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A knowledgeable reader writes in to take issue with my earlier post about Judge Vinson’s ruling on the constitutionality of the healthcare reform law’s individual mandate provision:

As someone who works in health policy and has studied this issue pretty closely in consultation with several lawyers, I have to take issue with your assertion that:

“Judge Vinson simply decided to make up his own law and ignore precedent entirely.”

This is simply not a fair reading of his decision which was eminently reasonable, if not necessarily correct. He discussed the relevant precedents in great depth and came to a conclusion that although the Commerce Clause does give the national government a virtually unlimited ability to regulate things that have a substantial impact on interstate commerce, this particular instance is beyond the pale.

You can, and I do, disagree with his reasoning in this area. I am a supporter of healthcare reform generally and a believer in the necessity of the individual mandate specifically. There are a lot of things that have been justified under the Commerce Clause that I find unjustifiable, but a mandate for this specific product is an exception that I would make if I were deciding these matters of law.

The reason that I write to you about this is that I really think that you (and other center-left commentators) are missing a very important point here, namely that Vinson both in his striking down the mandate and declaring that the provision cannot be severed, is acting well within controlling precedent. This decision would be radical in its impact but it is not a radical decision. Were the Court to rule against the entire healthcare law here, it would be objectively on much firmer precedential and textual ground than it was in Bush v. Gore (or for that matter Roe v. Wade, Buckley v. Valeo, Brown v. Board, etc.). We need to wake up to this reality and start dealing with it accordingly. In fact, we were aware of this early in the process and could have structured the requirement to make it pass constitutional muster (designing it as a tax rather than a penalty which we have attempted to do ex post to no avail).

So we’ll see what happens. But the moment is coming that I have been dreading ever since my first correspondence with a friend (a Democrat who is a lawyer and former law review editor) who said when he first heard of this proposal in Hillary’s healthcare plan … “well, that’s unconstitutional on its face.”

Obviously I take a dimmer view of Vinson’s decision: I just don’t see how it jibes at all with current Supreme Court precedent. But if my reader is right, the Supreme Court itself might end up disagreeing with me.

I’m not sure what that would mean. My guess is that they won’t throw out the entire law regardless; only the individual mandate will get overturned. If that’s the case, then Republicans will be in a sticky situation. Democrats will pretty obviously be unwilling to repeal the rest of the law, but the health insurance industry will go bananas if everything else stays intact but the individual mandate goes away. They’d argue, with some justice, that this would essentially destroy them, and they’d demand that Republicans join with Democrats to do something about it. That would be hard pressure for Republicans to resist.

This is all still a couple of years away, since it still has to go through the appellate courts and I assume the earliest the Supreme Court could take it up would be in its 2012-13 session, with a decision handed down sometime in 2013. So we have plenty of time to think about it.

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