While this development has been widely reported upon, and deeply analyzed -- I write (decidely belatedly) to amplify the point I earlier made: this § 1501 individual mandate controversy should be certified to the Supremes, immediately.
And to note something I've seen no one else admit: Judge Vinson suddenly seems very-concerned about preserving his reputation, after all the dust settles on the § 1501 flap.
Let us be clear -- there are no real issues of triable fact here; this is all simply a matter of finding, and applying, the law -- the Constitutional law. In short, the just sort of law that the Supremes are uniquely empowered to interpret. And so, let's just move on it.
Here is a bit of Judge Vinson's latest (from a 20 page PDF file of his March 3, 2011 order):
. . . .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. The individual mandate has raised some novel issues regarding the Constitutional role of the federal government about which reasonable and intelligent people (and reasonable and intelligent jurists) can disagree. . . .
It should not be at all difficult or challenging to “fast-track” this case. The briefing with respect to the general issues involved are mostly already done, as the federal government is currently defending several other similar challenges to the Act that are making their way through the appellate courts. Furthermore, the legal issues specific to this case have already been fully and very competently briefed.
With a few additional modifications and edits (to comply with the appellate rules), the parties could probably just change the caption of the case, add colored covers, and be done with their briefing.After careful consideration of the factors noted above, and all the arguments set forth in the defendants’ motion to clarify, I find that the motion, construed as a motion for stay, should be GRANTED. . . .
That is a stay no party had yet moved for -- it seems the federal governement was willing to let Judge Vinson struggle under the weight of his own 87 page opinion, for a bit. Smart politics, that.
It is possible -- likely, even -- that it has now dawned on Judge Vinson that his reputation as a conservative jurist has been deeply pock-marked by the activism he exhibited in ruling an entire 3,400 page law unconstitutional. Thus, he stayed his own ruling, sua sponte (at least in part) to avoid additional tarnishing of his reputation should several intermmediate level courts rule he was (way) off base, here.
On the other hand, being overruled directly by the Supremes alone (but not letting the appellate courts pick his reasoning apart, line by line) doesn't carry quite the same sting (kinda' like losing to the ultimate winner in a basketball tournament -- in the final rounds). I do think there is a whiff of that in Vinson's order of this past week. Afterall, the Supremes will likely not discuss each of the five trial level opinions in any great detail -- they'll largely just rule, after analyzing the older Supreme Court precedents, of course.
In any event, it is time for the appellate courts to certify this directly to the Supreme Court, and -- if Judge Vinson's assessment of the 3-2 decision-split thus far is accurate -- that both sides are advancing novel arguments, then we ought to just stop "inventing" law, at the intermediate level.
That (inventing law) is solely the province of the Supremes. Let's just get on with it. Bring on the Supremes.
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