7:53am

Tue February 1, 2011
Opinion

The New Republic: The Poorly Argued Florida Ruling

Jonathan Cohn is a senior editor at The New Republic and a senior fellow at Demos.

Did Roger Vinson, the federal judge who on Monday ruled the Affordable Care Act unconstitutional, have a particularly conservative take on politics as well as the law? His ruling certainly suggests as much. There's what looks like a shout-out to the Tea Party — specifically, a reference to the American Colonists' outrage over the tax on tea. (Page 42.) There's the gratuitous reference to General Motors as "partially government-owned." (Page 45.) And there's the use of President Obama's campaign rhetoric against the law Obama now supports. (Page 68).

Nor is the first time a judge invalidating the Affordable Care Act may have tipped his political hand. Henry Hudson, the federal judge who issued a narrower ruling against the law late last year, noted in his decision that the bill was rushed through the legislative process — which is a strange way to describe a law nearly fourteen months in gestation, unless you are trying to argue there was something fundamentally illegitimate about the process that produced it.

But perhaps the clearest indicator of bias in the decisions against the Affordable Care Act is the gist of the decisions themselves. For generations, conservatives have championed "judicial restraint." If judicial restraint means anything, it means deferring to the Congress on matters of policy preference — like, for example, whether it's better to run a national health insurance system with a system of regulated private insurance (which is what people will get with the Affordable Care Act) rather than via a single-payer, government-run plan (which is what the elderly already get with Medicare). But if these decisions by Judges Vinson and Hudson carry the day — and, please remember, two federal judges have already ruled the other way — they would effectively take that discretion away from the Congress.

Of course, I can't be sure about these things. It's hard to tell the difference between partisan bias (i.e., issuing rulings that favor one party) and ideological bias (i.e., issuing rulings that bend the law to one's philosophical preferences on policy). And, to be quite clear, I'm not one of those people who thinks "bias" is necessarily a bad word anyway. I don't think the constitution has some unambiguous, values-free meaning, particularly when applied to lawsuit like this one.

Almost by definition, a case that makes its way through the judiciary and up to the Supreme Court, where this one will almost surely land, is open to varying interpretations. There are precedents, yes, but none involve exactly the same set of circumstances. Otherwise, the case wouldn't be in front of the courts in the first place.

It's up to the judges to decide which precedents matter more. And that's a decision bound to reflect their values. All of which is a long way of saying that judges can do whatever the heck they want.

Well, almost anything. Most judges at least try to ground their rulings in the language of the Constitution, as interpreted in modern times. My colleague Jeffrey Rosen, who knows far more on these subjects than I do, has argued persistently and elegantly for this sort of judicial restraint.

And you can tell when judges are struggling to be so restrained. It's when they make conspicuously weak arguments. A prime example in Vinson's decision is his frequent citation of reports from the Congressional Budget Office and Congressional Research Service. Both agencies are respected arbiters of policy but Vinson, strangely, cites their interpretations of law — which is a little like asking Ruth Bader Ginsburg to produce actuarial tables on the long-term solvency of Social Security.

Elsewhere, Vinson asserts that the decision not to carry health insurance has "zero" economic impact. But then, literally a paragraph later, he acknowledges that uncompensated care for the uninsured transfers $43 billion in costs to the rest of society. Later, he goes so far as to recognize that requiring people to get insurance is "necessary" for carrying out the universal coverage scheme Congress determined it wanted.

So if Vinson admits all of these things, why did he bother first to assert that forgoing coverage has "zero" impact? He's drawing a distinction between present and future commercial activity that doesn't make a ton of sense to me. (I'm going to write a separate post on that later.) My guess, honestly, is that Vinson is desperate to play down the link between decisions to forgo insurance and the impact on other people's premiums — a link that history and scholarship have established firmly. And that's because the link, if real, would place it within most contemporary understandings of the Commerce Clause's reach.

Can we expect more such creative reasoning as the case moves forward? The justices of the Supreme Court have certainly imposed their own will before. If they hadn't, George W. Bush might never have become president. (Ezra Klein is not the only one who sees echoes of Bush v. Gore in this litigation.)

Still, there is one other check on the courts' discretion: Public perception. Judges can defy public values up to a point, but only up to a point. And while the public remains divided on the Affordable Care Act, it has expressed a clear and unambiguous preference for health insurance that is affordable and available to all — while preferring, for better or for worse, to keep the existing system of private insurance in place. Is the Supreme Court really ready to reject that preference? Copyright 2011 The New Republic. To see more, visit http://www.tnr.com/.

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