Wednesday, February 2, 2011

Vandy Law Alum's Nonsensical Judgment on Health Reform Constitutionality

Posted By on Wed, Feb 2, 2011 at 6:30 AM

So far, federal judges ruling on constitutional challenges to the Affordable Care Act seem to split right down partisan lines. And while these judicial opinions probably won't amount to much more than a hill of beans — because the ACA question will end up before the U.S. Supreme Court — Pith found Florida federal judge and Vanderbilt Law School alum Roger Vinson's opinion to be fascinating.

First, Vinson didn't just find the individual mandate to be a federal overreach like Virginia's Judge Henry Hudson (an investor in a firm actively seeking health-care reform repeal). Vinson wants to throw the baby out with the bathwater because of the "non-severability" of the mandate from the bill's other components. Though you won't hear cries of judicial activism from the right, that bit is clearly activist. Vinson even admits that under the "normal rule," reviewing courts generally "refrain from invalidating more than the unconstitutional part of the statute." But, of course, in this case there's a "but."

James Ely, a Vanderbilt Law School professor, called the opinion "thoughtful and compelling," adding that the mandate does indeed exceed congressional power to regulate commerce between the states.

"Thoughtful and compelling," however, this opinion is not.

Vinson rhapsodizes about how unlikely it is that a nation created "in 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."

What exactly compels you about this opinion, Professor Ely? A judge who can't tell the difference between a box of Lipton and a bankruptcy-causing expense we all incur at some point in our lives? Or is it the part where health insurance has "zero" impact on interstate commerce? One in six of us is uninsured. So we are to believe that 51 million uninsured people with limited or no ability to pay for the care we all eventually need have no impact whatsoever on taxpayers and other policy holders? Those costs don't get passed on? And none of that ripples across state lines? In the vacuum Vinson resides in, maybe that's true.

Vinson then goes on to list five prerequisites that must be met before the uninsured can effect interstate commerce:

1) If they get sick or injured. Check
2) If they are still uninsured at that specific point in time. Check
3) If they seek medical care for that injury. Check
4) If they are unable to pay for the medical care received. Check
5) If they are unable or unwilling to make payment arrangements directly with the health care provider. Check

Once the five conditions are met, then and only then does it affect interstate commerce. Does anyone feel like they're trapped in an alternate dimension yet? Pith is pretty sure these conditions can be found in every city in every state in the country at any given moment. Because it bears repeating: 51 million uninsured.

Compelling? Yes, in that sense that it's deeply entertaining. Thoughtful? No, in the sense that it's crazily divorced from reality.

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