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."

But that last is exactly what he does. He dismisses a staff report that places the payment under the heading of taxes: "A strong argument could be (and has been) made that the staffers who drafted the report were merely engaging in last minute 'strategic manipulation' to secure results they were unable to achieve through the Act itself." His authority for that? An opinion column in The Wall Street Journal.

His opinion suggests that precisely the same measure, if labeled a tax, would be valid, but because the word was struck out of the original bill, it isn't.

And that brings us to the most troubling part of the opinion. In a final section, Judge Vinson makes much of public statements by President Obama and other political figures that the Act is not a tax increase:

. . . the Act was very controversial at the time of passage. Irrespective of the merits of the arguments for or against it, the legislation required lawmakers in favor of the bill to cast politically difficult and tough votes. As it turned out, the voting was extremely close. Because by far the most publicized and controversial part of the Act was the individual mandate and penalty, it would no doubt have been even more difficult to pass the penalty as a tax. Not only are taxes always unpopular, but to do so at that time would have arguably violated pledges by politicians (including the President) to not raise taxes, which could have made it that much more difficult to secure the necessary votes for passage. One could reasonably infer that Congress proceeded as it did specifically because it did not want the penalty to be "scrutinized" as a $4 billion annual tax increase, and it did not want at that time to be "held accountable for taxes that they imposed." In other words, to the extent that the defendants are correct and the penalty was intended to be a tax, it seems likely that the members of Congress merely called it a penalty and did not describe it as revenue-generating to try and insulate themselves from the potential electoral ramifications of their votes.

What's wrong with this? Every American since Mark Twain has ridicule Congress for its weasely rhetoric and messy, unappealing procedures. But open contempt of Congress is as much of a sin for a judge as contempt of court is for a Congressman. A judge's job is to construe the measure Congress passed, not evaluate the Congress that passed it.

No one I'm aware of has argued that the statute was not validly enacted into law. Judge Vinson's job is to construe it. It is not to read the minds of members or police their rhetoric; it is not to rebuke President Obama (who constitutionally plays no role in writing a statute); it is not to enforce the judge's standards of public debate.

Judge Vinson writess that he is not relying on the "accountability" language to reach his result. If not, why is it there? If it's not a part of the decision, it is a gratuitous signal of a political point of view.

I have been around federal courts for two decades, and often work with judges far more conservative than I am. From my point of view, most of them may be "wrong" on the law; but they are usually seeking, in Lincoln's phrase, to follow the right as God gives them to see the right.

Recently, though, an ominous triumphalism has begun to swell from the conservative side of our judiciary--an almost ostentatious blurring of the roles of legal arbiter and partisan advocate. Some of our judges are increasingly open about their disdain for the Democratic party and its President. Some associate with partisan figures; some permit those close to them to take sides in pending litigation; some order the public to "get over" objections to their decisions; some even seem to want apologies from those who dare oppose them.

Obama and the Democrats are having a miserable year. Judicial invalidation of the health-care law might be a political coup de grace for the President and his party. That doesn't mean a conscientious judge should not invalidate the law--if his or her best analysis suggest it is unconstitutional. But judges, if they are conscientious, would be very careful not to spark suspicions that they are acting to further a cause rather than preserve the Constitution.

The opinion in the Florida case was not careful. I wish that, having read it, I were surer that the court there is truly proceeding on some neutral vision of the law.

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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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