The Weak Link in Judge Vinson’s Opinion Striking Down the Mandate

I agree with Ilya that “Judge Vinson’s analysis of the Necessary and Proper Clause is a big improvement on Judge Henry Hudson’s performance in the recent Virginia ruling striking down the mandate.” Judge Hudson opinion was pretty embarrassing on the Necessary and Proper Clause issue, while Judge Vinson gives the issue much more attention. At the same time, I think Judge Vinson’s argument on the Necessary and Proper Clause is not persuasive, and in this post I wanted to explain why.

To understand Vinson’s argument, you need to realize that conservatives and libertarians have been complaining for many decades that Commerce Clause doctrine has left Congress essentially unlimited power. Between Wickard v. Filburn and Gonzales v. Raich, conservatives and libertarians have complained, the federal government can justify pretty much anything. Remember how Justice Thomas began his dissent in Raich, with emphasis added:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–-and the Federal Government is no longer one of limited and enumerated powers.

Of course, the holding of Raich was that Congress could in fact regulate this under the Commerce Clause. Thus, in the view of Justice Thomas, existing Commerce Clause doctrine gave the federal government the power to “regulate virtually anything.” According to Justice Thomas, existing Commerce Clause doctrine establishes a “Federal Government [that] is no longer one of limited and enumerated powers.”

Now let’s return to Judge Vinson’s analysis of the Necessary & Proper Clause. The words of the relevant Supreme Court cases point to an extremely broad power, and Judge Vinson is supposed to be bound by those words. But Judge Vinson concludes that these words can’t be taken at face value because “to uphold [the mandate] via application of the Necessary and Proper Clause would [be to] . . . effectively remove all limits on federal power.” Page 62. He writes:

[T]he Commerce Clause limitations on the federal government’s power would definitely be compromised by this assertion of federal power via the Necessary and Proper Clause. . . . .

The defendants have asserted again and again that the individual mandate is absolutely “necessary” and “essential” for the Act to operate as it was intended by Congress. I accept that it is. Nevertheless, the individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be “proper.”

This might work as a Supreme Court opinion that can disagree with precedent. But Judge Vinson is just a District Court judge. And if you pair Justice Thomas’s dissent in Raich with Judge Vinson’s opinion today, you realize the problem: Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way. Remember that in Raich, the fact that the majority opinion gave the federal government the power to “regulate virtually anything” was a reason for Justice Thomas to dissent. In Judge Vinson’s opinion, however, the fact that the government’s theory gave the federal government the power to “regulate virtually anything” was a reason it had to be inconsistent with precedent.

Obviously, I’m not arguing that Judge Vinson was bound by Justice Thomas’s dissent. Rather, my point is that Judge Vinson should not have used a first principle to trump existing Supreme Court caselaw when that principle may not be consistent with existing caselaw. Either Justice Thomas is wrong or Judge Vinson is wrong, and Judge Vinson was not making a persuasive legal argument when he followed the first principle instead of the cases. Because Judge Vinson is bound by Supreme Court precedent, I would think he should have applied the cases.

Anyway, I realize this argument will only resonate with readers who care about binding precedent, which at times seems like a vanishingly small group of readers. But it does seem to be the weak link in Judge Vinson’s opinion for the three of us who are interested in whether the decision is correct under existing law.

UPDATE: I closed the comment thread, as it featured the same commenters making the same comments that they have each made several dozen times before.

ANOTHER UPDATE: My co-blogger Ilya Somin defends Judge Vinson by pointing out that the Supreme Court’s majority opinions insist that the federal government does not have completely unlimited power. Ilya’s argument is unpersuasive because the existence of nonzero limits in no way implies the existence of major limits. The current state of Commerce Clause doctrine is that there are certain largely symbolic limits on federal power but those limits are relatively minor: As Justice Thomas put it, Congress can regulate virtually anything.  Judge Vinson says that this cannot be the law because it would make the federal government too powerful. But Judge Vinson does not consult existing doctrine before declaring the principle, and that’s the problem: If you take existing doctrine seriously, it readily fits the mandate under the Necessary and Proper clause.

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