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Monday, January 31, 2011

Quick Reax to the FL Dist. Ct. Health Care Ruling

Unsurprisingly to those who read its earlier opinion, the federal district court in Florida has held that portions of the Affordable Care Act are unconstitutional.  Also unsurprisingly to those who may recall my blogging last year on this subject, I think the court's all wet.   

To begin with, the court asserts again (at p. 39) the fallacy that the additional tax on those who do not purchase health insurance is "unprecedented."  As I explain in a new draft (page 8, at the top of Part III), that just isn't remotely true; there are literally hundreds of other statutes that do exactly what the ACA does, which is to impose a higher tax on someone who elects not to do what Congress wants.  In fact, there is already more than one statute that imposes higher taxes on folks who don't buy insurance.  While the Court claims this point isn't determinative, it is the first thing the court says in its analysis, and certainly flavors the discussion.

Things get slippery, and start to smell like over-cooked broccoli, after the jump. 

As for the rest of the court's argument, basically, the whole thing is just a slippery-slope: if Congress can do this, what can't it do, etc.  (p.43-56).  The Court says the link between requiring an insurance purchase and other provisions of the act is just as attenuated as the link between buying broccoli and health care, and says it is "piling inference on inference."   It waives aside (50-51)  the government's argument that must-carry provisions collapse into death spirals with no real explanation, except to say that five things have to happen before that occurs.   (But, um, those five things happen millions of times every year...) And it repeats its bizarre claim that the necessary & proper clause cannot allow Congress to enact provisions that would extend beyond what is enumerated (p.62), even though that of course makes the entire clause redundant. 

To keep this short, the one point I'll make is that the ACA and its accompanying incentives to buy insurance overcome a collective action problem among states (see pp. 3-4).  Thus,  the ACA is easily distinguished from the court's parade of broccoli horribles; even if one thought that the federal government should deal only with uniquely national problems, the ACA easily meets that standard. 

Posted by BDG on January 31, 2011 at 04:49 PM in Constitutional thoughts, Tax | Permalink

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Prof. Galle, it seems like you're conflating arguments. The court rejected it as a tax; it then held that this type of regulation (on inactivity) is "unprecedented." I don't believe the court every makes the claim that "the additional tax on those who do not purchase health insurance is 'unprecedented.'" Now, you may well believe that the court is wrong to reject it as a tax, as your paper points out, but the court (see n. 4) rejects it as a tax, as have all of the district courts to have considered it. But I don't think the court is concluding that the tax is "unprecedented" simply because I don't think the court thinks it's a tax in the first place.

Posted by: anon | Jan 31, 2011 4:56:52 PM

To be clear (since I seem to have confused at least one reader), my argument is that there are many laws that have the exact same effect as the ACA's incentive to purchase insurance. Therefore, it is false to claim that the statute is unprecedented. Whether or not these other incentives take the form of taxes is irrelevant to my point. If the court had claimed something like, "Congress has never enacted a provision like this in reliance exclusively on the commerce power," then perhaps it would matter whether the precedents are tax precedents. But that's not what the court says; it (echoing Barnett) claims that there is no other statute like this one, full stop.

Posted by: BDG | Jan 31, 2011 6:22:14 PM

Hey BDG,

Nice post, and nice work in general on this topic.

Let me add an additional observation concerning the truly radical, and imho illogical, nature of the slippery slope argument here.

1. Leaving aside the semantic argument over what's a tax, you've noted in earlier posts (or maybe one of your articles) that the "mandate" when complied with has precisely the same incentive effects as a universal lump-sum tax coupled with a subsidy in the identical amount for those who purchase a qualified health plan.

2. Now let's play the Hudson-Vinson-et-al game. Since the "mandate" has identical effects to a tax-and-subsidy plan, and since the "mandate" would convey breathtakingly broad and therefore unconstitutional powers on Congress, it must be that a tax-and-subsidy plan itself is unconstitutional.

3. Indeed, no doubt there are *lots* of policies that can be re-described in semantic terms that fit the Congress-could-do-anything-if-it-could-do-that line of argument.

4. So, it seems one must live with one of the three following regimes of judicial review:

(a) Policies that are substantively identical to obviously constitutional ones should be upheld as constitutional;

(b) Policies that can be conceived of in a way that as a prima facie matter violates the principle of enumeration-and-thus-limitation are indeed unconstitutional, and therefore substantively identical policies that would otherwise be held obviously constitutional should instead be held unconstitutional;

(c) When Congress is silly enough to use the "wrong" set of words to effect a given policy, a court should hold that policy unconstitutional, even though the same court would hold the same policy constitutional if (a smarter) Congress had used the "right" set of words to effect the exact same policy.

5. Surely it trivializes the whole idea of judicial review to choose either (b) or (c).

Jonah

Posted by: jonah gelbach | Jan 31, 2011 6:30:56 PM

I'll just note that my brain automatically shuts off when I hear slippery slope anti-mandate arguments. We have a veritable crapload of empirical evidence that jurisdictions that impose purchase mandates do not spiral downward into requiring that everyone purchase broccoli three times a week. They're called "states." All of them impose at least auto insurance mandates, and none of them require broccoli purchases -- not even California and Arizona (the largest broccoli producers).

Posted by: Joe | Jan 31, 2011 6:59:41 PM

Any word on whether the government is filing Rule 11 sanctions against the plaintiff's attorneys?

Posted by: anon | Jan 31, 2011 7:52:18 PM

Any word on whether the government is filing Rule 11 sanctions against the plaintiff's attorneys?

It should. The plaintiffs' theory is unprecedented and novel. Yet they try to pass it off as settled law -- which it isn't. The opposite, in fact. Partisan hack judges notwithstanding.

Posted by: Joe | Jan 31, 2011 9:24:44 PM

George W. Bush (43) appointed Judge Vinson. George W.'s father (41) hated broccoli all his life. 43 had Iraq invaded in 2003 presumably because Saddam wanted 41 dead because of Iraq I. Does this suggest a "six degrees of Kevin Bacon"? Something isn't Kosher.

Posted by: Shag from Brookline | Feb 1, 2011 8:24:33 AM

A lot of so-called law professors who do not understand the law nor the constitution teach at law schools.

Posted by: John | Feb 1, 2011 3:12:46 PM

Last I checked, being a "so-called" anything implies that you are not, in fact, that. Regardless of the knowledge contained therein, most of those who teach at law schools were appointed to faculties, and may therefore be properly addressed as law professors.

And do you really have to understand the Constitution to teach Corporations? I could see it helping with your research, but teaching the basics doesn't seem to call for a deep Constitutional understanding. So, even if John's comment is true, I'm unsure of its importance.

Posted by: Matthew Reid Krell | Feb 1, 2011 4:40:13 PM

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