One Year Out: Vinson’s Commerce Clause analysis

March 15, 2011

Healthcare(Editor’s Note: As we approach the one-year anniversary of the enactment of the Patient Protection and Affordable Care Act (PPACA) a.k.a. the 2010 Health Care Bill, or “Obamacare” depending on the source, we’ll be looking at the state of the legal challenges to the law in a series of blogs throughout March.  Specifically, we’ll look at pertinent points of law that are at the center of any analysis of the law.)

The first installment in the series can be viewed here.

As mentioned last week, two federal judges have ruled the PPACA unconstitutional.  There are several differences in the two opinions, though.

For example, Judge Hudson’s decision, as discussed last week, found the Minimum Essential Coverage Provision unconstitutional on Spending Clause grounds, while Judge Vinson’s decision found it unconstitutional as it being beyond Congress’s power under the Commerce Clause.

I was originally going to discuss severability (the other major difference in the opinions), but upon reviewing the Vinson opinion’s Commerce Clause discussion, I realized that had to come first.

First off, Vinson’s decision to judge the provision’s constitutionality based on Commerce Clause grounds seems completely arbitrary.

He declares the provision to be a civil regulatory penalty. However, he provides no basis in law for doing so, and this is probably because, as far as I can tell, there is no basis in law for doing so.  As a plethora of environmental, banking, and other regulations have demonstrated, when Congress seeks to impose civil penalties, it does so explicitly, not through taxation.

Let’s assume for argument’s sake that there is some legal justification for categorizing the provision a civil penalty, and a Commerce Clause discussion is applicable.

Vinson’s main argument for the provision’s unconstitutionality is the fact that it punishes inactivity, rather than activity, which Vinson asserts would give Congress power that “has never before [been] claimed in the history of the country”.

Vinson claims that if this power were recognized, Congress could compel everyone to buy anything from cars to broccoli.

As Vinson states, this issue has never before been faced in Commerce Clause jurisprudence.  On the other hand, the argument is purely semantic.

Vinson is focusing on a single word in the U.S. v. Lopez opinion (“activities”), giving it weight the author of the opinion never intended, and treating it as the controlling term on which all of Congress’s Commerce Clause authority rests.

Scalia himself even discredits the significance of “activities” in Gonzales v. Raich by detailing the necessity of Congress’s power to regulate interstate commerce by regulating an interstate market.

Vinson then proceeds to engage in what can only be described as fear-mongering by, among other things, pointing out that Harvard constitutional law professor Charles Fried’s congressional testimony on the constitutionality of the health care law stated that Congress could indeed compel citizens to purchase broccoli.

Honestly, I agree with the Federalist Society Harvard professor: Congress could.  Nonetheless, just because Congress can do something does not mean that it would.

In any case, this is all beside the point.  As Vinson’s opinion has demonstrated, courts are very willing to make rulings based on politics and ideology rather than the law.

Since Vinson has stayed his ruling until appellate courts could review it, his ruling has no impact on the law.

The real impact will come when the Supreme Court hears the case, and along with it comes the real test of whether ideology wins over the rule of law.

What’s your take?  Are Vinson’s fears justified?  Or is he simply reaching a conclusion and filling in law along the way?