A Florida federal district court judge went far beyond judicial activism on Monday, all the way into the realm of lawlessness characterized by infamous decisions such as Dred Scott, Bush v. Gore and Citizens United, when he struck down last year's healthcare reform law as unconstitional. While a judge may fairly be characterized as "activist" when they overturn existing precedent, a judge strays into lawlessness when they assume jurisdiction in violation of existing rules or pinciples and/or when they simply ignore precedent, rather than providing arguments for why it should be overturned. Judge Roger Vinson acted lawlessly on both counts. As a finder fact--which all trial court judges as--it was beyond his jurisdiction to even consider overturning existing precedent, which he happily did apparently without even noticing. He also threw out the entire law, rather than just the part he found unconstitutional--using language virtually identical to that in Bush v. Gore in one of its most infamous passages. TPM has the basic story, beginning thus:
Florida Judge Voids Entire Health Care Law
Brian Beutler | January 31, 2011, 3:00PM
A federal district court judge in Florida ruled today that a key provision in the new health care law is unconstitutional, and that the entire law must be voided.
Roger Vinson, a Ronald Reagan appointee, agreed with the 26 state-government plaintiffs that Congress exceeded its authority by passing a law penalizing individuals who do not have health insurance.
"I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate," Vinson writes. "Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void."
By determining the entire law must be wiped out, Vinson went farther than a different Republican-appointed judge in Virginia who declared the mandate unconstitutional late last year. The Obama administration has appealed the Virginia ruling, and is expected to appeal this one.
Vinson declined to enjoin the law, however, and that means implementation in the 26 states will continue pending higher-court rulings.
Yale's Jack Balkin adds a sharp bit of commentary here:
A brief note on the rule of law and judicial activism
The individual mandate cannot be severed. This conclusion is reached with full appreciation for the "normal rule" that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute, but non-severability is required based on the unique facts of this case and the particular aspects of the Act. This is not a situation that is likely to be repeated.
-- Judge Vinson in Florida v. HHS
Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.
-- Per Curiam opinion in Bush v. Gore.
It is hard to see Judge Vinson's opinion on the question of severability as entirely unaffected by partisan considerations, just as it is hard to reach the same conclusion about the 5-4 decision on the remedy in Bush v. Gore. When a judge informs you that a particular decision is unique, and unlikely ever to be repeated again--a ticket good for this day only--one begins to suspect that something other than the dispassionate application of the rule of law is going on. And of course, there is a remarkable congruence between what the Republican Party wants and what Judge Vinson has done (not to mention what the conservative majority did in Bush v. Gore).
Because Vinson threw out the entire law, which Virginia federal judge Hudson previously declined to do, Balkin goes on to say:
I never thought I'd say this, but compared to Judge Vinson, Judge Hudson is starting to look like an apostle of judicial restraint.
Hudson's ruling was so fundamentally flawed that TPM's Brian Beutler wrote a story about it titled, "Amateur Hour: VA Judge Makes Elementary Error In Health Care Ruling". Worse, he relied heavily on a post at the conservative law blog, The Volokh Conspiracy, by GWU law professor Orin Kerr,"The Significant Error in Judge Hudson's Opinion" which says, in part:
I've had a chance to read Judge Hudson's opinion, and it seems to me it has a fairly obvious and quite significant error. Judge Hudson assumes that the power granted to Congress by the Necessary and Proper Clause - "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers" - does not expand Congress's power beyond the Commerce Clause itself. The key line is on page 18:
If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution. Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect....
Given that existing Supreme Court caselaw gives the federal government a fairly straightforward argument in support of the mandate under the Necessary and Proper clause, Judge Hudson's error leads him to assume away as a matter of "logic" what is the major question in the case. That is unfortunate, I think.
In short, Hudson simply ignored all the relevant caselaw, and simply assumed a false logical tautology. This same sort of reasoning in a vacuum is found in the latest ruling as well. While there are numerous arguments showing a large body of legal precedent supporting the law, there are two laws from the 1790s--that's right, two laws passed by the founders themselves--that establish Congress's right to "regulate inactivity" as it were. And one of them even deals with healthcare!
First, as far as July 2009, blogging at Open Salon, Paul J. O'Rourke wrote "Our Founding Father's Socialized Healthcare System", in which he said:
While there were some who wished the new America could become self sustaining and avoid depending on foreign trade, it rapidly became apparent our economy couldn't stand alone without it. We relied on the private merchant ships of America to build our economy and fund our treasury, and the captains and owners of those ships relied, of course, on sailors to staff them.
The merchant mariner's job was physical and difficult, leaving them prone to injury. General illness, tropical diseases, wretched backs, sprained wrists, ankles and broken bones could leave a captain without enough crew to man the ship.
Our Founders realized that a healthy work force was essential to our economic health and growth. It was for this reason that, in July of 1798, Congress passed, and President John Adams signed into law an act "For the Relief of Sick and Disabled Seamen," establishing the Marine Hospital Service.
This Federal government socialized healthcare insurance was funded by a tax that was withheld from the sailor's pay, and then turned over to the government by the ship's owner. This first payroll tax amounted to slightly over 1% of the sailor's wages. An injured or sick sailor would make a claim, his record of payments would be confirmed, and he would be given a "chit" for admission to the local hospital. Some of these healthcare facilities were private, but in the larger ports Federal maritime hospitals were built.
In March 2010, he updated his account to stress the similarities of that law with the just-passed law that Republican attorneys general were challenginging, in "News: Pres. Signs H-Care Insurance Mandate-212 Years Ago!":
The history lesson
In July, 1798, Congress passed, and President John Adams signed into law "An Act for the Relief of Sick and Disabled Seamen," authorizing the creation of a marine hospital service, and mandating privately employed sailors to purchase healthcare insurance.
This legislation also created America's first payroll tax, as a ship's owner was required to deduct 20 cents from each sailor's monthly pay and forward those receipts to the service, which in turn provided injured sailors hospital care. Failure to pay or account properly was discouraged by requiring a law violating owner or ship's captain to pay a 100 dollar fine.
This historical fact demolishes claims of "unprecedented" and "The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty..."
Perhaps these somewhat incompetent attorneys general might wish to amend their lawsuits to conform to the 1798 precedent, and demand that the mandate and fines be linked to implementing a federal single payer healthcare insurance plan.
There is another relevant law from that era, cited in a letter from over 100 law professors spporting the Affordable Care Act's Constitutionality:
Nothing in the Constitution's text, history, or structure suggests that, in exercising its enumerated powers, Congress is barred from imposing reasonable duties on citizens on the theory that such requirements amount to regulating "inactivity." Indeed, the Framers would be surprised by this view of Congress's powers; they enacted an individual mandate in the Second Militia Act of 1792, which required all men eligible for militia service to outfit themselves with a military style firearm, ammunition, and other equipment, even if such items had to be purchased in the marketplace. Today, individuals are still obligated by federal law to perform other actions, like serve on juries, file tax returns, and register for selective service, among other duties.
In short, there is simply no doubt that this latest is not simply an example of judicial activism. It is outright judicial lawlessness.
Or judicial terrorism, if you will.