The most surprising part of Judge Roger Vinson’s ruling was his argument that the individual mandate was not severable from the health care law as a whole and must therefor bring down the entire Affordable Care Act. “In sum, notwithstanding the fact that many of the provisions in the Act can stand independently without the individual mandate (as a technical and practical matter), it is reasonably ‘evident,’ as I have discussed above, that the individual mandate was an essential and indispensable part of the health reform efforts, and that Congress did not believe other parts of the Act could (or it would want them to) survive independently,” Vinson writes.

But a closer read of his analysis reveals something peculiar. In fact, as Vinson himself admits in Footnote 27 (on pg. 65), he arrived at this conclusion by “borrow[ing] heavily from one of the amicus briefs filed in the case for it quite cogently and effectively sets forth the applicable standard and governing analysis of severability (doc. 123).” That brief was filed by the Family Research Council, which has been branded as a hate group by the Southern Poverty Law Center (SPLC).

“The Family Research Council (FRC) bills itself as ‘the leading voice for the family in our nation’s halls of power,’ but its real specialty is defaming gays and lesbians,” SPLC says. Indeed, so-called FRC “experts” (who most recently lobbied to preserve Don’t Ask, Don’t Tell) have argued that “gaining access to children” “has been a long-term goal of the homosexual movement” and claimed that “[o]ne of the primary goals of the homosexual rights movement is to abolish all age of consent laws and to eventually recognize pedophiles as the ‘prophets of a new sexual order.” FRC President Tony Perkins has even described pedophilia as a “homosexual problem.”

Here is how Vinson lifts FRC’s argument:

Vinson’s opinion:

Severability is a doctrine of judicial restraint, and the Supreme Court has applied and reaffirmed that doctrine just this past year: “‘Generally speaking, when confronting a constitutional flaw in a statute, [courts] try to limit the solution to the problem,’ severing any ‘problematic portions while leaving the remainder intact.’” [...]

The question of severability ultimately turns on the nature of the statute at issue. For example, if Congress intended a given statute to be viewed as a bundle of separate legislative enactment or a series of short laws, which for purposes of convenience and efficiency were arranged together in a single legislative scheme, it is presumed that any provision declared unconstitutional can be struck and severed without affecting the remainder of the statute. If, however, the statute is viewed as a carefully-balanced and clockwork-like statutory arrangement comprised of pieces that all work toward one primary legislative goal, and if that goal would be undermined if a central part of the legislation is found to be unconstitutional, then severability is not appropriate. As will be seen, the facts of this case lean heavily toward a finding that the Act is properly viewed as the latter, and not the former.

Family Research Council:

Severability is fundamentally a doctrine of judicial restraint. “Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem.” [...]

The question of severability is a judicial inquiry of two alternatives regarding the nature of a statute. One possibility is that Congress intended a given statute as a bundle of separate legislative embodiments, which for the sake of convenience, avoiding redundancy, and contextual application, are bundled together in a single legislative enactment. This makes a statute a series of short laws, every one of which is designed to stand alone, if needs be. The second possibility is that a given statute embodies a carefully-balanced legislative deal, in which Congress weighs competing policy priorities, and through negotiations and deliberation crafts a package codifying this delicate balance. Congress is thus not voting for separate and discrete provisions. Instead, Congress is voting on a package as a whole, any modification of which could result in the bill failing to achieve passage in Congress. As both Plaintiffs‟ briefs and the following argument shows, the Individual Mandate falls within the latter category, not the former.

Vinson’s conclusion is peculiar because Congress usually defers to Congress on questions of severability. In fact, even Judge Henry Hudson — the Virginia Judge who also found the individual mandate to be unconstitutional — left the whole of the law intact noting, “It would be virtually impossible within the present record to determine whether Congress would have passed this bill, encompassing a wide variety of topics related and unrelated to health care, without Section 1501…Therefore, this Court will hew closely to the time-honored rule to sever with circumspection, severing any ‘problematic portions while leaving the remainder intact.’”

As Chief Justice John Roberts noted in Free Enterprise Fund et al. v. Public Company Accounting Oversight Board, “Because ‘[t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions,’ Champlin Refining Co. v. Corporation Comm’n of Okla. , 286 U. S. 210, 234 (1932) , the ‘normal rule’ is ‘that partial, rather than facial, invalidation is the required course.’”

Moments ago, U.S. District Judge Roger Vinson — a Reagan appointee on Northern District of Florida — struck down the entire Affordable Care Act, ruling that since the individual mandate is unconstitutional, the entire law is void. “Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void,” he writes. “This has been a difficult decision to reach, and I am aware that it will have indeterminable implications. At a time when there is virtually unanimous agreement that health care reform is needed in this country, it is hard to invalidate and strike down a statute titled ‘The Patient Protection and Affordable Care Act.’”

It’s the kind of over-reach that will do more to harm the Republican crusade against the law than help it. At one point, Vinson even embraces the entire Tea Party rationale against the Act and suggests that it could lead to total government domination:

If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting — as was done in the Act — that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only.

But the “activity” vs. “inactivity” distinction is hard to swallow since the actual text of the Constitution makes no mention of such a difference. The clause as written gives Congress the power to regulate economic decisions and there is a long line of Supreme Court cases that reinforce Congress’ broad power to enact laws that substantially affect prices, marketplaces, or other economic transactions. Health care comprises some 17 percent of the national economy and the failure to purchase health insurance — the very passivity that Vinson is referring to — is having a significant impact on national health care spending and growing costs.

But this too is an argument that he rejects. “If impact [of the uninsured] on interstate commerce were to be expressed and calculated mathematically, the status of being uninsured would necessarily be represented by zero. Of course, any other figure multiplied by zero is also zero. Consequently, the impact must be zero, and of no effect on interstate commerce.” Caring for the uninsured, in other words, is free and creates no cost shifts throughout the system.

That’s just not true (doctors and hospitals and treat the uninsured for free) and the argument unravels further when Vinson completely dismisses the Necessary and Proper Clause by arguing that it’s subservient to the Commerce Clause. That Clause, Vinson writes “is not really a separate inquiry, but rather is part and parcel of the Commerce Clause analysis as it augments that enumerated power by authorizing Congress ‘To make all Laws which shall be necessary and proper’ to regulate interstate commerce.”

This is the kind of distortion that really undermines the entire decision and sets Vinson apart as an activist who has decided that Congress has no power to regulate insurance companies, establish exchanges, extend drug discounts to seniors, and give small businesses tax credits to help purchase insurance are all unconstitutional. Conservatives should be outraged.

Today, Judge Roger Vinson is expected to become the second federal judge to strike down a portion of the Affordable Care Act (at least fourteen other judges have dismissed claims that the law is unconstitutional). While the right is certain to crow about this decision the minute it is handed down, the truth is that lower courts routinely strike down landmark legislation before that law is eventually upheld — and there is every reason to believe that the Supreme Court will do the same here:

• Minimum Wage: In United States v. Darby, the Supreme Court upheld a federal minimum wage and overruled  a prior decision striking down federal child labor laws. This decision reversed a district judge’s opinion declaring the minimum wage unconstitutional.
• Social Security: In Helvering v. Davis, the Supreme Court reversed a court of appeals decision declaring Social Security unconstitutional.
• Whites-Only Lunch Counters: In Katzenbach v. McClung, the Supreme Court upheld the federal ban on whites-only lunch counters — reversing a district court’s decision striking down this law.
• Voting Rights Act: In Katzenbach v. Morgan, the Supreme Court reversed a district court decision striking down a portion of the Voting Rights Act (the Court since stepped back from the reasoning applied in Morgan, but the Voting Rights Act remains good law).

Judge Vinson is going to do what he’s going to do today, but if he does strike down health reform, he will find himself in some pretty unpleasant company.