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The Big Decision – from Judge Vinson in Florida

Making a decision on health careI found another fan, like me, of the quotes from Judge Vinson in Florida.  Greg here selected a lot more to share than I did, but then I haven’t had a chance to read the whole release from the Judge’s decision, yet, either.  You know MediChick – busy, busy, busy connecting self-pay patients with doctors and hospitals in the US and around the world.  This is a little of what Greg found to share.  A link to the rest is at the bottom.

 

By Greg Scandlen

I have read the Florida decision, and—WOW!

If you have a chance, I encourage you to read Judge Vinson’s entire decision.   It is well-written and well-reasoned. It’s like taking an entire semester of Constitutional law without paying tuition.  I don’t think very many of the commentators have actually read it or they wouldn’t be going off on snarky tangents. In the New York Times, for instance, Kevin Sackrepeats a charge by Mark Hall of Wake University Law School that Vinson was writing a “Tea Party Manifesto” by mentioning the original Tea Party in his discussion. He also quotes liberal blogger Igor Volsky as calling the decision “an overreach.”

Sack obviously did not read the decision himself, or he would not have had to quote such partisans, who very likely did not themselves read the decision, either. Instead of addressing the issues raised, they attack the judge – a common tactic in these days of supposed civility.

In fact, the judge is very cautious in his ruling. He hews strictly to Supreme Court precedent and does not venture into new territory. If there is an overreach here, it is in the law itself, which even the Congressional Research Service (CRS) warned is “novel,” “unprecedented” and may lack a “solid constitutional foundation.”

But, first, the judge dismisses the plaintiff’s claim that the Medicaid expansion amounts to coercion by the federal government on the states.  He writes,

The gist of this claim is that because Medicaid is the single largest federal grant-in-aid program to the states, and because the states and the needy persons receiving that aid have come to depend upon it, the state plaintiffs are faced with an untenable Hobson’s Choice. They must either (1) accept the Act’s transformed Medicaid program with its new costs and obligations, which they cannot afford, or (2) exit the program altogether and lose the federal matching funds that are necessary and essential to provide health care coverage to their neediest citizens (along with other Medicaid-linked federal funds). Either way, they contend that their state Medicaid systems will eventually collapse, leaving millions of their neediest residents without health care. The state plaintiffs assert that they effectively have no choice other than to participate in the program. In their voluminous materials filed in support

After reviewing existing case law, he concludes there is little support for the coercion claim. He says that, while it may be very difficult politically to do, states still retain the power to opt-out of Medicaid, or to raise taxes to support the program. But he adds –

I appreciate the difficult situation in which the states find themselves. It is a matter of historical fact that at the time the Constitution was drafted and ratified, the Founders did not expect that the federal government would be able to provide sizeable funding to the states and, consequently, be able to exert power over the states to the extent that it currently does. To the contrary, it was expected that the federal government would have limited sources of tax and tariff revenue, and might have to be supported by the states. This reversal of roles makes any state- federal partnership somewhat precarious given the federal government’s enormous economic advantage. Some have suggested that, in the interest of federalism, the Supreme Court should revisit and reconsider its Spending Clause cases. See Lynn A. Baker, The Spending Power and the Federalist Revival, 4 Chap. L. Rev. 195-96 (2001) (maintaining the “greatest threat to state autonomy is, and has long been, Congress’s spending power” and “the states will be at the mercy of Congress so long as there are no meaningful limits on its spending power”). However, unless and until that happens, the states have little recourse to remaining the very junior partner in this partnership.

He then goes on to consider the individual mandate, beginning with a very thorough review of evolving case law respecting the Commerce Clause. There is plenty to discuss here, but I will let it pass for now. Let’s just say that the Depression-era Supreme Court turned 150 years of established precedent on its head with several decisions. Curious that today the senate insists on the importance of “stare decisiswhen confirming judicial appointments, when most of the case law we are living with paid little attention to it in the past. But these New Deal decisions hugely expanded the scope of the Commerce clause, so that –

 

… from the New Deal period through the next five decades, not a single federal legislative enactment was struck down as exceeding Congress’ power under the Commerce Clause power — until Lopez in 1995.

 

Although Lopez was a compelling issue (forbidding the possession of firearms in school zones), the Court could not see the logic in using the Commerce Clause to allow federal intervention. Judge Vinson quotes Justice Kennedy’s concurring opinion in the case –

 

(Kennedy explained) that it is the Court’s duty to “recognize meaningful limits on the commerce power” and intervene if Congress “has tipped the scales too far” as federal balance “is too essential a part of our constitutional structure and plays too vital a role in securing freedom.”

This, by the way, is only one of many instances in which Judge Vinson quotes Kennedy’s opinions. The man is politically savvy, knowing that Kennedy will be the swing vote on the Court and using his writings to support Vinson’s conclusions will surely help in the final verdict.

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