Too often judges in federal district court these days appear to be reading the rules to tilt the case towards the right. That could be because the vast majority have been appointed by Republican presidents or otherwise have been known to hold views to the right of the political spectrum. It may be because so many of them have gone through indoctrination into "free market" economic ideology through the Olin Foundation and George Mason Law School's sponsorship of so-called "seminars for federal judges.
(The Olin Foundation and George Mason Law School are notorious for pursuing an openly activist right-wing agenda aimed at "educating" the federal judiciary in Chicago School free-market economic ideology. The Olin Foundation spent its entire endowment fairly quickly with the objective of influencing the public debate, and much of that was spent to further free-marketarian ideology. George Mason's reputation is owed to an aggressive economist named Henry Manne (who, for example, supports legalization of insider trading). Manne came in as dean with an agreement permitting him to eliminate many tenure track faculty with other views and even to "encourage" many tenured professors to leave under a program aimed at remaking the George Mason faculty so that everyone would be on the same ideological "law and economics" track. For Henry Manne's own description of the creation of George Mason as a one-track law school, see "How Law and Economics Was Marketed in a Hostile World" on SSRN.)
At any rate, the recent decision in Commonwealth of Virginia v. Kathleen Sibelius, Civ. No. 3:10-CV188-HEH (E.Dt. VA 2010), on whether Virginia's challenge to the health care insurance mandate can go forward appears slanted towards the "state's rights" "anti-federalist" "anti-tax" agenda from the right. The state, remember, is claiming that it has a state right under the Tenth Amendment to contest a federal tax or commerce clause statute based on the fact that the state passed a law saying that its citizens did not have to purchase insurance. This language brings unmistakable echoes of pre-civil war days' pro-slavery talk of state's rights. The federal government argues that the decision to purchase or not purchase insurance inevitably impacts interstate commerce, since every person will need health care at one time or another and thus every person's action or inaction affects interstate commerce. This seems undeniably clear. The government also notes that there is a law, the anti-injunction act, which is intended to protect the federal government from having to respond in this way to challenges to tax statutes, since otherwise it would be impossible to enforce the tax laws with numerous challenges to sections of the law from any number of plaintiffs.
The judge gives incredible credence to the state's right argument that because Virginia passed (after the federal law had been enacted) a law that conflicts with federal law, therefore Virginia must have standing to challenge the federal law in federal court. The judge says that the disagreement about whether Virginia's mere passing of a law that conflicts with the federal law provides standing for the case requires further legal development "in order to adequately address the Commonwealth's Tenth Amendment argument"! This is an invitation to rebellion by the states against the supremacy of federal law and the enforcement of any federal law disliked by the states.
Further, the judge stomped over the anti-injunction act. What is the state's argument? That the anti-injunction act doesn't apply to states, period, or alternatively, that the state's suit falls within the exception, since there is no remedy other than injunction for a state that is defending its own laws. Really, these two arguments are alternative sides of the same coin--a claim that a state always has the right to seek judicial vindication of a state law that it passes that conflicts with a federal statute, in spite of the anti-injunction act. The judge states that the "central issue" in the case is Virginia's interest in upholding it's "health care freedom act"--a declaration that Viriginia citizens do not have to buy insurance (in spite of the federal mandate). As Jack Balkin so ably comments (see link below), the judge's acceptance of this argument opens the way for states to challenge anything in the Internal Revenue Code by passing a declaratory resolution indicating that they don't think it should be treated as constitutional or that conflicts with the particular provision in question.
As for the commerce clause power, the court also treats Wickard v. Fillburn (the Supreme Court case that held that growing wheat for one's own use is subject to the commerce clause power) as not decisive on this issue. Virginia claims that the decision not to purchase is not an economic act, compared to the decision to purchase or the decision to grow one's own as a substitute for purchase. That distinction does not appear to have any merit. The decision not to purchase insurance and the decision not to purchase wheat are surely similar decisions to try to avoid the commercial flow by managing on one's own. Yet surely one's interaction with the health care system is much more clearly a question of interstate commerce even than one's ability to grow wheat at home and avoid the purchase of wheat--even people who pretend to provide their own health care at home will at one time or another impinge on the health care system in all likelihood, whether because they are in a transportation accident, an accident outside their home, a work injury or illness, or taking advantage of free medical care such as vaccinations, etc. The judge however, concludes that the precedent is inconclusive and that the government has failed to show that the state has not stated a valid commerce clause claim.
Finally, the judge follows Virginia in conflating the Commerce Clause and Taxation Power arguments. It accepts the idea that if "economic inactivity" (which is a misnomer, since it is clearly economic activity to provide one's own care, just as imputed income from providing one's own home is real economic activity) is not accessible under the commerce clause, then it shouldn't be reachable under the tax power. This is an extraordinarily poorly reasoned section of the opinion.
For a thoughtful and articulate analysis of the standing issues, see Jack Balkin's blog, Judge Preserves Constitutional Challenge to Individual Mandate (Aug. 2, 2010) [hat tip Ellen Aprill and the Tax Prof discussion group].
Allowing this case to go forward leaves health reform in turmoil. It could take years for the different cases to wend their way through the courts, and ultimately the Supreme Court will likely have to rule.
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