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 now-retracted British study that linked autism to childhood vaccines was an 'elaborate fraud'..."

CNN reports:

An investigation published by the British medical journal BMJ concludes the study's author, Dr. Andrew Wakefield, misrepresented or altered the medical histories of all 12 of the patients whose cases formed the basis of the 1998 study -- and that there was "no doubt" Wakefield was responsible.

"It's one thing to have a bad study, a study full of error, and for the authors then to admit that they made errors," Fiona Godlee, BMJ's editor-in-chief, told CNN. "But in this case, we have a very different picture of what seems to be a deliberate attempt to create an impression that there was a link by falsifying the data."

What psychological suffering this man caused in so many vulnerable parents of little children! For a scientist to subvert science — why don't we have a much more intense feeling of horror about that? How dare those trained in science to misuse it and undermine the enterprise of science? Our shared interest in science is so strong – our need to rely on experts so great — that we should severely punish those who betray it. But we can't, really, can we? If we tried, we might only exacerbate the pressures on scientists to toe the line and give us the answers we want, lest we target them for destruction.

***

Our shared interest in the rule of law is equivalent, yet how could we punish the lawyers and judges who push the law beyond what is truly legal? We'd only end up with worse legal arguments, and our "rule of law" would lose the qualities that made us value it in the first place. Nevertheless, science is different. The scientific method is more agreed-upon. But scientists, like lawyers and judges, go looking for the answers they want. Something non-neutral pulls them along. And yet we expect them — like judges (if not lawyers) — to conduct their search within a professional methodology. We'd like to be able to trust them, and yet we'd be fools to trust them. But we need to trust them, and we trust them all the time....

Should the Constitution be amended to empower the states, by a 2/3 vote, to repeal provisions of federal law?

Dana Milbank notes "the unfortunate echo of nullification," but nullification was the idea that individual states could disregard federal law they opposed. The Repeal Amendment would institute an orderly structural safeguard as part of the Constitution, a check on federal power that requires a supermajority vote of the states.

Instapundit thinks Milbank is being — pretending to be? — too obeisant to the original Constitution:

The amendment process, after all, is part of the Constitution. The Framers had no illusions that they were creating perfection, and believed in the sovereignty of the people and in the power of the people to revise the Constitution as needed, through the process they created. The idea that the text of the Constitution should be revised only through judicial reinterpretation is a modern conceit, and one that does no honor to the Framers at all.

Since the Repeal Amendment, proposed by Randy Barnett, can easily be portrayed as an effort to return to something closer to the balance of power provided for in the original Constitution, it is pretty silly to portray yourself as brimming with respect for the Founders when what you really support is the shift of power to the national government that occurred over the long stretch of time, a shift that the courts have allowed to take place.

You know what else is silly? This, from Milbank:

Lest you think this is a hair-brained scheme by one Republican lawmaker, consider that the Repeal Amendment... has won the endorsement of the man who will be the next House majority leader, Rep. Eric Cantor (R-Va.).

Let me dig up William Safire:

Folk etymology is the term for the creation of new words by mistake or misunderstanding or mispronunciation....In today's language, "Hare-brained" is often giddily and irresponsibly misspelled "Hairbrained," perhaps on the notion that the hair is near the brain.

Folk etymology... hmmm. There's also folk constitutional interpretation, isn't there? Or is folk the wrong word when it's journalists purveying the bogus constitutional wisdom?

U.S. District Court Judge Virginia Phillips has enjoined the enforcement of Don't Ask Don't Tell.

It violates free speech and due process, she wrote, rejecting the arguments made by the Department of Justice lawyers who fought against the change... change that President Obama promised a year ago that he would deliver. Here, watch him — it's chilling to witness now:



"It's important to be honest among friends," he says at 0:24 and then literally puts his tongue in his cheek. He was lying and he knew it. Lying about being honest.

But what damnable luck for the Democrats to have this thrown at them 2 weeks before the election! It's such a bad issue for Obama. He hasn't done what he promised, and he's fought against constitutional rights that he ought to be actively pursuing, whether he'd made promises or not. He's going to have to rest on the argument that he was always all about Congress making the change. But why hasn't his Congress gone his way? And do Democrats in Congress want this issue forefronted now? They've only made everyone unhappy — people who want DADT repealed and people who don't. And then there's the additional issue of "activist" judges.... (Phillips was appointed by President Clinton, who, of course, signed the original Don't Ask Don't Tell statute.)

ADDED: Andrew Sullivan:

So once again, we will have the political prospect of the Obama administration simultaneously legally defending the Defense of Marriage Act and Don't Ask, Don't Tell in court, while politically saying they oppose both...

Yes, the GOP is the main party to blame. But no, this does not excuse the extra-cautious, gays-are-radioactive mindset of the Obama administration...

The GOP is convenient, and the Obama and the Democrats have taken advantage of that. I think they are deeply responsible for the failure here. Obama's administration is actively fighting against gay rights.

UPDATE: The Obama administration, continuing its active fight against gay rights, will appeal the decision in the case about the Defense of Marriage Act.

"By the time this thing would reach the Supreme Court Obama's going to have amnesty. He's s going to have all these brand-new Democrat voters."

Rush Limbaugh rails against the federal court decision preliminarily enjoining the Arizona immigration law:

The judge is a Clinton appointee, Susan Bolton, and I remember, after it was reported or learned that she was a Clinton appointee, I remember everybody said, "Ah, but this woman, she's not a political judge. She's really not partisan judge. She's a fair judge." Oh, yeah, right. Right, right, right, right....

This judge has not ruled on the law. There is no racial profiling. We didn't make a [big] deal of it because we figure a judge is gonna look at the law, not the stupid media in making her decision. But she listened to the media. She had to ignore the high bar that was not met in staying the law. This underscores why Sonia Sotomayor should not be on the Supreme Court. This underscores why Elena Kagan should not be on the Supreme Court, because they are activists. They have no judicial temperament, judicial experience, they're not judges. Well, Sotomayor pretended to be one on TV, I guess, but she's not....

This is all reacting to the sudden news of the opinion, which he hasn't read. It's 36 pages long, and "there's no way that I'm going to be able to go through all 36 pages prior to the program ending, but I know what went on here":

[The judge has] bought the notion there was racial profiling and discrimination and all this happy horse manure that's part of the American left these days. So that's pretty much it. I guess the judge is saying it's not in the public interest for Arizona to try to defend itself from an invasion. I don't know how you look at this with any sort of common sense and come to the ruling this woman came to. But, she didn't. She's a leftist and she made an activist decision, not a judicial decision. 

So... Judge Bolton just looks at the hot-button issue and emotes without attending to the text that should govern her opinion... asserts Rush Limbaugh as he takes a glance at the news of the decision and let's his feelings flow.

To quote Rush, out of context, from the middle of that rant: "Nothing, nothing in the media is real.  There is nothing real.  Media is not real. [Political ideology] is not real. It's all spin; it's all fake; it's all lies."

"Almost all judicial decisions... can be assigned an ideological value."

"Those favoring, say, prosecutors and employers are said to be conservative, while those favoring criminal defendants and people claiming discrimination are said to be liberal."

If you can get past that sticking point, you can code everything into an immense database, produce some amazing-looking charts, and reach conclusions like "Court Under Roberts Is Most Conservative in Decades." You can then see into the future:

If the Roberts court continues on the course suggested by its first five years, it is likely to allow a greater role for religion in public life, to permit more participation by unions and corporations in elections and to elaborate further on the scope of the Second Amendment’s right to bear arms. Abortion rights are likely to be curtailed, as are affirmative action and protections for people accused of crimes.

Affirmative action is likely to be curtailed? But you just said decisions favoring employers are conservative, and decisions in favor of persons claiming discrimination are liberal.

IN THE COMMENTS:Paul Zrimsek said:

Almost all judicial decisions can be assigned a molecular weight, too, provided you don't object to talking nonsense.

Justice Kennedy: "I don't swing around the cases. They swing around me. My jurisprudence is quite consistent."

Another funny thing he said yesterday: "An activist court is a court that makes a decision you don't like."

IN THE COMMENTS: Danielle says: "I can't imagine him not deciding that he is his own frame of reference. Didn't Souter say something similar about how the court moved to the right, not that he moved to the left?" I seem to remember Justice Stevens saying it too. And Justice O'Connor. Don't they all? It seems like laughable vanity, but it's also probably exactly what we think they should think: That they are playing it straight, doing it right, saying what the law is. It's probably somewhere on the continuum between laughable vanity and doing the right thing... pretty much like everything else we human beings do.

Is "The White House Butler" an outrageously racist headline?

There's been some discussion here in Madison, Wisconsin, where former Wisconsin Supreme Court Justice Louis Butler is a visiting professor at the law school, about whether that headline, on a Wall Street Journal editorial, is racist. The editors begin:

As consolation prizes go, Louis Butler can't complain. After being twice rejected by Wisconsin voters for a place on the state Supreme Court, the former judge has instead been nominated by President Obama to a lifetime seat on the federal district court. If he is confirmed, Wisconsin voters will have years to contend with the decisions of a judge they made clear they would rather live without.

Judge Butler served on the state Supreme Court for four years, enough time to have his judicial temperament grow in infamy. Having first run unsuccessfully in 2000, he was appointed by Democratic Governor Jim Doyle to the seat vacated by Justice Diane Sykes in 2004. But after serving four years, voters had seen enough of his brand of judicial philosophy, making him the first sitting justice on the Wisconsin Supreme Court in four decades to lose a retention election last year.

The editorial proceeds with a few paragraphs about how liberal Butler supposedly is and concludes: "Mr. Butler's nomination shows the dominance of liberal ideology in Mr. Obama's judicial selections, and especially a contempt for Wisconsin voters."

Now, my position is that the President of the United States, under the U.S. Constitution, has the power to appoint federal judges, and therefore he can choose liberal or conservative judges as he sees fit. If they are well enough qualified — which includes the requirement that they have a judicial temperament and are committed to legitimate legal methodology — the Senate should confirm them. This is why I supported George Bush's nomination of Samuel Alito:

Those Democrats who are already insisting that Judge Alito's record on the bench makes him unacceptable should keep in mind that someday they, too, will have a president with a Supreme Court seat to fill, and it would serve the country well if that president wasn't forced to choose only among candidates with no paper trail. To oppose Judge Alito because his record is conservative is to condemn us to a succession of bland nominees and to deprive future presidents of the opportunity to choose from the men and women who have dedicated long years to judicial work.

So Louis Butler has a liberal record as a judge. Obama is the President. I don't see the problem with confirmation.

But are the Wall Street Journal editors to be condemned as racist? I guess I need to nail down the point that Butler is African American. That's never mentioned in the editorial. Some of the people I have heard from are absolutely committed to the conclusion that the headline "The White House Butler" is undeniably and outrageously racist.

Now, it occurs to me that the person who came up with that headline may not even have known that Butler is black. It's not in the editorial, and I think headline writers tend to work with what's in the article. Here, the headline writer might have simply tried to come up with some play on the last name and didn't have to go very far to come up with the idea of a butler serving in the White House to insinuate that the judge would be doing Obama's bidding — carrying political ideology into the court.

The conventional image of a butler is quite white:

Those who see racism in the headline — because of the juxtaposition of "Butler" and "House"? — may perhaps be thinking of the idea of the "house negro and the field negro," as famously explained here by Malcolm X:



(Written text here.)

But there is nothing about Louis Butler's position in relation to Barack Obama that is at all like the "house negro" that Malcolm X opposed. And you'd have to stretch to say that the editorial insinuates that he is. You'd have to portray Obama as "the master" and the people of Wisconsin as the "field negroes." It's just too much to read into the editorial. You sound silly even saying it.

But that's not to say that the Wall Street Journal didn't lay a trap for Madison liberals. Maybe they knew they were putting in just enough resonance with racism to bait university types into crying racism. And if they do, as noted, those professors will sound silly, because there is nothing racial in the entire text of the editorial. And what will the people of Wisconsin think — those voters who twice rejected Louis Butler as a state judge — if they learn that Madison professors find outrageous racism in that headline?

What will the Wisconsin voters think?
	Thank you for opening my eyes about racism.
	One more reason to see Madison as a lefty enclave.
pollcode.com free polls

"Ivan Karamazov said that if God does not exist everything is permitted..."

"... and traditional legal thinkers are likely to say that if legalism (legal formalism, orthodox legal reasoning, a 'government of laws not men,' the 'rule of law' ... and so forth) does not exist everything is permitted to judges — so watch out!"

Richard Posner in "How Judges Think" (quoted by Jac).

TANGENTIALLY RELATED: Christopher Hitchens and Dr. William Lane Craig debate the question “Does God Exist?” and Craig gives 5 arguments for the existence of God, the third one being:

3. The Moral Argument; If God does not exist, then objective moral values do not exist. Rape isn’t just culturally unacceptable, it’s actually wrong.