A conservative federal judge in a conservative area of the conservative state of Florida ruled today on the health care reform act. Not only did he rule that the individual mandate – the requirement that everyone have insurance – was unconstitutional, which was expected. He declared the entire bill unconstitutional.
Judge Vinson acknowledged that this was a bit unusual.
This conclusion [that the entire bill is unconstitutional] is reached with full appreciation for the “normal rule” that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute, but non-severability is required based on the unique facts of this case and the particular aspects of the Act.
Why does the individual mandate raise a constitutional issue when other government health care programs – Medicare, Medicaid, health care for veterans – did not? An article in the The New England Journal of Medicine (NEJM) explains. (emphasis added)
These programs raise no constitutional issue because they are government benefit programs funded by taxes, and the Constitution explicitly authorizes Congress to tax and spend for the general welfare. Had the ACA expanded Medicare eligibility to everyone, or created a new government health benefit program, there would be no constitutional issue. The constitutional controversy is the direct result of the insistence by conservative legislators that any health insurance reform must preserve the private insurance industry, which necessitated the addition of the individual mandate that is now being fought in the courts by similarly conservative forces.
If the bill had included the single-payer option or expanded Medicare, there wouldn’t be a question of constitutionality. With any luck, that’s the direction in which conservative forces will unwittingly push the issue.
I’m POTUS and I’m not going to eat any more broccoli
The NEJM article, written by three lawyers, is titled “Can Congress Make You Buy Broccoli? And Why That’s a Hard Question.” Judge Vinson, a Republican appointee, apparently thinks he can score points by appealing to opponents of broccoli. Like Republican president George H. W. Bush, who once said “I do not like broccoli and I haven’t liked it since I was a little kid and my mother made me eat it. And I’m President of the United States and I’m not going to eat any more broccoli.”
In Judge Vincent’s oral arguments against the bill in December, he asked “If they decide that everyone needs to eat broccoli,” can Congress require everyone to buy broccoli? He continued with the broccoli example in his written decision today: “Congress could require that people buy and consume broccoli at regular intervals.”
The slippery slope argument is a favorite of conservatives. If we need to buy insurance to make sure the insurance industry is profitable (and that rates aren’t exorbitant), can the government require that we buy cars to support the auto industry? The Obama administration’s response is: “It is not shoes, it is not cars, it is not broccoli.”
The broccoli issue is a rather duplicitous one for conservatives. They would be the first to say – bolstered by neoliberal arguments – that individuals should be personally responsible for their health and that those who aren’t responsible have only themselves to blame. At the same time, they don’t want anyone telling them what they should do to stay healthy. That would qualify as a nanny state.
The personal is ultimately political
The NEJM authors point out both the political nature of the health care controversy and the larger issue:
Much of the commentary on the ACA cases reflects political attitudes toward the role of government in health care delivery and financing. Those who believe that the federal government must play a central role tend to believe that the ACA must be constitutional; those who think that the government should have little or no role believe the law must be unconstitutional. But the hard question for the Court will not be the appropriate role of the government in health care. It is a much more general question of constitutional interpretation: Does the Commerce Clause authorize Congress to require individuals to buy products the Congress thinks they should buy to further the general welfare? That question is at the core of our constitutional democracy. The federal government has never exercised its authority in this manner before — and that’s what makes answering the constitutional question so hard.
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Wendy K. Mariner, J.D., M.P.H., George J. Annas, J.D., M.P.H., and Leonard H. Glantz, J.D., Can Congress Make You Buy Broccoli? And Why That’s a Hard Question, The New England Journal of Medicine, January 20, 2011
Scott Hensley, Federal Judge In Florida Rules Health Overhaul Violates Constitution, NPR, January 31, 2011
Ed Pilkington, Florida judge rules against Obama’s health reform, The Guardian, January 31, 2011