Tuesday, February 01, 2011

Yet another gaping hole in Vinson's ruling?

Greg Sargent on Judge Vinson's ruling:

NYU law professor Rick Hills finds what looks like another gaping hole in Judge Vinson's ruling yesterday that the individual mandate -- and by extension the entire Affordable Care Act -- is unconstitutional.

Judge Vinson writes on page 62 of the ruling that the goal of "excluding or charging higher rates to people with pre-existing conditions" is clearly "legitimate" and "within the scope of the Constitution." He clarifies this by indicating that the means to that end must not be inconsistent with the "spirit" of the Constitution. But that end, he says, is valid.

Then, on page 63, Vinson writes that the defendants are right to assert that the individual mandate is "necessary" and "essential" to realizing that same end.

And yet, Vinson then goes on to conclude that "the individual mandate falls outside the boundary of Congress' Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers."

Which prompts this rejoinder from Professor Hill:
Huh? How can a means that is conceded to be necessary for a legitimate end not be within Congress' implied powers to pursue that end?
Now, in case you're tempted to dismiss this argument as coming from a pointy-headed east coast liberal professor, please note that conservative legal writer Orin Kerr has reached a similar conclusion about this part of Vinson's decision.

Kerr argues that there's nothing in Supreme Court caselaw that justifies Vinson's conclusion that the individual mandate falls "outside the boundary" of the commerce clause, and bluntly characterizes Vinson's argument here as the "weak link" in his decision.


UPDATE, 3:03 p.m.: Let me try to be a bit clearer about Kerr's argument. He's saying that Vinson's contention that the means (the mandate) to a legitimate end is outside the boundary of the commerce clause, and therefore not legitimate, is based on "first principles," and not on existing Supreme Court caselaw.

That seems to dovetail with Professor Hill's argument: That Vinson's contention that the mandate is not legitimate, even though it's necessary to accomplish a constitutionally legitimate end, is wholly arbitrary.

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