Pensacola-based Judge Roger Vinson’s decision to invalidate the Affordable Care Act has been met with predictable derision on the left as “activism” and “driven…by ideology.” While not undeserved, such epithets do a disservice to progressives who both oppose Vinson’s decision and support causes such as abortion rights, same-sex marriage and civil liberties.
The core problem with Vinson’s opinion is not that it is “activism” or that it is “political.” The core problem is that it’s wrong. Making that case—the case for the healthcare law on the merits—is where progressive energies should be channeled. Judge Vinson’s decision does half the heavy lifting here. Its elaborate contortions of law, history and fact illustrate how hard it is to make a legally plausible, or ethically palatable, case against the individual mandate.
Most critics of the decision thus far have made one of two arguments: either they have opposed Vinson’s superfluous invocation of colonial protests against import taxes—a hat tip to the current tea party—or attacked his decision to leap from the putative unconstitutionality of the mandate to finding the whole law invalid.
Both are fair criticisms. The history of the colonial tea party is irrelevant to the legal question at hand. And on the question of whether the whole act should be invalidated, it is right to criticize Vinson for reading from the Congressional Republican playbook.
But both arguments miss a deeper point. In arguing that the individual mandate is unconstitutional, Vinson unwittingly demonstrates the weakness of both the legal and the moral case against the mandate.
The crux of Vinson’s argument is a distinction between “activity” and “inactivity” for the purpose of determining whether Congress has the power to create an individual insurance mandate under its “Commerce Clause” power. Vinson is picking up on the argument of the law’s opponents, who argue that Congress has no power to regulate “inactivity” under the Commerce Clause, only commercial activity. As Vinson concedes in a moment of candor, no previous Supreme Court opinion turns on this distinction. Indeed, no court ever even raised the possibility of such a distinction before now. Vinson is therefore obligated to explain why the distinction is relevant. Without an activity/inactivity distinction, he argues, “it would be virtually impossible to posit anything that Congress would be without power to regulate.” And if Congress can regulate a “passive individual for failing” to do something, “we would have a Constitution in name only.” Congress, Vinson worries, could even “require that people buy and consume broccoli.” Totalitarianism begins at “Eat your greens!”
This is stirring stuff—if you think that people have a basic right to be free of regulation in some sphere of commercial decisions. Vinson’s argument rests on a claim about a right to be let alone with respect to the decision about whether to pay for some kind of health insurance. It is a very particular kind of economic libertarianism in judicial diktat form.
The right to be let alone is an immensely appealing in all quarters of the political spectrum. But conservatives and progressives have very different ideas of what that freedom encompasses: the right to not pay for health insurance but the duty to pay for the world’s largest military? The right to carry a gun or the right to lifelong partnership with the person you love, whatever their gender? Vinson’s opinion is a case study for why one particular kind of economic libertarianism should not and cannot stand as law or national ethic.