Tuesday, February 1, 2011

Catron on Vinson

David Catron has a nice discussion of yesterday's Vinson ruling. Here's the introduction to his latest AmSpec piece, "Roger That!":
Ian Gershengorn, the government lawyer charged with defending ObamaCare in State of Florida v. U.S. Department Health and Human Services, probably knew he was in for a shellacking when in a December hearing Judge Roger Vinson started talking about broccoli. The basis of Florida's challenge to ObamaCare is its claim that the law's requirement that all Americans buy health insurance is unconstitutional because Congress has no legitimate power to impose such a mandate.

Revealing some sympathy with this position, Judge Vinson asked the hapless DOJ attorney, "If they decided everybody needs to eat broccoli because broccoli makes us healthy, they could mandate that everybody has to eat broccoli each week?" Gershengorn lamely responded that the health care market has unique qualities that necessitate the mandate. "It is not shoes, it is not cars, it is not broccoli."

This answer was obviously not very convincing to the Judge...
(Read the full text of "Roger That!")

In particular, he highlights some important differences between the Vinson ruling and the earlier Hudson ruling, such as Vinson's decision that "the entire act must be declared void" because of the lack of severability.

As others have correctly noted, this isn't the end of ObamaCare. But it may be a critical turning point.