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ObamaCare and the Bench - Why Federal Judges Matter More Now than Ever

The opinions expressed by columnists are their own and do not necessarily represent the views of

For anyone who doesn’t think that judges don’t matter, I beg you to read Judge Roger Vinson’s remarkable opinion in Florida v. Health and Human Services. His writing was clear, the legal reasoning astounding, and if upheld by the US Supreme Court, could go down in history as one of America’s most important legal decisions. But before we dig into Justice Vinson’s opinion, let’s talk a bit about why judges matter.

Every four years, Americans vote for Presidents who, if we are all lucky, won’t do a whole lot of damage during the short time they are in office. But a President can do decades of harm with his Supreme Court picks and the judges he chooses for the Federal Judiciary because, unlike Presidents, judges serve for life. Which, the last time I looked, is a very long time.

Think about the infamous 9th circuit, 60% of whose judges were appointed by Democratic Presidents. It is the highest federal appeals court in the land for 9 US states, and nearly 20% of all Americans live under its jurisdiction. Only the US Supreme Court can overturn their rulings, and only a tiny fraction of federal appeals cases make their way to the nation’s highest court. Which makes the 9th circuit the de facto Supreme Court of a good chunk of the western part of our country. Which illustrates the power these judges, whom we rarely hear about, ruling on cases we almost never read about, have. A whole lot.

Which brings us to Judge C. Roger Vinson, who was nominated by President Reagan in 1983 to the US District Court in Florida. Luckily for all of us, we did hear about the case he ruled on this past week. And now you get to read some of it.

Vinson began his opinion in Florida v H.H.S by establishing the intent of the Commerce Clause of the Constitution. He explained that the clause was added to make certain that the states did not engage in trade wars with one another, and to promote the free movement of goods between and among the states. But over time, our courts began to interpret the commerce clause more liberally. The same kinds of judges who saw a right to an abortion in the 4th and 14th Amendment, saw the Commerce Clause regulating – well – just about anything.

The ObamaCare Inc. attorneys advanced some novel legal reasoning for the individual mandate – novel, even by liberal standards. Most prominently, they argued that failing to buy insurance was itself an act of interstate commerce. You heard it right. Leave it to a government attorney to argue that NOT buying something is commercial activity!

On page 42 of the opinion, Vinson took that argument apart, and in words we could all understand: “If it (Congress) has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting — as was done in the Act — that compelling the actual transaction is itself commercial and economic in nature, and substantially affects interstate commerce, it is not hyperbolizing to suggest that Congress could do almost anything it wanted.”

He then went on to say this in the same paragraph: “It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be difficult to perceive any limitation on federal power, and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.”

But my favorite part of the ruling had to do with what legal scholars call the “parade of horribles.” Vinson wondered what Congress might have in store for us if this expanded view of the Commerce Clause became the Law of the Land. He argued, with his tongue firmly in cheek: “Because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile — now partially government-owned — because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business.”

Yes, indeed, judges do matter. And what we need in this country are more Roger Vinsons. Keep that in mind when you rally friends to vote in 2012. Show them this opinion, and let them know that a few men in robes hold the economic life of our country in their hands. Judges matter. And the Presidents who appoint them.

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