Shortly after Tea Party Judge Roger Vinson issued an error-ridden opinion striking down the Affordable Care Act, a non-party to the lawsuit named Robert Smith attempted to appeal Vinson’s decision. Vinson promptly replied by dismissing Smith’s notice of appeal on the grounds that, as a non-party, Smith cannot appeal. Yet there’s a big problem with Vinson’s decision to dismiss this appeal — as a trial judge, Vinson lacks the legal authority to decide an appellate matter.

The U.S. Court of Appeals for the Eleventh Circuit released an order today reminding Vinson who is in charge:

A district court has a ministerial duty to forward to the proper court of appeals any notice of appeal that is filed. District courts cannot dismiss an appeal based on a perceived defect.

In light of these well-established principles, Respondents, including the District Judge, are directed to file a response to the petition for writ of mandamus within 14 days of the date of this order.

It is, to say the least, unusual for a court of appeals to order a trial judge to explain why he failed to follow the law in handling a routine matter. While it is likely that Smith’s appeal will ultimately be dismissed by the Eleventh Circuit, Vinson’s inability to complete an easy and purely ministerial task raises questions about his competence.

Moreover, it is reasonably likely that the Eleventh Circuit issued this unusual order as a warning to Vinson against overreaching his own authority yet again. In Vinson’s erroneous decision striking down just one provision of the Affordable Care Act, Vinson not only reached the bizarre conclusion that the entire Act must be cast aside because one small piece is “defective,” he also implied that the federal government must immediately cease applying any part of the law. DOJ responded to Vinson’s legally-questionable opinion by pointing out that, among other things, Vinson did not take any of the legal steps that a judge is required to take before enjoining a party against future action — and seeking clarification about whether Vinson really meant that, despite his own failure to carry out these required legal steps, the United States is no longer allowed to enforce the ACA.

In light of this context, today’s Eleventh Circuit order pointing out a different, far less significant error on Vinson’s part could very well be a warning to the Tea Party judge that his judicial superiors are watching and they are prepared to put him in his place.

In testimony before the House Judiciary Committee today, former acting Solicitor General Walter Dellinger predicted not only that the Supreme Court will reject the meritless lawsuits challenging the Affordable Care Act, but also that the opinion will be written by conservative Chief Justice John Roberts:

I would wager that Chief Justice Roberts writes the opinion upholding the law. . . . He won’t want to say that the market alternatives are ruled out and you can only use monolithic government alternatives, he’s going to write an opinion to say that this is upheld—not because Congress can use its commerce power to impose affirmative obligations willy nilly to purchase products—but it [will be] upheld because of all the reasons we’ve said about the central role it plays in avoiding the displacement of costs onto other citizens.

Watch it:

As Dellinger points out, the lawsuits attacking the ACA do not question that Congress has the power to create entirely-government run health programs such as Medicare, so a Supreme Court decision striking down President Obama’s key accomplishment would have the strange result of requiring national leaders to reform the health system without allowing them to rely on this exclusively market-driven solution. That seems like a odd line for a corporate conservative like Roberts to draw.

Moreover, Roberts has shown little appetite for the radical vision of states rights which drives the challenges to health reform. In the Court’s most important federalism decision since he joined the Court, United States v. Comstock, Roberts joined the Court’s four moderates in refusing to roll back Congress’ power to ensure that federal laws function effectively. Roberts is also perfectly aware of the fact that radical states rights doctrines cut both ways, and many of the same tenther arguments that would kill progressives’ ability to fix the U.S. health system would also cut back on Roberts and other conservatives’ power to give corporations broad immunity from state law.

There are, of course, no good legal arguments against the Affordable Care Act. As Adam Serwer points out, however, there are political arguments against it. In a post Bush v. Gore era, there is always the risk that Roberts and his fellow conservatives will simply ignore everything that has come before them and dream up some tortured reason to strike down the law.

But there is good reason to believe that a purely cynical John Roberts would vote to uphold the ACA entirely because it will enhance his power to do the right-wing’s bidding. Most political commentators do not distinguish between corporate conservatives such as Roberts and tenther conservatives such as Justice Thomas, even though the two justices sometimes wind up on opposite sides of major constitutional cases. So if Roberts were to reject the ridiculous legal arguments against the ACA, such a vote would immediately be held up as proof that the Court is not the kneejerk servant of wealthy interest groups that Roberts has fought so hard to transform it into.

For years after Roberts did nothing more than turn his back on legal claims that border on frivolous, his corporate backers could cite his Affordable Care Act decision as proof that he is an honest and non-ideological judge. Roberts would then eagerly wield this political cover to enact the one agenda he cares most about — shielding powerful corporations from the law.

In an attempt to bypass the majority-Democratic Fourth Circuit, Virginia Attorney General Ken Cuccinelli filed a petition today asking the Supreme Court to bypass this intermediate court and hear his challenge to the Affordable Care Act immediately. The petition, which is exceedingly unlikely to prevail, is vintage Cuccinelli. It warns of a “steady drumbeat of new lawsuits” that “punctuate the news.” It attacks the so-called “florid deal-making” that led to an act being “cobbled together in secret.” The ACA, Cuccinelli warns, “has roiled America.”

Yet, while the petition spares no adjectives in expressing Cuccinelli’s disdain for health reform, one thing is conspicuously absent from the petition — a key argument that formed the basis of Judge Roger Vinson’s erroneous decision that the ACA cannot be sustained under Congress’ taxing power.

Vinson’s opinion is absolutely awash with errors. One of his biggest mistakes is his claim that the provision of the ACA which requires most Americans to either carry insurance or pay slightly more income taxes somehow ceases to be a valid exercise of Congress’ power to “lay and collect taxes” because Congress did not use the word “tax.” Nothing in the Constitution requires Congress to use certain magic words to invoke its enumerated powers. And no precedent exists suggesting that a fully valid law somehow ceases to be constitutional because Congress gave it the wrong name.

Like Vinson, Cuccinelli also claims that the ACA did not validly invoke Congress’ taxing power:

On the tax issue, the threshold problem for the Secretary is that there is a justiciable difference between a tax and a penalty.  “ ‘A tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’ ” A penalty not supporting a tax is not a tax penalty but a naked penalty requiring an enumerated power other than the taxing power to support it. Furthermore, even if the penalty were a tax “there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of a regulation and punishment.” Because at this point the penalty requires a supporting enumerated power independent of the taxing power—and the only possible one would be the Commerce Clause—the tax argument collapses back into the Commerce Clause argument.

Much of this paragraph is gobbledygook, but none of it mentions Vinson’s absurd claim that a law magically becomes unconstitutional if Congress gives it a certain name.

It is very unusual for a litigant to ignore an argument that has already swayed a judge on a lower court. Perhaps this is a sign that even Ken Cuccinelli recognizes that Vinson reasoning was flawed.

During Justice Kagan’s confirmation hearings, conservatives falsely claimed that she was required to recuse herself from the pending health care litigation because of her previous role in the Department of Justice. Earlier this week, Sen. Orrin Hatch (R-UT) attempted to revive this absurd claim:

I would think that Kagan, who was the Solicitor General at the time [the Affordable Care Act] was all done, probably should recuse herself. … I personally think that she should recuse herself because I’m sure that she participated in discussions at the White House [about the health care litigation].

Watch it:

As the Wonk Room explained the last time opponents of health reform tried to pressure Kagan into an unwarranted recusal, Kagan is under no obligation whatsoever to recuse:

[J]udges must recuse themselves from cases where they “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy” — but this language does not say what the WSJ wants it to say.

To have “participated” in a “particular case in controversy,” a judge must have been a lawyer, adviser or witness in the exact same lawsuit that is now before their court. Because none of the health care cases currently pending in federal court have been appealed, Kagan would not have done any work on those specific cases. Normally, the Solicitor General first becomes involved in federal litigation at the appellate level, if at all.

Indeed, Kagan confirmed that she had no involvement whatsoever in the health care litigation during her confirmation testimony — a testimony she gave under oath. So when Hatch says the he is “sure she participated” in the White House’s discussion of the health care litigation, he is not just revealing that he doesn’t know what the Solicitor General’s actual job is — he is also accusing a sitting Supreme Court Justice of committing perjury without any evidence to that effect. If Hatch actually has evidence that Justice Kagan is a felon, then he should produce it. Otherwise he would do well to avoid such slanderous accusations.

Ironically, while there is absolutely no reason for Kagan to recuse, there is a recusal issue with one of the Court’s conservativs. After progressive Judge Stephen Reinhardt was assigned to the appellate panel hearing a challenge to anti-gay Proposition 8, supporters of the anti-gay law called for Reinhardt to recuse because his wife’s organization advocates against Prop 8. But, of course Supreme Court spouse Ginni Thomas used to lead a Tea Party group called Liberty Central which vigorously opposes the Affordable Care Act. So by the right’s very same arguments, Justice Thomas must drop out of the health care litigation.

Judge Roger Vinson’s opinion striking down the Affordable Care Act has been widely criticized by progressives and conservatives alike, and for good reason. I combed through Vinson’s opinion with my colleagues Neera Tanden and Tony Carrk, and identified at least 40 glaring factual and legal errors in the opinion:

In the accompanying interactive examination of Vinson’s opinion, we show how he effectively writes an entire provision of the Constitution out of the document. How he butchers history, thumbs his nose at binding Supreme Court precedent, and relies on a constitutional theory that George Washington would find shocking. As we explain, even conservative legal scholars have questioned Vinson’s reasoning. And he wholly misunderstands health care and how it works.

We also explain that one section of Vinson’s opinion was lifted from a brief filed by an organization that has been labeled a hate group. And when Vinson somehow concludes that the Boston Tea Party renders the Affordable Care Act unconstitutional, we take apart that argument, too.

As an example of the kind of downright sloppy errors that are pervasive in Vinson’s opinion, the judge at one point in the opinion makes the implausible claim that “[t]t was not until 1887, one hundred years after ratification, that Congress first exercised its power to affirmatively and positively regulate commerce among the states.” This is a truly remarkable claim — and one that Vinson cites no authority to support — but it also took me exactly 10 minutes with LexisNexis to prove Vinson wrong:

Vinson is wrong: George Washington signed a law regulating interstate commerce.

The first Congress passed, and President Washington signed, “An act for registering and clearing vessels, regulating the coasting trade, and for other purposes,” which required the owners of U.S. ships to register their vessels and even contained special rules governing ships traveling from Baltimore to Philadelphia. [“An Act for Registering and Clearing Vessels, Regulating the Coasting Trade, and for other purposes,” Wikisource.”]

There are, of course, at least 39 other errors in Vinson’s opinion, but it really tells you all you need to know about the quality of his reasoning that he saw no problem with fabricating a facially absurd claim about American history that any minimally competent lawyer could debunk in less time than it takes to brew a cup of tea.

The interactive examination of Vinson’s opinion appears below (click on the yellow text to read why Vinson is wrong):