Judicial Activism, part deux

I’ve been meaning all week to link to these two great posts from legal scholars (law professors, I presume) that really explain just what was so wrong with Judge Vinson’s decision on health care.  Better late than never.  First Orin Kerr:

To understand Vinson’s argument, you need to realize that conservatives and libertarians have been complaining for many decades that Commerce Clause doctrine has left Congress essentially unlimited power. Between Wickard v. Filburn and Gonzales v. Raich, conservatives and libertarians have complained, the federal government can justify pretty much anything. Remember how Justice Thomas began his dissent in Raich, with emphasis added:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–-and the Federal Government is no longer one of limited and enumerated powers.

This might work as a Supreme Court opinion that can disagree with precedent. But Judge Vinson is just a District Court judge. And if you pair Justice Thomas’s dissent in Raich with Judge Vinson’s opinion today, you realize the problem: Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way. Remember that in Raich, the fact that the majority opinion gave the federal government the power to “regulate virtually anything” was a reason for Justice Thomas to dissent. In Judge Vinson’s opinion, however, the fact that the government’s theory gave the federal government the power to “regulate virtually anything” was a reason it had to be inconsistent with precedent.

Obviously, I’m not arguing that Judge Vinson was bound by Justice Thomas’s dissent. Rather, my point is that Judge Vinson should not have used a first principle to trump existing Supreme Court caselaw when that principle may not be consistent with existing caselaw. Either Justice Thomas is wrong or Judge Vinson is wrong, and Judge Vinson was not making a persuasive legal argument when he followed the first principle instead of the cases. Because Judge Vinson is bound by Supreme Court precedent, I would think he should have applied the cases.

Simon Lazarus has some nice explanation as well:

Today’s decision in Florida federal district court striking down the Affordable Care Act in its entirety would effectively shred the Constitution as it has been interpreted, applied, and endorsed across a broad ideological spectrum for the last three-quarters of a century – since the New Deal – and, actually, dating back to Chief Justice John Marshall’s expansive interpretations of the constitutional provisions directly at issue here. This decision, along with Judge Henry E. Hudson’s recent decision to strike essential parts of the ACA, exhume the long-dead and discredited doctrines that the pre-New Deal Supreme Court deployed to overturn laws that prohibited child labor, prescribed minimum wage levels and maximum hours.Among those who have joined in rejecting the century-old, long-defunct decisions on which Judge Roger Vinson’s decision rests, are Justices Scalia, Kennedy, and Chief Justice Roberts. They will have to twist their prior decisions and statements into pretzels in order to rule the individual mandate or other ACA provisions unconstitutional.

I would love it if news stories covering this decision had included some legal scholars to be quite clear on just how mistaken Judge Vinson was in many ways, but wouldn’t want to be “biased” I guess.

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About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

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