Activist judge Roger Vinson's ruling makes George Washington unconstitutional

By Nicholas Wilbur

I'm not an ambulance chaser, nor am I a judge. I can't even claim sidekick status to a comic book superhero who rights the wrongs of America with his doctorate in constitutional law.

But riddle me this, Batman: If the president signed a law forcing every American to purchase a rifle and ammunition in preparation for a possible call to active military duty, but the Constitution specifically forbade forcing Americans to purchase ammunition, could a federal judge then overturn the entire law – including the rifle mandate – on the basis that only the ammunition portion of the law was illegal?

A judge in Florida has ruled against President Obama's health-care reform law, saying that the provision that forces Americans to buy health insurance is a breach of Congress' constitutional authority. He did not argue the illegality of the law's other provisions. He said only that the mandate (the ammunition provision, in this seemingly left-field metaphor) was unconstitutional.

Federal district judge Roger Vinson argued that, "[b]ecause the individual mandate is unconstitutional and not severable, the entire act must be declared void."

It would be easy to brand this 70-year-old, bachelor's degree-educated wannabe Tea Partier as a kook who admitted to relying on the legally insignificant analyses of a known hate group to craft his ruling. Rest assured, his education, his age, and his apparent bias do not play into my critique. Calling Vinson a geriatric Frankenstein pig fucker with shit for brains would not be a merit-based evaluation of his mental capacity, his overall intelligence, and his cognitive ability to perform the duties expected of a judge, which is why I'm not arguing that he's a pig fucker. I'm merely asking how a man tasked with interpreting the legality of public policy can denounce every aspect of a law on the basis that one aspect of it is, in his opinion, unconstitutional.

Rather than rule only against the mandate portion of the law, as was the expectation and the precedent set in a mirror ruling made by a federal judge in Virginia, Vinson, a Ronald Reagan appointee, instead threw out the entire law on the basis that all the reforms will fail without the mandate. Granted, President Obama's health-care law doesn't include a "severability clause" that would allow the judge to strike down a portion of the law without invalidating the entire law, but if Vinson believes the entire law is illegal, then why didn't he issue an injunction against the policy and immediately halt its implementation?

First of all, we must ask if the health-care law itself would be invalidated without the mandate, as that is the basis for Vinson's ruling. It turns out several states have created laws banning insurance companies from denying coverage based on pre-existing conditions. Also, Vinson did not rule that the provision in the law that allows children to stay on their parents' insurance plans until age 26 was unconstitutional. These provisions would still be in place without the mandate. They would still be legal.

It doesn't require a magnifying glass to read between the lines of Vinson's ruling. He's saying what even the president has said – that without the mandate, the bill would fail. But failure, in this sense, means it wouldn't generate the revenue predicted, it wouldn't achieve the coverage rates predicted, and it wouldn't lower costs for individual insurance consumers as predicted.

The question, however, is not whether or not the bill is effective. It is the job of Congress, of lawmakers, policy experts, and legislative analysts to determine the effectiveness of a bill. The question is, when did it become the job of a judge, of an interpreter of the law, to decide effectiveness?

We talk often, and we often talk vehemently, about "activist" judges. Any leftist who angers the right is an activist judge. Any right-winger who pisses off the left is an activist judge. In most cases, these are ideological critiques, not merit-based evaluations.

This, I think, is one of the few cases where the "judicial activism" argument holds water. It would not be inappropriate for a federal judge to air his personal views that health-care reform would be cheapened without a mandate. We wouldn't balk at the observation, as the president and nearly every Democrat in Congress has already admitted as much. But is it appropriate that a judge has shot down an entire law based on the personal evaluation of how effective a law would be without the one portion he has deemed unconstitutional?

That's the question. I'm open to critiques.

As for my seemingly unrelated metaphor of the rifle and ammunition mandates, that actually happened. It was, in fact, one of the framers of the Constitution, George Washington, who forced every American to arm himself. In a way, this was health-care insurance, 1770s-style. No judge ruled it unconstitutional. Probably few citizens deemed the mandates unjust. It was logical to protect oneself. And in that sense, its no different than modern health-care reform.

(Cross-posted from Muddy Politics.)