Legislating from the bench
Orin Kerr explains the essential problem with the recent District court ruling against the new healthcare law:
This might work as a Supreme Court opinion that can disagree with precedent. But Judge Vinson is just a District Court judge. And if you pair Justice Thomas’s dissent in Raich with Judge Vinson’s opinion today, you realize the problem: Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way. Remember that in Raich, the fact that the majority opinion gave the federal government the power to “regulate virtually anything” was a reason for Justice Thomas to dissent. In Judge Vinson’s opinion, however, the fact that the government’s theory gave the federal government the power to “regulate virtually anything” was a reason it had to be inconsistent with precedent.
Obviously, I’m not arguing that Judge Vinson was bound by Justice Thomas’s dissent. Rather, my point is that Judge Vinson should not have used a first principle to trump existing Supreme Court caselaw when that principle may not be consistent with existing caselaw. Either Justice Thomas is wrong or Judge Vinson is wrong, and Judge Vinson was not making a persuasive legal argument when he followed the first principle instead of the cases. Because Judge Vinson is bound by Supreme Court precedent, I would think he should have applied the cases.
Read the rest for a little more background. Like Kevin Drum, I don’t think any of this particularly matters. This is going to the Supreme Court no matter what where, I suspect, the law will not be overturned, nor the individual mandate struck down. If it is, I think Ezra Klein’s prediction is likely correct:
I think it’s vanishingly unlikely that the Supreme Court will side with Judge Vinson and strike down the whole of the law. But in the event that it did somehow undermine the whole of the law and restore the status quo ex ante, Democrats would start organizing around a solution based off of Medicare, Medicaid, and the budget reconciliation process — as that would sidestep both legal attacks and the supermajority requirement.
The resulting policy isn’t too hard to imagine. Think something like opening Medicare to all Americans over age 45, raising Medicaid up to 300 percent of the poverty line, opening S-CHIP to all children, and paying for the necessary subsidies and spending with a surtax on the wealthy.
This wouldn’t be bad at all – more public options and less payouts to private insurers is a good thing in my opinion, cut out the middle-men, etc. etc. – but it does strike me as something that could take a long time. I’m guessing it would mean a lot of people would lose their healthcare during the interim.
Actually, repealing the bill and kicking a bunch of people off their healthcare plans (and returning to the good ol’ days of pre-existing conditions) might speed the process of a Democratic resurgence just a bit, as voters already facing high unemployment rates are cut off from yet another lifeline. Meanwhile states are trying to cut poor people from their Medicaid rolls to balance budgets without raising taxes. This will only increase the likelihood that Democrats can once again run on some sort of universal healthcare platform. But only, of course, if the law is overturned or repealed. Republicans have shot themselves in the foot many times before and there are no signs of this changing.