How Judge Vinson Thwarted Bush on Surveillance and Obama on Obamacare

December 13th, 2014

When Judge Roger Vinson of the Northern District of Florida voted in January 2011 to invalidate the entire Patient Protection and Affordable Care Act, there was no shortage of barbs from the left calling him a partisan hack. As I relate in Unprecedented:

Democrats, of course, saw things differently. Senator Max Baucus, the chairman of the Finance Committee who had shepherded the ACA through the Senate, declared the decision “one of the most specious and inadvisable arguments I have heard in a long time.” Sen- ator Patrick Leahy of Vermont counted the score. “A dozen federal courts have dismissed challenges to the law. Another four courts have heard arguments about its constitutionality; two have upheld the law as constitutional, and two have not. Legal challenges to the law are expected to reach the U.S. Supreme Court.”

The reaction from the professoriate was vicious.

Harvard’s Laurence Tribe, who had emailed then-Solicitor General Kagan to cel- ebrate the Democrats’ securing the votes for passage of the ACA, wrote: “Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law.” Tribe described the case as “a political objection in legal garb,” and concluded that “there is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Con- gress,” and uphold the law, which is “clearly within Congress’s power.”

Akhil Amar was even harsher. He likened Vinson’s opinion to that of another judge with the name of Roger: Supreme Court Jus- tice Roger Taney, author of the infamous Dred Scott decision, which ruled that slaves were not people protected by the U.S. Constitution. “In 1857, another judge named Roger distorted the Constitution, dis- regarded precedent, disrespected Congress and proclaimed that the basic platform of one of America’s two major political parties was unconstitutional. . . . History has not been kind to that judge. Roger Vinson, meet Roger Taney.” I suppose another nominal comparison to Justice Fred Vinson (chief justice from 1946-1953) would not have been as rhetorically powerful.

As a counterweight to these assertions that Vinson was a right-wing politician in a robe, I turn to Charlie Savage’s report showing how Judge Vinson, who sat on the FISA Court,  almost single-handedly derailed President Bush’s warrantless wiretapping program.

In January 2007, Judge Malcolm Howard issued an extraordinary order on behalf of the nation’s secret surveillance court. He interpreted the Foreign Intelligence Surveillance Act, which requires individual warrants to wiretap on domestic soil, in a way that authorized the Bush administration’s warrantless wiretapping program, according to documents declassified on Friday.

But three months later, Judge Howard’s secret order came up for reauthorization before a colleague, Judge Roger Vinson. He balked, the documents showed. Judge Vinson permitted only a short extension of the program. The Bush administration then sought legislation, the Protect America Act, that amended the surveillance act to explicitly authorize the program.

Mr. Bush’s original program had also intercepted, without a warrant, international communications involving domestic phone numbers and email addresses that the N.S.A. decided were suspected of ties to terrorism, but Judge Howard would not permit that. Instead, he issued an order granting approval to wiretap a specific list of domestic numbers.

In April, however, Judge Vinson, whose turn it was to approve the program, told the N.S.A. that he disagreed with Judge Howard’s legal theory that the N.S.A., rather than a judge, could make probable cause findings.

Judge Vinson secured the constitutional bulwarks against an overreaching expansion of federal power. He also ruled against President Bush’s surveillance program.

 In researching Unprecedented, I was struck by Judge Vinson’s careful study of the issue, and reasoned opinion. This is in contrast to the other district court that invalidated the mandate, whose opinion was quite weak by comparison.

Although, Vinson did sign the FISA order requiring Verizon to hand over call data (this was from the Snowden disclosures). The order was signed by President Obama’s FBI Director.