Five Quick Things About The New Health Care Ruling


Judge Roger Vinson (AP/Pensacola News Journal/Tony Giberson)

1.  Perhaps U.S. District Judge Roger Vinson is getting paid by the word. It took the trial judge 20 pages to say what he could have said in two: The feds are running out of time to perfect their appeal of Judge Vinson's memorable January ruling that struck down the entirety of the Patient Protection and Affordable Care Act. If Judge Vinson hadn't stayed the effect of his ruling, the only one of its kind in the nation to void the entire health care law, the 11th U.S. Circuit Court of Appeals almost certainly would have anyway. And none of any of this, mind you, has anything to do with the merits of the case or the ultimate fate of the new health care law at the United States Supreme Court.

2. Enough already with the broccoli mandate. Part of the reason why Judge Vinson's second health care ruling is so unnecessarily long is because he devoted a part of it to the so-called "broccoli mandate." That's the argument made by conservatives that if the Affordable Care Act is endorsed by the Supreme Court under the Congress' "Commerce Clause" power there will be no logical end to the legal power federal lawmakers to regulate what we eat, etc. Whatever the merits of the point, it has nothing to do with the government's motion to clarify the judge's earlier ruling, and it has even less to do with the central question in the order of whether to allow the state and federal officials to continue to enforce the Affordable Care Act pending final judicial review. And yet Judge Vinson devoted 32 single-spaced lines in a footnote to play the broccoli card.

3. Mandating mental decisions. In unilaterally deciding to stay enforcement of his order, Judge Vinson wrote: "... I cannot say that the defendants do not have a likelihood of success on appeal. They do. And so do the plaintiffs. Although I strongly believe that expanding the commerce power to permit Congress to regulate and mandate mental decisions not to purchase health insurance (or any other product or service) would emasculate much of the rest of the Constitution and effectively remove all limitations on the power of the federal government, I recognize that others believe otherwise." Written like a true debate champion, no? Except that it seems to me that the law already mandates all sorts of "mental decisions."

4.   Backing away a bit. On the one hand, Judge Vinson writes that he made it clear in his January ruling that the law was struck down and that the feds needed to take some affirmative act to restore the status quo ante pending appeal. On the other hand, the judge seems awfully receptive to the arguments made by federal attorneys as to the tumult that would ensue if enforcement of the entire Act were now halted (as he originally indicated). "I agree," he now writes, "that it would indeed be difficult to enjoin and halt the Act's implementation while the case is pending appeal. It would be extremely disruptive and cause significant uncertainty." What, he didn't know all that back in January? Like many other judges, Judge Vinson should have automatically stayed his ruling back then, which is probably why he sua sponte did it now.

5.   Nothing to see here, folks. Just keep moving. The sequel is rarely as good as the original, right? This sequel from Judge Vinson will be long forgotten by the time the Justices in Washington decide the constitutionality of the Affordable Care Act. It constitutes a ministerial function posing as a political statement and legal justification (not that there is anything wrong with that). Yes, I know that the Justice Department asked for a "clarification" of Judge Vinson's ruling. He should have responded: "I've got your clarification right here." The only truly interesting part of Thursday's news is that the judge felt compelled to devote so much time and energy to explaining himself again. If I'm the feds, I am running, not walking, out of this guy's courtroom.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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