Federal District Judge Roger Vinson’s opinion
by Beverly Mann
Roger Vinson, Sophism King
Federal District Judge Roger Vinson’s opinion issued the other day ruling the Healthcare Act an unconstitutional overreach by Congress is so replete with sophisms that it’s hard pick the most ridiculous of them. But my candidates are:
“[W]hat if two of the purported “unique” factors — 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?”
“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. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be /difficult to perceive any limitation on federal power’ [quoting from United States v. Lopez, a1995 Supreme Court opinion] and we would have a Constitution in name only.”
Presumably the federal government’s attorneys will point out on appeal that a law requiring 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) would place the mandate on those who are unlikely to default, and that, by contrast, the Healthcare Act places the mandate on those who are likely to eventually use the healthcare system and shift the cost to the public.
The purpose of the mandate in the Healthcare Act is, in other words, the opposite of the purpose of the judge’s hypothetical wealthy-individuals-must-take-out-a-mortgage-to-buy-a-home statute.
And, whether or not 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, it is unlikely that the Framers would object to a law that required people to pay for their tea rather than shifting the purchase price to the public. It also is unlikely that the Framers would think people who do are passive individuals who are failing to engage in commerce. The use of the word “mandate” to describe Britain’s conferring of a monopoly and its imposition of a tea tax is cute, but all tax laws are mandates, as are many other laws.
I haven’t read § 1501(a)(1) of the Act, but based on this judge’s stream-of-consciousness analogies, his interpretive skills seem lacking enough for me to doubt the accuracy of his claim that that section grounds its appropriateness under the Commerce Clause on the law’s inclusion of the mandate. I suspect that that section of the statute actually claims for its authority under the Commerce Clause that individuals who do not have health insurance are not passive at all, because they are likely to eventually use the healthcare system and shift the cost to the public.
The US lawyer could argue thedifference between the mortgage market and the health care market that you cite, or could point out that Vinson has moved from the claim that eveyone participates in the housing market to a comparison between markets for health care and mortgages. It is far from true that everyone participates in the mortgage market. Mortgage underwriting allows the lender to decide whether a borrower is likely to default, and to limit risk to a level the lender finds acceptable. A failure of regulatory supervision and big old agency and too-big-to-fail and assymetric informatino problems mean that the public ended up paying, but in theory the lender absorbs the risk of default in return for the benefit of the interest payment. We do not have a system in which health care can be rented by those with poor insurance scores from those with good insurance scores.
There seems to be a presumption in this argument that everybody gets housing and health care, and that the similarity makes analogy between the two apt. It would be nice if everybody got both, but we do now have a law that attempts to assure health care is universally available. However, sliding from the presumption of universal housing to the implication of universal mortgages makes Vinson’s argument just plain bogus.
The US lawyer could argue thedifference between the mortgage market and the health care market that you cite, or could point out that Vinson has moved from the claim that eveyone participates in the housing market to a comparison between markets for health care and mortgages. It is far from true that everyone participates in the mortgage market. Mortgage underwriting allows the lender to decide whether a borrower is likely to default, and to limit risk to a level the lender finds acceptable. A failure of regulatory supervision and big old agency and too-big-to-fail and assymetric informatino problems mean that the public ended up paying, but in theory the lender absorbs the risk of default in return for the benefit of the interest payment. We do not have a system in which health care can be rented by those with poor insurance scores from those with good insurance scores, so the fact that there is underwriting in both insurance and mortgage lending is a trivial point, far from sufficient to serve Vinson’s argument.
There seems to be a presumption in this argument that everybody gets housing and health care, and that the similarity makes analogy between the two apt. It would be nice if everybody got both, but we do now have a law that attempts to assure health care is universally available. However, that slide from the presumption of universal housing to the implication of universal mortgages makes Vinson’s argument just plain bogus.
I’ve been trying to track down the text of section 1501, and it’s damned difficult. Finally, though, I got part of it here.
http://aca-litigation.wikispaces.com/Litigation+Blog+7-4
Quote from link:
Section 1501 of the ACA reads as follows:
(a) REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.— An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.
(b) SHARED RESPONSIBILITY PAYMENT.—
(1) IN GENERAL.—If an applicable individual fails to meet the requirement of subsection (a) for 1 or more months during any calendar year beginning after 2013, then, except as provided in subsection (d), there is hereby imposed a penalty with respect to the individual in the amount determined under subsection (c).
(2) INCLUSION WITH RETURN.—Any penalty imposed by this section with respect to any month shall be included with a taxpayer’s return under chapter 1 for the taxable year which includes such month.
The remainder of the provision spells out, in great detail, (a) a series of exemptions from the requirement, (b) the means by which the charge (whether we call it a “penalty” or a “tax”) is calculated, and (c) what qualifies as “minimum essential coverage.”
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So, the judges comment, re: tea (which I take as a wink to his peeps) is not only sophist, it is fatuous.
“. . . a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain. . .“
Despite his word game, the government isn’t forcing anyone to do anything. You have a choice: participate, or pay a tax penalty. Look at it the other way around and participation is a tax break. Congress certainly has the power to levy taxes, and tax breaks to encourage targeted investments or expendetures are endemic to the U.S. tax system.
The problem is, when this goes to the Supreme Court, it will be a court known for right wing judicial over-reach, so they will probably confirm the Va and/or Fla rulings.
JzB
What this really highlights is that the right way to go at it is single-payer.
Every citizen is enrolled, and there is no premium. It’s payed with taxes, and Congress has the power to tax.
The problem is that there is too much vested interest and power in for-profit companies to allow the rational thing to happen.
This is one area where there can be no free market solution. The goals of health insurance companies and their customers are 180 degrees out of phase. Profit comes from raising premiums and denying coverage – both detrimental to the customer. And there is virtually no opportunity for competitive advantage in a business that is essentially a bookkeeping exercise.
It’s so simple, yet impossible.
JzB
Actually, Sammy, in conflating the issue of the constitutionality of the mandate with the issue of whether it’s good policy, the judge inadvertently highlighted the difference between the mandate that Obama rejected during the campaign and the one legislated in the Act. And in doing that, he undermined the point he thought he was making. The Act mandates not that everyone purchase insurance on their own irrespective of their financial ability to do that, but instead that everyone procure insurance either on their own, if they can, or through one of the several other mechanisms in the bill, e.g., government subsidies, if they can’t.
If the government mandated that everyone buy a home and provided subsidies to all homeless people sufficient to enable them to buy one, then, yes, it would eliminate homeless in this country. And raise home values, too!
You know, run, an AP story yesterday mentioned that, during oral argument in the case, Vinson said that at the time his oldest son was born, he was a law student and his family didn’t have health insurance. He paid the bill out-of-pocket.
How nice. He was able to do that because he was had recently retired as a Navy pilot and had some savings. But more to the point, a bill for a normal delivery of a healthy baby would be far higher today, prorated for inflation, than it would have been in the 1970s. And had there been complications or had his son needed, say, emergency heart surgery and extended hospital stay—or if his son had a serious permanent medical condition that was apparent at birth—would he have been able to pay the cost, and joke about it?
What bothers me most about this judge’s opinion is his decision to advertise that it was a political decision. Most judges at least try to disguise their ideological rulings. Or used to. But I think we’re in a new era, in which wingnut judges proudly shout that they’re motivation is ideological.
You know, run, an AP story yesterday mentioned that during oral argument in the case, Vinson said that at the time his oldest son was born, he was a law student and his family didn’t have health insurance. He paid the bill out-of-pocket.
How nice. He was able to do that because he was had recently retired as a Navy pilot and had some savings. But more to the point, a bill for a normal delivery of a healthy baby would be far higher today, prorated for inflation, than it would have been in the 1970s. And had there been complications or had his son needed, say, emergency heart surgery and an extended hospital stay—or if his son had a serious permanent medical condition that was apparent at birth—would he have been able to pay the cost, and joke about it?
What bothers me most about this judge’s opinion is his decision to advertise that it was a political decision. Most judges at least try to disguise their ideological rulings. Or used to. But I think we’re in a new era, in which wingnut judges proudly shout that they’re motivation is ideological.
Actually, Sammy, in conflating the issue of the constitutionality of the mandate with the issue of whether it’s good policy, the judge inadvertently highlighted the difference between the mandate that Obama rejected during the campaign and the one legislated in the Act. And in doing that, he undermined the point he thought he was making. The Act mandates not that everyone purchase insurance on their own irrespective of their financial ability to do that, but instead that everyone procure insurance either on their own, if they can, or through one of the several other mechanisms in the bill, e.g., government subsidies, if they can’t.
If the government mandated that everyone buy a home and provided subsidies to all homeless people sufficient to enable them to buy one, then, yes, it would eliminate homeless in this country. And raise home values, too!
Run, an AP story yesterday mentioned that during oral argument in the case, Vinson said that at the time his oldest son was born, he was a law student and his family didn’t have health insurance. He paid the bill out-of-pocket.
How nice. He was able to do that because he was had recently retired as a Navy pilot and had some savings. But more to the point, a bill for a normal delivery of a healthy baby would be far higher today, prorated for inflation, than it would have been in the 1970s. And had there been complications or had his son needed, say, emergency heart surgery and an extended hospital stay—or if his son had a serious permanent medical condition that was apparent at birth—would he have been able to pay the cost, and joke about it?
What bothers me most about this judge’s opinion is his decision to advertise that it was a political decision. Most judges at least try to disguise their ideological rulings. Or used to. But I think we’re in a new era, in which wingnut judges proudly shout that they’re motivation is ideological.
Actually, Sammy, in conflating the issue of the constitutionality of the mandate with the issue of whether it’s good policy, the judge inadvertently highlighted the difference between the mandate that Obama rejected during the campaign and the one legislated in the Act. And in doing that, he undermined the point he thought he was making. The Act mandates not that everyone purchase insurance on their own irrespective of their financial ability to do that, but instead that everyone procure insurance either on their own, if they can, or through one of the several other mechanisms in the bill, e.g., government subsidies, if they can’t.
If the government mandated that everyone buy a home and provided subsidies to all homeless people sufficient to enable them to buy one, then, yes, it would eliminate homeless in this country. And raise home values, too!
Hmm. The judge said in his opinion that that section itself says the mandate is permissible under the Commerce Clause because the mandate requires commerce. Doesn’t seem to be an accurate representation of the statute’s contents, does it?
The judge’s claim sounded preposterous. Turns out it is.
“the Supreme Court of the United States ruled that insurance is interstate commerce subject to Federal regulation.”
I don’t think the question of regulatory authority is at issue. What is at ssue is the congressional authority to mandate that people engage in commerce against their will. Regulations and mandates are completely different concepts.
The judge does not disagree that health care reform is an important issue that needs to be addressed; his opinion states that the means in which the congress tried to implement it is unconstitutional – for which he is absolutely correct.
Also – the congress itself wrote in it’s legislation the the individual mandate was so critical to the sustainability of the law, that the law could not survive without it. Therefore he used congresses own argument to nullify the entire bill. That was on idealogical, nor activist; it was simply adhering to the original intent of the Constitution to limit the powers of the Federal Govenrment. Had the judge ignored the congress unseverability and tried to craft a way for this bill to survive without the individual mandate then I consider that activist.
Remember that the Constitution was a document written to be understood by the masses. Get you noses out of the law books and look at this with common sense.
What we have going on here is a shift in the argument against the health care law as prior arguments are proven to be wrong. Is insurance interstate commerce? Yes, according to prior Supreme Court decisions. Can the federal government regulate interstate commerce? Yes, according to the constitution. So the objection that health insurance cannot be legislated at the federal level has faded away.
Now, the argument is that the Federal government cannot compel participation in a market. A number of objections have been raised, here and elsewhere, to that argument, as well. Social Security does require a broad class of people to participation. So does Medicare. So does the draft, when it is in force. There is a mandate for universal education. Of course, it can be objected that the health insurance instance is not identical to any of these other instances, but there is no Constitutional requirement for apt analogy. The inability to find a prior federal mandate that is a precise template for the health insurance mandate does not make the health care mandate unconstitutional. Vinson suggesting that rich mortgage holders being forced to subsidize poor mortgage aspirants is outrageous does not make a health insurance mandate unconstitutional, even if the analogy were apt.
At some point, stories are just stories. Much of what Vinson has done is to distract from the central quetion at hand, as trolls here often try to do, by raising issues that are made to seem analogous, but that are not really the question at hand.
Actually, no rsc, the Congress did not write into the legislation that the individual mandate was so critical to the sustainability of the law that the law could not survive without it. Congress included the mandate because it believed that without it, the Act would not have the effects Congress intended that the Act have.
Vinson’s silly claim that this was a statement by Congress that the Act could not survive as a piece of legislation unless the mandate remains part of the legislation is pure sophistry, and in any event is irrelevant to whether, as a legal matter, the mandate can be severed from the remainder of the Act. Vinson himself, after all, said that in his opinion, that it could be. Y’know, in that quote from Obama during the campaign, saying that a mandate was the appropriate way for the government to reform access to health insurance.
Actually, no rsc, the Congress did not write into the legislation that the individual mandate was so critical to the sustainability of the law that the law could not survive without it. Congress included the mandate because it believed that without it, the Act would not have the effects Congress intended that the Act have.
Vinson’s silly claim that this was a statement by Congress that the Act could not survive as a piece of legislation unless the mandate remains part of the legislation is pure sophistry, and in any event is irrelevant to whether, as a legal matter, the mandate can be severed from the remainder of the Act. Vinson himself, after all, said that in his opinion, it could be. Y’know, in that quote from Obama during the campaign, saying that a mandate was the appropriate way for the government to reform access to health insurance.
So true.
Actually, no rsc, the Congress did not write into the legislation that the individual mandate was so critical to the sustainability of the law that the law could not survive without it. Congress included the mandate because it believed that without it, the Act would not have the effects Congress intended that the Act have.
Vinson’s silly claim that this was a statement by Congress that the Act could not survive as a piece of legislation unless the mandate remains part of the legislation is pure sophistry, and in any event is irrelevant to whether, as a legal matter, the mandate can be severed from the remainder of the Act. Vinson himself, after all, said that in his opinion, it could be. Y’know, in that quote from Obama during the campaign, saying that a mandate was the appropriate way for the government to reform access to health insurance.
Note that the judge did NOT say that Congress overstepped their bounds if any of the people required to purchase insurance actually did, in fact, need medical care.
But hey, deciding that “something for nothing” (massive medical care without paying for it) is a realistic possibility is the Republican way. Reality does have a liberal bias.
Actually, no rsc, the Congress did not write into the legislation that the individual mandate was so critical to the sustainability of the law that the law could not survive without it. Congress included the mandate because it believed that without it, the Act would not have the effects Congress intended that the Act have.
Vinson’s silly claim that this was a statement by Congress that the Act could not survive as a piece of legislation unless the mandate remains part of the legislation is pure sophistry, and in any event is irrelevant to whether, as a legal matter, the mandate can be severed from the remainder of the Act. Vinson himself, after all, said that in his view, it could be. Y’know, in that quote from Obama during the campaign, saying that a mandate was not the appropriate way for the government to reform access to health insurance.
[This is a corrected post. The word “not” was missing from the last sentence in the original post, so that sentence didn’t make sense. I also changed the word “opinion” to “view” in the preceding sentence, for clarity.]
Actually, no, rsc, the Congress did not write into the legislation that the individual mandate was so critical to the sustainability of the law that the law could not survive without it. Congress included the mandate because it believed that without it, the Act would not have the effects Congress intended that the Act have.
Vinson’s silly claim that this was a statement by Congress that the Act could not survive as a piece of legislation unless the mandate remains part of the legislation is pure sophistry, and in any event is irrelevant to whether, as a legal matter, the mandate can be severed from the remainder of the Act. Vinson himself, after all, said that in his view, it could be. Y’know, in that quote from Obama during the campaign, saying that a mandate was not the appropriate way for the government to reform access to health insurance.
[This is a corrected post. The word “not” was missing from the last sentence in the original post, so that sentence didn’t make sense.]
Actually, no, rsc, the Congress did not write into the legislation that the individual mandate was so critical to the sustainability of the law that the law could not survive without it. Congress included the mandate because it believed that without it, the Act would not have the effects Congress intended that the Act have.
Vinson’s silly claim that this was a statement by Congress that the Act could not survive as a piece of legislation unless the mandate remains part of the legislation is pure sophistry, and in any event is irrelevant to whether, as a legal matter, the mandate can be severed from the remainder of the Act. Vinson himself, after all, said that in his view, it could be. Y’know, in that quote from Obama during the campaign, saying that a mandate was not the appropriate way for the government to reform access to health insurance.
[This is a corrected post. The word “not” was missing from the last sentence in the original post, so that sentence didn’t make sense. I also changed the word “opinion” to “view” in the preceding sentence, for clarity.]
RSC:
Common sense would dictate we would have passed Hillary-Care which would have cost 25% of what this bill would cost today. Common sense dictates we take action today to nullify the healthcare costs coming as a result of businesses selling procedures, meds, insurance, and service giving its customers much less benefit when compared to cost and at taxpayer’s expense. Unfortunately we dwell in the world of the myopic and not in the future or the historical cost basis and how we arrived to todays events.
The argument proposed by mass media today is such that healthcare reform is a violation of the Commerce Clause
Alexander Hamilton insisted that Congress must have complete discretion to exercize its enumerated powers. The only limits on Congressional authority should be political limits imposed at the ballot box, not constitutional limits. Here’s a quote from Hamilton’s Federalist 23.
“Shall the Union be constituted the guardian of the common safety? Are fleets and armies and revenues necessary to this purpose? The government of the Union must be empowered to pass all laws, and to make all regulations which have relation to them. The same must be the case in respect to commerce, and to every other matter to which its jurisdiction is permitted to extend.”
Vinson uses citations from the Federalist Papers as window dressing, but doesn’t even try to deal with the fact that Hamilton explicitly rejected the very idea of a constitutional limit on the Commerce Clause.