“Washington Crossing the Delaware” is a beautiful painting of Washington and his men fearlessly crossing the icy Delaware River during the American Revolution.  The depiction captures the struggle for independence.  Everything is against the early patriots – even the cold weather.


But they prevailed, even against the world superpower Britain – the mother country that had become overbearing.  This new country struggled to find its balance: First the Articles of Confederation was an overcorrection from the madness of monarchy.  The anemic federal government had too little power; it couldn’t even collect taxes.


This history was recounted in a 78-page summary judgment ruling handed down yesterday in Florida in a case over Obama’s health care law.  Judge Roger Vinson went to great lengths to explain that the Founding Fathers did not intend for the final version of the U.S. Constitution (although stronger than the Articles of Confederation) to grant Congress the power to dictate every decision of American citizens.  He started by emphasizing that the ultimate goal of the court is not to rule whether or not the health law was a good, wise piece of legislation or not.  Instead, the goal of the court is to determine whether or not the law violates the constitutional principle of limited, enumerated powers for the federal government.


To summarize the summary judgment on the individual mandate, Vinson asked and answered a few key questions:


1.       Is “activity” a prerequisite for government intervention/regulation of Commerce?


Yes.  Existing case law tells us that Congress does have the power to regulate interstate commerce, or even more, any activity that has a substantial, direct effect on interstate commerce.  But no case has asserted that Congress may exert its Commerce Clause powers without a prerequisite activity.  (In other words, we may be required to purchase car insurance, but the prerequisite activity is driving a car.)


2.      Is the failure to buy health insurance an “activity”?


No.  Vinson explained that not buying something is not an activity.  It is simple passive existence. 


3.      Is the health care market “unique” in this respect?


No.    Vinson made an analogy to the housing market, in which a large majority of Americans will inevitably participate over their lifetimes.  Yet Congress cannot require that we all own a home in order to stabilize the housing market. 


4.       Is forgoing health insurance an “economic decision”?


No.  If forgoing the purchase of health insurance was an “economic decision,” then there is no end to what the government can regulate or mandate. 


Finally, Vinson pointed out that the health law has no severability clause.  As Sabrina noted, the only reason the individual mandate is “necessary” is because the rest of the law rigs the health system so that it will only be feasible with a universal mandate. 


This would be like requiring everyone in the U.S. to wear a hardhat.  It would be necessary if we made the entire nation into a dangerous construction zone.  But otherwise, it is neither necessary nor proper.


Regardless of whether your state is a plaintiff, and regardless of how much snow you may get today, this case will affect you.  The health law has been declared void for now, but the final decision on this law’s constitutionality will come from the Supreme Court.  Our Justices would benefit from a close reading of Vinson’s wise, detailed ruling.  If you’d like to read it yourself, HealthCareLawsuits.org has a PDF copy here.