Judge Roger Vinson ruling overturning the Affordable Care Act strikes me as far more nakedly partisan than Judge Henry Hudson‘s ruling. As Brian Beutler notes, he overturned the act in part based on Congress’ failure to include a severability clause, a route Chief Justice John Roberts has declined to take in the past.
Unlike Hudson, Vinson declares the entire ACA unconstitutional. In a less than subtle nod to President Obama‘s most visible public opposition, he also cites the original Boston Tea Party:
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.
And asserts, one assumes through his originalist ouija board, that founding fathers James Madison and Alexander Hamilton would have hated the individual mandate:
If these advocates for ratification had any inkling that, in the early twenty-first century, government proponents of the individual health insurance mandate would attempt to justify such an assertion of power on the basis of this Clause, they probably would have been the strongest opponents of ratification. They would have recognized how such an interpretation and application of the Necessary and Proper Clause would eviscerate the bedrock enumerated powers principle upon which the Constitution rests.
Vinson also echoes Hudson’s “activity/inactivity” distinction, and recycles a few other conservative thought experiments running around the blogosphere, including the mythical “food mandate” or “house mandate” that basically ignore the unique aspects of the health insurance market, which Vinson responds to by putting “unique” in scare quotes several times. Vinson writes that “Congress could require that people buy and consume broccoli,” an apocalyptic scenario possibly first envisioned by columnist George Will. He also argues that being uninsured has “no effect on interstate commerce,” despite actually acknowledging that said inactivity results in billions in health care costs.
Vinson’s ruling is more polemical than even I was expecting, and I’ve grown fairly cynical about just how partisan the judiciary has become.
