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.
Ethics Alarms 
There seems to be a logical error or a missing step.
I see the claim that the necessary and proper clause allows means outside what is normally allowed so long as they are within certain tolerances and the ends are allowed.
The individual mandate is the means, so that is covered by the necessary and proper clause, so long as it “consist[s] with the letter and spirit of the Constitution”.
There’s no discussion of whether the individual mandate is in the spirit of the constitution. Instead, it looks like you just state that the individual mandate is bad. You (or the judge) begged the question (traditional meaning) to get to the result.
If the individual mandate is outside the spirit of the constitution, then that piece is unconstitutional. If that piece is excised, the rest of the law is untenable. Where does fruit of the poisonous tree play a role here? Am I missing something?
I’m puzzled. Before commenting on the application of “necessary and proper,’ which is actually part of the Commerce Clause, the judge discusses in detail why the individual mandate violates the Commerce Clause…and I did excerpt a part of that argument. Obviously, the judge’s complete opinion is more thorough, but isn’t
“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.”
…clear enough? It is for me. But you have the link to the opinion.
I see the “ends” test applied to the individual mandate, not the “means” test that is required.
Under this judge’s argument, not being part of the commerce clause shouldn’t invalidate the law. The problem with the individual mandate is forced purchasing. I instead see it as essentially a tax increase and tax rebate for people who perform a specific action.
The bill was not sold that way (ethical hit), but that doesn’t change constitutionality. If this is unconstitutional, so is deducting mortgage interest and daycare. The new home buyer credit should also have been invalidated.
It’s possible that the tax argument was not proffered in this case. I haven’t kept abreast of which arguments were used where. If that’s the case, then the judge followed the law in reviewing what was presented, but his opinion oversteps the bounds and spirit of the law.
The tax argument is DOA, in part because the Democrats swore it wasn’t a tax when they were steamrolling the bill. I think you are wrong about the opinion. And I see a big difference between an incentive to do something and a penalty for not doing it…so does the law. They are indeed two sides of the same coin, but one side is unconstitutional.
The reasons to pass a law donot have to match the legal arguments made in favor of a law. They should, but they don’t have to. As noted before, this can be an ethics hit on the congress that passed the bill, but it doesn’t affect the constitutionality.
Then you get into the legal ramifications of it, and people are coming down on both sides of what the difference is. To me, the difference is semantics, and I haven’t heard anyone back up their point that tax penalties are legally different than taxes and tax incentives.
Jumping back to the Judge again, according to Eugene Volokh (who has been against the law), the Judge should get a dunce award. He ignored precedent of the higher court, and based his opinion on a dissent. Dereliction of legal duty.
I read Prof. Volokh’s take, which is that a District court judge can’t ignore Supreme Court precedent, even if, as in this situation, it is bad precedent. But Vinson’s no dunce, because he’s betting that SCOTUS will over-rule the precedent he ignored—and he’s quite likely right. When Harvard’s Charles Fried just testified last week that under that precedent, the government could make you buy vegetables, I heard a collective “Oh-oh!”
I think there’s a big difference between a tax and a penalty: one is Constitutional. I’ll pay a tax to but gasoline, but I won’t tolerate a law that says I van only drive X-miles a week. That’s more than semantics: that’s defining conduct.
So, judges are now supposed to ignore precedent if they think it’s bad? That’s a direct violation of their oath. It’s the definition of an ethics problem.
Under Vinson’s logic, he actually had to uphold the law as aloud. It’s not his call to change constitutional law. He must only uphold it.
I’m not sure how your gasoline limits on driving example factors in, or whether it has any constitutional significance. Can you enlighten me on the matter. From what I see, you’re willing to pay the tax, so long as they say it’s a tax, not a penalty. The same result and the same means, just different words.
Judges have a lot of power, and if they make a legal mistake, they get over-ruled. It is not usual for a judge to vary from Supremem Court Precedent as Vinson did on the Necessary and Proper issue. I didn’t say judges are supposed to do this; I said he is no dunce: he thinks the precedent should be over-ruled, and made an argument why. Functionally, it makes no difference:the issue will be considered by the Court no matter what he wrote. Vinson is a judge, Volokh isn’t; I’m not going to presume that the professor is right; Vinson, like Volokh, know a lot more about Constitutional law than I do.
With a tax, one is choosing doing something legal but paying a price to do it. With a penalty one is violating the law and being punished. If you don’t see that as an important distinction, I’m not going to be able to change your mind.
Prosecutors have a lot of power, too. So do cops. Doing the thing you know (or should know) is not allowed, is not lessened if you have more power. Does it matter if what I do is ethical and legal? It’ll get fixed later on if someone catches it out.
Vinson was bound to follow precedent and he didn’t do that. This also wasn’t a mistake. He relied on a dissent from a case. He either knew what he was doing, or doesn’t understand the law enough to be a judge.
I do like your “functionally, it makes no difference” argument though. I’m going to use it in response to your argument about the difference between taxes and penalties. It’s exactly what I’ve been saying.
I’m also still waiting for how this has anything to do with fruit of the poisonous tree. Which tree is poisonous? Supreme court precedence?
I often have trouble telling when you are being arch or being serious. Judges, all judges, sometimes just decide to do the right thing as they see it, and concoct an argument supporting it. I’m saying that Vinson, who has an excellent reputation, is better qualified to argue that his position is proper that you are I are qualified to argue otherwise. Lower judges tried to counter Plessy v. Fergusen, the “separate by equal” case.
The “fruit” point was not the legal version, but an ethical analogy: Vinson argued that the provision depended on an unethical means, and thus even if it was necessary for the whole law to work, the end couldn’t justify the means.
When everyone knows that a case is headed to Scotus, the lower courts opinions sometimes get like this…they are briefs more than true opinions. I’m not bothered by it.
I try to argue with arguments that don’t make sense. As you often like to say, the end goal does not justify the means. If you say the judge is ethical, I want to see analysis that backs it up. Same thing if you said the judge was inethical. On a more personal front, I’m pretty strongly pro-choice, but I’ve argued against stupid pro-choice positions on a number of occasions. In your comments, I supported HuffPo and Gawker when I thought the attacks on them were inappropriate and without basis, and I wish both those organizations would die a quick, painful death.
Judges, all judges, sometimes just decide to do the right thing as they see it, and concoct an argument supporting it
That sounds like good conduct for an advocate or trial lawyer, but it is exactly what judges are not supposed to do. They’re supposed to put facts together wither reason to come to a conclusion, not start with a conclusion, and then come up with reasons later. If that isn’t one of your ethical nonos, it should be. It’s definitely a logical problem.
Lower judges tried to counter Plessy v. Fergusen, the “separate but* equal” case
If the judges were saying that, based on the facts provided, certain specific implementations of separate institutions were not equal, then they were fine. If they were saying that separate can never be equal, they were crossing stare decisis and were behaving unethically.
The “fruit” point was not the legal version, but an ethical analogy: Vinson argued that the provision depended on an unethical means, and thus even if it was necessary for the whole law to work, the end couldn’t justify the means.
See, I don’t think the analogy works. You need a poisoned tree before you can have fruit coming off of it. Getting rid of a full law because part is unconstitutional doesn’t meet my standards, but I’m pretty rigid with my analogies. Artistic license is good, but it should be used to promote clarity, not lessen opacity. Understandable first, entertainment second. I do break this principle myself though.
When everyone knows that a case is headed to Scotus, the lower courts opinions sometimes get like this…they are briefs more than true opinions. I’m not bothered by it.
And I think it’s horrible. The litigants and every party with a demonstrable interest in the case can file briefs. Judges showboating because the case happened to go through their court should be discouraged. At the very least, there’s an appearance of impropriety. Vinson is willing to ignore the law to put his stamp on a case. How can any litigant or lawyer trust him in the future?
Volokh isn’t the only commentator on this, by the way. Other scholars feel that Vonson could properly distinguish the mandate from the kind of provision approved as “Necessary and Proper” in the lines of precedents.
I find your refusal to see the difference between tax and a penalty bewildering. Convenient, though.
Which scholars showed the difference? How you interpreted Vinson’s argument above was that if this was allowed, everything was allowed. He based it on a dissent claiming everything was allowed. If he’s following the dissent, this must also be allowed. This is basic logic. I’m not saying I like this precedent, but it doesn’t seem like Vinson could distinguished from it. He drew a line that he wants to be there, but the dissent he relied on says does not exist.
I see a difference between tax and penalty when they are actually different. In this case, a penalty for no insurance is logically equivalent to raising everyone’s taxes and then giving a credit to everyone that purchases insurance. If the bill had been written up that way, would you be fine fine with it?
If the law stood and this all got implemented, can someone tell me, do the people that elect to pay the tax penalty still get medical care? Are they covered under some type of “national” plan?
They’ll get medical care. It’s not a death penalty, but it’s a hefty fine. NOT a tax.
Yeah, but what I read, the cap on the fine for a family is $2095 in a year. I currently pay $3600 a year in premiums. If I get medical coverage for $2095, why pay the extra $1500? Plus, if my employer, who pays probably $10-20k for their end of offering coverage can get by with paying a $2k fine for not offering Health Insurance, shouldn’t we just move to the “National” plan?
tg (can I call you “tg” for short?)
I would have an easier time with the tax, yes…for the vegetable reason.
Remember, please, that I specifically didn’t opine about the legal soundness of Vinson’s argument, just the ethical, the “ends don’t justify the means” reasoning. I got a C+ in Constitutional law, although the test was absurd.
I think that takes us back. I don’t think the label matters if the function is the same. I kind of get the point, but I can’t agree with it. What is, is, no matter what words are used to describe it.
Vinson’s ethical reasoning of dropping all of the law because a fundamental piece was bad, that I’m good with. I’d say it’s like throwing out the loaf of bread because there’s mold on the corner. Unlike cheese, this mold runs deep.
On the topic of constitutional law, I never took it (or went to law school at all), so I’ll grant your C+ is likely more informed than me, so long as the next time we’re talking about the ethics of 13th century Japan, I can use my C in Philosophy of Asian Martial Arts as a credential.
From several sources: “It’s true that Democrats went out of their way to call the fine a “penalty” in the legislation to avoid the more politically toxic term “tax” – and that has figured into these decisions – but there’s a much more important reason why the taxing power argument has been thrown out. The reason is that the fine serves a primarily regulatory function, whereas to be justified under the government’s taxing power its primary purpose must be to raise revenue.”
Are they not trying to raise revenue to offset the costs they expect this population to incur?
Is the mortgage interest deduction not an attempt to foster home ownership?
I still don’t see any functional difference. I will grant that if the precedents allowing taxation are specific on singling out revenue as the only allowed means for taxation, this would probably be a loser.