Ruling Striking Down Health Care Law Was Not “Judicial Activism”

On Monday, a federal judge in Florida struck down Obamacare as unconstitutional. Judge Vinson concluded that the law’s cornerstone — a requirement that individuals buy health insurance — exceeded Congress’s power under the Interstate Commerce Clause, and Supreme Court rulings such as United States v. Morrison that limit that power to the regulation of “economic activities,” not inactivity like refusals to buy a product. He struck down the entire law, not just the individual mandate. He did this for two reasons. First, the law lacked a severability clause (a clause declaring that any unconstitutional provision should be severed from the law rather than striking down the law as a whole), even though such clauses are typically found in federal laws. Second, the individual mandate couldn’t logically be severed from the rest of the law, since Congress deemed it essential to the law’s overarching goals, and it was intertwined with the law’s other provisions.

Liberal commentators are up in arms about the decision in Florida v. HHS, to the point of hurling angry falsehoods about it. Writing in the Washington Post, Ezra Klein even claimed that the judge admitted his own ruling was wrong: “Vinson concedes that his position is activist in the extreme and a break from the court’s usual preference for limited rulings. . .”

The judge admitted nothing of the kind. As as a prominent lawyer notes, “Klein just made that up.”

There is nothing unprecedented about striking down an entire law that contains an unconstitutional provision, even when the law — unlike Obamacare — contains a severability clause designed to prevent that from happening.  (Here are some rulings in which courts, including the Supreme Court, did just that: See, e.g., Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 764–65 (1986); Carter v. Carter Coal Co., 298 U.S. 238 (1936); American Booksellers v. Hudnut, 771 F.2d 323, 332 (7th Cir. 1985), aff’d, 475 U.S. 1001 (1986); EEOC v. CBS, 743 F.2d 969, 973 (2d Cir. 1984); and Hotel Employees v. Davis, 981 P.2d 990, 1010 (Cal. 1999).)

And Obamacare lacked a severability clause, which was an additional reason to strike down the whole law. Klein ignored the fact that “the Democrats omitted a severability clause from the health care reform statute” for a reason. Judge Vinson pointed out the importance of the absence of such a provision:

The lack of a severability clause in this case is significant because one had been included in an earlier version of the Act, but it was removed in the bill that subsequently became law.  . . . the severability clause was intentionally left out of the Act. The absence of a severability clause is further significant because the individual mandate was controversial all during the progress of the legislation and Congress was undoubtedly well aware that legal challenges were coming. . . even before the Act became law, several states had passed statutes declaring the individual mandate unconstitutional and purporting to exempt their residents from it; and Congress’ own attorneys in the CRS had basically advised that the challenges might well have legal merit as it was “unclear” if the individual mandate had “solid constitutional foundation.” . . . In light of the foregoing, Congress’ failure to include a severability clause in the Act (or, more accurately, its decision to not include one that had been included earlier) can be viewed as strong evidence that Congress recognized the Act could not operate as intended without the individual mandate.

As Judge Vinson observed, the government’s own lawyers admitted that the statute’s entire scheme of insurance regulation would fall without the individual mandate, cutting against severability:

Moreover, the defendants have conceded that the Act’s health insurance reforms cannot survive without the individual mandate, which is extremely significant because the various insurance provisions, in turn, are the very heart of the Act itself.

Earlier, a judge in Virginia declared Obamacare’s individual mandate unconstitutional, but declined to strike down the rest of the law, in Virginia v. Sebelius.

As I noted in discussing the Virginia ruling in The Washington Examiner: “To justify preserving the rest of the law, the judge” in the Virginia case “cited a 2010 Supreme Court ruling,”Free Enterprise Fund v. PCAOB, “that invalidated part of a law — but kept the rest of it in force. But that case involved a law passed almost unanimously by Congress, which would have passed it even without the challenged provision. Obamacare is totally different. It was barely passed by a divided Congress, but only as a package. Supporters admitted that the unconstitutional part of it — the insurance mandate — was the law’s heart. . .” In short, Obamacare’s individual mandate is not “volitionally severable,” as case law requires.

Moreover, the individual mandate is not the only provision in Obamacare that violates the Constitution (although it was the only violation found by Judge Vinson). In my amicus brief in the Florida case for Governors Tim Pawlenty and Donald L. Carcieri, I explained how Obamacare’s Medicaid impositions violate the Tenth Amendment by ignoring constraints on Congress’s power under the Spending Clause (a so-called Pennhurst argument.)

Regardless of whether it is constitutional, Obamacare is also harmful to the economy, medical innovation, and the healthcare system. Earlier, I discussed some of the bad effects of Obamacare on patients, employers, consumers, and the insurance market.