Judge Roger Vinson of Florida’s Northern District Court has struck down the much-debated individual mandate in the new health care reform law, and more striking yet, has ruled that the entire law fails to meet constitutional requirements as a result. Lawyers more skilled than I will be analyzing the opinion today and long afterward, but the opinion is also notable for its ethical approach.
All Constitutional Law cases present ethics problems as well as legal ones. Often the controversy involves a clash between utilitarianism, which will accept some ethical violations in pursuit of the greater good, and absolutism, which, in its many forms, decrees that there are principles that must never be violated, and that if an ethical principle is valid, it must always be valid. The Constitution is a legal document, but first and foremost it is an expression of the broad ethical positions laid out in the Declaration of Independence. The Constitution decrees that the U.S. government must operate without violating these principles, no matter how strong the arguments may be to do otherwise.
One branch of utilitarianism, my least favorite branch, is consequentialism, which holds that an otherwise unethical act can become retroactively ethical if the results flowing from it are good enough. As a general rule, courts have not been friendly to consequentialism, most notably in the area of criminal law. The classic example of this is the famous “the fruit of the poisonous tree” doctrine, which dates from a 1920 Supreme Court case, Silverthorne Lumber Co. v. United States, 251 U.S. 385, and which was used over time to gradually stamp out illegal police and prosecutor conduct in pursuit of criminals and their conviction. The doctrine is the reverse of consequentialism. While that approach allows subsequent desirable and beneficial results to cleanse a key contributing act of its unethical nature, “the fruit of the poisonous tree” analysis comes to exactly the opposite conclusion: all results, no matter how legitimate and desirable, that flow from the illegal/unconstitutional/ unethical act, are “poisoned” by the fact that they require misconduct to be realized. Thus a police search of a suspect’s home that uses a fraudulently obtained search warrant and finds stolen good, illegal weapons, drugs and the heads of twenty murder victims will still result in all of the damning evidence being excluded from trial. The fact that the suspect was guilty of heinous crimes proven beyond the shadow of a doubt by the contents of his house cannot justify the wrongful search; instead, the wrongful search makes all of the evidence “bad.”
In Florida v. U.S. Dept. of Human Services, Judge Vinson determined that the part of the health care reform law requiring citizens to purchase health insurance was unconstitutional and exceeded that limits on government power. He rejects the federal government’s argument that the individual mandate is constitutional under the Commerce Clause of the Constitution, which gives Congress the power to regulate “economic decisions,” writing…
“The problem with this legal rationale, however, is it would essentially have unlimited application. There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort. The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that — when aggregated with similar economic decisions — affect the price of that particular product or service and have a substantial effect on interstate commerce. To be sure, it is not difficult to identify an economic decision that has a cumulatively substantial effect on interstate commerce; rather, the difficult task is to find a decision that does not….
“The important distinction is that “economic decisions” are a much broader and far-reaching category than are “activities that substantially affect interstate commerce” [which Supreme Court precedent allows Congress to regulate]… “Economic” cannot be equated to “commerce.” And “decisions” cannot be equated to “activities.” Every person throughout the course of his or her life makes hundreds or even thousands of life decisions that involve the same general sort of thought process that the defendants maintain is “economic activity.” There will be no stopping point if that should be deemed the equivalent of activity for Commerce Clause purposes.”
But Congress has often managed to extend its power in recent decades by using the Constitution’s so-called Necessary and Proper Clause, which states that Congress may “make all Laws which shall be necessary and proper” to regulate interstate commerce. The broad use of that phrase amounts to pure utilitarianism: If the objective is “necessary” (a.k.a. desirable, popular, or essential to enact “needed” policy changes or reform), then the law is “proper”. The end justifies the means. Judge Vinson, however, insists that both ends and means must be within the limits of the Constitution:
“Ultimately, the Necessary and Proper Clause vests Congress with the power and authority to exercise means which may not in and of themselves fall within an enumerated power, to accomplish ends that must be within an enumerated power.Although Congress’ authority to act in furtherance of those ends is unquestionably broad, there are nevertheless “restraints upon the Necessary and Proper Clause authority.”
Then, quoting Chief Justice John Marshall (of whom I am inexplicably fond):
“Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited,but consist with the letter and spirit of the Constitution, are constitutional.”
Judge Vinson accepts that health care reform is important and necessary, and accepts the Government’s argument that the law cannot work without the individual mandate. Yet rather than finding that this necessity legitimizes an otherwise unconstitutional infringement on the basic rights of citizens to make their own decisions about how to spend their personal resources—the utilitarian result—Vinson applies a “fruit of the poisonous tree”-type analysis, adopting absolutism. Comparing the law to an intricate device requiring the coordination of many essential parts, each relying on the other, and taking the Government at its word that the device would fail without its unconstitutional component, he concludes, regretfully,
“Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.” [ In a footnote that is sure to be much quoted by opponents of the law, Vinson raises issues of integrity by noting that “in 2008, then-Senator Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that “if a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house.”]
If, Judge Vinson says, perceived necessity alone can make unconstitutional measures acceptable under the Constitution, then there is really no limit to the Government’s power, and that is clearly something the Constitution does not approve. Whether his legal analysis is sufficient to convince the U.S. Supreme Court will be decided later, but the judge’s ethical analysis is impeccable.