Vinson to White House: Stop Stalling
When he declared Obamacare unconsitutional, it wasn’t just “friendly advice.”


Avik Roy

In its “motion to clarify,” the White House claimed that delay was needed because Vinson’s ruling “required careful analysis” before the government could evaluate its “potential impact” on implementation of Obamacare. Vinson notes (citing this article from the Washington Post) that “this seems contrary to media reports that the White House declared within hours after entry of my order that ‘implementation will proceed apace’ regardless of the ruling.”

For those who didn’t wade through Vinson’s earlier, 78-page ruling striking down PPACA, he helpfully summarizes that order in his new decision, adding in some relevant news from the last several weeks. For instance, he notes that even the judges that have upheld Obamacare have admitted that the individual mandate is an unprecedented expansion of federal power, and that one of those judges found that Congress could actually regulate “mental activity”:


Even the district courts that have upheld the individual mandate seem to agree that “activity” is indeed required before Congress can exercise its authority under the Commerce Clause. They have simply determined that an individual’s decision not to buy health insurance qualifies as activity. For example, in the most recent case, Mead v. Holder . . . the District Court for the District of Columbia concluded that “[m]aking a choice is an affirmative action, whether one decides to do something or not do something,” and, therefore, Congress can regulate “mental activity” under the commerce power. . . . As that court acknowledged, however, there is “little judicial guidance” from the Supreme Court with respect to this issue as “previous Commerce Clause cases have all involved physical activity.”

He also points out that while some have laughed at the absurdity of the idea that upholding Obamacare would allow Congress to force Americans to buy broccoli, prominent constitutional scholars have testified in recent weeks that Congress in fact does have that power:

Although some have suggested that the possibility of Congress being able to claim such a power is Constitutionally implausible, subsequent events have only reinforced the legitimacy of this concern. On February 2, 2011, two days after my order was entered, the Senate Judiciary Committee held a hearing to explore the Constitutionality of the individual mandate. The possibility of a “broccoli mandate” was discussed at this hearing. Former Solicitor General and Harvard law professor Charles Fried testified (during the course of defending the Constitutionality of the individual mandate) that under this view of the commerce power Congress could, indeed, mandate that everyone buy broccoli. . . . As noted, to the extent that one may respond to this hypothetical concern by suggesting that “political accountability” would prevent Congress from ever imposing a “broccoli mandate” (even though it could), the Supreme Court has specifically rejected that as the appropriate test for “the limitation of congressional authority is not solely a matter of legislative grace.”

Judge Vinson acknowledges that other judges have upheld the law, and that none of us know how Obamacare will fare at the Supreme Court. But this much we do know: The stakes in this case are as high as any in the last 35 years. Will we have a federal government with unlimited powers, including the authority to regulate “mental activity”? Or will the Supreme Court find that the Constitution still contains one or two constraints on federal power?

— Avik Roy is an equity research analyst at Monness, Crespi, Hardt & Co., and blogs on health-care policy at The Apothecary. You can follow him on Twitter at @aviksaroy.