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February 1, 2011 Judicial Activism on Health Reform A ruling by a Federal District Court judge in Florida that the entire health care reform law is unconstitutional was a breathtaking example of judicial activism and overreach.

It is hard not to believe this decision was driven at least in part by ideology. At one point the judge, Roger Vinson, who was appointed by Ronald Reagan, gives a gratuitous bow to Tea Party conservatives by citing the original Boston Tea Party in a discussion of opposition to unlimited governmental powers.

Judge Vinson is way out on a limb in attempting to throw out the whole law, a primary goal of the Republican Party. Two federal district judges nominated by Democratic presidents have concluded that the individual mandate requiring people to buy health insurance or pay a penalty is constitutional. Two judges nominated by Republican presidents, including Judge Vinson, have found the mandate unconstitutional. But the other Republican-nominated judge, Henry Hudson, acted with restraint in a case in Virginia. Although Virginia’s attorney general asked him to invalidate the entire law, he invalidated only the mandate because of a tradition that courts eliminate only problematic parts of a law, not the entire law.

Judge Vinson acknowledged that he was deviating from this practice, but he argued that this is an atypical case in which the individual mandate is so “inextricably bound” to the remaining provisions that it cannot be severed. He may well be right that the mandate is essential to guaranteeing coverage for people with pre-existing conditions because it will force healthy people into the insurance pools and thus keep premiums down. But his argument seems stretched past the breaking point.

He reads too much significance into the fact that the Democrats failed to include a “severability clause” to ensure that if any provisions were found to be invalid then the rest of the law would be unaffected. He believes this shows that Congress recognized the act wouldn’t work without the mandate. It seems much more likely that it was an error in the closing Congressional struggle.

Judge Vinson also seems wildly off-base when he speculates that Congress would not have passed the act if the individual mandate were not included. Judge Hudson said he was unable to reach that conclusion. The mandate is one of the least popular provisions of the law.

The core of these cases is whether Congress has the power to require people to buy health insurance. We believe it can do so under its power to regulate interstate commerce, to impose taxes and to pass laws that are necessary and proper to carry out its intentions.

There are principled arguments on both sides, and the issue will likely be decided by the Supreme Court. We hope the court upholds the individual mandate. But if it rules the mandate unconstitutional, we urge the justices to show modesty and leave the rest of the law intact.

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