Stinging Judicial Rebuke of the Day

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.


  1. How much would Gelber winning matter? I mean, what’s the schedule of summary judgment versus start of next Florida AG’s term going to be? And even if Florida drops out, couldn’t the two individual plaintiffs take over to keep the case in this district court, rather than having to shunt it over to the district of one of the other state plaintiffs?

    And if Florida drops out, would the district of the new lead state plaintiff take over where things left off in the Florida Northern district, or would things start over from scratch in that district? Let’s assume Georgia or Alabama then took lead, to keep things in the 11th Circuit.

    Also… I agree with you that the section you reference was annoyingly blatant dicta. But what I’m curious about is which part of Judge Vinson’s reasoning that the mandate doesn’t meet the legal definition of a tax did you think was wrong?

  2. This doesn’t contribute in any way to the conversation other than adding pure awesomeness.

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