Faking the Funk on Fundamentals in the Health Care Debate

Faking the Funk on Fundamentals in the Health Care Debate


Federal court Judge Roger Vinson’s 78-page repudiation ruling on the Affordable Care Act sounded more like political soliloquy on the House or Senate floor than the reasoned, citation-jacked legal briefing it should have been.

While finding the Obama Administration’s key legislative triumph of 2009 “unconstitutional,” the ruling was more notable for its rhetorical rings of conservative talking point, as though Vinson cut, chopped and modified lines from an internal GOP memo on the topic (“ACA: Why We Don’t Like It”).   This was Vinson’s moment to shine, perhaps preparing his ruling for eyes on the high court or future Republican presidents who will inevitably find themselves nominating Supreme Court justices.  It’s his conservative business card, the legacy opinion that will follow him so that future White House staffers, hungry lobbyists and red state Senators can point to the “constitutionalist” who blasted Obamacare.

“In the final analysis, this Act has been analogized to a finely crafted watch, and that seems to fit,” writes Vinson miles after invoking ghosts of federalist founder James Madison. “It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. It cannot function as originally designed…I must conclude that the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit. The individual mandate cannot be severed.”

But Vinson’s political spot appeared blown when he attempted to use Candidate Obama’s 2008 campaign words against the current President Obama. “Indeed, I note that in 2008, then-Senator Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that ‘if a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house.’

The problem here is less about the distinction between campaigning and governance.  Politicians always find themselves chewing on old shoes and regretting in-the-moment moments.  Rather, it is a realization that Lady Justice likes to shed her blindfold, too.  Lawyers from both sides, backed by an army of supporters from think tank experts to made-for-cable party strategists, frequently point to who appointed what judge to hear the ACA case.

In Vinson’s case, the fact that he was appointed by President Ronald Reagan supposedly offers an ideological looking glass into his soul.  Obama Administration lawyers, in kind, scramble to find friendlier jurisprudence while lawyers representing a myriad of conservative and business interests are hustling for more right-leaning voices on the bench.  What’s somewhat irritating is that we’re even having that aspect of the conversation.  But, what we should draw from it is that judges are human and almost never exercise any real lack of bias.

Vinson’s opinion stands out because of its timing and implications.  It also speaks to the farce and high-minded pompousness that is our legal system.  At least we know where Vinson is coming from.  But, should it even matter?  We thought it was all about the law and dusty old legal books.  Referring to Presidential campaign slogans, however flip-floppy they may be, was never part of the deal…at least on paper.

The ACA debate, from its legislative acrobats on Capitol Hill to its expensive, slow-moving legal calisthenics through the federal court system, is merely a proxy for a much larger war regarding the role of government, specifically the federal government and what, exactly, we want the federal government to do.

“In fact, it is not really about our health care system at all,” argued Vinson, spot on. “It is principally about our federalist system, and it raises very important issues regarding the Constitutional role of federal government.”  On that point, it’s hard not to agree.

We’ve been faced with these types of critical foundational fights before:  the question of slavery; school desegregation; abortion.  And, right on cycle, here we are on health care.

Politically, both sides have something to lose or gain.  Despite the battle of the ages tone set by Vinson’s opinion, Democrats and Republicans should exercise some restraint before getting overly immersed in the issue when jobs and the economy are front and center on the collective American psyche.  Republicans might say healthcare reform is a “job-killer,” but it’s ultimately a health care issue that can, potentially, draw energy from the more important matter at hand.

Still, in terms of this specific debate, there are political advantages.  Democrats, if they can recover from November wounds, could use this extended period of legal wrangling to clarify and educate – especially since most Americans don’t even realize this thing is an actual law.  And Congressional Republicans can sit back, chill and let the courts take care of it.

But, Republicans appear to make the bigger gamble here because there are too many contradictions. They cast plucky cold-shoulders toward what they call “judicial activism,” yet rely on the courts as a primary vehicle for repeal.  Conservatives reject the notion of “individual mandates,” yet we already have something similar with respect to mandated car insurance.  So what do we want our government to hold more precious:  human beings or combustible technology?