Tuesday, February 01, 2011

Reading the Tea Leaves in Vinson's Ruling

Frank Pasquale

NYT reporter Kevin Sack notes that Judge Vinson tips his hand in his health care ruling by referencing, out of the blue, colonial tea policy. This isn't dog-whistle opinion writing, but red meat for those with a certain vision of red America.

At Health Affairs, Tim Jost patiently dismantles the opinion. He concludes:

This is a radical decision. Judge Vinson has a clear vision of the limited federal government the founders intended that is very much in line with that espoused by the Tea Party Movement. He mourns the fact that the Supreme Court has allowed Congress to assume control over much of the American economy, and grasps any toehold he can find in precedent to push back against that authority. Despite repeated cautions in governing precedent that the courts should defer to congressional judgments in economic matters where rational, Judge Vinson is confident in the wisdom of his own judgments and readily substitutes them for those of Congress. . . .

But the ramifications of this case go far beyond the minimum coverage requirement. We will see what the courts of appeal and ultimately the Supreme Court do with this opinion. If it is upheld, it will mean a dramatic contraction of the authority of Congress. . . .

What I find most disheartening is that someone with the health care knowledge of Jost has to get bogged down in a fight like this. He's written a series of excellent posts on topics including medical loss ratios, preventive services, a patient bill of rights, grandfathered plans, tax exempt hospitals, the small employer tax credit, the Web portal, reinsurance for early retirees, and young adult coverage. If we had a rational health care debate, we'd be focusing on practical issues like these--rather than, as Jack puts it, a faux "defense of liberty" that is little more than a "defense of selfishness."

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