Blind Perhaps, But Educated-To a Point.

To ensure that I too do not allow myself to be "blinded" by my opinions I took the time to read Judge Vinson's Health Care Ruling.* I do not normally read legal opinions as I find that they tend to be somewhat obtuse and focus on an arcane fact or decision which is often beside the point.

So it was an almost pleasant surprise to find that Judge Vinson's Ruling took almost 42 pages before his personal subjectivity started to appear. Indeed, up to that point his review of the judicial precedents of the Commerce Clause, which is Article I, Section 8 as I mentioned in a previous posting, was actually interesting, enlightening, and well presented.

Specifically the Commerce Clause states that Congress has the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". The plaintiffs and the defendants essentially use the clause to attack or defend the requirement in the Health Care Act(HCA) for individuals to buy health insurance.

But, as I said, on Page 42 Judge Vinson manages to nail his colors to the mast. Suddenly his attack on the HCA is predicated on the Boston Tea Party. He suggests that requiring citizens to buy health insurance would be the equivalent of forcing people to buy tea. To allow Congress to mandate the purchase of health insurance would be tantamount to removing all limitations on federal power.

Interestingly our judge didn't deign to delve into the use of the Commerce Clause in enabling Congress to impose a Federal Income Tax. I am sure he would put federal income tax in the same category as requiring people to buy tea.

Unfortunately Judge Vinson spends the next 14 pages on an emotional almost irrational bent berating, even ridiculing the individual mandate until he finally moves the discourse on to the "Necessary and Proper Clause".

Even here he feels compelled to editorialise derogatorily describing any discussion of the clause as “the last, best hope of those who defend ultra vires congressional action.”

To be fair the Necessary and Proper Clause is only relevant in ensuring that the HCA insurance requirement is enforceable under the Commerce Clause. Again he can't resist and while barging down this blind alley Judge Vinson forgets his judicial purpose, jettisoning the legal discussion and lambasting the economics of the HCA.

Finally, on page 63 we get to the discussion on Severability. Here the defendants have been hoisted somewhat on their own petard. They stated clearly that the individual insurance mandate is absolutely necessary, even essential for the Act's insurance market reforms to work as intended.

This left the door to "severability" open. It is not clear why they left a severability clause out of the act. Perhaps it is because without the individual mandate the Act is toothless, and so the real battle is still to be fought in the Supreme Court in determining the validity of the Commerce Clause in this case.

One can only hope they are less partisan in their deliberations...

*http://www.realclearpolitics.com/docs/2011/Vinson_HCRuling_0131.pdf