A nice win, if only because it’s fun to watch the left sweat, but as we’ve discussed before, these lower-court decisions are virtually meaningless. There’s no question that the Supreme Court will eventually take this matter up, and given how profound the constitutional objection to the mandate is, there’s no chance that they’ll let “deference” to lower-court rulings shape their opinion on the matter. What we’re doing with these district court rulings — which now stand evenly split on ObamaCare, two finding it constitutional and two not — is going through the procedural motions until the Supremes get down to business. The only bit of significance these decisions might have is that they may move the Overton window of possible outcomes in Anthony Kennedy’s mind. After O-Care was passed, I remember some constitutional law experts citing the Court’s liberal Commerce Clause jurisprudence and claiming that they’d probably uphold it on something like an 8-1 vote. That seems impossible now; I’d bet 6-3 at worst, with a very fair chance of a 5-4 win for conservatives. The more anti-ObamaCare lower court rulings there are, the more political cover Kennedy has to vote with the conservative wing of the Court if he’s so inclined. If.
Here’s a PDF of the opinion. The judge, Roger Vinson, is a Reagan appointee who didn’t hide his skepticism about the law during oral arguments, so the baseline ruling isn’t surprising. A fun hypothetical about the government’s power to force citizens to buy things they don’t want to:
Or what if two of the purported “unique” factors [of the health-care market] — inevitable participation coupled with cost-shifting — are present? For example, virtually no one can opt out of the housing market (broadly defined) and a majority of people will at some point buy a home. The vast majority of those homes will be financed with a mortgage, a large number of which (particularly in difficult economic times, as we have seen most recently) will go into default, thereby cost-shifting billions of dollars to third parties and the federal government. Should Congress thus have power under the Commerce Clause to preemptively regulate and require individuals above a certain income level to purchase a home financed with a mortgage (and secured with mortgage guaranty insurance) in order to add stability to the housing and financial markets (and to guard against the possibility of future cost-shifting because of a defaulted mortgage), on the theory that most everyone is currently, or inevitably one day will be, active in the housing market?
The left will scoff at the supposed absurdity of his example, but there’s nothing absurd about it. This sort of sweeping power to compel purchases to achieve a public good is precisely what’s at stake in the mandate.
What is a bit surprising is that Vinson went further and held that the mandate isn’t “severable” from the rest of the law — which means that the whole law is unconstitutional, not just the part that requires people to buy insurance. That’s unusual insofar as courts like to be modest when striking down statutes; if they can find a section of it unconstitutional while preserving the rest of it, they’ll do so out of respect for the democratic branches that enacted it. In this case, however, as we’ve been told by Democrats many times, you can’t have universal health care unless you force people to pay for it. Cutting the mandate out of O-Care and keeping the rest of the scheme intact would create a nightmare scenario in which people avoid buying insurance until they get sick, with insurers required to accept them by the new rules governing preexisting conditions. Before long, that cost burden would drive most insurers into bankruptcy, with the golden age of a public option or single-payer soon to follow.
Which is to say, if you’re going to kill this beast, you’d better kill all of it. Vinson on severability:
In the final analysis, this Act has been analogized to a finely crafted watch, and that seems to fit. It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. It cannot function as originally designed. There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions — which, as noted, were the chief engines that drove the entire legislative effort — for me to try and dissect out the proper from the improper, and the able-to-stand-alone from the unable-to-stand-alone. Such a quasi-legislative undertaking would be particularly inappropriate in light of the fact that any statute that might conceivably be left over after this analysis is complete would plainly not serve Congress’ main purpose and primary objective in passing the Act. The statute is, after all, called “The Patient Protection and Affordable Care Act,” not “The Abstinence Education and Bone Marrow Density Testing Act.” The Act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker.
If Congress intends to implement health care reform — and there would appear to be widespread agreement across the political spectrum that reform is needed — it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not. It is Congress that should consider and decide these quintessentially legislative questions, and not the courts…
Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void. This has been a difficult decision to reach, and I am aware that it will have indeterminable implications. At a time when there is virtually unanimous agreement that health care reform is needed in this country, it is hard to invalidate and strike down a statute titled “The Patient Protection and Affordable Care Act.”
A fun fact about ObamaCare: Unlike virtually every other federal statute, it contains no “severabililty clause” at the end requesting that if any part of it should be held unconstitutional in court, the rest should be preserved as good law. Vinson actually mentions that fact in the opinion and notes that an earlier draft of the law did contain such a clause, suggesting that it was deliberately dropped because even Congress agrees that you can’t sever any one part from such an elaborate scheme. The truth, however, may be more prosaic: According to a Democratic aide who spoke to the Times back in November, the clause was omitted because of … an “oversight.” Oops!