Jackie Judd talks with legal analyst Stuart Taylor about the legal blow today to the new health care reform law. Federal Judge Roger Vinson, in Florida, declared the entire law void.
Listen to audio of the interview .
JACKIE JUDD: Good day, this is Jackie Judd for Kaiser Health News. A legal blow today to the new health care reform law. Federal Judge Roger Vinson, in Florida, declared the entire law void because its core – the mandate that almost all Americans obtain health insurance – violates the Commerce Clause [of the U.S. Constitution]. The suit was brought by some 26 states. Legal analyst Stuart Taylor, a contributing editor for Newsweek and the National Journal, is with us. Thank you, Stuart, for joining us. Walk us through the judge’s reasoning.
STUART TAYLOR: Nice to be with you. The gist of it was that Congress has no power to require individuals to purchase health insurance. Because the only basis for the power that the federal government has claimed is the power of Congress to regulate interstate commerce. And the judge held that that power - although it’s very broad, and the Supreme Court may decide it’s broad enough to justify this law – Judge Roger Vinson said it’s not broad enough to require someone to purchase a commercial product. That’s the gist of it.
JACKIE JUDD: And then he went a step beyond that, saying that the individual mandate is so inextricably linked to the rest of the bill that one couldn’t be separated from the other and therefore the entire bill would be void?
STUART TAYLOR: Yes, 450-odd provisions, all of them , in his decision would be blown away and Congress would have to start over from scratch. It’s worth noting, by the way, that in that regard, he contradicts the other federal judge who has struck down the health care law, the individual mandate. That was Judge Henry Hudson of Richmond. He held that most of the act could stand and then just carve out the individual mandate.
Judge Vinson, on the other hand, while agreeing that the individual mandate had to be struck down, said that it was so central to the entire operation of the law that it wasn’t at all clear which of the other provisions Congress would have adopted if it had known that it couldn’t do the individual mandate. So he just made a clean sweep of it.
JACKIE JUDD: And we should say that Judge Vinson today said that the law can remain in place. So in terms of a practical impact, little to none?
STUART TAYLOR: Well, probably, because the government will no doubt immediate seek a stay. Although he didn’t issue an order saying “you have to stop doing everything,” that would be the logical implication of his decision. But to the extent that the government might feel some obligation to comply with the law as he’s declared it, it will immediately go up to a higher court and say “please put everything on hold” and the higher court would do so.
JACKIE JUDD: And Stuart, you mentioned a moment ago, of course there was another decision - one based in Richmond, another one we had earlier based in Michigan, and there doesn’t seem to be yet a single emerging consensus, does there?
STUART TAYLOR: The consensus is the Democratic appointed judges uphold the law and the Republican appointed judges strike it down – so far. We have two Clinton appointees upholding it: the one you mentioned plus Judge Norman Moon of Lynchburg, Va., and then we have two Republican appointees, Judge Vinson today, and Judge Henry Hudson of Richmond a few weeks ago saying it’s unconstitutional. Now I don’t claim that pattern is going to uphold all the way up to the Supreme Court and that the law’s going to get struck down 5-4 because there are more Republicans, I actually would probably bet – not a lot – but bet on it being upheld in court. But so far, it’s clear that there’s a ideological cleavage that’s the best way of reconciling all of these decisions.
JACKIE JUDD: And yet, the judge today, who is a Republican appointee, to my reading, he seemed to be going to great lengths – both at the beginning of the decision and at the end - to say that this is a legal decision, it is not a political decision.
STUART TAYLOR: He does, he makes a big point of that, and no doubt sincerely. I think the reason he does, is that more and more, and because of the logic I just offered about Republican and Democratic judges, more and more the decisions of the judiciary are treated as political decisions by a lot of people in the body politic. And I don’t claim that this is a political decision, I do think the ideologies of the judges make a big difference. He just wants to say, “I’m not being political. I’m applying the principles of our Commerce Clause, jurisprudence.” And he goes to great length, he goes back to the beginning, the Framers and James Madison, etc., all the way up to the most recent Supreme Court cases and makes a plausible argument that what I’m doing here is what those cases point to. He doesn’t claim those cases require it, because there isn’t any case that’s directly on point.
JACKIE JUDD: A final question, Stuart – it’s one that I asked you the last time we spoke after another court ruling like this one. What timetable do you see for this law to reach the Supreme Court?
STUART TAYLOR: I would think probably by next year at some time, with probably a decision in June 2012. But quite possibly, various factors could bump it over until 2013. The most obvious factor would be if the court waits to have conflicting decisions come up or if no federal appeals court strikes it down – the Supreme Court doesn’t pay much attention to what federal district judges do. If a federal appeals court confirms what Judge Vinson did today, for example, that’s when you start thinking the Supreme Court is going to want to take this, because it’s obviously so huge. That could happen fast, and we could see a Supreme Court decision in June 2012, or probably, if it’s slower, by June 2013.
JACKIE JUDD: And if it’s the former, it puts it right in the middle of the presidential campaign.
STUART TAYLOR: It sure does, and it would be obviously a thunderclap in the campaign and both sides would make hay out of it, as they’ve already made hay out of some of these earlier decisions. But I don’t think anybody on the Supreme Court would time their approach to the matter so as to affect the campaign. But that’s sort of the logic if you look at the usual timetable’s that these things operate under – the deadlines, the filing, how many days you have to write a brief – and you just sort of add it all up, you could easily get it before the court a year from now and that would mean it would be decided by June 2012.
JACKIE JUDD: Thank you so much. Legal analyst Stuart Taylor.