Luis's trenchant post on Judge Vinson's healthcare opinion prompted me to reflect on both the opinion and Luis's observations.
(1) After the passage of the Patient Affordable Care Act, I thought challenges to its constitutionality were frivolous. That is, I did not think that those challenges would be taken seriously by any federal courts. Clearly, I was wrong. Let me be clear, I do not think that the Act is remotely unconstitutional. But I did not think that there was one federal judge, much less two who would conclude that either the whole Act or parts of it are unconstitutional. I remain skeptical that a circuit court will find the Act unconstitutional, but I would not wager my house on it.
Nevertheless, the fact that two federal judges have concluded that the Act is unconstitutional means that we are now engaged in a serious, non-frivolous legal debate over the Act's constitutionality. Moreover, now that two federal judges have gone this far, a third conservative federal judge might be more inclined to follow suit. Indeed, Judge Vinson seemed to find comfort in Judge Hudson's earlier opinion, which found the Act's individual mandate provision unconstitutional, though unlike Judge Vinson, Judge Hudson did not strike down the whole thing. As a consequence of the decisions of these two judges finding the individual mandate unconstitutional, it would not surprise me if subsequent district court judges, those inclined to strike down the Act, were bolder and more forceful in their approach. Finally, one must conclude that the possibility that the Supreme Court would find the Act unconstitutional is not far-fetched. Institutional considerations might push the center-right Justices on the Court toward restraint. But again, I would not bet the farm on institutional prudential considerations.
(2) Luis is clearly right that the legal attacks on the Act are simply the continuation of the policy debate. Courts are simply the new arena. Now the fact that these are political attacks does not mean that they are inappropriate or "illegitimate." That is, courts can be appropriate sites of political constestation (or at the very least, I do not mean to say that they cannot so be.) But we should recognize that these lawsuits are simply rehashing the policy debate that we were having a few months ago in Congress.
When I read Judge Vinson's opinion, it is clear to me that he is substituting his views of (a) the proper policy to be enacted and (b) the proper role of the federal government for those of the political process. In my view, the weakest part of Judge Vinson's opinion are pages 45-52 where he is addressing the government's argument that the healthcare market is unique and therefore the Act is good policy. The government argued that the market is unique because (a) people can't opt-out of the market: there is a strong likelihood that we are going to be sick and will seek healthcare; (b) when people seek healthcare hospitals are required by law to care for them regardless of their ability to pay; (c) the cost of care for the uninsured is passed on to the insured. Judge Vinson, a federal judge, not a healthcare economist or public policy specialist, goes on to question whether the government's is right that the healthcare market is unique. He reaches for what seems to be far-fetched parade of horribles, for example the government might force us to buy broccoli, to raise doubts about the government's policy prescription. He concludes by saying that the government's argument that the healthcare market is unique is not "factually convincing." Let's pause here for one minute, though Judge Vinson is extremely learned and wrote a very thoughtful opinion, should he be the one deciding, on factual grounds, that the healthcare market is not unique? Why is that policy decision not one made by the the policymakers?
There is more to say about this opinion, but I'll conclude this long post with one last thought. The proper role of the federal government is both a political question and a constitutional one. Fundamentally, the question is when the constitutional judgment should defer to the political judgment. Judge Vinson thinks this is a federalism problem. I'm not sure where the federalism problem is. If you don't like the fact that the federal government is telling you to buy healthcare insurance, throw the bums out. Why isn't that the answer?