"Judge Gladys Kessler of Federal District Court for the District of Columbia became the third appointee of President Bill Clinton, a Democrat, to reject a constitutional challenge to the Affordable Care Act."

"Two other federal district judges, both appointed by Republican presidents, have struck down the law’s keystone provision, which requires most Americans to obtain health insurance starting in 2014."

It's starting to look like a pattern.

I have to take a 3rd shot at Larry Tribe's op-ed: That big word "choice."

Here's my first shot and here's my second shot at Larry Tribe's op-ed purporting to say why the Supreme Court will come down in favor of the constitutionality of the individual mandate to buy health insurance. I didn't set out to write one post after another about the op-ed, but I must go on to talk about his use of the word "choice" — which is monumentally important in the discussion of abortion rights. Tribe's op-ed has nothing to say about abortion. I wonder if he would have written it differently if abortion had crossed his mind, but I can't believe that a constitutional law professor would overlook the abortion-related significance of the word "choice."

Tribe's op-ed, as I wrote in the first post, rests very heavily on misrepresenting the Supreme Court's commerce power doctrine as referring to "commercial choices." In fact, the cases refer to "commercial activities," and a switch from "activity" to "choice" is immensely important in the health care litigation, in which opponents stress that the failure to buy insurance is inactivity, not activity, and therefore beyond even the broadest interpretations the Supreme Court has ever given to the Commerce Clause.

Tribe attempted to skew opinion by substituting "choice" for "activity," and I have called him on that. But I need to go further, because someone who uses words to get things done needs to be kept honest not only about shifting from one word to another, but also about changing the meaning of the same from case to case. Let's look at how Tribe talked about "choice" and health insurance and then see how that squares with what "choice" is supposed to mean in the abortion context.

In today's op-ed, Tribe wrote:

Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

You can see that Tribe has given a very broad definition to the notion of choice. People bumble along, doing what they want, aware of the chance of an undesirable outcome, vaguely expecting to take advantage of an out that isn't very nice. That's a choice. It is something real and specific that the individual has done. Society can, as a group, based on our idea of the good, say to that person: We are now going to require you to take responsibility at that early decision point of yours. So Tribe says.

Now, apply that to abortion. If we take a similarly broad view of choice, we could say — as anti-abortion advocates do — that women who know they may be fertile have a choice when they go ahead and have sexual intercourse with a man. They can refrain from having sex, but if they go forward, they know that if they need emergency-room care get that they can’t pay for get pregnant, the public will pick up the tab they can get an abortion.

Of course, the Supreme Court case law does not present the woman's right to choose in terms of taking responsibility at that early point. It says:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

The choice that matters is an elaborate process of high-level reflection that occurs after the woman becomes pregnant — that is, when it's too late to take the precautions that the majority might have liked her to take so that she would not show up with the demand for something it wants to prevent.

I realize there are many distinctions that can be made between health insurance and abortion, but there is so much sophistry around the word "choice" that I think it's important to concentrate on what choice means and how it matters in the law. It seems to me that society, acting through a legislature, may have a preference about when an individual should be required to make a choice, and that the individual, valuing autonomy, may want a broader range of choice than the majority would like to permit. When we think about government power and individual autonomy, how consistent must we be about what "choice" means?

Professor Tribe would like you to know how nonpartisan the Supreme Court Justices are ... I mean, will be, when they decide the individual mandate question the way he would like.

The NYT has an op-ed by lawprof Larry Tribe that purports to demonstrate how obvious it supposedly is that the Supreme Court will find the health care law constitutional.

The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

Of course, the argument Tribe likes was presented, considered, and rejected in the 2 federal court cases. It's a perfectly comprehensible argument, but that doesn't make its success in the Supreme Court a sure thing. Acting as if it does, Tribe says "it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court." Oh, you terrible people who fail to bow to the obviousness of one side of a constitutional argument! You compound your sins by falling prey to the upsetting belief that the Supreme Court Justices are politically partisan!

To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.

That's not sarcasm. Read the whole thing. You'll see, it's not intentional sarcasm. It might be an attempt to sweet-talk Scalia into using the health-care litigation to score some political neutrality points, but it's not sarcasm. It's more: Ah! What a fine Justice, full of integrity and intellect, I will say Justice Scalia is if he decides this case my way!

Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves better as well. 

Oh! People are sooooo unfair to Justice Kennedy. I, Larry Tribe, will protect him from the scurrilous "swing vote" remarks people make.... when he decides this case my way!

Yes, his opinion in the 5-4 decision invalidating the federal ban on possession of guns near schools is frequently cited by opponents of the health care law. 

I hope they do a better job of pointing at the Lopez case than that NYT link does. Here's the right link, in case anyone cares.

But that decision in 1995 drew a bright line between commercial choices, all of which Congress has presumptive power to regulate, and conduct like gun possession that is not in itself “commercial” or “economic,” however likely it might be to set off a cascade of economic effects. 

Drew a bright line, eh? But the line, if you can call it a line, isn't about "commercial choices." That's Tribe's phrase — as he assures us the line is bright! — and what the Court said was "commercial activity" — which is why the argument about the distinction between activity and inactivity has been so important in the health care litigation. Tribe declares lines to be bright precisely at the point when he is shedding darkness. (If you think you can't shed darkness, I agree. I'm just riffing on the linguistic oddity of the lawyer's expression "bright line." Aren't easy-to-see lines usually dark — like black ink on white paper?)

The decision about how to pay for health care is a quintessentially commercial choice in itself, not merely a decision that might have economic consequences.

"Quintessentially" is such a strong word that perhaps you will not notice that it's next to the phrase that is not "economic activity."

Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law.

Oh, come on. Tribe's rhetorical move has become comical at this point. It reminds me of an old-fashioned mother exerting moral pressure on a child by telling him how sure she is that he is such a good little boy that he could never do whatever it is she doesn't want him to do. Put more directly, it's an assertion of authority: I'm telling you what's right and if you don't do it, you'll be wrong. Could the Justices possibly yield to pressure like that? It's crude to think that they would, isn't it? It's an insult both their intellect and their integrity.

And yet, Larry Tribe does think it, right? That's what's behind his rhetoric. I believe. Crudely.

UPDATE: I have 2 more posts about this op-ed, one dealing with Tribe's disapproval of people who fail to take responsibility and one dealing with the meaning of "choice."

"There's a misimpression out there that... federal agents arrive in black helicopters dressed in fully equipped armed ninja costumes, kick down your bedroom door and drag you off at the point of bayonets to an insurance agency."

... hyperbolized lawprof Walter Dellinger at yesterday's Senate Judiciary Committee hearing on the constitutionality of the Affordable Care Act. (Video here.)

In fact, what -- all that happens is that for those who are not otherwise exempted and -- when they're filling out their federal income tax return, if you're not maintaining minimum coverage, you have to pay an additional 2.5 percent, much less than Social Security. That's all that happened.

So in that sense, this great intrusion on liberty doesn't approach any slippery slopes or exceed any understood limits in our legal culture. 

I thought the point of worrying about approaching slippery slopes is that we would otherwise accept one incremental intrusion after another and never see fit to draw the line and, thus lulled, we would lose our liberty.

The Senate Judiciary Committee has a hearing on the constitutionality of the health care law.

Oh, look! They're finally paying attention to a little technical matter they ought to have taken account of a year or so ago.



Watch with me.

"Now that the law is 'dead,' will Wisconsin return the money or rebuff any other federal grant money?"

"Will other state governments declaring the law dead do the same? If so, how much money do they stand to lose? How will this impact their consistuents [sic]? It's a pretty worthwhile line of inquiry."

Well, yeah, it sure is. Congress larded the 2,000-page bill with so much spending that we're supposed to be so fat by now that we can't do anything more than roll over and submit to any unconstitutional excesses of power that came with the lard. How dare Wisconsin's Attorney General stand up and say no?!

***

I put "sic" up there because I assume "consistuents" is a typo, not a portmanteau, a deliberate incorporation of "sissy."

Judge Vinson's utterly mundane opinion striking down the health-care law.

Here's the text of Judge Vinson's opinion in Florida v. United States Department of Health and Human Services. It's 78 pages long but quite clearly written, and much of it summarizes the Supreme Court case law. If you don't know the cases, I think you'll find that part readable. If you do know the cases, I think you'll find that part easily skimmable. The meat of the opinion begins at the bottom of page 37, and it follows arguments that should be familiar if you've been reading about the litigation.

Applying the case law to the facts, Vinson focuses on the problem that the individual mandate to buy health insurance reaches individuals who are not engaged in any economic activity. The Supreme Court case law doesn't answer the question whether Congress can require action of those whose inactivity can be characterized — when you take all the inactive people in the aggregate — as having a substantial effect on interstate commerce. I think when the case reaches the Supreme Court (assuming it does), there will and should be more creative arguments about fine-tuning the doctrine, but the district judge has no option other than to apply the case law to the new situation: "I am required to interpret this law as the Supreme Court presently defines it."

Vinson decides that Congress cannot reach inactivity, basically making the simple and straightforward point that we have a system of enumerated powers, and if Congress could reach inactivity because of its economic effect, then it would seem that Congress could regulate everything. There has to be some limit, so the line should be here. I don't think the line does need to be there, since one could stress the extreme degree of the effect on interstate commerce and the great value of designing a coherent system of paying for health care by taking account of the entire, interrelated system of health care services, including the potential future demands on it that everyone represents, even if they happen to be nonconsumers right now. Why not say that is within Congress's power, yet other things remain beyond its power? That too would preserve the structure of enumerated powers. I don't think, in the end, the Supreme Court will be at a loss to articulate a line that includes regulation of the entire enterprise of paying for health care, including health care for people who resist buying it, hoping for continued good health, enough savings to cover future expenses, or free care financed by the rest of us. Distinguish other kinds of inactivity, and it would preserve the idea that something must be outside of Congress's power.

Vinson does engage with this idea, but he's limited by the need to abide by the Supreme Court's case law. Under that constraint, he talks about whether the "uniqueness" of the health care market somehow transforms inactivity into activity. (This discussion begins at page 45.) He refutes uniqueness by coming up with additional examples of markets the individual can't choose to opt out of — housing and food. But housing and food aren't much like health care. They do depend on our all having bodies, but we always need housing and food. Health care is the one thing that you're tempted to think you can get by without, but you might get hit with a huge expense that you can't possibly cover. If you don't buy insurance, you're gaming the system, and some of the people who game the system will take advantage of the rest of us who participated. It really is different from housing and food. You've got constant pressure on you to provide for those things.

Finally, there's the Necessary and Proper Clause, which was key to Justice Scalia's joining the liberal members of the Court in approving of Congress's power to ban possession of marijuana (even in the home-grown, state-approved-medical-use situation). And there's the issue of severability. I'm going to save those topics for separate posts.

My point here is that Judge Vinson has produced a workmanlike application of the Supreme Court case law devoid of flights of creativity, as befits a district court judge.  Politicos who froth about what an extreme activist he is are trying to cow the judiciary into approving of the law because it's a big fucking deal.

"A federal judge in Florida says the Obama administration's health overhaul is unconstitutional, siding with 26 states that had sued to block it."

"U.S. District Judge Roger Vinson on Monday accepted without trial the states' argument that the new law violates people's rights by forcing them to buy health insurance by 2014 or face penalties."

MORE: NYT:

Judge Roger Vinson of Federal District Court in Pensalcola, Fla., ruled that the law will remain effect until all appeals are concluded, a process that could take two years. However, Judge Vinson determined that the entire law should fall if appellate courts agree with his opinion that the insurance requirement if invalid.

That is, the judge rejected the severability argument.

The judge’s ruling came in the most prominent of the more than 20 legal challenges mounted against some aspect of the sweeping health law... 

The plaintiffs include governors and attorneys general from 26 states....

"A year ago, pretty much all law professors dismissed the argument as frivolous.... The law professors had a failure of imagination."

That's Randy Barnett — talking about the constitutional challenges to the health care law — quoted in Politico's ominously titled article "Right takes refuge in Constitution."

By the way, last Wednesday, I attended a Federalist Society-sponsored panel discussion here in Madison about this topic. One of the speakers was Wisconsin Attorney General J.B. Van Hollen, who has just taken steps to join the Florida lawsuit challenging the law. Also on the panel were Jon Richards, a state legislator who supports the law, and Ilya Somin, the George Mason law professor who has written that the lawsuits are at least not frivolous.

Scrambling to find 2 of the last few seats, Meade and I sat at a table which seemed to be full of lawyers who supported health care reform. One lawyer haughtily informed me that whatever law professors might think about the Constitution, it's really all politics, and this health care reform represents a big, important political effort and that's why it's going to be upheld in the courts. I said, if it's all politics, then what of all the politics pushing back against the law? What about the polls that show most people are against it and what about the last election? If you're going to say politics determines the outcome, then don't you have to take that politics into account too? The lawyer looked either alarmed or angry, because I, a law professor, didn't simply assert that the Constitution matters, which would have made it easy for him to irritatingly chuckle about naivete. But right then, the panel started, saving him from having to try to wriggle off my skewer.

Van Hollen kicked off the discussion with assertions that he joined the lawsuit not because he's opposed to the health care statute, but because of the rule of law. The litigation is important to test the scope of congressional power. We have a system of a balance of powers, which he likened to a "teeter-totter." The states have to take their position on the other side of the teeter totter or things aren't going to work very well. The idea is to push back against federal power and to give the courts the opportunity to clarify the law. Van Hollen speaks like the well-polished politician he is.

Richards was having none of this abstract rule-of-law business. Economic realities should trump legal jargon, he said. He portrayed constitutional law as a matter of technical conceptions that shouldn't be allowed to stop government from doing the things that need to be done. He focused on the policy reasons for supporting the law and the argument that the law is constitutional flowed naturally from his support of the law. As for lawsuits: "Lawsuits are a real distraction."

Somin said the rule of law is "technical conceptions" — which was the punchline of the day, in my view. He gave a measured presentation, explaining the case law in a professorly style, and assessing the odds that the Supreme Court would overturn the individual mandate. (He said the 4 liberals would stick together and uphold it, that the conservatives were a more "fractious" bunch, so although Scalia, Thomas, and Alito would vote against it, he doesn't know what Roberts and Kennedy will do.)

Here's my page of notes from the Somin part of the panel:



After that, there were some questions from the audience. One questioner, trying to get his mind around the notion that the failure to buy insurance is inactivity and arguably therefore not "economic activity" within the meaning of the Commerce Clause case law, said "If you look at a human being as a going concern...." — which I thought was pretty funny. Yes, the government sees us as little businesses, as we sit here ostensibly doing nothing: our hearts pump blood, our gut digests food, and our brain cells spark with resistance to the purchase of products the government knows we should be buying.

ADDED: Video of the panel, via Ilya.

Judge Vinson: "People have always exercised the freedom to choose whether to buy or not buy a commercial product."

Hinting at oral argument that he may rule against the individual mandate in the Florida case — in which the governors and attorneys general of 20 states have attacked health care reform.

"Are you serious?" — a constitutional law argument in the Bowers v. Hardwick tradition.

On Monday, I took Josh Marshall (and Nancy Pelosi) to task for resorting to constitutional argument by laughter. They were addressing the "individual mandate" — the federal law requiring private citizens to buy health insurance, which a federal judge said is beyond the reach of Congress's enumerated powers. In my post, I chided liberals and lefties about using their own sense of ridiculousness as a legal argument because "There was a time when people laughed at the idea of gay rights."

An emailer reminds me of the precise language that appeared in the Supreme Court's case that ruled that states could criminalize homosexual sodomy. In Bowers v. Harwick, Justice Byron White (a JFK appointee) wrote for the majority:

Proscriptions against that conduct have ancient roots.... In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults.... Against this background, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.

When Bowers was reversed 17 years later, in Lawrence v. Texas. Justice Scalia — the liberals' least (or second-least) favorite Justice — saw fit to quote those words in his dissenting opinion.

My emailer was James Taranto, author of the Wall Street Journal's "Best of the Web," which quoted my blog post yesterday and said:

We recall a conversation with a young liberal lawyer we met at an event in late March, a few days after the House passed ObamaCare. When we pointed out that there were likely to be court challenges to the new law, particularly the mandate to purchase insurance, she was dismissive. She asserted that the constitutional questions were well settled. When we offered arguments to the contrary, she did not engage them but became emphatic to the point of belligerence, insisting that it was "crazy" to harbor any doubts about the constitutionality of ObamaCare.

Our position was not that ObamaCare was clearly unconstitutional or that it was likely to be struck down, merely that there were serious constitutional arguments against it that had some possibility of prevailing. This modest claim so shocked our new acquaintance that an initially pleasant encounter turned rancorous and left us feeling she had insulted our intelligence....

Well, you'll feel better if you dance like Fred Astaire:



Here's Fred with the words to the Gershwins' "They All Laughed."

They all laughed at Rockefeller Center
Now they're fighting to get in
They all laughed at Whitney
and his cotton gin
They all laughed Fulton and his steamboat
Hershey and his chocolate bar
Ford and his Lizzie
Kept the laughers busy
That's how people are
They laughed at me wanting you
Said it would be, "Hello, Goodbye."
But oh, you came through
Now they're eating humble pie

But speaking of Robert Fulton and his steamboat, and who gets the last laugh, Fulton was a famous loser in the most famous Commerce Clause case of them all, Gibbons v. Ogden, and Fulton was on the side that argued for the narrow interpretation of Congress's enumerated power.  Chief Justice John Marshall laid down the broad interpretation:

This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.... [T]he sovereignty of Congress, though limited to specified objects, is plenary as to those objects....

The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied to secure them from its abuse.

This is the beginning of the line of expansive interpretation of the Commerce Clause that the proponents of health care reform will rely on as they take their case up on appeal to the 4th Circuit and, presumably, to the Supreme Court. We'll see who's dancing and who's eating humble pie then.

Josh Marshall: "A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional."

I love this notion that if people stop taking something seriously, it ceases to exist.

One of the most famous books about constitutional law is called "Taking Rights Seriously," and I wish I had $20 for every scholarly law review article that's titled "Taking [something in the Constitution] Seriously." I think "Taking X Seriously" is the biggest cliché in the history of law review articles. And what that means, Josh, is ... Hey, I love the way whose name means joke wants the test of the truth to be whether or not people laugh.

But I'm not joshing, Josh. The reason there are so many law articles called "Taking X Seriously" is that we don't rule out a proposition of constitutional law simply because no one seems to taking it seriously right now. We work through the analysis, and maybe we discover that it should be taken seriously. I mean, think, Josh, think. There was a time when people laughed at the idea of gay rights. There was a time when people laughed at the idea of women's rights.

I started out today chiding a righty who was — unwittingly — saying something that belonged in the mouth of a lefty. And now here comes a lefty, talking like a righty. This is what happens when politicos talk about law. They're super-consistent at the level of outcomes, and they don't notice all the inconsistencies they spout at the level of legal reasoning.

Josh continues:

And the idea that buying health care coverage does not amount to "economic activity" seems preposterous on its face. 

See? Resorting to the laugh test. But, Josh, it's not "the idea that buying health care coverage does not amount to 'economic activity,'" it's the idea that not buying health care coverage does not amount to "economic activity." That's quite a bit less hilarious.

ADDED: Nancy Pelosi worked the "seriously" test back in October 2009:

"Federal Judge Invalidates Key Provision of Health Care Law."

"Breaking news."

Judge Henry E. Hudson... wrote that the law’s central requirement that most Americans obtain health insurance exceeds the regulatory authority granted to Congress under the Commerce Clause of the Constitution. The insurance mandate is central to the law’s mission of covering more than 30 million uninsured because insurers argue that only by requiring healthy people to have policies can they afford to treat those with expensive chronic conditions.

The judge wrote that his survey of case law “yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person’s decision not to purchase a product, not withstanding its effect on interstate commerce or role in a global regulatory scheme.”

It sounds as though he's adopted the reasoning that we've expected a judge striking down the provision to use.

The opinion by Judge Hudson, who has a long history in Republican politics in northern Virginia, continued a partisan pattern in the health care cases. Thus far, judges appointed by Republican presidents have ruled consistently against the Obama administration while Democratic appointees have found for it.

I like the way the NYT report doesn't say it's Hudson who decided according to political preference. There's just a "pattern" here, and the judges on both sides of the issue have followed the pattern. Maybe some, none, or all are following politics. That's the best way to report it.

ADDED: From the opinion (citations omitted), here's the key conclusion about the Commerce Clause:

The power of Congress to regulate a class of activities that in the aggregate has a substantial and direct effect on interstate commerce is well settled. This even extends to noneconomic activity closely connected to the intended market. But these regulatory powers are triggered by some type of self-initiated action. Neither the Supreme Court nor any federal circuit court of appeals has extended the Commerce Clause powers to compel and individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.

A footnote at that point says: "The collective effect of an aggregate of such inactivity still falls short of the constitutional mark.

But what about the Necessary and Proper Clause? Orin Kerr detects an "obvious and quite significant error":

Judge Hudson assumes that the power granted to Congress by the Necessary and Proper Clause... does not expand Congress’s power beyond the Commerce Clause itself...

If a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

Judge Hudson does not cite any authority for this conclusion... The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I. If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity.

If the individual mandate is unconstitutional, will the entire healthcare law be invalidated?

Judges Henry E. Hudson (in Virginia) and Judge Roger Vinson (in Florida) will rule on their case soon. Both of these judges were appointed by Republican Presidents. (The federal judge in Michigan who, in a case decided last month, found the mandate constitutional, was appointed by Bill Clinton.)

Assuming one of these judges says that Congress's power regulate commerce clause does not include a power to make private citizens buy insurance, what happens to the rest of the law? The law does not contain a severability clause. That is, it does not explicitly say what should happen to the rest of the law if part of it is stricken down.

An earlier version of the legislation, which passed the House last November, included severability language. But that clause did not make it into the Senate version, which ultimately became law. A Democratic aide who helped write the bill characterized the omission as an oversight.

Well, that's one hell of an oversight! I can certainly see why someone who wants the bill to survive would attempt to portray this as an oversight, but I don't think that's believable. The need for a severability clause is well-known and obvious.

Without such language, the Supreme Court, through its prior rulings, essentially requires judges to try to determine whether Congress would have enacted the rest of a law without the unconstitutional provisions.

The Justice Department, which represents the Obama administration, acknowledges that several of the law’s central provisions, like the requirement that insurers cover those with pre-existing conditions, cannot work unless both the healthy and the unhealthy are mandated to have insurance. Otherwise, consumers could simply buy coverage when they needed treatment, causing the insurance market to “implode,” the federal government asserts.

So the individual mandate is plainly not severable from at least some of the rest of the law.

In a hearing last month, Judge Hudson remarked on the difficulty of determining Congress’s intent regarding a law with hundreds of disparate provisions. “This bill has more moving parts than a Swiss watch,” he said.

The administration, in arguing for the constitutionality of the individual mandate, has stressed how crucial it is to the success of the entire reform, but that inherently works as an argument against severability.

Federal district judge rules that the states' lawsuit challenging health care reform can go forward.

The claims that survive are based on Congress lacked power under the Commerce Clause and that the act commandeers the states.

ADDED: I'm reading the opinion. Judge Roger Vinson rejects the argument that the individual mandate is actually a tax and therefore that the Anti-Injunction Act is an obstacle to the lawsuit. Key point:

[I]t is inarguably clear that Congress did not intend for the exaction to be regarded as a tax...

Congress didn't call it a tax and "the defendants are wrong to contend that what Congress called it 'doesn’t matter.'"

Congress did not state that it was acting under its taxing authority, and, in fact, it treated the penalty differently than traditional taxes.

The failure to call it a tax was especially important because the act was so controversial:

One could reasonably infer that Congress proceeded as it did specifically because it did not want the penalty to be “scrutinized” as a $4 billion annual tax increase, and it did not want at that time to be “held accountable for taxes that they imposed.” In other words, to the extent that the defendants are correct and the penalty was intended to be a tax, it seems likely that the members of Congress merely called it a penalty and did not describe it as revenue-generating to try and insulate themselves from the potential electoral ramifications of their votes.

Because it is a penalty and not a tax, the act cannot be upheld with the taxing power. The question must be the scope of the Commerce Power.

AND: Judge Vinson upheld the standing of the individual plaintiffs and the state plaintiffs, and he held that the claims were ripe. Even though the mandate doesn't go into effect until 2014, it is "certainly impending" and "responsible individuals, businesses, and states will have to start making plans now or very shortly to comply with the Act’s various mandates."

Finally, the judge considered the motion to dismiss for failure to state a claim. He dismissed some of the claims relating to state sovereignty, and I won't bore you by attempting to paraphrase this part. If you don't know the law in this area, you'd be better off trying to read pages 41-58 of the opinion. So let me confine myself to the individual mandate. Judge Vinson rejects the due process argument, because the scrutiny in this area is minimal and Congress had a rational basis for the mandate. But the Commerce Clause challenge survived.

At this stage in the litigation, this is not even a close call. I have read and am familiar with all the pertinent Commerce Clause cases... This case law is instructive, but ultimately inconclusive because the Commerce Clause and Necessary and Proper Clause have never been applied in such a manner before.... There are several obvious ways in which Heart of Atlanta and Wickard differ markedly from this case...  Those cases... involved activities in which the plaintiffs had chosen to engage. All Congress was doing was saying that if you choose to engage in the activity of operating a motel or growing wheat, you are engaging in interstate commerce and subject to federal authority....

... The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive....

A federal district judge has upheld Congress's power — under the Commerce Clause — to require individuals to buy health insurance.

Here's the decision, linked from Politico. How does the judge — George Steeh of the Eastern District of Michigan — deal with the key problem, that Congress is trying to regulate persons who are not engaging in any economic activity? This is the key passage:

The plaintiffs have not opted out of the health care services market because, as living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market. 

That is, everyone is already in the market simply by virtue of having a body which might require medical care.

As inseparable and integral members of the health care services market, plaintiffs have made a choice regarding the method of payment for the services they expect to receive. The government makes the apropos analogy of paying by credit card rather than by check. How participants in the health care services market pay for such services has a documented impact on interstate commerce. 

So, if you are planning to pay out of pocket for your own medical expenses if and when they arise, you have, through that decision, done something that affected the health care market.

Obviously, this market reality forms the rational basis for Congressional action designed to reduce the number of uninsureds.

The Supreme Court has consistently rejected claims that individuals who choose not to engage in commerce thereby place themselves beyond the reach of the Commerce Clause. See, e.g., Raich, 545 U.S. at 30 (rejecting the argument that plaintiffs’ home-grown marijuana was “entirely separated from the market”); Wickard, 317 U.S. at 127, 128 (home-grown wheat “competes with wheat in commerce” and “may forestall resort to the market”); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (Commerce Clause allows Congress to regulate decisions not to engage in transactions with persons with whom plaintiff did not wish to deal). 

The federal district court has denied the motion to dismiss in the Virginia lawsuit challenging the Obamacare individual mandate.

Ilya Somin comments on the opinion, which I'm about to read. I'll have more soon.

ADDED: Half of the opinion is about the state's standing to bring the lawsuit. Judge Hudson wrote that the state was not suing on behalf of taxpayers but based on its own interests defending the Virginia Health Care Freedom Act from preemption by federal law. Under this theory, it doesn't matter that the state of Virginia won't have to pay the penalties the federal law imposes on those who don't buy health insurance. It's enough that Virginia's power to pass its own law has been impinged on by the allegedly unconstitutional federal law. That theory also avoids a problem with the Anti-Injunction Act. The judge also found the case satisfied the ripeness requirement because the issues are "fully framed" and "the underlying facts are well settled."

As for the question whether the individual mandate is supported by the Commerce Clause (with an assist from the Necessary and Proper Clause), the judge elaborates the "widely divergent and at times novel" arguments of the 2 sides and concludes inconclusively that he is not at this time ready to say that Virginia has failed to state a claim. Then there is the alternate power basis for the law, the taxing power. Again the judge lays out the arguments, recites the precedent, and declares the matter too uncertain to resolve as a matter of law on a motion to dismiss. Thus, the case continues.

In a pro-Kagan editorial, the NYT argues that we should support the most expansive interpretation of the Commerce Clause...

... because it empowers Congress to give us "some of the best things that government has done for the better part of a century, and some of the best things that lie ahead."

That's the argument. The Constitution should mean what it needs to mean so that we can get the things that we want from government — all those fine things that government deigns to do for us. The NYT tells us that some conservatives are "infuriated" because Kagan "refused to take the Republican bait and agree to suggest limits on that clause’s meaning." They're angry because they don't like the good things government does. Those bad old obstructionists. They're the Party of No.

The idea that constitutional law stands apart from political preferences is nowhere to be found. I guess NYT readers aren't supposed to notice that.

"For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase... I absolutely reject that notion."

Absolutely... until...

University of Wisconsin lawprof Victoria F. Nourse has been nominated to the 7th Circuit.

Congratulations to my esteemed colleague!

Nourse was special counsel for the Senate Judiciary Committee from 1990 to 1993, where she was staff drafter of the Violence Against Women Act. She was also an appellate attorney for the U.S. Department of Justice from 1988 to 1990 and assistant counsel for the Senate Committee to Investigate the Iran-Contra Affair in 1987 and 1988.

Here's the Accuracy in Media report on her role working on the Violence Against Women Act, written in 2007, when then-Senator Joseph Biden was running for President:

... Biden has just released a book acknowledging that he wasn’t the sole author of the Violence Against Women Act (VAWA). This bill was Biden’s signature legislation. It resulted in tons of favorable publicity for him. But the book, Promises to Keep, reveals on page 240 that a female staffer was actually involved in drafting the legislation.

“The staffer, Victoria Nourse, and I wrote” the legislation, says Biden. However, his presidential website gives Biden sole credit for the legislation. It quotes Biden as saying that “What I’m most proud of in my entire career was writing the Violence Against Women’s Act because it is evidence we can change people’s lives, but the change is always one person at a time.” The term “writing,” as commonly understood, means that he wrote it. His office sent out a release calling the senator the “author” of the legislation. But “author,” like the term “writer,” has a definite meaning....

It’s true that Biden “introduced” VAWA. It is also accurate to say that he sponsored it. But to have paraded around the country for many years claiming to be the “author” or “writer” of the bill diminished the work of the female staffer who had been doing the bulk of the work behind the scenes. Later in the book, Biden refers to Nourse as his “lead staffer” on the bill, but that description, too, diminishes her work in this area.

This seems like a pretty minor criticism of Biden, but Nourse is honored to receive the recognition.

But — you may be asking yourself —wasn't the Violence Against Women Act held unconstitutional? The act had many provisions, and one of them — giving private citizens a federal tort claim against other private citizens — was held unconstitutional by the Supreme Court in a 5-4 decision in 2000. It does not manifest a lack of legal expertise for Nourse to have thought that this provision was constitutional back in 1994 when the act was passed. That was before the Gun Free School Zones Act case in which the Supreme Court, for the first time in over half a century, found that Congress couldn't rely on the Commerce Clause to legislate in a particular area. You may argue about whether VAWA was a good use of federal power and whether it was a good idea to use the federal courts to handle gender-based violence cases. Was VAWA good federalism and the wise allocation of judicial resources? But, I think, VAWA reflects well on Nourse, Nourse is an excellent nomination of the sort one would expect Obama to make, and Obama is the President with the judicial appointment power.