Judge Vinson (N.D. Fla.), a Reagan appointee who in 1985 sentenced three serial abortion clinic bombers to ten years, to be eligible for parole “as soon as possible,” threw a piece of red meat to conservative voters yesterday, by denying the government’s motion to dismiss Florida’s doomed-to-fail, quixotic, wasteful suit to enjoin the Affordable Care Act. Unfortunately, Vinson also does seem to be siding with plaintiffs, at least on the merits. This means that we’re likely headed for a trial loss, and a nasty appellate fight before the unpredictable Eleventh Circuit.
Unless, of course, Dan Gelber reverses his opponent’s narrow lead to become the next Florida AG, and voluntarily dismisses the suit.
Let’s assume that won’t happen. One remarkable point in Judge Vinson’s ruling upbraids the government for claiming, in the political sector, that the individual mandate isn’t a tax, while litigating on the basis that it is one. Apparently this is bad form:
Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an “Alice-in-Wonderland” tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check.
That’s a curious thing to say. It’s fairly common for legal terms to have one meaning in debate, and another, technical meaning in litigation. Democrats were quite right that the mandate isn’t a “tax on the middle class,” but they’re also right that it fits the legal definition of a tax, and should be treated as such. Even if Vinson disagrees, the disconnect between terminology isn’t deliberate mendacity. It’s a product of the peculiar meanings terms acquire at law.
Perhaps more importantly, especially if one believes in strict separation (as Republicans purport to), judges shouldn’t be in the business of questioning legislators’ motives, except in the civil rights context. This was the Republican response to Judge Walker’s exegesis of the motives behind Prop. 8 (although governing law required that type of analysis, in that case).
Lewis Carroll, by the way, is a regular go-to for annoyed jurists.