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?”

And:

“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.