Judge Vinson's Analysis Is Wrong: Congress Exercised "An Enumerated Power"

As the coming hours stretch into days, many, many learned lawyers will likely make this point more eloquently, and forcefully than I have, below -- but here is the gist of it: Judge Vinson has ignored the fact that Congress exercised an enumerated power, in adopting the insurance mandate -- the power to tax and spend. Here is the text of his trial court level ruling.

In December 2010, Judge Vinson rejected the idea that the insurance mandate was a tax, even though Congress directly enacted it as an amendement to the Internal Revenue Code. In so doing, he simply assumed away the case. I will all but guarantee that the Supremes will not take this Vinson route -- for to do so would be to impliedly invalidate many other plainly Constitutional tax and spend schemes. I now pretty firmly expect that Chief Justice Roberts will be the fifth (and deciding) vote for the consitutionality of the insurance provision -- as a rationally-related taxing measure.

Even so, Judge Vinson's opinion does a better job of analyzing the "necessary and proper" clause than Judge Hudson's did. Judge Vinson's opinion still makes an obvious -- and clearly fundamental -- error (though I suspect Vinson's error/omission is intentional, while Judge Hudson's opinion, on the other hand, seemed blissfully unaware of this entire line of reasoning).

So -- to be clear -- Judge Vinson conveniently ignores that the power to tax and spend are enumerated powers for the Congress -- and that then it is plain under Wickard v. Filburn, 317 U.S. 111 (1942), and its progeny -- that Congress may use all necessary and proper means to acheive an enumerated end. Full stop.

That issue is in no way handled by Judge Vinson's opinion. As I wrote at New Year's 2011, about Judge Hudson's decision:

. . . .It is, in any event, a bedrock notion of constitutional law (since McCulloch v. Maryland) that whatever Congress has an emumerated power to acheive, it may do so by all necessary and proper channels, viz:

. . . .Although, among the enumerated powers of Government, we do not find the word “bank” or “incorporation,” we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation are intrusted to its Government.

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional. . . .

-- McCulloch v. Maryland

All that need be shown, then, is that the tax is rationally related to a legitimate end Congress is seeking. . . .

The latest line has (oddly enough!) Chief Justice Roberts voting to uphold the mandate -- as a legitimate exercise of the power to tax (based on his joining Breyer in Comstock last term, without any additional comment). In Comstock, Roberts might have joined the concurrence of Justice Alito, or even the dissent of Justice Thomas, at least in parts -- but he didn't. So, it seems Roberts is a believer in a "BIG" reading of the power in "Necessary & Proper" -- when the power being exercised is an enumerated one. So, buckle up, folks. . . .

Prediction: Vinson and Hudson will be overruled -- their flawed opinions read the entire "enumerated powers" mechanism out of the analysis -- something some combination of Justices Roberts, joined by Ginsburg, Kennedy, Breyer, Sotomayor and Kagan (or all of them, together) simply will not do.

The law -- as signed by the President -- will pass muster; it will stand. You read it here first.

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This really doesn't fit well into my larger points, above, but I think it important to note that a good chunk of Judge Vinson's opinion rests upon hypotheticals (pp 46-48), rather than actual facts. To suggest that this law might lead Congress to decide to force people to eat wheat bread, or broccoli or buy GM cars -- borders on the transparently specious.

Congress has done no such thing -- and that it might, in the future, cannot be the basis for invalidating this law -- which says nothing about wheat, broccoli or GM cars.

Finally, Wickard concerns whether wheat farmers may subvert the wheat market -- not whether one must eat wheat. I am regularly surprised when educated people nod their heads at such illogical arguments.