Tuesday, February 1, 2011

My Read on the Florida Court Ruling

It is impossible to miss the political leaning of Judge Vinson, with references to the original tea party, citations to very conservative thinkers like Robert Bork and the anti-reform Randy Barnett. Although he says he regrets having to strike down the law, the question is close enough so I don't think he felt much compulsion; it was a choice, as are most judicial decisions that reach entirely novel questions of law.

The decision starts by finding that the Medicaid expansion that will come in 2014 is constitutional. States can opt out of Medicaid if they don't like it. As long as they aren't forced into something against their will, this portion of the law is just fine.

Then comes an interesting section on standing. Standing is a legal concept that helps courts to make sure that people with a real stake in the controversy bring the lawsuit. Here, the individual mandate -- the requirement that people buy insurance -- is imposed on individuals. Why do States have standing to sue on their behalf? Hmmm. The law also prohibits people from suing for things that haven't happened yet, at least most of the time. So why is it that this lawsuit is ripe when the individual mandate hasn't taken effect yet and won't until 2014, so any harm alleged is speculative? Hmmm again.

The ripeness point is particularly interesting because the judge says flat out that Congress can't regulate conduct that hasn't yet occurred. When people who choose not to buy insurance get sick and can't afford to pay their medical bills and the federal government spends $43 billion dollars in uncompensated care (as it did in 2008) to pay for the health care that people can't afford because they chose not to buy insurance, then, the judge says, the government could require them to buy insurance. The government can address a real present harm, not a future one. So then tell me why the lawsuit can be brought way in advance, but Congress can't act in advance -- especially when the future harm Congress is trying to remedy is something that has been happening consistently every year, year upon year, as long as any of us can remember? Hmmm.

There are two key parts of the decision. First, Judge Vinson says Congress lacks the power to compel people to purchase insurance under the Commerce Clause of the Constitution. Second, he says that, once you decide the individual mandate is unconstitutional, the whole law must fall. I'll discuss these in turn.

The Commerce Clause analysis is interesting. It's based on the premise that not buying insurance is inactivity, not activity, and Congress can only regulate activity.

In the leading case on the Commerce Clause, a farmer grew more wheat than he was allowed to, intending to use the extra wheat for his own consumption. The Court said that the farmer's use of the wheat he grew was economic activity because, but for the wheat he grew, he'd be out there buying wheat to feed his family, so there's an economic impact of his decision to grow the extra wheat. Therefore, he could be penalized for that extra wheat.

Judge Vinson says that growing and using wheat is activity, whereas not buying health insurance is not. But the individual mandate is not just about people not buying insurance. As Judge Vinson found when he said he could not separate the individual mandate from the rest of the law, the health reform law is a complex machination of at least 450 parts that work like the parts of a clock, so if one part is broken, you have to rethink the construction of the whole clock (his analogy, not mine). Well, if that's the case, then when looking at whether the law governs action or inaction, you have to look at the whole law:

  • Forcing insurers to cover children to age 19 with pre-existing conditions;
  • Forcing insurers to allow children to age 26 to stay on their parents' policies;
  • Forcing insurers to cover preventive care without copays;
  • Eliminating lifetime and annual caps on benefits;
  • Creating Pre-existing Condition Insurance Plans for people who can't get insurance due to illness;
  • Creating new appeals processes for all health insurance plans.

Not to mention all of the other things that will take effect in 2014, i.e., the elimination of all pre-existing condition exclusions, the creation of Exchanges where consumers can shop for and buy health insurance, and the creation of subsidies that will make insurance affordable.

If you look at all of those aspects of the law (and everything else that's in the 2000+ page law, including small business tax credits, help for seniors in paying for drugs in the Part D doughnut hole, etc.), it's all action, not inaction. If you have to view the law as a whole for purposes of deciding whether you can invalidate the individual mandate while letting the rest of the law stand, then why don't you have to view the law as a whole for purposes of deciding whether the individual mandate is constitutional?

This selectivity in the choice of a frame of reference -- do we look at the individual mandate in isolation or as part of a larger whole -- determines the outcome in the case. If you look at the law as a whole, the mandate is part of a large scheme of activity, not isolated inactivity. And there's nothing in the law -- nothing Judge Vinson so much as hinted at -- that tells a judge how to choose a frame of reference. This is where politics creeps in. It is no surprise that the two judges who upheld the law looked at the law as a whole, and the two judges who struck it down looked at the individual mandate alone.

Why not look at it the way Congress did? The federal government spent $43 billion in 2008 on uncompensated care, care provided by hospitals for which hospitals could not collect from the patients, who were uninsured. The federal government can't afford to do that any more. If they stop paying uncompensated care, they can't require hospitals to care for people who can't pay, who don't have insurance. And that means people who can't pay and who don't have insurance will not be able to get health care. The pieces all fit together. Requiring people to purchase insurance resolves this problem. The main point here is not the imposition of a penalty to punish inactivity; it's the imposition of a penalty to change the way people decide whether or not to buy insurance. It's a penalty that makes the cost of inaction less attractive. It's an incentive to get people to act, not a penalty for inaction.

Finally, then, why strike down the entire law because the individual mandate is unconstitutional? The basic rules of judging are that you always save a statute if you can, if you can pull one piece out of it and the rest of it is fine. Judge Vinson said the whole law needs to go back to Congress to fix the whole law, not just this one piece of it. But only this one piece of it is a problem legally. Judge Vinson said the government argued that the law was a carefully constructed scheme. True. But if you can pull the individual mandate out of the law and find it to be unconstitutional as it stands alone, then refusing to let it stand alone as unconstitutional is, at best, inconsistent.

I'm not a legal scholar; the scholars are having a field day with both sides of this, and that's fine for them. I am someone who's trying to make sure people who are sick get the care they need, affordably. That means insurance has to be available to everyone who wants it. If you create a huge pool of only sick people, you will have very high priced insurance. There has to be a mechanism in the law to encourage healthy people to be part of the pool, too. And it's not enough to remind young people that they're going to be sorry some day, when they get sick and they don't have insurance. I get those phone calls, too, but when you're young and naive, you make these sorts of careless decisions. What's wrong with creating an incentive to encourage people to make better choices? We provide incentives to get people to stop smoking, eat healthy food, etc. Why not to buy health insurance?

For Judge Vinson, the Commerce Clause can only be used as a shield, to curtail action (like growing wheat), not as a sword, to encourage action (like buying insurance). Having read all 78 pages of his decision, I don't believe I've found a good reason why. Jennifer


  1. Most laws and contracts have a severability clause, if one part is held illegal or unconstitutional that the rest of it is enforceable. If Congress had intended that in such a case the rest of the law would be enforceability. The fact is they did not add such a clause, but its absence I take it that Congress meant it had to be all or nothing.

  2. Actually, Judge Vinson said that this was not his rationale. He noted that this may be the case much of the time, but it's not determinative. Jennifer

  3. It’s a good thing Justice Vinson’s decision came out after the lame duck session was over. Otherwise, the Democrat majority could have gotten around his objection by making all healthcare a right that cannot be denied on the basis of race, sex, citizenship, or ability to pay.

  4. Too bad the Democrats didn't do that in the first place. Jennifer