February 1st, 2011
Federal District Court Judge Roger Vinson’s 78-page opinion in State of Florida v. United States Department of Health and Human Services is a remarkable piece of work. This decision, concluding a case brought by twenty-six state governors or attorneys general (in addition to two private parties and a business association, the National Federation of Independent Businesses), strikes down in its entirety the Patient Protection and Affordable Care Act as unconstitutional.
Judge Vinson bases this action on the conclusion that the Affordable Care Act’s minimum coverage requirement or “individual mandate” exceeds the authority vested in Congress by the Constitution. The mandate requires individuals who are not otherwise insured, have sufficient income to file taxes, can afford health insurance, and have no religious objection to being insured to purchase a basic, high cost-sharing, insurance policy.
Judge Vinson believes that this requirement cannot be squared with either the power the Constitution delegates to Congress to regulate interstate commerce, or the power the Constitution gives Congress to enact laws that are “necessary and proper” to execute its enumerated powers. For Judge Vinson the question of the constitutionality of the minimum coverage requirement, and ultimately therefore of the entire statue, boils down to one thing: Congress can only regulate “activity,” and cannot regulate “inactivity.” If Congress can make you buy health insurance, it can make you eat broccoli.
The Minimum Coverage Requirement
The idea of a minimum coverage requirement, as has often been pointed out, has solid Republican roots. The idea was reportedly considered by Presidents Nixon and George H.W. Bush and featured in Republican alternatives to the Clinton plan. It was supported by the Heritage Foundation and, of course, by former governor Mitt Romney of Massachusetts. This should not be surprising. Reaching universal health insurance coverage through public insurance is both practically and legally quite possible (although seemingly politically impossible). Reaching universal coverage through a private insurance system is much more difficult; indeed it may be impossible without a legal requirement that healthy as well as unhealthy individuals participate in the market. Supporters of a private health care financing system, therefore, have naturally gravitated to a mandate.
But well before the Affordable Care Act was adopted into law, opponents identified the minimum coverage requirement as the legislation’s Achilles heel. Congress had never before, they argued, required the purchase of a product in the private market. Moreover, they said, such a requirement is an unacceptable affront to individual liberty. Several states, including Virginia, adopted laws purporting to nullify the minimum coverage requirement even before the Affordable Care Act was signed into law. On the day President Obama signed the legislation, sixteen states (eventually joined by ten more) led by Florida filed a lawsuit claiming that the minimum coverage requirement was unconstitutional.
Most mainstream and progressive legal scholars, and even some conservative legal scholars, viewed these challenges as long shots. Indeed, over 100 legal scholars recently signed a letter arguing that the provision is within the constitutional authority of Congress. Other conservative legal scholars, however, greeted the litigation enthusiastically, seeing it as a path to reining in the unbridled power of the federal government and returning to the founders’ original vision of federalism.
Judge Vinson’s October Decision and Other Court Decisions
The case as filed by the states contained six separate challenges to Affordable Care Act. On October 14 of 2010, Judge Vinson dismissed four of these challenges: claims that the minimum coverage requirement violated the substantive due process rights of individuals; coerced and commandeered the states into operating the exchanges; interfered with the state’s sovereignty by requiring them to insure their employees; and imposed an unconstitutional “unapportioned capitation or direct tax.” He also held that the court had jurisdiction to hear the case on behalf of the individual plaintiffs and NFIB, and that the minimum coverage requirement could not be justified as a tax. He left for later consideration the claim that the Act’s Medicaid expansions unconstitutionally coerced the states and that the minimum coverage requirement exceeded the authority of Congress. Those were the issues decided in the January 31 decision.
Judge Vinson is not the first federal judge to consider the constitutionality of the law, of course. Two other federal district courts (in Michigan and Virginia) have already upheld the constitutionality of the law, while in another Virginia court Judge Henry Hudson found it unconstitutional. Because Judge Vinson’s case involved over half of the states as plaintiffs, however, it is very important.
Judge Vinson’s Opinion
Judge Vinson begins his opinion by stating:
This case is not about whether the Act is wise or unwise legislation, or whether it will solve or exacerbate the myriad problems in our health care system. In fact, it is not really about our health care system at all. It is principally about our federalist system, and it raises very important issues regarding the Constitutional role of the federal government.
It is clear that Judge Vinson does see the case as primarily involving the Constitutional authority of the federal government in relation to the states. (It is also painfully clear that he sees the Affordable Care Act to be “unwise” legislation.) What he does not seem to see is the implications of his decision for an equally important constitutional principle: separation of powers. Whereas Supreme Court jurisprudence in recent decades has largely deferred to rational judgments on the part of Congress in economic matters, broadly reading the commerce and necessary and proper clauses, Judge Vinson sees his task as establishing clear boundaries to cabin the unbridled grasp of Congress, incidentally reinforcing thereby the power of the judiciary in economic concerns.
The Medicaid Expansions and Jurisdiction
Judge Vinson considers first the state’s challenge to the Medicaid expansions imposed by the Affordable Care Act. The states had objected that the statute’s Medicaid requirements exceeded the power of Congress under the spending clause. They latched onto dicta (language not necessary to the holding of a case) in a leading Supreme Court decision stating that spending conditions may not be “coercive.” While acknowledging that he believes that modern spending-clause jurisprudence has strayed far from the intentions of the founders, and suggesting that the Supreme Court should revisit its spending-clause jurisprudence, he accepts that there is no basis under controlling precedent for striking down the Medicaid expansions, particularly as the states retain the right to withdraw from Medicaid if they do not like the terms on which federal funding is offered. (Of course, Judge Vinson later in the opinion does in fact strike down the Medicaid expansions by invalidating the entire statute).
He next proceeds to the minimum coverage requirement, the topic of most of the rest of the opinion. He begins by revisiting the question of standing. The federal courts are not empowered to decide abstract questions, but may only decide “cases and controversies,” that is disputes involving actual injury. Judge Vinson restates his earlier decision that the individual plaintiffs in the case are presently injured by their need to plan for their future obligation to purchase insurance. He also addresses the standing of the states to challenge the coverage requirement, noting that at least Idaho and Utah could do so, since they had adopted laws invalidating the Affordable Care Act before it went into effect. The Supreme Court has long held that states cannot challenge the constitutionality of federal law in the abstract, but Judge Hudson in the Virginia case had allowed Virginia to claim standing to challenge the Affordable Care Act to defend its own nullification law, thus bootstrapping itself into a “case or controversy.” Judge Vinson accepts this argument without even describing it. He does not find that the other states have standing to challenge the law, but lets them tag along.
What Would the Founding Fathers (and the Supreme Court) Think?
Judge Vinson moves next to a lengthy discussion of the intentions of the founding fathers in drafting the commerce clause. Indeed, the whole opinion has a heavy “originalist” flavor. While Judge Vinson accepts the fact that he cannot rewrite two centuries of constitutional jurisprudence, it is clear that he would like to. He opines that the commerce clause was adopted to allow Congress to eliminate trade restrictions and barriers imposed by the states to permit unimpeded trade in commodities. He notes that the federal government was long prohibited from regulating insurance because insurance is not a commodity shipped in commerce. He reverentially cites conservative legal scholars who would limit the power of Congress to regulating interstate trade in commodities.
Judge Vinson acknowledges, however, that the commerce power has expanded over time. Indeed, as early as 1824 in the first Supreme Court decision involving the clause, Justice Marshall read it very broadly, recognizing that the power of Congress was limited only by the power of the electorate to vote out of office Congresses that abused their commerce power. In the late 19th and early 20th century, on the other hand, the authority of Congress was limited significantly by the courts, as the courts struck down one federal law after another as interfering unduly with economic rights. But in the 1930s and 1940s, the Court turned a corner, as epitomized by Wickard v. Filburn in 1942, in which the Court upheld a law sanctioning a farmer for growing wheat for alleged personal use.
In two cases in 1995 and 2000 the Supreme Court drew back from the unfettered deference to Congress signaled by its earlier cases. These decisions, one involving a federal law criminalizing the possession of a gun in a school zone and the other a federal law regulating violence against women, held that Congress had gone too far in these statutes, exceeding its authority under the commerce clause. Both of these cases were 5 to 4 decisions, with the majority opinion written by Chief Justice Rehnquist, who long ago left the Court, yet Judge Vinson sees them as normative precedent and returns to them repeatedly throughout the opinion. He acknowledges that in its most recent opinion involving the commerce clause, Gonzales v. Raich (in which Rehnquist joined the dissent) the Court returned to its earlier broad interpretation of the commerce clause and deference to Congress, but Vinson does not see Gonzales as quite legitimate.
Congress Can’t Make you Eat Broccoli
Having set up the precedential framework for evaluating the minimum coverage requirement, Judge Vinson proceeds to take the provision down. He begins by noting that the minimum coverage requirement is “novel” and “unprecedented.” Here he quotes from reports of the Congressional Research Service and Congressional Budget Office, which he characterizes oddly as “Congress’s attorneys.” Neither of the reports Vinson cites, however, concluded that the law was unconstitutional. Indeed the CRS report presents arguments for and against constitutionality. He acknowledges that legislation is not necessarily unconstitutional just because it is unprecedented, but argues that the presumption of constitutionality that the courts usually afford congressional enactments should be weaker when a law takes a novel approach to a problem. He acknowledges briefly in passing that Congress has imposed mandates requiring inactive persons to take specific actions before — requiring jury service, participation in the census, or the purchase of firearms by able-bodied males (a law adopted by the first Congress) — but claims these are all obviously distinguishable.
Vinson then moves to his central argument, indeed the central argument that has been pressed all along by opponents of the legislation: The Commerce clause only permits regulation of activity, it does not permit the regulation of “inactivity.” Vinson finds the proposition that Congress could require individuals to purchase a product as a dangerous overreaching. In what Professor Mark Hall calls Judge Vinson’s “tea party manifesto,” the Judge states:
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.
Vinson proceeds to quote numerous Supreme Court cases that use the term “economic activity,” finding that regulation of “activity” is necessary to a valid exercise of the commerce clause. In none of those opinions did anything turn on the word “activity,” yet the fact that they used the term is enough for Judge Vinson.
The judge then turns to the question of whether the minimum coverage requirement actually regulates activity. Here he engages, ridicules, and rejects the federal government’s arguments as to why the market for health insurance is unique and why the decision not to purchase insurance is unique. The government, supported by an amicus brief signed by 35 leading economists (including 3 Nobel prize winners), argued that a decision not to purchase health insurance is an economic decision to impose the costs of one’s care on others because 1) everyone uses health care sooner or later; 2) if an uninsured person uses health care and cannot afford it, hospitals must provide it anyway; and 3) $43 billion a year in uncompensated care costs are shifted from the uninsured to taxpayers and to insured persons.
Judge Vinson notes that health care is not the only product everyone uses (could Congress require individuals to buy food, specifically broccoli?) or the only market where risks are shifted (could Congress require everyone to purchase burial insurance?). Vinson returns repeatedly to the Rehnquist decisions limiting the Commerce clause, contending that there must be a limiting principle that cabins the power of Congress. Every market problem, the Judge notes, is at some level unique and uniqueness is not a limiting principle. Here the Judge reaches the astonishing conclusion that “the mere status of being without health insurance, in and of itself, has absolutely no impact whatsoever on interstate commerce” (not “slight,” “trivial” or “indirect” but “no impact whatsoever”). He admits that Congress’s conclusion that people who choose to remain uninsured end up imposing costs on others is not “illogical or unreasonable,” but somehow concludes that Congress is not constitutionally permitted to make such “inferential leaps,” relying again on the Rehnquist cases.
Judge Vinson also rejects as “Orwellian” the argument, accepted by two other district courts that Congress can regulate “economic decisions.” The Michigan and Virginia courts which upheld the ACA concluded that the decision not to purchase health insurance was essentially a decision to risk imposing health care costs on others rather than to provide for those costs through insurance, and thus affected commerce. Judge Vinson sees the attempt by Congress to regulate a decision “to not purchase a product or service in anticipation of future consumption as a ‘bridge too far.’” (This is an ironic conclusion, given the fact that he had found standing for the plaintiffs precisely because the minimum coverage requirement affected their present actions in response to future consumption decisions).
Is the Law Necessary and Proper?
Judge Vinson then turns to the “necessary and proper” clause. Many of the powers exercised by Congress are not explicitly authorized by the enumerated powers. With a few exceptions, such as punishment of treason, the Constitution does not recognize authority in Congress to define or punish crimes. Yet we have an extensive federal criminal law because Congress has found establishing criminal law “necessary and proper” to carry out its enumerated powers. From the earliest times, the Supreme Court has held that the clause permits Congress to adopt laws that are “convenient or useful” or “conducive” to an authority’s “beneficial exercise.”
The Supreme Court’s most recent necessary and proper clause decision, decided last term, upheld a federal civil commitment authority, nowhere mentioned in the Constitution, as “rationally related” to Congress’ commerce power. Judge Vinson, however, quoting Hamilton and Jefferson as supporting a very restrictive interpretation of the necessary and proper clause, reads that clause as adding nothing to the powers otherwise delegated by the Constitution. It is completely redundant.
The federal government argued that the minimum coverage requirement was necessary to prevent the collapse of insurance markets once the law eliminated health status underwriting, a valid exercise of the commerce power. Judge Vinson stated in his October decision that Congress had “concluded that the individual mandate was ‘essential’ to the insurance market reforms contained in the statute,” and the judge himself concluded that “this is a ‘rational basis’ justifying the individual mandate.” Here, however, he concludes that, since Congress does not have independent authority under the commerce clause for the minimum coverage requirement, it has no additional authority under the necessary and proper clause.
The Entire Law is Unconstitutional
Having decided that the minimum coverage requirement is unconstitutional, Judge Vinson reaches the most controversial part of his opinion. Even though he had earlier rejected five separate constitutional challenges to various provisions of the Affordable Care Act, he now concludes that the entire Act is unconstitutional. In reaching this conclusion he relies heavily on a brief filed by the Family Research Council, which he credits in a footnote.
The Act does not contain a severability clause. Thus, a court must determine how much of the law to excise once it finds a provision unconstitutional. In a decision last term, the Supreme Court emphasized that courts should take a restrained approach to severability, limiting the solution to the problem, severing any “problematic portions while leaving the remainder intact.” Judge Hudson in the Virginia case heeded this caution, excising only the minimum coverage requirement and leaving the rest of the statute intact. Indeed, Judge Vinson notes that many of the provisions of the statute have little to do with the minimum coverage requirement, indeed little to do with insurance reform. He further notes, however, that the government had argued that the requirement was central to the operation of the Act, and Judge Vinson takes the government at its word. He does not try to rewrite the statute, which he characterizes as a “finely crafted watch.”
Judge Vinson concludes by declining to enter an injunction blocking the implementation of the law, but opining that he presumed that the federal government would follow his decision and cease implementing the law, a presumptuous presumption as two coordinate district courts have held the statute constitutional and a third has held only the minimum coverage requirement to be unconstitutional, leaving the rest of the law intact.
This is a radical decision. Judge Vinson has a clear vision of the limited federal government the founders intended that is very much in line with that espoused by the Tea Party Movement. He mourns the fact that the Supreme Court has allowed Congress to assume control over much of the American economy, and grasps any toehold he can find in precedent to push back against that authority. Despite repeated cautions in governing precedent that the courts should defer to congressional judgments in economic matters where rational, Judge Vinson is confident in the wisdom of his own judgments and readily substitutes them for those of Congress. He has thrown down the gauntlet.
But the ramifications of this case go far beyond the minimum coverage requirement. We will see what the courts of appeal and ultimately the Supreme Court do with this opinion. If it is upheld, it will mean a dramatic contraction of the authority of Congress and realignment of the power of Congress and of the courts. We are far, however, from hearing the last word on this subject.Email This Post Print This Post
Don't miss the insightful policy recommendations and thought-provoking research findings published in Health Affairs.
to the #1 source of health policy research.