l****z
发帖数: 29846 | 1 弗罗里达的法庭判决再次说明了，奥巴马的极左医疗法案在宪法判例上是空前的；再次
说明了媒体宣称的所谓专家意见是谎言。根本没有什么多数专家的意见认为不违宪。
http://volokh.com/2010/10/14/florida-district-decision-rejecting-the-federal-governments-motion-to-dismiss-the-case-against-the-individual-mandate/
The Florida District Court Decision Rejecting the Federal Government’s
Motion to Dismiss the Case Against the Individual Mandate
Ilya Somin • October 14, 2010 5:42 pm
There are several interesting aspects of today’s Florida federal district
court ruling rejecting the government’s motion to dismiss a challenge to
the Obama health care plan’s individual mandate brought by 20 states and
the National Federation of Independent Business. First, as Randy Barnett
emphasizes, this ruling, like the similar Virginia decision before it,
further undercuts claims that the lawsuits against the mandate are either
frivolous or clearly precluded by existing precedent. Even the recent
Michigan district court ruling upholding the mandate conceded that it was a
case of “first impression” (although the judge also tried to argue that
the mandate ultimately does fit under current doctrine).
I. Judge Vinson Rules that the Mandate is Not a Tax.
Second, Judge Roger Vinson rejected outright the federal government’s claim
that the mandate is a “tax” that is authorized by Congress’ authority
under the Tax Clause. Instead, he concludes that it is a regulatory penalty,
a point that I emphasized in my amicus brief in the Virginia case on behalf
of the Washington Legal Foundation and a group of constitutional law
professors:
Because it is called a penalty on its face (and because Congress knew
how to say “tax” when it intended to....), it would be improper to inquire
as to whether Congress really meant to impose a tax. I will not assume that
Congress had an unstated design to act pursuant to its taxing authority,
nor will I impute a revenue-generating purpose to the penalty when Congress
specifically chose not to provide one. It is “beyond the competency” of
this court to question and ascertain whether Congress really meant to do and
say something other than what it did.
As the Supreme Court held by necessary implication, this court cannot “
undertake, by collateral inquiry as to the measure of the [revenue-raising]
effect of a [penalty], to ascribe to Congress an attempt, under the guise of
[the Commerce Clause], to exercise another power.” See Sonzinsky, supra,
300 U.S. at 514. This conclusion is further justified in this case since
President Obama, who signed the bill into law, has “absolutely” rejected
the argument that the penalty is a tax.... To conclude, as I do, that
Congress imposed a penalty and not a tax is not merely formalistic hair-
splitting. There are clear, important, and well-established differences
between the two. See Dep’t of Revenue of Montana v. Kurth Ranch, 511 U.S.
767, 779–80, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994) (“Whereas [
penalties] are readily characterized as sanctions, taxes are typically
different because they are usually motivated by revenue-raising, rather than
punitive, purposes.”); Reorganized CF&I Fabricators of Utah, Inc., supra,
518 U.S. at 224 (“‘a tax is a pecuniary burden laid upon individuals or
property for the purpose of supporting the Government,’” whereas, “if the
concept of penalty means anything, it means punishment for an unlawful act
or omission”).
Notice that at least in this instance, President Obama’s preenactment
claims that the mandate is not a tax have come back to bite him.
The federal government now will not be able to rely on the tax argument at
the summary judgment stage of the litigation before Judge Vinson (though
they will of course be able to raise it again on appeal). Judge Vinson
concluded that he had to resolves the tax issue at this early stage of the
litigation in order to address the federal government’s claim that, because
this was a tax case, the court lacked jurisdiction under the Anti-
Injunction Act.
II. The Commerce Clause and Necessary and Proper Clause Arguments.
The federal government will, of course, be able to raise their Commerce
Clause and Necessary and Proper Clause arguments. Here, too, however, Judge
Vinson raised serious doubts about the government’s arguments, even though
he emphasized that these issues cannot be fully considered at this stage of
the process. In his view, the government’s claim that the mandate is
clearly supported by existing precedent in this area is “not even a close
call.” He emphasized the novel nature of the mandate:
I have read and am familiar with all the pertinent Commerce Clause cases
, from Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23 (1824), to
Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005). I am
also familiar with the relevant Necessary and Proper Clause cases, from M’
Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819), to United
States v. Comstock, — U.S. —, 130 S. Ct. 1949, 176 L. Ed. 2d 878 (2010).
This case law is instructive, but ultimately inconclusive because the
Commerce Clause and Necessary and Proper Clause have never been applied in
such a manner before. The power that the individual mandate seeks to harness
is simply without prior precedent.
Vinson’s analysis of the Commerce Clause precedents (pp. 62–64 of his
opinion) is very similar to my discussion of them in our amicus brief (Part
I), though I don’t claim any direct influence. As Vinson emphasizes, the
prior cases “involved activities in which the plaintiffs had chosen to
engage. All Congress was doing was saying that if you choose to engage in
the activity of operating a motel [Katzenbach v. Heart of Atlanta Motel] or
growing wheat [as in Wickard v. Filburn], you are engaging in interstate
commerce and subject to federal authority.” In this case, by contrast, “[t
]he individual mandate applies across the board. People have no choice and
there is no way to avoid it..... It is not based on an activity that they
make the choice to undertake. Rather, it is based solely on citizenship and
on being alive.” There is a slight error in Vinson’s analysis here.
Wickard did not hold that growing wheat for use on a commercial farm was
itself “interstate commerce.” Rather, it could be regulated because it was
intrastate state economic activity that, in the aggregate, has a “
substantial effect” on interstate commerce.
Finally, Judge Vinson ruled that all the plaintiffs had standing (continuing
a trend from the previous two cases), dismissed three weak federalism-
related claims put forward by the state plaintiffs, and refused to dismiss
their claim that the funding provisions of the act violated constitutional
restrictions on “coercion” of states through conditional federal spending
grants. Vinson concluded that this latter argument was just barely strong
enough to get to the summary judgment stage. For reasons I may blog about
later, I believe that the states’ coercion argument is correct under the
text of the Constitution, but highly unlikely to prevail under current
Spending Clause doctrine.
Obviously, this is only a ruling on a motion to dismiss. Judge Vinson could
end up accepting the government’s Commerce Clause or Necessary and Proper
Clause arguments when he decides later whether to grant summary judgment (
though I think that improbable based on what he wrote in today’s opinion).
Whatever he decides, the case will be appealed to the Eleventh Circuit Court
of Appeals. It is quite likely that the issue will eventually be decided by
the Supreme Court. It is still my view that the Court is more likely to
uphold the mandate than strike it down, though the latter is far from
impossible. That said, today’s ruling is certainly a victory for the anti-
mandate plaintiffs.
UPDATE: Orin Kerr asks why Judge Vinson didn’t seriously address the
federal government’s Necessary and Proper Clause argument, other than to
say that the relevant precedents don’t cover the issues raised by this case
. It’s a reasonable question. I agree that he should have focused on it
more. On the other hand, it’s important to remember that this was merely a
motion for dismissal and he only needed to consider the argument to the
extent of showing that the issue can’t be clearly and easily resolved in
the federal government’s favor. Moreover, the federal government’s own
brief in favor of dismissal gives short shrift to the Necessary and Proper
argument (less than 1 page buried near the end of a 50 page brief). The
Justice Department instead emphasizes the Commerce Clause and Tax Clause
arguments, both of which Vinson considers at length. I suspect Vinson also
believed that much of what he said in reference to the Commerce Clause issue
also applies to the Necessary and Proper Clause. The opinion (pp. 62–64)
seems to consider the two issues in tandem, though this point is not as
clear as it should be. In sum, it seems to me that neither Judge Vinson nor
the Obama Justice Department shares my and Orin’s view that this is the
federal government’s best argument. |
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