No, there is no subtle redeeming quality to the Florida opinion. It is hackery, pure and simple. While I think the PPACA is basically a huge handout to the very industry that claims to hate it, and it is disgustingly expensive to not even cover everyone, I still think that the effect of getting almost everyone covered with health care outweighs all of the problems with it. Not by a lot. Whatever. Those are political questions. Legally, there’s no doubt in my mind that even the Conservative Supreme Court will sustain it, probably not even 5-4. I think there’s a chance it’s 8-1. But until then, we will have a bunch of judicial hackery like this to go along with the political hackery in Congress. And it probably won’t go away for another 5 years, when the program starts to kick in and get popular, like Medicare. So, here…
Fight back against concern trolls, Tea Baggers, Constitutional originalist nincompoops, and legal frauds with these quick points:
• It isn’t a tax, because they call it a penalty!
This is a fatuous, silly argument. Supreme Court precedent clearly states that anything that “raises revenue” is a tax, and, therefore subject to Congress’s broad powers under the taxing and spending clause. Numerous laws that might have not been sustainable under the Commerce Clause, such as requiring states to enact 21-year-old drinking age laws, were sustained when they were coupled with taxing or spending, in the case of the drinking laws, with highway spending instead of being simple fiats.
The Florida judge’s recent opinion simply dismisses this argument in a footnote. Yet 100 law professors have signed an article affirming this point. It is the most deadly to the opposition to PPACA, which is why they talk about it the least.
• The commerce clause regulates activity, not inactivity.
This isn’t even law school cute. This distinction has never been used before the series of cases over PPACA. It’s simply made up. Whether or not you believe this should be the law, it isn’t. Without getting too deep into it, the current test is whether the law has “substantial effects on commerce.” Action (purchasing marijuana) or inaction (possessing it) are both necessary. That’s not to say the Supreme Court couldn’t one day create this test. But for a district judge to do so leads to anarchy. They are bound by precedent.
• Does this mean the government can make me buy guns? or a GM car?
This is a silly question, but the answer is probably yes. It has done so in an old militia law. Moreover, state governments are not restricted by the commerce clause; their power is unlimited unless an exception is specified; federal power is limited to the specific grants in the Constitution. So, asking this question about a state is mostly irrelevant. Could the federal government require everyone driving between states to drive a GM? Sure, under the commerce clause. This might, however, have due process implications. But conservatives hate due process and it isn’t even discussed in either the Florida or the Virginia cases, so they must not think much of that.
• Striking the mandate means striking the whole law!
Some liberals have been susceptible to conservative concern trolling over this because of the bills lack of a severability clause. But the Supreme Court has repeatedly stated that Constitutional challenges must be on the narrowest grounds possible, severability clause or not. Conservatives are disingenuously using big words used in contract law to Constitutional law. Sometimes these clauses matter, sometimes they don’t. The Florida judge’s claim that somehow the lack of a mandate means that, say, the ban on discrimination of preexisting conditions, already partially in effect, is unworkable is probably stupidly only reinforcing the point that the failure to buy health insurance substantially affects commerce.
• But what about the gay marriage case! That was just a district judge!
True. District judges are still allowed to interpret the Constitution, but they are not allowed to substitute their own judgment for the opinion of the Supreme Court just because they disagree. In contrast to the PPACA cases, where there are direct contradictions (not to mention 70 years of Social Security, etc.), there is no case saying that a state can pass discriminatory laws that serve no rational purpose; in fact, there are cases saying they can’t. Whether the gay marriage case’s facts satisfy that law has yet to be seen by higher courts, but the law wasn’t being invented as it is here.