Judge Vinson’s Tea Party Manifesto

Picture 96 On first read, the most striking aspect of Judge Vinson’s ruling today is not its remedy — striking the Affordable Care Act in its entirety — but the impression one gets that the opinion was written in part as a Tea Party Manifesto.  At least half of the relevant part of the opinion is devoted to discussing what Hamilton, Madison, Jefferson and other Founding Fathers would have thought about the individual mandate, including the following remarkably telling passage (p. 42):

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.

As I’ve written elsewhere, the same Founders wrote a Constitution that allowed the federal government to take property from unwilling sellers and passive owners, when needed to construct highways, bridges and canals.  But Judge Vinson dismissed those and other examples with the briefest of parenthetical asides:  “(all of [these] are obviously distinguishable)” (p. 39).    Instead, he twice cites and quotes the lower court opinion in Schechter Poultry (pp. 53, 55), which struck down the National Industrial Recovery Act, at the height of the Great Depression and the pinnacle of Lochner jurisprudence.

Still, it’s fair enough to conclude, absent controlling precedent, that being uninsured might not constitute interstate commerce.   What’s harder to swallow is the judge’s rejection of the Necessary and Proper Clause.  In refusing to sever the individual mandate, he not only concedes the mandate “is indisputably necessary to the Act’s insurance market reforms, which are, in turn, indisputably necessary to . . . what Congress was ultimately seeking to accomplish,” he astonishingly devotes about ten pages (63-74) to hammering home the mandate’s necessity, explaining, for instance, that:

this Act has been analogized to a finely crafted watch . . . . 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

So if the mandate is so clearly necessary, why is it not “proper.”  The answer, as in Virginia’s Judge Hudson’s opinion, is a virtual tautology:  because the Commerce Clause does not permit it.  Here are critical excerpts:

the Clause is not an independent source of federal power (p. 58) . . . Ultimately, the Necessary and Proper Clause vests Congress with the power and authority to exercise means which may not in and of themselves fall within an enumerated power, to accomplish ends that must be within an enumerated power. (p. 60)

In light of [United States v. South-Eastern Underwriters], the “end” of regulating the health care insurance industry (including preventing insurers from excluding or charging higher rates to people with pre-existing conditions) is clearly “legitimate” and “within the scope of the constitution.” But, the means used to serve that end must be “appropriate,” “plainly adapted,” and not “prohibited” or inconsistent “with the letter and spirit of the constitution.” . . . The Necessary and Proper Clause cannot be utilized to “pass laws for the accomplishment of objects” that are not within Congress’ enumerated powers.  (p. 62)

The defendants have asserted again and again that the individual mandate is absolutely “necessary” and “essential” for the Act to operate as it was intended by Congress. I accept that it is.   Nevertheless, the individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be “proper.”  (p. 63)

My full rebuttal is here, but in brief: none of this is consistent with Comstock, which allows the federal government to commit mentally ill former prisoners to civil treatment, despite the clear absence of any general federal civil commitment power.  And this is inconsistent with Lopez and with Justice Scalia’s concurrence in Raich, which note that regulation, otherwise forbidden, of local noneconomic activities, can be justified when this is “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.”  Thus, we still await a convincing explanation of why rejecting the “necessary and proper” defense is consistent with recent Supreme Court opinions, authored or joined by most of the conservative justices.

This post originally appeared on Health Reform Watch, the web log of the Seton Hall University School of Law.

Mark A. Hall, J.D., is the Fred D. & Elizabeth L. Turnage Professor of Law at Wake Forest University School of Law. He is one of the nation’s leading scholars in the areas of health care law and policy and medical and bioethics and a contributor to Health Reform Watch.

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10 replies »

  1. Andy S, I really wonder where you come up with these comments, unless you are fixated that the color of the sky in your reality really conforms with that in the rest of ours. You think my 30+% non compliance rate is unique to me alone? I hope other providers who read here and treat Medicaid patients can educate Mr Andy that this is the reality of this population, which I said in my last comment is not necessarily the fault of the fed in providing this program, but it speaks volumes for those who use it.
    And to infer I am offering that patients get no care is yet another attack by the antiphysician crowd that trolls around this site. What a pathetic conclusion to arrive to when I am here advocating for responsibe patient care needs. No, sir, what I argue is your premise that these two federal programs are so wonderful for the population and the physicians that participate in them is beyond absurd, and I bet you are not a physician, probably not a health care provider of any type, but yet a lackey of the Democrats in trying to promote this faux legislation as a blessing for our society.
    And, if Medicare and Medicaid are the less than complete programs most physicians have found them to be, both in reimbursement and intrusive formulary and treatment coding procedures, is it ridiculous to understand why the majority of physicians are not eager for the legislation to stay in place? But, the antiphysician crowd has the alternatives for us already set. Until they themselves need acute, intensive medical care. If I had a pill to improve insight and judgment for our culture, physicians would not be so busy and overwhelmed for the most part!

  2. AndyS you seem to be completly ignorant of the programs your talking about. In regards to Medicare seniors are forced to join or they lose their SS benefits. If the program is so successful why do they need to force people into it?
    Medicaid for the most part is free with a few exceptions, i.e. SCHIP, so there is no value argument to be made. People don’t enroll in Medicaid becuase it is successful they enroll becuase it is given to them.
    I don’t like vegitables but if you enrolled me in a vegitable of the month club I would take it, a very demented view of success.
    “Medicare and Medicaid are much more efficient than private plans: administrative costs are about 2% of expenditures for Medicare vs. 11% for nearly identical private plans under Medicare Advantage, and an estimated 17% for other private plans.”
    You are obviously new to THCB or you would never say something so silly. No Medicare is not 2%, not even close. No MA Advantage is not 11% and no private insurance is not 17% and finally the most import no is you can’t compare disimilar plans as a percentage. Medicare has an average cost of $7000 versus $3600 or so for private insurance. By your argument Medicare can buy a $0.42 stamp cheaper then private insurance which obvisously makes no sense. You don’t make such comparisons as a %

  3. Nate: Medicare and Medicaid enrollment has increased dramatically in the last couple of years, driven mainly by high unemployment levels. From the perspective of patients, a program that was a “colossal failure” would never attract so many participants. From a system-wide perspective, Medicare and Medicaid are much more efficient than private plans: administrative costs are about 2% of expenditures for Medicare vs. 11% for nearly identical private plans under Medicare Advantage, and an estimated 17% for other private plans. Hard to see clear evidence of failure, either from a patient or payor perspective.
    DeterminedMD: you view Medicare as a program that’s intended to serve the needs of physicians? And you blame the failure of patients to appear for follow-up visits on the patients, rather than on your failure to engage them in the process of care or foster enough trust in you that they return for further treatment? You say that this reflects “what type of patient population accesses it” — do you argue that this “type of patient” would be better off with no care at all? Wow!
    But I agree — if anybody really makes the argument that “everyone will basically have Medicare and healthcare will improve” — that would be crazy. Of course, I’ve never heard anybody make such an argument…

  4. If Medicare is so successful, why are so many physicians actively or preparing to opt out?
    And, Medicaid is so successful, with what, a 30-40% non compliance rate with follow up visits alone in my specialty? And, most states set up what is fast becoming such a draconian formulary system for prescriptions alone, how do you enjoy practicing in your profession with fairly much both hands tied behind your back!?
    Those complaints may not directly be the program’s fault per the Fed’s intentions, but, it reflects what type of patient population accesses it and how the states implement it!
    And one of the arguments by the advocates is “everyone will basically have Medicare and healthcare will improve”. What planet are these people from!?

  5. “Medicare and Medicaid are colossal failures? In what regard?”
    Medicare was passed so the 13% of seniors who had trouble paying some of their bills wouldn’t lose the shirt off their back. It was passed and totally excluded catostrophic expenses so from day one it failed to accomplish its supposed goal. In addition to that its cost is many hundreds times more then it was ever suppose to be and it has distorted the markets around it.
    In your opinion in what way has Medicare been successful? More people have problems paying their bill then before it, cost has been driven up, and huge future liabilities incurred. I don’t see even one successful measure.
    Medcaid providers inadequate care to people that need it and wasteful care to those that don’t.

  6. Interesting, Nate — Medicare and Medicaid are colossal failures? In what regard? In any event, you won’t see any of your Republican legislators proposing that, I assure you!
    Regarding your “counter-examples” — so it’s OK for the government to mandate some actions but not others, I take it. Would you care to explain the finer points of the distinction you’re trying to make?
    And with respect to the idea that the Constitution authorizes a draft because national defense is explicitly mentioned as a responsibility of the federal government, can I point you at the Preamble?
    “…in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty…”
    Note that promoting the general welfare and providing for national defense are equally among the powers of the government envisioned by the Constitution.

  7. “What would be most interesting would be to hear the views of reform’s opponents as to what actually should be done.”
    Phase out Medicare and Medicaid since they are collasal failures. If states on their own wish to create such programs they may but it is not the role of nor is the federal government capable of running such programs. Reduce federal taxes by the amount they were collecting to fund and manage these programs so States can increase their taxes to cover any replacement plans.
    Flood insurance is not required of people that don’t own homes and only those with homes in certain areas are required to have flood insurance and only then if they partake in a government backed mortgage. Terrible example unless you were trying to disprove your point.
    Draft is for national defense, something expressly outlines as a responsibility of the federal government.

  8. You know what reveals the hollowness of Democrat retorts to arguements against the PPACA as is: they offer NOTHING of consequence by the act, or at least voice some legitimate concerns re parts of the legislation. “It is perfect and deal with it, America”, is the pervasive shout down by these advocates!
    Doesn’t that bother unbiased and objective readers observing this debate? Not that the Republicans bring much of alternatives with their rhetoric as is, but really, isn’t the projection and minimizing by the advocates for PPACA so devoid of sincerity that you just want to watch them choke on the bile they raise up into their mouths in seeing the possibility their efforts are not wonderful and without any consequences.
    Check out the Fact Checker piece at the Washington Post today, of all media to report this mind you, how the textbook liar and supporter of this farce, Senator Leader Harry Reid, tries to claim the bill is already saving money. Yeah, until you look at the facts of the monies allegedly being saved, especially the timing of them. God, with Reid and Pelosi the front spokespersons to defend this legislation, it makes responsible citizens gag at the sheer hypocrisy of these two when they challenged Republican snow jobs on the public 8 years ago.
    As I asked before, what is worse, the person who says they don’t care about you and their acts support their position, or the person who passionately says they care and then their acts are as much a dump on you as the other did outwardly?
    Yeah, they both stink, but the addition of hypocrisy, if not flat out lying really twists the knife a bit, doesn’t it!?!?

  9. The usual silly arguments are repeated by commenters on this thread:
    * Congress can’t regulate inactivity? Do you really wish to argue that Congress can’t compel activity? Examples abound — from the draft to the purchase of flood insurance.
    * The majority oppose reform? Polls don’t show that at all, unless those who wish to see the reform act strengthened are added to those who wish to see it repealed. Besides, the majority firmly opposed the Iraq war, but as I remember this was taken by those who favored it as evidence of Bush’s steely disregard for opinion polls rather than a reason to leave.
    * Bipartisan bones for Republicans? To many of us Democrats, reform as enacted is full of concessions to Republicans that were granted before debate even began. The lack of a public option is perhaps the best example. The bones Republicans have whined for amount to complete forfeit of the most important elements of the reform program.
    * Previous cases are “not of interest if the judge violated the Constitution”? The missing words here are obvious — “if the judge violated my view of the Constitution”. People who think that the Constitution is crystal-clear and that its application to modern issues is obvious have certainly never read the document.
    What would be most interesting would be to hear the views of reform’s opponents as to what actually should be done. Note that none of the commenters advocates any alternative — all you find is opposition — which makes it obvious that this is a political and emotional argument rather than one that’s pratcial and fact-based.

  10. Maybe this is a bit simplistic and derogatory at the same time, but in my travels reading and hearing the defenders and apologists of this despicable legislative efforts to screw the public, they can be summed up as one of the following three groups, from least to most offensive:
    1. The naive and fatalistically hopeful who have too much faith and clueless expectations that their alleged representatives in Congress constructed this legislation to first help the public and then try to be financially prudent. They mean well, but just don’t get it.
    2. The Democrat party faithful that truly believe any policy or philosophy that originates from this party is always right and correct, irregardless of what the public says as a majority. Don’t worry, I hold the Republicans in equaly disregard, but it is the Democrats here who played out this hand with true disrespect and dishonor in lying pervasively they acted with the peoples’ interest first.
    3. The few and completely dishonest and greedy who only benefit from this package deal financially and whatever other type of favors that can be gained. Special interests, now there is the appropo term, because that is what politicians can only focus on, who is special. It certainly is not the public at large.
    There could be another group or two that fits the agenda of selling this legislation as the savior of America, but, the prophets of this message are far from holy. What are you afraid of, PPACA advocates? The Supreme Court might throw this out?
    You all should have given this a little more thought, and maybe tried to honestly think of some bipartisan bones to throw to the Repubicans to make this legislation a bit more palatable. You know what makes me laugh the most though, Nancy Pelosi’s ironic comment in the end, “let’s pass this bill so you (as in everyone in America, including herself) can find out what is in it.”
    Oops, forgot to read about a mandate that could be declared unconstitutional, and not place back that clause to save the rest of the law. Contract Law 101, Nancy, read before you sign it!!!