On Monday, conservative-activist-turned-federal-judge Henry Hudson became the only judge to strike down a portion of the landmark Affordable Care Act, breaking with 14 other judges who have dismissed similar suits. Yesterday, Reagan-appointed Judge Roger Vinson heard oral arguments from his Florida courtroom in another high-profile challenge to the Act, and early reports are grim:
In a three-hour hearing, the judge, Roger Vinson of Federal District Court, said the law’s requirement that most Americans obtain insurance, a provision that takes effect in 2014, would constitute “a giant expansion” of the court’s traditional application of the Commerce Clause of the Constitution.
“People have always exercised the freedom to choose whether to buy or not buy a commercial product,” the judge said, noting that he had been uninsured and paid out of pocket when his first son was born.
A second decision striking down part of the Affordable Care Act should not surprise anyone, as Vinson has already suggested that he is not moved by the unusually strong legal arguments supporting the law’s constitutionality. In an earlier opinion denying the Justice Department’s motion to dismiss this case, Vinson relied on a number of discarded libertarian legal doctrines that were abandoned by the Supreme Court more than 70 years ago. At one point, he even cited favorably to a completely discredited decision holding a child labor law unconstitutional.
Moreover, Vinson’s judicial superiors are far less likely to take a narrow view of the Constitution. Conservative Justice Antonin Scalia acknowledges that Congress has broad authority to enact comprehensive legislation regulating a national market such as the market in health insurance, and even Chief Justice Roberts recently joined an opinion suggesting that he would uphold the Affordable Care Act.
Nevertheless, progressives should brace themselves for another round of right-wing triumphalism like the crows of victory that followed Judge Hudson’s opinion. The right is counting its chickens before they are reviewed by a higher court.