Parsing Judge Vinson’s Oct. 14 Decision in Florida v. Sebelius

Understandably, some readers may be confused by media summaries of Florida Federal District Judge Roger Vinson's decision last Thursday, October 14, in the constitutional challenge by 20 Republican state attorneys general and governors to the health reform law (Affordable Care Act or ACA). In a (necessarily) somewhat complicated opinion, the judge dismissed four counts from the AGs' complaint but permitted two counts to proceed. This post will attempt briefly to clarify what the judge decided.

In his decision, Judge Vinson differed with Judge Dana Sabraw of the Southern District of California, who on August 27 dismissed, on standing and ripeness grounds, a challenge to the ACA's minimum coverage provision, or "individual mandate," by a private advocacy group and individual members. Judge Sabraw, whose decision is now on appeal to the Ninth Circuit, denied these plaintiffs standing to sue because they had not demonstrated that, when the minimum coverage provision takes effect in 2014, they would fail to have insurance in keeping with its requirements. Judge Vinson held it unnecessary for the individual plaintiffs to make such a demonstration. He did not consider the question whether the AGs had standing to challenge the individual mandate, perhaps assuming that, if one among a group of plaintiffs has standing to pursue a common claim for non-monetary relief, they all have standing.

On the merits, Judge Vinson curtly dismissed the AGs' claims on three counts:

Their claim that the "employer mandate," equally applicable to private and public sector employers, violates states' 10th amendment "sovereignty" interests.

Their claim that state sovereignty is infringed by ACA provisions that give states the option of establishing exchanges for marketing health insurance plans for individuals not covered by group plans, or letting the Federal government handle the job. He ruled that their "argument for this claim is directly foreclosed" by a 1981 Supreme Court decision upholding a similar optional arrangement for administration of the Surface Mining Control and Reclamation Act.

The claim that universal mandatory insurance violates individuals' due substantive due process rights under the 5th amendment. Since the post-New Deal "demise of substantive due process in the arena of economic regulation," he noted, such claims cannot stand against laws that, "the legislature could reasonably conclude," are "rationally related to a legitimate end" (except when linked to a right determined by the Supreme Court to be "fundamental"). Here, Judge Vinson stated: "Congress made factual findings in the Act and concluded that the individual mandate was ‘essential' to the insurance market reforms contained in the statute." This, he said, was enough to establish a "'rational basis justifying the individual mandate" (given that the right to determine how we pay for health care is not constitutionally "fundamental").

The above three rulings constitute final decisions and on each the AGs' claims are out of the case, unless reinstated on appeal.

On three issues Judge Vinson declined to dismiss the AGs' case at this juncture. These three issues, however, implicate core features of the ACA.

On the AGs' claim that the ACA unconstitutionally "coerces" states to implement its program of expanding Medicaid to cover all adults up to 133 percent above the federal poverty line, the judge expressed ambivalence. He indicated sympathy for the states' "extremely difficult situation," but scorned their legal argument as "shaky." "Plaintiffs," he said, must "either accept the sweeping changes to Medicaid (which they contend will explode their state budgets), or they withdraw from the system entirely (which they allege could leave millions of their poorest and neediest citizens without any medical coverage.") But, he said, "the current status of the law provides very little support for the plaintiffs' coercion theory argument."

It is not clear what the judge's ambivalence portends. During the oral argument on September 14, he expressed dissatisfaction with long-established constitutional foundations of federal authority vis-à-vis the states, including the 16th amendment authorizing federal income taxation. Was his coercion decision last Thursday preparing the way for a reluctant dismissal of this claim, kicking to higher courts the question whether to change current constitutional doctrine that in his view may inadequately protect state autonomy? Or is he inviting the AGs to show him a chink in the law that could authorize him to grant relief? In any event, the ACA's expansion of Medicaid coverage - and the future capacity of Congress and the Executive Branch to strengthen Medicaid protections, or to upgrade or modify other joint federal-state programs - is still very much at risk in Judge Vinson's court.

The two other issues addressed by yesterday's decision go to the heart of DOJ's case for the validity of the minimum coverage provision or individual mandate. On the first of these - whether Congress' Article I tax-and-spend authority justifies the provision - the judge ruled definitively, not provisionally or preliminarily, against DOJ. He reached this conclusion, he said, because Congress labeled the provision (i.e., the payment owed the government for failure to carry health insurance) a "penalty" and not a "tax." Hence, the tax argument for the mandate is off the table in his court. Notably, however, Judge Vinson rejected the AGs' other arguments on the issue - that structural features and/or the regulatory purpose of the ACA penalty mechanism impugn its status as a constitutional "tax." Higher courts might consider the narrow basis for his ruling as weak and, indeed, nakedly activist. Should unelected judges frustrate Congress' enactment of an historic and consequential statute, simply because of labeling language in the final version of the legislation (though not earlier versions, which did use the tax label)? (Because the judge found the mandate not a tax, he dismissed as moot the state AGs' count alleging that it is an unconstitutional "direct" tax - though he indicated strong sympathy for that argument were it a live issue.)

In any event, for this first phase of the Florida litigation, the validity of the minimum coverage provision will turn entirely on the commerce clause. And here Judge Vinson, who addressed the issue in the final five pages of his opinion, appeared to save the worst for last. As noted above, in evaluating the AGs' substantive due process claim, he pronounced the mandate "rationally related" to eminently valid statutory measures, and. as such, impervious to attack. But when he turned to the commerce clause, he abruptly changed his tune. As an implementation of Congress' authority to regulate commerce, the judge held that this same tight means-end connection is not necessarily sufficient. Instead, he embraced the core contention of ACA constitutional opponents - that the mandate constitutes an "unprecedented" requirement to "compel" individuals to "buy a product," and that such a technique may be ultra vires for Congress to deploy, even though it is rational, and indeed, necessary, to make a plainly lawful statutory scheme work. His quick trip to this destination did not include a stop to address its questionable congruity with his previous substantive due process analysis. Nor, indeed, did Judge Vinson address the necessary and proper clause as construed by all Supreme Court precedents at least since 1937 - which his approach, common to all the ACA challenges, would effectively repudiate.

Judge Vinson insisted that he was not necessarily ruling the minimum coverage provision invalid, only that the AGs' claim to that effect was "plausible." But that invites a return to judicial means-end micro-management of Congress, no less than the pre-New Deal "Lochner Era" substantive due process jurisprudence that, he recognized, has been discredited for 3/4 of a century. Or perhaps reviving Lochnerism by the back door is precisely what Judge Vinson, along with the plaintiffs and their supporters, has in mind. We will soon see.