Prof.
Akhil Reed Amar, who has written two
superb books on the Constitution,
compares Florida Judge
Clyde Roger Vinson to the 19th-century Supreme Court Chief Justice Roger Taney, the author of
Dred Scott v. Sanford, which affirmed the notion of his fellow human beings as property and arguably precipitated the U.S. Civil War.
Strictly speaking, Obamacare does not mandate the purchase of insurance. It says that those who remain uninsured must pay a tax. Vinson says this mandate cannot be upheld under Congress' sweeping tax powers.
Except Judge Vinson's most recent order is confined to the narrow question of whether Congress is properly exercising its powers under the
Interstate Commerce Clause. The administration had previously argued that the mandate was a tax, and in fact Judge Vinson
rejected that argument back in October,* as have even those district courts which have otherwise sided with the Obama administration.
Prof. Amar — and, indeed, the administration — might wish to resuscitate it, but doing so doesn't address the Commerce Clause question, as the latter is not where Congress's power to impose taxes resides. So this is some goalpost-shifting by Prof. Amar and therefore not an appropriate ground to attack Judge Vinson's ruling.
And, in the
New York Review of Books, Georgetown's
David Cole refers to the
Necessary and Proper Clause as "[t]hat catch-all provision" which "authorizes Congress to enact laws that, while not expressly authorized by the Constitution’s specific enumerated powers, are 'necessary and proper' to the exercise of those powers."
First of all, if the Necessary and Proper Clause really is a "catch-all provision" — emphasis on "all" — then Judge Vinson is exactly correct, in that viewing it as such would render Congress's legislative powers not just "virtually" unlimited, but
actually unlimited in practice.
But obviously there are limits to Congress's authority — see, for further evidence of those limits, the Bill of Rights — and bold assertions of the said "catch-all provision" do not alter that fact.
Secondly, Congress's authority to impose the mandate must first be discovered within Congress's
enumerated powers before any other necessary and proper acts may be justified to carry it into execution. The N&P Clause is not a separate grant of legislative power, but rather is present to facilitate bringing those enumerated powers to effect: if there's no enumerated power, then there's no propriety.**
Prof. Cole also "goes there," observing of a
prior decision issuing from a federal district court in Virginia that similarly found the insurance mandate to be beyond Congress's authority:
Judge Hudson and the Virginia attorney-general are situated squarely within a tradition—but it’s an ugly tradition. Proponents of slavery and segregation, and opponents of progressive labor and consumer laws, similarly invoked States' rights not because they cared about the rights of States, but as an instrumental legal cover for what they really sought to defend—the rights to own slaves, to subordinate African-Americans, and to exploit workers and consumers.
Jeez, Louise. He sounds a lot like
the Madison Capital Times.
Anyway, even the staunchest admirers of Judge Vinson's handiwork shouldn't get too excited about these recent rulings, as the Supreme Court engages the relevant questions presented to it
de novo ("anew, afresh") which means the SCOTUS needn't pay any heed to those lower courts' holdings while it conducts its own independent review.
Likewise, Vinson's and Hudson's detractors should keep their powder dry as well, particularly when they're accusing federal judges and
State attorneys-general of behaving like slaveowners, as it detracts considerably from whatever legitimate objections they may have.
(Or, as I'm inclined to suspect, substitutes for the lack thereof.)
Special Series: Liberals in denial
* "My earlier ruling [dismissing] the defendants' tax argument is incorporated into this order and, significantly, has the effect of focusing the issue of the individual mandate on whether it is authorized by the Commerce Clause." — Vinson, Jan. 31, footnote 4.
The dismissal of that argument was the most problematic blow to Obamacare thus far, in your correspondent's own humble estimation.
** Even where there's necessity.
