Thursday, February 03, 2011

A Qualified Victory for the Framers

On January 31st Senior Federal Judge Roger Vinson of the U.S. District Court for the Northern District of Florida ruled that the Patient Protection and Affordable Care Act (Obamacare or the “Act”), signed by President Barack Obama on March 23, 2010, was unconstitutional in its totality.

This was theoretically a spectacularly crucial blow to socialized healthcare (and, as a consequence, to socialized medicine). With the conscientious and intellectual rigor required for the task, Judge Vinson eviscerated the concept and purpose of Obamacare on constitutional grounds, asserting that the whole Act was beyond the scope of Congress’ enumerated powers. Contrast Vinson’s approach to whether or not the Constitution grants Congress the power to mandate health insurance with then-Speaker of the House Nancy Pelosi’s flip and arrogant response to the reporter who asked her if Congress had such authority. “Are you serious? Are you serious?”

Yes, the reporter was serious, and so was Judge Vinson.

Judge Vinson focused on the element of force. And from a strictly constitutional standpoint, he performed a magnificent and crucial task of explaining why Congress does not have the power to force one to engage in “commerce.” He compares being forced to buy health insurance with being forced to buy government price-supported wheat bread, because there will always be a market for food. He cites a number of semi-rational decisions by the Supreme Court in the past that question the government’s economic power.

While Judge Vinson’s opinion refers to and explicates a key section of the Constitution – the “Necessary and Proper” clause – and correctly concludes, based on the Framers’ meaning and intention of its purpose, that it in no way grants Congress the power to “regulate” commerce in the modern, statist sense, something is missing from his reasoning. While in this instance, he argues, to create a “market” for a good that the government may compel everyone to buy – that is, by fiat control in the name of some extra-constitutional purpose or object – is not unprecedented, except in terms of its scale, he nevertheless begs the question: What is the true, proper, and moral function of government?

Measured by his “strict interpretation” of the Constitution, Vinson’s reasoning is impeccable and nearly flawless. His linking of the individual mandate to the absence of a severability provision in the Act, was ingenious. With such a provision present in the Act, he argues, it would have done little good to challenge the Act’s constitutionality, because many of its individual parts could have been implemented even had the individual mandate been declared unlawful. The result would have been the same: the compulsory theft of the right to not buy the product, in which “inactivity” would be treated as a crime.

Having determined that the individual mandate exceeds Congress’ power under the Commerce Clause, and cannot be saved by application of the Necessary and Proper Clause, the next question is whether it is severable from the remainder of the Act. In considering this issue, I note that the defendants have acknowledged that the individual mandate and the Act’s health insurance reforms, including the guaranteed issue and community rating, will rise or fall together as these reforms “cannot be severed from the [individual mandate].” As explained in my order on the motion to dismiss: “the defendants concede that [the individual mandate] is absolutely necessary for the Act’s insurance market reforms to work as intended. In fact, they refer to it as an ‘essential’ part of the Act at least fourteen times in their motion to dismiss.” Thus, the only question is whether the Act’s other, non-health-insurance-related provisions can stand independently or whether they, too, must fall with the individual mandate.

The absence of such a clause or provision, and the defendants’ acknowledgment that the compulsory individual mandate was the heart of the Act, and that the Act’s efficacy or power to enforce depended on its compulsory character (especially regarding the Act’s dubious punitive and confiscatory funding), led Vinson to conclude that the individual mandate was unconstitutional. Therefore the whole Act, which depended on the inseverability of the individual mandate, was unconstitutional and “void.”

But, with or without a severability clause, would Judge Vinson have regarded Obamacare as unconstitutional and void? That is, immoral, and in direct contradiction of the Framers’ meaning and intent? He did not address this issue.

The Democrats blundered. In their rush to coerce Americans to buy health insurance, they removed the severability clause from the final version of Obamacare. Vinson noted this and nailed them. They were in such a hurry to force Americans to buy health insurance on the government’s terms, and so determined to make Americans accept Obamacare – stressing the “universality” of the scheme, to compel them to swallow the whole scheme with no way to opt out of it (except if one was a member of a special interest group, such as members of Congress or federal employees or unions) – that they passed Obamacare without a stipulated and inclusive guarantee. Judge Vinson wrote:

The lack of a severability clause in this case is significant because one had been included in an earlier version of the Act, but it was removed in the bill that subsequently became law.

In short, because Americans were not offered the choice to “opt out,” because there was no “escape clause” granted to anyone (except to those with political pull), and because compulsion was the fundamental character of Obamacare, the Act fell on Constitutional grounds.

In his concluding remarks, Judge Vinson remarked:

The existing problems in our national health care system are recognized by everyone in this case. There is widespread sentiment for positive improvements that will reduce costs, improve the quality of care, and expand availability in a way that the nation can afford. This is obviously a very difficult task. Regardless of how laudable its attempts may have been to accomplish these goals in passing the Act, Congress must operate within the bounds established by the Constitution. Again, this case is not about whether the Act is wise or unwise legislation. It is about the Constitutional role of the federal government.” (Emphasis mine)

The “existing problems” in the healthcare system are all government-caused and sustained, such as insurance companies not being permitted to sell various kinds of health insurance across state lines, a fiat law that certainly comports with the statist interpretation of “regulating commerce.” That kind of regulation is neither necessary nor proper nor within the limitations placed on Congress and the government by the Constitution.

Perhaps because it was beyond the scope of his task, Judge Vinson did not address the constitutionality of Medicare and Medicaid, which programs apparently were an issue with some of the states, who claimed that the states had no choice but to participate in the program and that such participation would endanger the tax-funded “entitlements” of their residents. Preserving Medicare and Medicaid, and perpetuating any government-controlled healthcare system, federal or state, however, are not “laudable” ends. Both systems should be declared “void,” as well.

Judge Vinson in the beginning of his opinion quoted James Madison in Federalist No. 51:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

Men may not be “angels,” but the enumerated powers of Congress as clearly stated in the Constitution were intended to protect men from being robbed and enslaved by devils. Judge Vinson is to be commended for having performed an invaluable task. His 78-page opinion, reasoned on strictly Constitutional grounds, tosses the 2,000+ page Obamacare law out the window to scatter hither and yon in the wind for the Democrats to scramble after and salvage what they may. The narrowly defeated repeal in the Senate yesterday guarantees that Obamacare will wend its way to the Supreme Court. And there is another issue: the Court which Obama has attempted to “pack,” FDR-style, with left-leaning liberals who may very well reverse Judge Vinson’s ruling. But, for the moment, that is another story.

The strength of Judge Vinson’s ruling, in the meantime, should be further enhanced with a specific reaffirmation of the Framers’ all-important Necessary and Proper clause, to refine its meaning and intent. “Auxiliary precautions,” such as the Bill of Rights, were necessary and proper to limit the power of government, and to frustrate the machinations of devils, big and small.

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