federal District Court in Pensacola, Fla., concluded that the insurance requirement was so "inextricably bound" to other provisions of the Affordable Care Act that its unconstitutionality required the invalidation of the entire law.

"The act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker," Judge Vinson wrote.

How odd that Vinson's words are a metaphorical version of the standard Republican talking point -- repeal and reform, even if Republicans have no alternative plan and no intention of introducing one anytime soon. (It's important to note, too, that Vinson based his decision to a great extent on the views of the right-wing, theocratic Family Research Council, hardly an impartial source.)

Ultimately, the law will be reviewed by the Supreme Court, so it doesn't much matter how these lower courts rule. Although, of course, the Supreme Court, with a 5-4 conservative majority, is partisan and, when it wants to be, activist. (Kennedy will likely be the swing vote, as usual.)

But Steve Benen makes some excellent points in putting this latest ruling into perspective:

First Update: Note that when Judge Henry Hudson of Virginia, a Bush appointee, reached a similar conclusion in December, in a ruling that no one seemed to think made any sense, he said the individual mandate is unconstitutional, but left the rest of the law intact. Reagan appointee Vinson, however, took a far more activist approach, striking down a massive piece of legislation because of one provision.

Republicans are thrilled, of course, because activist court rulings are to be celebrated, just so long as it's activism the right can agree with. 

Second Update: It's also worth emphasizing that two Republican-appointed federal district court judges have now found that the individual mandate -- an idea Republicans came up with -- is unconstitutional. And while that's important, let's not forget two other federal district court judges, appointed by Democratic presidents, came to the opposite conclusion.

Indeed, overall, about a dozen federal courts have dismissed challenges to the health care law.

In other words, when you hear on the news that "courts" have a problem with the Affordable Care Act, remember that it's actually a minority of the judges who've heard cases related to the law.

Aside from the obvious activism on display here, that last point is crucial. Only two judges, both Republican-appointed, have ruled against the mandate (the second also against the entire piece of legislation). The media focus disproportionately on these negative rulings, rulings that would seem to validate the Republican position, but the reality is that the law, including the mandate, has thus far been upheld everywhere else.

There's hardly any guarantee that the Supreme Court will uphold the law, but claims of the Affordable Care Act's demise are greatly exaggerated.

Nullification nonsense: How conservatives mistake the Constitution for the Articles of Confederation

Guest post by Publius 

Publius has lived in and spent most of his life thinking about Washington, D.C. He is an attorney, an avid sports fan, and the editor of The Fourth Branch.

(Ed. note: This is Publius's second guest post for us. You can find his first, on George Will and "engaged justices," here. -- MJWS)

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Many have noted the irony of conservative politicians running on a platform of undying love for and understanding of the Constitution while simultaneously advocating the repeal of many of its significant provisions. Vocal elements of the conservative base, primarily centered on the Tea Party and pundits on Fox News, have advocated for repealing part of Section 1 of the 14th Amendment (citizenship) and all of the 16th Amendment (income tax) and 17th Amendment (direct election of Senators). Those would be significant changes to the nation's governing text, but they pale in comparison to the most recent calls for change involving nullification.

The so-called "Tenther" movement holds that the Congress continues to pass "unconstitutional" laws that are beyond Congress' power to enact, and that the states have the right, under the Tenth Amendment, to reject all such laws. The legal theory behind the Tenther movement isn't novel, but it is one that has been soundly rejected -- politically, legally, and militarily. The doctrine was used by the South to justify its continued use of slavery prior to the Civil War. It led to the South invoking nullification's close relative, secession, as the ultimate exercise of state sovereignty. Military elimination of the doctrine and the racist policies supported by the doctrine cost the lives of over 600,000 Americans. The Constitution itself was born following a failed history with a legal document codifying the concept of nullification -- the Articles of Confederation.

Given the racist past of nullification and secession, and the severe strain both policies placed on the nation and the Constitution as a whole, one would think the conservative movement would stray far from such policies. Instead, nullification has found new life and even a place on the ballot in many states. In Oklahoma, Missouri, Arizona, and Colorado, voters have been asked to "nullify" the recent health-care law, and nullification passed in each of those states but Colorado. Virginia recently passed a law through the legislature "repealing" health care with respect to that state. None of these efforts have any legal significance (which ought to be a sign that they aren't constitutional, but I digress).

Of course, health-care reform isn't the only law targeted by Tenthers for nullification. According to the Tenth Amendment Center (which is pushing many of the nullification efforts), other laws targeted for nullification include medical marijuana laws, firearm control laws, cap and trade (which hasn't even been enacted yet), EPA regulations, and more. In addition to repealing laws, the Tenthers advocate passing laws or constitutional amendments which restrict the definition of "interstate commerce" (which would restrict Congress' ability to pass laws, because many laws are passed under the Commerce Clause), require state approval of federal tax laws, and require a return to the gold/silver standard.

It ought to be obvious that such efforts, if enacted, would effectively eliminate the federal government. If the federal government, for example, could not pass a budget without state approval, or could not raise taxes from residents of a state until that state consented, the federal government would be crippled. How do we know this? Because it was already tried once before and it failed miserably with the Articles of Confederation.

Under the Articles of Confederation, the Confederation Congress could pass laws, but the power of enforcement lay with the states. Furthermore, Congress itself had no power of taxation -- all revenue had to be requested by the states. Substantively, such provisions in the Articles of Confederation are identical to granting states under the Constitution the power of nullification. Under the Articles of Confederation, the federal government neared insolvency, inflation of the "continental dollar" skyrocketed so much that the saying "not worth a continental" was born, and the military, desperate for funding which rarely came from Congress, was authorized to confiscate whatever property it needed to carry on the Revolutionary War.

Notwithstanding these clear lessons from our past and the bloodiest war fought in U.S. history, many in the conservative base continue arguing that embedded in the Tenth Amendment is the state right to nullify unconstitutional laws. Taking the next step in the logical nullification process, even conservative elected officials have articulated a state right to secession, including Republican Governor Rick Perry of Texas, Senator Jim DeMint (R-SC, arguably the head of the Tea Party), Rep. Steve King (R-IA), Rep. Ron Paul (R-TX), and more.

Arguments for nullification and even secession are, more subtly, a rejection of Article III of the Constitution, which establishes the judiciary and gives it the sole right to interpret the Constitution, and Article VI of the Constitution, which establishes constitutional and federal supremacy. Any state that considers a law to be beyond the powers of Congress can challenge that law in the courts (as many have done with the health-care law, for example). The courts then make a determination as to the constitutionality of that law and, provided it is constitutional, the law is then binding upon all states pursuant to Article VI of the Constitution. Nullification shifts that decision-making process away from the judiciary and into the hands of the state political classes. In effect, the role of the judiciary as a constitutional arbiter is eliminated.

Nullification proponents are quite familiar with the role of the judiciary and its ability to nullify unconstitutional laws. Simply put, such proponents have zero confidence in the judiciary and seek to re-write Article III.

The Tea Party's admiration for the Constitution appears to end where Article III, Article VI, and Amendments 14, 16, and 17 begin. It is an admiration that ignores the historical fact that the Constitution was enacted to establish a stronger central government as a replacement for the weaker state-centered government that was failing miserably. It is a devotion that calls for violent "second amendment remedies" when Congress and/or the courts take an action with which one may disagree. It is a love that calls for a return to policies that supported the racial oppression of millions to the shame of a nation. It is a love of the Constitution that would cause its demise.