Tuesday, February 1, 2011

Health Care Debate (Again)

Roger Vinson, a US federal district court judge in Florida, ruled that the Health Care Reform bill was unconstitutional in its entirety.
Judge Vinson is a Reagan appointee. His decision was therefore trashed by people opposed to it as “judicial activism” or “making policy from the bench” or all the other usual comments that one side often makes when it loses in court. This language is normally used by the Right, who has made a cottage industry railing against “unelected judges” so it’s ironic to see some people on the Left losing their religion over this.
When those opposed to the HCR individual mandate raised questions or voiced their concern about it they were mostly dismissed in the corporate media and blog-o-sphere as libertarian cranks, right wing mouth breathers, insane die hard anti-Obama racist nutsos, desperado anti-corporate leftist zealots, or loony anti-tax militia types that lived in the woods and married their relatives. I don’t deny that some of those people are in the opposition. I actually know a few.
But I don’t think one can automatically ignore an argument based on the author. I lack the time, space and frankly the expertise to go into a long discourse here of the whys and wherefores of the various case histories of tax law, federal government limitations or Commerce Clause interpretations, so my fellow co-blogger, The Janitor, and I decided to post our dialogue on this issue in point-counterpoint format to spark discussion on the following question:
What are the limits to the power of the federal government?

I want a strong but limited federal government.

The Janitor:
I can definitely agree with that.  It is important that we recognize that the federal government has very strong but also very limited powers that are spelled out in the Constitution.  There are certain things the feds can do (see Article I section 8) and certain things the feds can't do (see Article I section 9).

Much of Judge Vinson’s decision makes reference to the same popular arguments about “inactivity”,“taxation”, and the “Commerce Clause” that raged on this very blog.  His first point:

"Because the plaintiffs maintain that an individual's failure to purchase health insurance is, almost by definition, "inactivity," the individual mandate goes beyond the Commerce Clause and is unconstitutional." Page 13

"It would be a radical departure from existing case law to hold Congress can regulate inactivity under the Commerce Clause." Page 42

The Janitor:
Judge Vinson raises a good point here about the Commerce Clause not being able to regulate "inactivity."  But as we discussed in our health care post last year,  there's actually some support for this proposition. See the landmark Supreme Court case Wickard v. Filburn.  It basically says that even if you're not literally engaging in interstate commerce, if your inaction, in the aggregate, has an effect on interstate commerce then the government is still within its right to regulate your "inactivity" because you are still effecting interstate commerce. Applying that rule here, if the inaction of millions of Americans in the aggregate is driving up health insurance coverage (ie. having an a effect on "interstate commerce") then it stands to reason that the feds are acting within their bounds to regulate here.

I do think that HCR is needed. I don’t think this bill does that. I see a gift to the insurance companies. The problem is that this is properly done through a government program such as Medicare or Social Security. When drafted, for political reasons the law’s authors argued that the fine was not a tax. Now they claim it is a tax to ensure that the law falls under Congress’ proper responsibilities.
The Janitor:
Yeah but I think you're placing too much focus on the what the mandate is called. It doesn't matter what the law's authors call it or don't call it. At the end of the day, whether it will be constitutional or not depends on how the Supreme Court interprets it.

A big part of that gift to the insurance companies is the attempt by the federal government to compel people who weren’t buying health insurance to do so. The judge agrees that the mandate is an unconstitutional slippery slope. The law evidently lacks a “severability clause” which would allow one portion to be found improper while saving the rest of the law.
"Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void." Page 76.
The Janitor:
Apparently Judge Vinson has a flair for the dramatic.  Bottom line, even if the so-called "mandate" were to be found unconstitutional, then the most that would happen is that the mandate provision within the Health Care Act would be wiped off the books. The Health Care Act itself would still remain.  Since the Congress represents the will of the People, the Supreme Court is obligated to follow what is known as the "canon of constitutional avoidance" whenever it reviews an act of Congress.  In other words, when looking at a law, the Court will find as many sections of the law as possible as constitutional and will only cut out what is absolutely necessary.  See Alaska Airlines v. Brock, 480 U.S. 678, 684 (1987); see also Citizens United v. FEC (ruling that only section 441b of the Bipartisan Campaign Reform "McCain-Feingold" Act was unconstitutional); see also Boumediene v. Bush (ruling that only section 7 of the Military Commissions Act of 2006 was unconstitutional). So I think a lot of this talk about repealing the ENTIRE law is more fiction than fact. 
This will obviously end up in the Supreme Court. What’s your take on the Constitutional question? Do you think this judge made the right decision? How do you think the Supreme Court will rule? Should the Democrats have dropped the individual mandate? What will be the impact on the 2012 election? Are you amazed this fight is still going on?
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