Ten months after its historic passage, four federal trial judges have evaluated the Patient Protection and Affordable Care Act of 2010. The two Republican appointees who have looked at the health care reform law have deemed it unconstitutional -- an unlawful overextension of congressional power. But the two Democratic appointees who have looked at the law have declared it constitutional -- a rational expression of Congress' authority to regulate a form of commerce. How could the same statutory language and legal precedent generate such disparate conclusions?
The best likely explanation is the most simple: the language of the Constitution and Supreme Court precedent on the topic have left enough ambiguity to permit wildly different interpretations from the lower court judges.
Article I, Section 8, Clause 3 of the Constitution tells us that the Congress "shall have power...to regulate Commerce... among the several states." This vague command has been interpreted over the past 200 years or so to permit federal regulation over activity so long as that activity "substantially affects" (has a substantial effect upon) interstate commerce. So what does "activity" really mean? And what does "substantial effect" mean? Judging from the early results, the answer reads like the old lawyer joke: ask four judges for their views and you'll get five opinions.
On Monday, U.S. District Judge Roger Vinson
, a 1983 Reagan appointee now sitting with senior status in the Northern District of Florida, ruled
that the Affordable Care Act is unconstitutional
because it seeks to regulate inactivity
-- an individual's choice not
to buy health insurance. There is a legal difference, Vinson wrote, between economic decisions, which all of us make at one point or another in our lives, and economic activities which might be regulated under the Commerce Clause if they "substantially affect interstate commerce." In his view, the Act sought to regulate the first, and not the second, and thus failed. At least that's where this
judge wiggled to in the room left for him in the Constitution and Supreme Court precedent.
But another judge wiggled over to a completely different spot. In November, U.S. District Judge Norman K. Moon
, a 1997 Clinton appointee now sitting with senior status in the Western District of Virginia, ruled
the Act constitutional because it involves activity
. Moon wrote: "Regardless of whether one relies on an insurance policy, one's savings, or the backstop of free or reduced-cost emergency room services, one has made a choice regarding the method of payment for the health care services one expects to receive. Far from 'inactivity,' by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance." One of these veteran judges, of course, will in turn be judged dead wrong by the United States Supreme Court.
Another Republican judge, U.S. District Judge Henry Hudson of Virginia, an appointee of George W. Bush, determined
that the Act seeks to take Commerce Clause jurisprudence to a place where it has never gone before -- a "bridge too far" is how Vinson put it Monday. But Democratic U.S. District Judge George Steeh
of Michigan, also a Clinton appointee, concluded that the Act fits comfortably
within existing legal precedent. The Republican jurists claim they are acting with judicial restraint even as they assert their authority to strike down an act of Congress. The Democratic jurists claim they are acting with judicial deference even as they endorse another application of the Commerce Clause.
The Republican judges have blocked the measure because they believe its future
application lacks logic and consistency -- that if the Congress can regulate a decision about individual health insurance there's no stopping what it can regulate. Both Vinson and Hudson wrote about the possible parade of legislative horribles if the Act were declared constitutional. The Democratic jurists have endorsed the measure because they believe it is a rational legislative effort to confront a current
national problem. No one is seeking to force someone to eat french fries, Steeh and Moon have argued, and no one ever will.
All four judges agree -- either explicitly or implicitly in their rulings -- that they will not have the final say on the constitutionality of the Affordable Care Act. Like the rest of us, they know that this dispute is going to the Supreme Court and will be decided by the justices, who are just as ideologically riven as the four trial judges appear to be. This is especially true in these cases since they each have been addressed on motions and short of trial. This means that the appellate judges, and especially the justices in Washington, don't have to give any "due deference" to these trial court "findings."
We'll know in a year or so which of these lower court judges correctly evaluated constitutional law in light of what they each think the Supreme Court will think of the matter. Two of these jurists will be vindicated. Two will be relegated. And perhaps that's the real lesson in all of this: in an age where the Constitution has become a political football, it's really still just what the federal courts say it is at any given time. That's not a terribly noble thought. But it's the truth.