I'm not sure if it's quite as embarrassing as Henry Hudson's assertion that the "necessary and proper" clause doesn't give Congress any powers that weren't already enumerated (we might call that "James Madison was an utter moron" theory). But Jon Cohn has identified quite the howler in Judge Vinson's recent attempt to formulate an argument that the "individual mandate" provision of the health-care act is unconstitutional. Rather than make a more modest and plausible claim that the effect of the mandate on interstate commerce is insufficiently large or direct, Vinson makes a claim that is transparently false:
...the mere status of being without health insurance, in and of itself, has absolutely no impact whatsoever (not "slight," "trivial," or "indirect," but no impact whatsoever) on interstate commerce, at least not any more so than the status of being without any particular good or service. If impact on interstate commerce were to be calculated mathematically, the status of being uninsured would be represented by zero.
This is quite remarkable. As Cohn notes, health insurers will be very surprised to know that the size and nature of their pool of insurees has no effect on their business -- it's simply a ludicrous argument. It's also worth noting that this assertion causes Vinson's opinion to collapse on itself. If the mandate has literally no impact on interstate commerce, then why isn't it severable from the rest of the bill? Vinson's argument that the mandate can't be severed from the rest of the ACA is actually reasonable -- but that's because the mandate is essential to making the rest of the bill work, as without a mandate insurance premiums would immediately skyrocket and make the system unsustainable. But he can't have it both ways.
-- Scott Lemieux