What Federal Judges Must Do

by Conor Friedersdorf

Orin Kerr objects to Judge Vinson's recent opinion overturning Obamacare:

This might work as a Supreme Court opinion that can disagree with precedent. But Judge Vinson is just a District Court judge. And if you pair Justice Thomas’s dissent in Raich with Judge Vinson’s opinion today, you realize the problem: Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way.


Remember that in Raich, the fact that the majority opinion gave the federal government the power to “regulate virtually anything” was a reason for Justice Thomas to dissent. In Judge Vinson’s opinion, however, the fact that the government’s theory gave the federal government the power to “regulate virtually anything” was a reason it had to be inconsistent with precedent.

Obviously, I’m not arguing that Judge Vinson was bound by Justice Thomas’s dissent. Rather, my point is that Judge Vinson should not have used a first principle to trump existing Supreme Court caselaw when that principle may not be consistent with existing caselaw. Either Justice Thomas is wrong or Judge Vinson is wrong, and Judge Vinson was not making a persuasive legal argument when he followed the first principle instead of the cases. Because Judge Vinson is bound by Supreme Court precedent, I would think he should have applied the cases.

Will Wilkinson sees things differently:

As Slate's David Weigel puts it, "the administration's lawyers are hoping that the next judges who take this case are more concerned with Supreme Court precedent than with, say, the Federalist Papers." But why say "the Federalist Papers"? Why not just say "the constitution"? The American public, and maybe a majority in Congress, naively believes that the constitution itself is the supreme law of the land. In fact, the Supreme Court's prior decisions, which may or may not be well-grounded in the text of the constitution, are the supreme law of the land.

This fact doesn't entail that Article III judges are bound to interpret the Commerce Clause in the same way the Supreme Court recently has done. It simply suggests that failing to go along with the Supreme Court's recently favoured interpretation will get your decision overturned by the Supreme Court... this perfectly reasonable line of argument [in the recent opinion] does not obviously defy the logic of prior relatively permissive commerce-clause decisions. The court has emphasised repeatedly that Congress' powers to regulate interstate commerce doesn't allow it to do anything; it's just so happens that Congress never steps out of bounds. Maybe it finally has. Forcing people to buy something on the grounds that they undermine the goals of some bit of legislation if they don't really is a new thing.