Legislating from the bench

Orin Kerr explains the essential problem with the recent District court ruling against the new healthcare law:

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.

Read the rest for a little more background. Like Kevin Drum, I don’t think any of this particularly matters. This is going to the Supreme Court no matter what where, I suspect, the law will not be overturned, nor the individual mandate struck down. If it is, I think Ezra Klein’s prediction is likely correct:

I think it’s vanishingly unlikely that the Supreme Court will side with Judge Vinson and strike down the whole of the law. But in the event that it did somehow undermine the whole of the law and restore the status quo ex ante, Democrats would start organizing around a solution based off of Medicare, Medicaid, and the budget reconciliation process — as that would sidestep both legal attacks and the supermajority requirement.

The resulting policy isn’t too hard to imagine. Think something like opening Medicare to all Americans over age 45, raising Medicaid up to 300 percent of the poverty line, opening S-CHIP to all children, and paying for the necessary subsidies and spending with a surtax on the wealthy.

This wouldn’t be bad at all – more public options and less payouts to private insurers is a good thing in my opinion, cut out the middle-men, etc. etc. – but it does strike me as something that could take a long time. I’m guessing it would mean a lot of people would lose their healthcare during the interim.

Actually, repealing the bill and kicking a bunch of people off their healthcare plans (and returning to the good ol’ days of pre-existing conditions) might speed the process of a Democratic resurgence just a bit, as voters already facing high unemployment rates are cut off from yet another lifeline. Meanwhile states are trying to cut poor people from their Medicaid rolls to balance budgets without raising taxes. This will only increase the likelihood that Democrats can once again run on some sort of universal healthcare platform. But only, of course, if the law is overturned or repealed. Republicans have shot themselves in the foot many times before and there are no signs of this changing.






43 replies
  1. 1
    feebog says:

    This decision is going nowhere. It is a poorly written, sparsly cited, crudely analyzed piece of legal pretzel twisting. It should be interesting watching Anton try to twist his analysis to fit his beliefs rather than adhere to precedent when this on hits the Supreme Court.

  2. 2
    ericblair says:

    That might happen if the benefits are entrenched enough by the time the Supremes get their grubby little mitts on it. If it makes the transition from “Arglebargle DEATH PANELS!” to “Get your gubmit hands off my ACA” then you’ll see politicians falling over themselves to pass some other vehicle for healthcare. Otherwise, it would be a step backwards again. Losing doesn’t make Democrats redouble their efforts, just makes them quit, and success builds more success. Look at previous healthcare bills and how they shrank every failure, and Medicare grew from its initial success.

    Yeah, maybe “failing until we succeed” by picking our noses until the whole system falls into pieces and then doing the right thing in a big panic might work. Then again, this approach has a history of not working out as hoped, and who knows how many people would die in the meantime.

  3. 3
    the fenian says:

    Unicorns!
    Once again, you and Mr. Klein are mistaken in your belief that the Republican party, and the conservative movement that fuels it, are not insane.

    This gets overturned and nothing like it passes this House — or, likely, any Congress for the next 20 years.

  4. 4

    This gets overturned and nothing like it passes this House—or, likely, any Congress for the next 20 years.

    While I agree it might be overturned, why would it take 20 years for something new? We don’t even know what the new House districts will look like. Hell, a lot of states look more interested in passing abortion, rape and gun bills then they do about jobs or about Congressional(and state) redistricting.

  5. 5
    JGabriel says:

    Orin Kerr (via E.D. Kain):

    … 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.

    It looks like Scalia’s contempt for precedent is trickling down to the lower courts. And who’s to say Vinson is wrong in disregarding precedent? If SCOTUS accepts his reasoning, then Vinson’s disregard of precedcent is confirmed.

    I don’t agree with that reasoning, I’m playing Devil’s Advocate here to point up the pernicious effects of Right Wing dismissals of precedent. Obviously some precedents are bad (Dred Scott) and must be struck down. But the reckless disregard of, and disrespect for, precedent shown by Scalia and other Federalist Societeers is leading towards — in fact, may have already led to — a judicial system that lacks stability and the faith of its citizens, due to uncertainty in the reliability and fairness of its outcomes.

    .

  6. 6
    E.D. Kain says:

    @the fenian: I do recall mentioning it would take a long time in the post.

  7. 7
    eemom says:

    Actually, repealing the bill and kicking a bunch of people off their healthcare plans (and returning to the good ol’ days of pre-existing conditions) might speed the process of a Democratic resurgence just a bit, as voters already facing high unemployment rates are cut off from yet another lifeline.

    The naivete of this is mind-boggling, given recent history.

  8. 8
    JGabriel says:

    @Phil Perspective:

    While I agree it might be overturned, why would it take 20 years for something new? … Hell, a lot of states look more interested in passing abortion, rape and gun bills …

    Which is why we think it would take a score or more years to get health care on the table again. You pretty much answered your own question there.

    .

  9. 9
    Ash Can says:

    @eemom: This, unfortunately. There’s not much evidence to make one think that enough voters would make the correct connection.

  10. 10
    JGabriel says:

    @feebog:

    This decision is going nowhere.

    Maybe, maybe not. After the Citizens United decision, I don’t trust Kennedy on anything.

    That said, Vinson has at least guaranteed that his future as a judge is going nowhere — unless Republicans get both the presidency and a 60 vote majority in the Senate. Every Democratic Senator will filibuster any attempt to promote him to a higher federal judicial position after this decision.

    .

  11. 11
    CaffinatedOne says:

    Sure, we might be able to get a stronger reform through, perhaps allowing for a universal Medicare age buy-in. Given that it’d almost certainly be a huge cost savings, it’d certainly be possible to use reconciliation for.

    Of course, that sort of misses that Democrats don’t have the house, and I suspect that it’d be a bit hard to finagle republican votes for such a bill given their minor disagreement with such things.

    Finally, republicans aren’t tactically stupid (unlike some other major party that I don’t care to mention), so should this be killed judicially, look for republicans to start pushing non-solutions that the media will take seriously (buying insurance across state lines, HSA’s, etc)… It won’t hurt them

  12. 12
    ThatLeftTurnInABQ says:

    @Phil Perspective:

    why would it take 20 years for something new?

    The Dems tried to pass HCR in 1993 and promptly lost the House in a wave election in 1994.

    The Dems finally passed HCR in 2009-2010 and promptly lost the House in a wave election in 2010.

    Dems notice and remember stuff like that.

    Which means that any new major HCR effort will have to wait until the current generation of Dem officeholders are gone, or until there are no longer even modest numbers of nuts willing to show up at town halls so they can stand in front of a bunch of cameras to shout and scream “keep the govt out of my [insert name of popular govt benefits program here]”, which I can confidently predict will happen sometime around the 3rd of Never.

  13. 13
    El Cid says:

    __

    …[I]n the event that it did somehow undermine the whole of the law and restore the status quo ex ante, Democrats would start organizing around a solution based off of Medicare, Medicaid, and the budget reconciliation process…

    They would?

  14. 14
    jl says:

    I think Klein is right. The process of Medicarizing and Medicaidizing the whole population would begin, as I been saying myself in comments on the possibility of the law being overturned for some time.

    The only question is the pace, and how much needless premature death and prolonged suffering occurs before the process is complete.

    I’ve heard interviews on the radio machine with people who have noticed they are getting some new benefits and worried about losing them, just after they planned having them (of course these are the ‘lesser people’, and uncertainty creating problems for them probably doesn’t count).

    But, if the benefits that started this summer have impacted enough people, I would expect the process of, by hook or crook, in little steps at first, expanding the Medis to begin soon (though maybe not as long as the maniacs have the house, but I do not know what administrative magic the SH can perform in the meantime).

    But maybe, just maybe, if enough people are impacted, the GOP House will figure out a way to quiet them while lying about what they are doing.

  15. 15
    JGabriel says:

    feebog:

    It should be interesting watching Anton try to twist his analysis to fit his beliefs rather than adhere to precedent …

    He won’t have to. Scalia has a well documented contempt for precedent. Disregarding precedent will require no twisting from him at all, just whatever boilerplate argument he generally uses to say “Fuck Precedent” in his decisions and dissents.

    .

  16. 16
    Kryptik says:

    If this bill is repealed, nothing short of riots will help expedite any sort of replacement bill or option. Remember, the ‘Real ‘Mericans’ won, and they told the gubment to get their hands outta our health care, even if no one except them richies will be able to afford it in a couple years.

  17. 17
    LITBMueller says:

    Judge Vinson was actually following precedent: the Court’s reasoning and complete disregard for precedent in Citizen’s United as well as McDonald v. Chicago, (the recent 2nd Amendment case).

  18. 18
    Thoughtcrime says:

    @the fenian:

    This gets overturned and nothing like it passes this House—or, likely, any Congress for the next 20 years

    The insurers are losing members because people can’t afford their rates. In turn, the insurers keep increasing their rates to make up for the loss in revenue from members dropping out. Anyone see a long-term problem with this business model?

    How much longer can this model for healthcare/insurance be sustainable?

    Change will come one way or another.

  19. 19
    A Writer At Balloon-Juice says:

    Kerr is a winger so this surprises me.

  20. 20
    jl says:

    @JGabriel: I’ve started reading Scalia describing his judicial ‘philosophy’. What a shock. The guy is an original intent guy one day, and a textualist another day, and a little of both the third day, and can’t make up his mind on the fourth day.

    Scalia basically said this himself in one interview.

    Scalia is either a fool, a fraud, or a demented fanatic (which is not partition, I admit).

    I do not see how anyone can take Scalia seriously. I do not see how any sane person could have voted to confirm him. And I think he should be impeached for being an arrogant dumbass, which counts as a high crime and misdemeanor in my book.

    Anyway, given the senseless gobbledigood and bamboozlerama he has spouted, he can do absolutely anything and be consistent with his self professed principles, which are incoherent and confused.

    But I am not a lawyer, but also too, I can read English, and Scalia talks nonsense in plain English. I seen it with my own eyes.

  21. 21
    JPL says:

    Yeah..trickle down affordable health care.

  22. 22
    Observer says:

    Ezra Klein is smoking crack if he thinks losing this case will mean Democrats will fight harder and open up Medicare at a lower age.

    Since when have Dems ever responded to setbacks by doubling-down?

  23. 23
    kay says:

    @Kryptik:

    If this bill is repealed, nothing short of riots will help expedite any sort of replacement bill or option.

    I think the plan is to throw up so much smoke that people won’t know what the hell is going on. I do not know this morning if the ACA is in effect in this state, thanks to the judicial restraint shown here.

    Making it easier to pass whatever the GOP House cobbles together, on the fly. I’m betting they start with tort reform, because that’s what every parent worries about most, last at night, don’t you think? Damage awards.

  24. 24
    Martin says:

    @Thoughtcrime:

    Change will come one way or another.

    Yep. The industry realizes this. PPACA is pretty much their best hope to not collapse completely and to transition to something more sustainable. Interesting that the GOP would be working so hard to ensure one the USs larger industries completely blows up.

    And when it does blow up and there’s no market solution, what do they think will replace it if not a government solution?

  25. 25
    Thoughtcrime says:

    @Martin:

    And when it does blow up and there’s no market solution, what do they think will replace it if not a government solution?

    And as you’ve mentioned before, look to California to help lead the way.

  26. 26
    Kryptik says:

    @Martin:

    You think most of the people the GOP actually represents care if it blows up? Most of those folks will end up getting million dollar severances and likely end up on the fast track to governorship in the end.

  27. 27
    PeakVT says:

    If the entire bill is overturned, this country is so hosed. We’re already hosed because we can’t get our addiction to fossil fuels under control, but without the cost limitations in the ACA total health care costs will hit 20% in 2020, or shortly thereafter. Twenty percent.

  28. 28
    burnspbesq says:

    @JGabriel:

    But that’s the delicious irony here, one which I suspect is causing no small amount of cognitive dissonance at a certain blog which will reman nameless but whose initials are … You know.

    The opinion which most clearly and concisely explains why the district court is wrong is … Scalia’s concurrence in Gomzalez v. Raich.

  29. 29
    somethingblue says:

    This will only increase the likelihood that Democrats can once again run on some sort of universal healthcare platform.

    Yeah, if they cared to, I suppose. But instead I suspect they’d work on pushing through an employer tax credit to set up a set of independent exchanges for people making more than this much but less than that much through which people could enroll in a program that would trigger a partial insurance subsidy if a certain percentage of those enrolled had medical costs at a rate equal to or greater than …

  30. 30
    ThatLeftTurnInABQ says:

    @Martin:

    And when it does blow up and there’s no market solution, what do they think will replace it if not a government solution?

    I think Grayson already answered that question during the last Congress.

  31. 31
    burnspbesq says:

    @A Writer At Balloon-Juice:

    Kerr is anything but a winger. He’s conservative, but he’s a scholar and his analysis plays it straight.

    He is found guilty by association because he blogs at Volokh, and there are several wingnuts who blog at Volokh, including Volokh himself and the truly execrable Ilya Somin.

  32. 32

    @JGabriel:

    If SCOTUS accepts his reasoning, then Vinson’s disregard of precedcent is confirmed.

    That, in itself, is the biggest reason why the Supremes might uphold the law – to smack down uppity lower court justices who think they can thumb their noses at SCOTUS precedents.

  33. 33
    Martin says:

    @Thoughtcrime: Maybe. I’m less optimistic now about that. Ask again after the special election. If Brown gets his way, I think there will be a good shot at it. If the budget mess keeps spilling forward, I think they’ll have to leave things as they are.

  34. 34
    JGabriel says:

    @Anton Sirius:

    That, in itself, is the biggest reason why the Supremes might uphold the law – to smack down uppity lower court justices …

    I’m not sure why you would think that. By conservative definition, only liberal justices are uppity; conservative justices are principled.

    And five of the Supreme Court Justices are conservative.

    .

  35. 35
    Bob says:

    @A Writer At Balloon-Juice: here is a very long video debate where OK defends the individual mandate.

    http://volokh.com/2011/01/21/b.....l-mandate/

    E.D., great post.

  36. 36
    someguy says:

    Democrats would start organizing around a solution based off of Medicare, Medicaid, and the budget reconciliation process

    Um, yeah, sure. So the Senate is going to authorize new spending and new legal authority for Medicaid/Medicare through the reconciliation process, over the objections of the Republican House? Seriously?

    A brother don’t have to be House Parliamentarian to see there’s a little bit of a problem with that prediction. I hope the Senate is cool with the House turning their lights off, ‘cuz that’s what will happen if they try to pull that shit. Don’t forget, the Senate has to have a House bill, passed in this session, to pull Reconciliation Magik. Unless they change the rules and just make shit up, which I’d support but which Judge Vinson would no doubt strike down based on Ben Franklin’s bowel movements or somesuch.

  37. 37
    Johannes says:

    @Kryptik: Folks, the contempt for precedent in our activist conservative justices extends beyond constitutional analysis; look at the wholesale revamping of 50+ years of precedent in Ashcroft v. Iqbal and in Bell Atlantic Corp. v. Twombly, which scrapped the uncontested reading of the standard applied to a motion to dismiss any civil case in federal court, interpreting a rule which had been approved by Congress and applied consistently since at least 1955.

    The result was to make plaintiff’s cases harder to plead–from a defendant having to show no set of facts could be found supporting a plaintiff’s claim to requiring that the plaintiff “state a claim that is plausible on its face.” A dramatic shift, making it much harder to plead discrimination (as involved in Ashcroft) or indeed any claim in federal court.

  38. 38
    azlib says:

    One thing missing in this debate is the influence of the insurance companies. They desperately need an individual mandate to survive. Their current business model is unsustainable and they know it. If the mandate goes, the whole house of cards falls down. I can see the insurance companies filing a friends of the court brief on the side of reform.

    There are also stuff that is happening due to reform which is starting to have an impact. I have noticed on my own individual policy that preventive care is covered 100%. When I go to the doctor for preventive care, I pay zero – no copay, no coinsurance, etc. I am still paying a lot for a high deductible policy, but I see that as insurance against a catastrophic loss. At least my regular doc visits are covered 100%. I know it is a small thing in the big picture, but it is an improvement. And I think people will notice if reform is struck down by the courts.

    It will take a while for all this legal wrangling to wind its way through the courts and every day that passes more features of reform will kick in.

  39. 39
    Caz says:

    Not one of you seems to have even the faintest understanding of the Constitution or the littany of commerce clause cases that our Supreme Court has decided over the last hundred years. It’s as if most of you are just winging it, passing judgment with a set of punchlines and catch phrases from your party leaders in place of any actual knowledge about the issues you so passionately discuss in your grand echo chamber.

    I continue to be amazed at the staggering level of idiocy, arrogance, and ignorance in this little know-it-all club.

    Anymore, I merely visit this site for entertainment value, as it’s always fun to watch you know-it-all ignoramuses pat yourselves on the back with witty sarcasm and hateful indignance toward those who are fighting to stop the continual erosion of all of our liberties by the progressive leaders that you morons keep supporting.

    Why you are all so eager to give up your freedoms to the government is beyond me. I suppose some of you have been brainwashed from a very early age and never really had a chance. Others I guess have made a conscious choice to live in fantasy land – perhaps the rigors of the vigilance that comes with freedom is too tedious to undertake.

    Wake up, morons!

    Here’s a fun exercise: compare this site to the Cato Institute’s blog. You might actually learn something other than wash, rinse, repeat.

  40. 40
    Xenos says:

    @Caz: Since you did not answer my last question, please answer this on:

    Did Morrison/Lopez represent a true limitation to the commerce clause? Given the second amendment and police powers issues implied therein, how would you apply the exact rulings to the ACA, which claims a more clear commercial subject matter?

    I have not read these cases since the fall of 2001 when I was taking first year ConLaw. So since you are so up to date, please inform.

  41. 41

    @Caz:

    I continue to be amazed at the staggering level of idiocy, arrogance, and ignorance in this little know-it-all club.
    __
    Why you are all so eager to give up your freedoms to the government is beyond me. I suppose some of you have been brainwashed from a very early age and never really had a chance. Others I guess have made a conscious choice to live in fantasy land – perhaps the rigors of the vigilance that comes with freedom is too tedious to undertake.

    Dude, your life must suck so fucking bad. Seriously, you could go over to Red State or FreeRepublic and post there, but if you did you’d just be another anonymous right-wing dipshit in a sea of anonymous right-wing dipshits. So you come over here and get your ass handed to you over and over and over again as a way of getting attention. I’m sure that you think that you’re making a point, just as I’m sure that the crazy guy I see walking around Pioneer Square screaming “Fuck” is making a point too. But hey, he gets people to pay attention to him, even if it is for the fact that he’s a crazy guy who yells “fuck” and smells like shit.

  42. 42

    @Caz:

    Here’s a fun exercise: compare this site to the Cato Institute’s blog. You might actually learn something other than wash, rinse, repeat.

    Nice try with the Cato dick-sucking Caz, but your chances of getting on the wingnut welfare gravy train are non-existent. Those seats are already filled, which means that you’re going to have to work for a living.

  43. 43
    Yutsano says:

    @Wile E. Quixote:

    But hey, he gets people to pay attention to him, even if it is for the fact that he’s a crazy guy who yells “fuck” and smells like shit.

    I think I know that guy. He bugged me for some change once. My mistake for parking on First.

Comments are closed.