(If he won’t front it, I will. – Moe Lane)
While trying to drum up business on Friday, between meetings, I took the time to read U.S. District Court Judge Vinson’s decision on the constitutionality of the mandate. (Opinion here.) I have a few thoughts; however, fair warning: I refused to violate my personal ban on doing legal research — that is, free legal work — while blogging. Feel free to skip this on that basis.
It’s worth noting that I’ve been before Judge Vinson before, and even when he kicked my tail (and he has), I’ve found him to be a very thorough, very good, very cautious judge. I mention this because this isn’t the first time I’ve read a Vinson opinion on summary judgment, and while they’re rarely bloodless, they’re never so heartfelt, so earnest as this. It’s pretty remarkable — he obviously cared enough to try to make certain that his rationale was clear for the lawyers in the case and the Eleventh Circuit and Supreme Court. He clearly did the lion’s share on this, rather than merely turning it over to his clerk.
As an initial matter, I now completely understand why the left side of the political spectrum is treating this as one of the worst affronts in the history of law, reaching back to cuneiform: Aside from their usual, knee-jerk, scalded-cat if-we-like-it-it’s-constitutional/if-we-don’t-it’s-treason response to any event that disrupts their view of how the world should work, I think it’s important to remember that most of the geniuses opining on this are either non-lawyers or lawyers and law professors with no real connection to trial court judgments (which means, not real lawyers). This ruling reads like what it almost certainly is: An attempt to explain a decision the court knows will be controversial in a way lawyers (read: subsequent appellate courts) and more importantly, non-lawyers can understand. It fails on the latter count, precisely because it is doing so in the way that people who’ve been lawyers too long imagine is necessary to communicate to non-lawyers.
But the non-lawyers reading this are generally self-identified political experts, and for good and for ill, that means these days, they read a lot of Supreme Court opinions, as well as the odd Circuit Court of Appeals opinion, and they expect all opinions to read that way. Those tend to be written in a mix of aimed-at-lawyers and more informal writing style (in dissent, and sometimes in concurrence) that again, for good and for ill, we now take as a given. This is written like a history lesson, with each step taken seriously, calmly, and in an altogether different voice from an opinion that ends with “Breyer, J., concurring in the judgment.” In other words, it likely seems too informal, too personal, for skinning alive a cat on which so many on the left pinned so many hatreds and hopes. Thus, their reaction is visceral, as well as intellectual.
Also, Ezra Klein is an idiot.
Second, I now well and truly understand that this entire exercise — from the final passage of the bill through briefing — really has been aimed at the Supreme Court. I’m not sure which sub-moron decided this was a good idea, but rather clearly, the removal of the severability clause in the final version of the bill, and the briefs repeatedly making clear that the mandate could not be severed from the main bill — when, as Judge Vinson notes, everyone knew that would be the very first part challenged — are of a piece. Essentially, this is a gigantic game of chicken, aimed at Justice Kennedy: If you discard the mandate, you’re wrecking this giant piece of democratically-crafted legislation. I didn’t appreciate this before, but it now seems pretty clear they’re relying on Kennedy the federal-incrementalist, rather than Kennedy the who-cares-about-federalism-jurist. It’s a remarkable dare. I think it’s sort of stupid — Kennedy is a bit on the dim side, and asking him to decide not to chuck the bathwater with the baby may be beyond his intellectual grasp, though likely not his ego.
Third, I’m surprised Judge Vinson ended up with this case. For a case of this importance, I’d expect an active District Court judge to receive the assignment by hook or by crook. A senior status federal judge is on the rotation for case assignments, but they have a lot of discretion to pass on a case. Judge Vinson is happily in senior status — I believe he goes to flower competitions — I can’t imagine he’s looking forward to the inevitable death threats. I suspect the chief judge didn’t push him to recuse because his case load is so light, and Florida courts (state and federal) are so jammed right now. That’s just a hunch.
Fourth, I have to say I’m amused as Hell to see the port side suddenly so averse to forum shopping and judicial review, problems they don’t seem to register when they get a result they like invalidating a federal law or act out of a District Court in Michigan or California or Massachusetts. I think this goes to a fundamental problem their legislators had when crafting this — they believe that if something (they believe) is so important, so complex, so huge, it must not only be necessary, it must be inviolable. (I’m not sure they believe that the word “constitutional” is relevant unless abortion is involved.) If you look over the government’s briefing, and the amicus briefing, it tends to contain a fairly specific theme: The majority of the bill is constitutional and of critical national importance; the rest of the bill can’t work without the mandate; therefore, it would be judicial activism and a departure from tradition/precedent/deference to strike down the mandate. (Without reading the transcript on oral argument, I infer that they stayed on-message there.) I think this was a terribly bad tack to take with this judge, even allowing for the fact that they’re trying to play chicken with the nine judges who lie at the end of this trail; but more importantly, this insight is the key to understanding the stupid concessions and arguments made in briefing and at oral argument. (Seriously? The government can maybe regulate childbearing?)
Fifth, this was certainly a fairly decently-reasoned opinion. I don’t agree with all of its nuances, but I’m (promise) trying to keep this brief. (No pun.) However, it’s kind of hard to escape the critical question raised in the opinion, the briefing, and the oral argument: If the federal government can mandate this sort of behavior from inactivity, exactly what aggregated activity can it not? I think all of the steam expended to the effect that the government can mandate any sort of activity that in the aggregate impacts commerce (presumably not even substantially) is debatable tactics and worse strategy. If Kennedy votes to toss this, that is what he’ll focus on. They’ve basically supplied the rope, the beam, and the knot-tying directions, and presume Kennedy won’t go through with it because he hates seeing things swing.
In the words of a colleague of mine, “you assume at your peril that Kennedy will decide that this is an issue over which Anthony Kennedy should decline to exercise power. Abortion, racial preferences, Bush v. Gore, the death penalty, punitive damages — there’s no way to make any sense of his jurisprudence other than a desire to have the federal courts resolve the issue, and then nearly 100% of it makes sense. It’s O’Connor who would have been horrified by certain things she saw as judicial hubris, not Kennedy.”
Buckle up, folks. The ride only gets more fun from here.