Legal Commentary

Congrats to Randy, But Then A Missing Argument

By Orin Kerr

Congratulations to Randy Barnett in particular for the new Florida decision refusing to dismiss the challenge to the individual mandate. The language the judge uses at various points in the opinion very closely resembles the language Randy has used in framing the challenge. That is a major accomplishment. 

Indeed, reading the opinion, I had to wonder if Judge Vinson and/or his law clerk(s) read the Volokh Conspiracy. For example, there is Footnote 18:

See, e.g., Randy Barnett, Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional, N.Y.U. J.L. & Liberty (forthcoming), at 27 (stating that the argument for the penalty being justified under Congress?s broad taxing authority is based on a ?radical? theory that, if accepted, would authorize Congress ?to penalize or mandate any activity by anyone in the country, provided it limited the sanction to a fine enforced by the Internal Revenue Service,? which would ?effectively grant Congress a general police power?). 

While citing Randy?s work wouldn?t necessarily be a sign of reading the blog, it?s notable that Randy posted about that article just a few weeks ago, on September 22nd, the date the draft was posted on SSRN. It?s of course possible that the judge learned about the article some other way, but I wouldn?t be surprised to learn that Judge Vinson or his law clerk read it here first.

As to the merits of Judge Vinson?s opinion, I found it a bit frustrating. In particular, it seems to me that Judge Vinson?s opinion never actually addresses the necessary and proper argument that both Ilya and I agree is the best argument in favor of the constitutionality of the mandate against the claim that it is beyond the scope of Article I power. At page 61, Judge Vinson insists that he is familiar with the cases, and he announces that based on his knowledge this is a hard question. Oddly, though, Judge Vinson doesn?t actually articulate the legal standard offered in those cases and explain why those cases don?t answer the question here. 

I find that pretty frustrating. If you?re going to write a 65-page opinion on a legal issue, why not actually discuss the legal standard and explain how it applies to the facts rather than just insist that if you had done so it would have been clear that this was a hard issue? Judicial opinions are supposed to show their work, not just express a degree of certainty as to whether they think issues are hard. Or so it seems to me, anyway.

Full post as published by The Volokh Conspiracy on October 14, 2010 (boomark / email).