How 'bout Florida's Judge Vinson?

or, Bring It On!

Today, the district court judge ruled the States indeed can challenge the federal government's mandate that all citizens are required to purchase health insurance.

Let it go to Court, he said, and may the best Constitutional arguments win.

BLAWG ROUNDUP:
Law professors on the web offer instant summary, substantive comments, and in that last entry anyway: do I detect a taste of sour grapes?

Georgetown Law Professor Randy Barnett:

In its “talking points” today, the White House claims that the 21 state attorney’s general challenging the constitutionality of the health care reform act are “opportunistic politicians . . . wasting taxpayer dollars on a frivolous lawsuit that is bound to fail.” Today’s ruling by a federal district court judge officially repudiated this claim.

In denying the government’s motion to dismiss the challenge to the individual health insurance mandate, Judge Vinson ruled that “the plaintiffs have most definitely stated a plausible claim with respect to this cause of action.” This is because of the unprecedented nature of the government’s claim of power. As Judge Vinson explained, all previous commerce clause cases involved the regulation of “voluntary undertaking[s]” or activity. But “in this case we are dealing with something very different. The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake.”

This decision now join’s District Judge Henry Hudson’s ruling in Virgina refusing to dismiss the challenge to the individual mandate. In both Virginia and Florida we now move to a decision on the merits. Given how well both judges understood the constitutional novelty of imposing economic mandates on the people, there is reason to be cautiously optimistic that they will find the individual insurance mandate to be unconstitutional. But, however the district courts rule on this case, their reception of the arguments made by the state attorneys general foretell that the ultimate decision will be made by the U.S. Supreme Court.

Of course, Judge Vinson also, quite correctly wrote this: “Of course, to say that something is ‘novel’ and ‘unprecedented’ does not necessarily mean that it is ‘unconstitutional’ and ‘improper.’ There may be a first time for anything.” So stay tuned. Next up: oral argument on the motion for summary judgment in the Virginia AG lawsuit, followed by briefing the motion for summary judgment in Florida.

David Kopel, Research Director at Independence Institute:

The court entirely rejected the administration’s claim that the penalty for disobeying the mandate is justified under the federal tax power. As the court noted, Congress went out of its way to specify that the penalty is not a tax. Second, the court ruled that it is proper for the plaintiffs to be heard in their challenge to the mandate, which goes into effect in 2014. The court cited extensive precedent showing that when a future harm is certain, courts can act in the present to protect citizens from that harm.
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While federal spending programs may set conditions on grants to states, Supreme Court precedent states that the grants must not be coercive. Here, the court agreed that the states had raised a plausible legal argument which should be allowed to go forward: the health control presents states with the unacceptable choice of massively increasing their own Medicaid spending on millions of more people, or of losing all funding for the traditional Medicaid program. Finally, the court agreed that the challenge to the individual mandate could go forward, because the mandate was “unprecedented.” Never before has Congress attempted to use its power of regulating interstate commerce to force people to buy a particular product. Because there is no judicial precedent in support of such a mandate, the plaintiffs had raised a plausible constitutional challenge which should be allowed to go forward.

The court’s ruling is not a final decision on the constitutional merits, but it is a solid, meticulously researched, and carefully-reasoned decision declaring that the opponents of the health control law have raised legitimate constitutional objections.

George Mason Law Professor Ilya Somin:

Judge Roger Vinson rejected outright the federal government’s claim that the mandate is a “tax” that is authorized by Congress’ authority under the Tax Clause. Instead, he concludes that it is a regulatory penalty. ... The federal government now will not be able to rely on the tax argument at the summary judgment stage of the litigation before Judge Vinson (though they will of course be able to raise it again on appeal).
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The federal government will, of course, be able to raise their Commerce Clause and Necessary and Proper Clause arguments. Here, too, however, Judge Vinson raised serious doubts about the government’s arguments, even though he emphasized that these issues cannot be fully considered at this stage of the process. In his view, the government’s claim that the mandate is clearly supported by existing precedent in this area is “not even a close call.” He emphasized the novel nature of the mandate:

I have read and am familiar with all the pertinent Commerce Clause cases, from Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23 (1824), to Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005). I am also familiar with the relevant Necessary and Proper Clause cases, from M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819), to United States v. Comstock, — U.S. —, 130 S. Ct. 1949, 176 L. Ed. 2d 878 (2010). This case law is instructive, but ultimately inconclusive because the Commerce Clause and Necessary and Proper Clause have never been applied in such a manner before. The power that the individual mandate seeks to harness is simply without prior precedent.

As Vinson emphasizes, the prior cases “involved activities in which the plaintiffs had chosen to engage. All Congress was doing was saying that if you choose to engage in the activity of operating a motel [Katzenbach v. Heart of Atlanta Motel] or growing wheat [as in Wickard v. Filburn], you are engaging in interstate commerce and subject to federal authority.” In this case, by contrast, “[t]he individual mandate applies across the board. People have no choice and there is no way to avoid it..... It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive.” There is a slight error in Vinson’s analysis here. Wickard did not hold that growing wheat for use on a commercial farm was itself “interstate commerce.” Rather, it could be regulated because it was intrastate state economic activity that, in the aggregate, has a “substantial effect” on interstate commerce.
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Obviously, this is only a ruling on a motion to dismiss. Judge Vinson could end up accepting the government’s Commerce Clause or Necessary and Proper Clause arguments when he decides later whether to grant summary judgment (though I think that improbable based on what he wrote in today’s opinion). Whatever he decides, the case will be appealed to the Eleventh Circuit Court of Appeals. It is quite likely that the issue will eventually be decided by the Supreme Court. It is still my view that the Court is more likely to uphold the mandate than strike it down, though the latter is far from impossible. That said, today’s ruling is certainly a victory for the anti-mandate plaintiffs.

Wisconsin Law Professor Ann Althouse:

Because it is a penalty and not a tax, the act cannot be upheld with the taxing power. The question must be the scope of the Commerce Power.

So let me confine myself to the individual mandate. Judge Vinson rejects the due process argument, because the scrutiny in this area is minimal and Congress had a rational basis for the mandate. But the Commerce Clause challenge survived.

At this stage in the litigation, this is not even a close call. I have read and am familiar with all the pertinent Commerce Clause cases... This case law is instructive, but ultimately inconclusive because the Commerce Clause and Necessary and Proper Clause have never been applied in such a manner before.... There are several obvious ways in which Heart of Atlanta and Wickard differ markedly from this case... Those cases... involved activities in which the plaintiffs had chosen to engage. All Congress was doing was saying that if you choose to engage in the activity of operating a motel or growing wheat, you are engaging in interstate commerce and subject to federal authority....
... The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive....

George Washington Law Professor Orin Kerr:

Congratulations to Randy Barnett in particular for the new Florida decision refusing to dismiss the challenge to the individual mandate. The language the judge uses at various points in the opinion very closely resembles the language Randy has used in framing the challenge. That is a major accomplishment.
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As to the merits of Judge Vinson’s opinion, I found it a bit frustrating. In particular, it seems to me that Judge Vinson’s opinion never actually addresses the necessary and proper argument that both Ilya and I agree is the best argument in favor of the constitutionality of the mandate against the claim that it is beyond the scope of Article I power. At page 61, Judge Vinson insists that he is familiar with the cases, and he announces that based on his knowledge this is a hard question. Oddly, though, Judge Vinson doesn’t actually articulate the legal standard offered in those cases and explain why those cases don’t answer the question here.

I find that pretty frustrating. ...