Reaching ‘new frontiers in partisan judging’

REACHING ‘NEW FRONTIERS IN PARTISAN JUDGING’…. That Federal District Court Judge Roger Vinson would find the individual mandate unconstitutional was a near certainty going into today. What was unexpected was Vinson, a Republican appointee, deciding that this one provision in the massive law necessarily means that the entirety of the Affordable Care Act must be voided.

Brian Beutler noted today that this is a legal standard that even Supreme Court Chief Justice John Roberts hasn’t embraced, and Roberts isn’t exactly a moderate.

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.

It’s new frontiers in partisan judging.

Vinson’s ventures into new frontiers in partisan judging actually go even further that this today. The ruling goes so far as to reference a ReasonTV.com video on page 47.

Hell, the guy even makes a not-so-subtle Tea Party reference in the ruling: “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.”

For a federal judge to put this in print is rather foolish. Federal regulatory power has been used this way for centuries. Nuclear power plants are required to purchase liability insurance, whether they want to or not. The Civil Rights Act mandated businesses engage in commercial activity that owners found objectionable. George Washington even signed a law requiring much of the country to purchase firearms and ammunition.

It’s precisely why Republicans didn’t think the health care mandate was unconstitutional when they came up with the idea — it’s consistent with how the government has operated for generations.

For whatever reason, Vinson also seems oddly preoccupied with founding fathers like James Madison and Alexander Hamilton, perhaps unaware that John Adams and Thomas Jefferson supported legislation that required private citizens to pay into a public health-care system, and included a “regulation against a form of inactivity.”

I’ll gladly admit there are legal scholars who can speak to this with far more authority than I can, but at first blush, this ruling appears to be a complete mess, seemingly crafted by an activist who started with the answer, and then worked backwards to justify the ideologically acceptable answer.

The only way to reject the mandate is to take a “fairly radical” reexamination of the Commerce Clause, so Republican state attorneys general found a fairly radical judge who wrote a ruling that reads like a piece published by a far-right blogger.

All of this is interesting, as far as it goes, but I should emphasize the point that renders at least some of this trivial: the Supreme Court will have the final call. Between now and then, we’re left to marvel at the extremism of some misguided Republican judges.