When Judges Use Partisan Logic: The Health-Care Case

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Republicans talk a lot about "the judicial mainstream." I hope their idea of the "mainstream" is not on display in the Northern District of Florida's recent decision on the constitutionality of the health-care act.

The decision, by Senior District Judge Roger Vinson, at least preliminarily held that the Patient Protection and Affordable Health Act is an unconstitutional overextension of Congress's power over "commerce among the several states." This question deserves careful attention from the courts. Some very smart people disagree with me and think that Congress has transcended its limits.

But the implied bargain of our system is that Article III judges will make a decision like this on the basis of the Constitution itself, not because of objections to the idea of a government health-care system or, even worse, because of judges' partisan preferences.

I'm far from confident that this judge is being careful of the difference.

The Act imposes a special requirement on taxpayers (and only on taxpayers) who don't have health-insurance coverage either through a government program, an employee-benefit program, or an individual heath policy. These taxpayers must either buy a policy, obtain a hardship waiver, or make an additional payment of 2.5 percent of their taxable income, up to a maximum of $695.

I call this an "additional payment" because in some ways the key issue in the case is whether it's an additional "tax" or a "penalty." If it's a tax, then the case is more or less over--under the Constitution, Congress has power to "to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States." That power is independent of the power over commerce. Congress can pretty much write the tax laws as it wants, to encourage behavior it approves and discourage behavior it doesn't.

If the payment is a penalty, however, the Constitution requires Congress to show that it is acting on the basis of another enumerated power. That triggers the argument, which I discussed in my last post, over whether the payment is a regulation of "inactivity" (as the opponents of the measure assert) or a regulation of how and when individuals pay for a commercial product they must eventually consume--health care, an interstate industry that consumes one-sixth of the gross domestic product.

Judge Vinson concluded that the payment is a penalty. He brushed aside the government's arguments--the most important one is that the measure is included in the Internal Revenue Code and collected, only from taxpayers, by the IRS. In part, he reached that conclusion by noting that, unlike other provisions of the tax laws, the payment is not to be enforced by property levies or criminal penalties. He also makes much of the fact that the Act doesn't call it a tax.

I want to believe that Judge Vinson is serious when he says that "for purposes of this case, it matters not whether the Act is wise or unwise, or whether it will positively or negatively impact healthcare and the economy." That's a basic statement of a judge's role in a case like this. But I am having trouble suspending my disbelief.

The entire opinion is drenched with evidence of the judge's hostility to the Congress that passed the Act. At first, it is disguised in a kind of "fair and balanced" rhetoric. ("Some say [the Act] was the product of an open and honest process between lawmakers sufficiently acquainted with its myriad provisions, while others contend that it was drafted behind closed doors and pushed through Congress by parliamentary tricks, late night weekend votes, and last minute deals among members of Congress who did not read or otherwise know what was in it.") But the opinion's judicial method, to my eyes, suggests strongly that Judge Vinson holds the latter view, and that he is relying on that distaste for the Act and the process to shape his view of the underlying issue.

The most orthodox way to assess whether the payment is a penalty or a tax would be simply to assess the statute's language and how the provision functions. And here there is much to disagree about--including the enforcement mentioned above. (Yes, it is a tax, it's collected from taxpayers only; no, it's not a tax, the Act calls it a "penalty" and doesn't use the term "tax"; yes, it is a tax, it's collected by the IRS; no, it's not a tax, it's not enforced the way other taxes are, etc.) Only slightly less orthodox would be to look at the legislative history--reports and documents prepared for the committee that wrote it and the lawmakers who voted on the floor. Least appropriate would be to, as Judge Vinson says, "divine hidden and unstated intentions."

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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