October 15 2010
Remember when Alice, from "Alice in Wonderland," eats a cake that makes her grow uncontrollably? For many of us who support limited government, it seems that Obama, Reid, and Pelosi gave the federal government a similar kind of Miracle-Gro treat when the health reform law was passed.
Not only did Congress require, "without prior precedent" (wrote Judge Vinson in yesterday's Order) the purchase of a specific good (health insurance) or the payment of a penalty, but it also wrote into law a scheme of "Hobson's choice" for the states. Expand Medicaid or... or else!
These two bully-tactics, commonly referred to as the "individual mandate" and "coercion as to Medicaid," have passed their first test in District Court, as Florida Judge George Vinson sided with the Plaintiffs and explained the grounds for challenging them.
Vinson did not miss the opportunity to chastise the Defendants (the federal government) for pulling a trick on the American people. They deliberately named the alternative to buying insurance a "penalty," using a word that is NOT the word "tax." Later, this makes it particularly hard for the government to argue that this penalty is a function of its power to tax. Here's what Vinson had to say about that:
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.
Vinson footnotes this reference from Lewis Carroll's Through the Looking Glass, Ch. 6, (Heritage 1969)
"When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean --- neither more or less."
"The question is," said Alice, "whether you can make words mean so many different things."
When government becomes so big and so powerful that it is no longer accountable for using misleading language in a major piece of legislation, then we should start looking for that bottle that Alice drank and shrank - the potion to make government smaller.
Judge Vinson and the Plaintiffs of State of Florida et al v. Dept. of Health and Human Services et al are hoping to give the federal government a dose of the Constitution. Summary Judgment is set for December 16. To read more commentary from legal scholars about yesterday's ruling, visit the Constitutionality Corner, the blog of IWF's Health Care Lawsuits site.