Activist Judges

The next time your favorite local wingnut starts waxing apoplectic regarding "activist judges," point them immediately in the direction of today's decision by Florida Judge Roger Vinson which overturns - throws out - the entirety of the Patient Protection and Affordable Care Act (PPACA, known in teabagger circles by it's derogatory name, "Obamacare").

Why is Judge Vinson's decision in this case such a shining - indeed, definitive - example of the oft-abused phrase "judicial activism?" Brian Beutler at TPMMedia explains:

Vinson tossed the entire thing because it lacked a "severability clause," which would have compartmentalized the legislation itself and forced judges to weigh individual sections on their own merits. But the standard isnot that an unseverable law should be stricken in its entirety. Noted liberal activist judge John Robertsrecently struck a sole provision of the Sarbanes-Oxley law, which likewise lacks a severability clause.

"We agree with the Government that the unconsti tutional tenure provisions are severable from the remainder of the statute," he wrote.

Simply ruling against the mandate puts any judge on the opposite side of the vast majority of expert legal opinion. But given just such ruling, a less "activist" judge could have stricken just the mandate, along with directly relevant provisions -- like guaranteed issue and the ban on discrimination against people with pre-existing conditions. Vinson decided instead to "legislate from the bench" and scrap the subsidies, regulations, marketplaces, and other goodies the law creates that really have nothing to do with the mandate as well.

Buetler ends by referring to Vinson's decision as "new frontiers in partisan judging." How can Buetler conclude that Vinson's decision is clearly tainted by political considerations? Not just because Vinson was a Reagan appointee, certainly (though he was). Many judges, once on the bench, go on to lead very different judicial careers than the people who nominated them originally imagined they'd lead. So it can't be only that. Buetler bases his conclusion of partisanship also on the extremity of the technical aspects of Vinson's ruling. And frankly, that's more than enough to support Vinson's conclusion. But there's one more telltale fact that Buetler didn't feel necessary to include, but which is icing on the cake, if you were still on the fence regarding Vinson's motives. If you look at today's decision, you find within it the following paragraph:

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.

Yep. You read that right: the judge who just ruled "Obamacare" illegal - in its entirety - referenced the Boston Tea Party in his decision.

Telegraph your political influences much, Judge?

For anyone who wishes to delve into the ins and outs of the constitutionality of the individual mandate, I recommend this article by Wake Forest University professor of Law and Public Health, Mark Hall. Suffice it to say that although there are indeed arguments on both sides of the question - as there virtually always are on ANY question - the weight of the evidence, and of precedent - are both clearly on the side of those who argue that yes, an individual mandate is constitutional.

To be honest, I personally wouldn't care at all in one limited sense if the mandate alone were struck down; forcing people to buy insurance doesn't - by itself - provide any benefit to the consumer of health care services. However, the argument in favor of the individual mandate (which, hilariously, was originally a Republican idea, let's not forget) is that if insurers are going to be forced to stop practices like redlining and recission, then they must not have the reduction in both revenue and profits which would result from complying with such prohibitions (and which, indeed, would be the very same revenue stream returned to the ratepayer as savings) exacerbated by masses of individual consumers trying to "game the system" by only applying for and paying for health insurance when they are already sick or fear they may become sick. That's how insurance is supposed to work: everyone buys in, and both the purchasers and the providers agree to "let the good ones eat the bad ones." In other words: you pay into it, and if you need it, it's there for you - often to the tune of many times more than you paid for it...because others who did not happen to need it this year also paid into the fund. You get their money for your care, in essence. People are willing to pay a small amount for peace of mind in case they are beset by unforeseen, severe health problems.

This concept might strike some as a bad deal, especially if they are young and basically healthy (as far as they know), but it strikes no one who gets hit by a bus - or by a previously undetected emergent disease like breast cancer - as a bad deal. In fact, among the latter group, health insurance is universally considered a lifesaver, because it prevents such people from having to deal with the added immense stress of financial ruin at the same time they have no choice but to deal with a serious, possibly life-threatening, disease or injury. Yet, if too many individual consumers try to "game the system" by only going to the insurance markets when they're worried they'll need to avail themselves of the financial cushion insurance provides, then it definitely makes the insurers' job much more difficult to do. And it makes their chances of making any profit at all nearly impossible. That's why programs like social security and medicare are not optional: because the government wisely doesn't want to make them pools of only the worst risks, or of those most likely to drain the largest amount of resources out of the system.

To be clear, I won't shed any tears on behalf of the for-profit insurance industry if the mandate is eventually struck down by the SCOTUS. They (insurers) have been getting quite fat for decades by designing and maintaining a disease industry in the United States, as opposed to a proper health-care system. The ultimate solution to the problem of such a mandate being overturned and wreaking havoc on private insurers is some form of single-payer or French-style system of health care financing. Unfortunately, that's still not on the table right now - and it won't be as a result of any of the legislation pending against the PPACA, either, because it wasn't included in the original legislation. In my opinion, the worst-case scenario for this law would be if the lack of a severability clause opened the door for the highly political Roberts court to uphold an overthrow of the entire law. If the Roberts court declines to be that activist, though, in the short term, an overturning of only the individual mandate might very well serve to force a crisis in financing which would ultimately lead congress to fix the problems in health care financing by reconsidering either a public option or single payer as a solution. It's a longshot, but stranger things have happened.