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. 

Pondering Judge Henry Hudson Dec. 13, 2010 Decision

Does the Constitution confer on the Congress the power to penalize individuals for not purchasing a particular good or service in the marketplace?

According to Kathleen Sebelius, Secretary of Health and Human Services and the defendant in the suit, the Congress is justified in requiring all Americans to purchase a minimum amount of health insurance coverage for two primary reasons. First, she asserts that health care is a commodity that everyone consumes at some point in their lives, and since there is a chance that they will not be able to pay for this care in full when the time inevitably comes, they should be made to contribute to the system. Secondly, Sebelius explains that the financial solvency of the ambitious and comprehensive legislation in question hinges upon universal participation. Secretary Sebelius also includes as part of her "general welfare" argument an assertion that the consequences of violating the mandate is not a penalty but a "tax" levied and collected by the IRS.

Judge Nelson gives full weight and consideration to each of these arguments in light of both constitutional language and judicial precedent, and concludes that the action at issue (compelling Americans to buy health insurance and penalizing them if they don't) is not authorized by the Constitution. He observes that words matter – that they have objective, propositional meaning – and he refuses to accept the government's manipulative conflation of the words "tax" and "penalty" as a means of bolstering its legal position in the case (the government has much more latitude imposing taxes than it does penalties).

Most importantly, Judge Nelson takes pains to emphasize that the federal government is a government of limited and delegated authority. As such, when the scope of the proposed mandate is compared against the authority of the government to act in such a manner, there is no other conclusion to draw but that the government is guilty of overreach:

"The unchecked expansion of federal power to the limits suggested by the Minimum Essential Coverage position would invite unbridled exercise of federal police powers. At its core, this dispute is not about regulating the business of insurance – or crafting a scheme of universal insurance coverage – it's about an individual's right to choose to participate. . . . On careful review, this Court must conclude that section 1501 of the Patient Protection and Affordable Care Act – specifically the minimum essential coverage provision – exceeds the constitutional boundaries of congressional power." (See p. 37- 28 of the opinion, which can be found here.)

Thankfully, the Founding Fathers instituted a separation of powers between three co-equal branches of government. Judge Nelson's decision represents a great victory for constitutional governance. 

I received this summary from columnist Ken Connor, in his December 19, 2010 article. He goes on to opine that all Americans should be glad to live in a country where the government is restrained from overreaching into the lives of its citizens. Undoubtedly, this is not the last we will hear of the individual mandate controversy, as the issue is all but certain to wind up under consideration by the Supreme Court. When that day comes, if the highest judges in the land reach a conclusion different than Hudson has, there will be virtually no limit to what the government could require "in the best interest of its citizens."