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Health ruling respects limits on government

By Stephen B. Presser, Special to CNN
President Barack Obama signs the health care law during a ceremony in the East Room of the White House March 23, 2010.
President Barack Obama signs the health care law during a ceremony in the East Room of the White House March 23, 2010.
  • Federal judge in Florida rules parts of health law unconstitutional
  • Stephen Presser notes judges have split on the issue, case goes to higher courts
  • Presser: Judge was right to recognize federal government is limited by Constitution
  • Presser: Washington isn't empowered to penalize people for not buying health insurance

Editor's note: Stephen B. Presser is the Raoul Berger Professor of Legal History at the Northwestern University School of Law.

(CNN) -- For the second time in weeks, a federal judge has declared that Congress went far beyond what the Constitution permits when it passed the Patient Protection and Affordable Care Act (PPACA).

This is the more important such ruling because more than half of the states had joined in this lawsuit, believing, as do many Americans, that it was an impractical as well as an unconstitutional piece of legislation. Senior Judge Clyde Roger Vinson, who began serving on the federal bench in 1983, is apparently an old-school constitutionalist.

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Vinson's opinion is a simple and clear reminder that ours is still a federal government of limited and enumerated powers. Not only has Vinson vindicated those state officials who participated in the litigation, he has also vindicated those of us who believe in the rule of law and believe that the Constitution is not an infinitely plastic document.

This was the second decision finding the individual mandate of the PPACA unconstitutional, and while two other federal judges had found the act constitutional, neither addressed the problems as cogently as did Vinson in his decision today or Judge Henry Hudson in his decision in December.

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Neither of the two judges who found the individual mandate constitutional addressed the problem of the unprecedented nature of the PPACA. Eventually, of course, the discrepancy among the federal courts will have to be decided by the Supreme Court. When that decision comes down, it will be one of the most important constitutional law decisions ever rendered.

James Madison and the other framers who wanted a delicate balance between state and federal sovereignty and who recognized the dangers of overweening centralized power have had their legacy renewed by this courageous and sensible jurist.

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The PPACA's individual mandate, which forced all Americans to purchase health care insurance or be subject to a penalty, was probably the boldest attempt yet undertaken by the federal government to dictate to its citizens how they should live their lives. Universal health-care coverage might well be a worthy goal, but the PPACA sought to accomplish this goal by trampling on liberty and property and in a manner that Vinson understood betrayed our constitutional ideals.

The PPACA, for the first time in the history of the federal government, sought to use the federal government's power in matters of commerce to regulate inaction rather than action.

The decision not to buy insurance is a decision not to do something. This has never before been a subject of federal regulation. While it has long been our tradition that the states can regulate a decision not to do something -- for example, every state requires you to buy insurance if you wish to drive a car -- this has traditionally been beyond the reach of the federal government, which, as Vinson made clear, is one of limited and enumerated powers.

The Constitution's 10th Amendment declares that the powers not granted to the federal government are reserved to the states and the people thereof, so that, while apart from what the Constitution provides, the powers of the states and the people are unlimited, the powers of the federal government are not.

If the federal government could force Americans to buy health care insurance, as many Americans understood, ours would have been a federal government with unlimited powers to force us to buy any commodity or engage in almost any activity.

Vinson's opinion took considerable courage because most of the academic world and most of the government long ago adopted the attitude that the meaning of the Constitution ought to change with the times and that its original limitations on the federal government ought to give way in order to permit grand projects that remake society in the interests of shifting wealth and improving the lot of those disadvantaged by modern life.

This has been the reigning philosophy of our government since the New Deal years. It was certainly the reigning philosophy of the Obama administration and the Congress that passed the PPACA.

Vinson's opinion, reminding us that the Constitution is a document that set limits, was a sensible one because the very purpose of a Constitution is to restrain arbitrary power.

Those 55 men who assembled in Philadelphia more than two centuries ago had experienced not only the arbitrary behavior of the far-away English imperial government, but also corruption and demagoguery at home. The Constitution was their attempt to protect the basic rights of person and property for which the American Revolution had been fought.

Vinson is not simply a wise federal judge, but is also the president of the American Camellia Society, an organization devoted to the cultivation of this extraordinary, hardy and gorgeous flower, which blooms in the dreary winter months. Vinson's elegant and luminous late January statement of the first principles of our polity is like the flower he cherishes.

The opinions expressed in this commentary are solely those of Stephen B. Presser.