Opinion: Health Reform Will Survive in the Courts

As America struggled to emerge from the Great Depression, President Franklin Roosevelt threw his reputation behind a sweeping new safety net for seniors called Social Security -- and the courts quickly rebelled.

The law was unprecedented, wrote U.S. Court of Appeals Judge Scott Wilson. Worse, said Wilson, it seizes power that rightfully belongs to the states and lodges it with big-government reformers in Washington. If Social Security is allowed to stand, Wilson concluded in his opinion declaring it unconstitutional, there will be no limits to what Congress can force people to do. Just over one month later, the Supreme Court promptly struck Wilson's opinion down.

Three years later, Judge William Hale Barrett considered another hallmark of the New Deal. Barrett struck down the federal minimum wage and was rewarded with a unanimous Supreme Court smack-down less than one year later.

At the height of the civil rights era, a federal judge declared the ban on whites-only lunch counters unconstitutional and was unanimously shamed by the nine justices.

And when the Voting Rights Act declared that states could no longer screen voters with sham literacy tests, yet another judge struck down that law, only to be reversed by the Supreme Court.

Lower-court judges, it turns out, are a cautious lot. They have historically viewed transformative legislation with skepticism and have been quick to declare it unconstitutional. But this caution does not reflect our nation's history.

Shortly before Wilson kicked Social Security to the curb, Roosevelt warned that "the Constitution of 1787 did not make our democracy impotent," and Roosevelt was right. He understood that America functions best when it is governed by elected officials -- not activist judges cloaking their policy preferences in the rhetoric of the Constitution -- and the Supreme Court has shared this understanding ever since it upheld America's most cherished program for seniors.

Which is why there's no reason to fear that U.S. District Judge Roger Vinson's deeply erroneous attack on the Patient Protection and Affordable Care Act will survive contact with the nation's highest court.

Make no mistake, Vinson's opinion is riddled with errors. Most egregiously of all, it literally writes an entire provision of the Constitution out of the document, ignoring that the Constitution does not simply give Congress sweeping authority to regulate the national economy. It also gives Congress -- in conservative Supreme Court Justice Antonin Scalia's words -- "every power needed to make that regulation effective."

This is why the Affordable Care Act easily survives constitutional scrutiny. Its provision eliminating one of the insurance industry's most abusive practices -- denying coverage to patients with pre-existing conditions -- cannot function if patients are free to enter and exit the insurance market at will. Patients who can wait until they get sick to buy insurance will drain all the money out of an insurance plan that they have not previously paid into, leaving nothing left for the rest of the plan's consumers.

But Vinson did not concern himself with this necessary link between these two provisions -- nor did he bother himself with the numerous Supreme Court decisions commanding that this link requires him to uphold the law. Instead, he used his opinion as an opportunity to spout tea party rhetoric in a direct assault on conservatives' least favorite law. At one point in his opinion, he even made the absurd claim that the Boston Tea Party renders the Affordable Care Act unconstitutional.

In other words, Vinson handed down a decision much like Wilson's 70-year-old opinion striking down Social Security. His decision was heavy on rhetoric, light on actual legal reasoning and all but certain to be ignored by higher-court judges who understand their duty to follow the Constitution.

When Vinson is remembered 50 years from now -- if anyone remembers him at all -- he will be remembered as one of the long line of activist judges who stood athwart history and got run over by it.