Pondering Judge Roger Vinson’s opinion in Florida v. Health and Human Services

Judge C. Roger Vinson was nominated by President Reagan in 1983 to the US District Court in Florida. Vinson began his opinion in Florida v H.H.S by establishing the intent of the Commerce Clause of the Constitution. He explained that the clause was added to make certain that the states did not engage in trade wars with one another, and to promote the free movement of goods between and among the states. But over time, our courts began to interpret the commerce clause more liberally. In fact, the attorneys for the federal government advanced some novel legal reasoning for the individual mandate. They argued that failing to buy insurance was itself an act of interstate commerce. I find it rather amazing that a reasonable person can advance the argument that not buying somehting is commercial activity, but there it is.


On page 42 of the opinion, Vinson took that argument apart, and in words we could all understand: 


“If it (Congress) has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting — as was done in the Act — that compelling the actual transaction is itself commercial and economic in nature, and substantially affects interstate commerce, it is not hyperbolizing to suggest that Congress could do almost anything it wanted.”

He then went on to say this in the same paragraph:

“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, and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.”

He then offers what legal scholars call the “parade of horribles.” Vinson wondered what Congress might have in store for us if this expanded view of the Commerce Clause became the Law of the Land. He argued, with his tongue firmly in cheek:

 “Because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile — now partially government-owned — because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business.”

Presidents come and go rather quickly, some more quickly than others. Judges matter. They are around a long time. The Presidents who appoint them matter. It would indeed be amazing if the courts determined, finally, that the constitution sets limits to what the federal government can do to the American people.