This is excellent news for supporters of health care reform, such as myself. Interestingly enough, one of the judges in the majority was a George W. Bush appointee who clerked for Justice Scalia. I’m happy to see a conservative applying the principle of “judicial restraint” even with issues conservatives disagree with.
Well, it’s more stare decisis than judicial restraint in general, but I agree that this is the correct result legally. I think the Affordable Care Act is poor public policy, and I think the best construction of the constitution would deny Congress the power to pass it… but I also think that issue was decided against me sixty years ago. Today, the correct answer is the one the Sixth Circuit came up with.
From Judge Sutton’s opinion:
Here’s the opinion in pdf form.
The Thomas Moore Law center tried to argue that Congress was regulating an “inactivity” (not purchasing health insurance), and thus unconstitutional. The court didn’t buy that argument. The Constitution doesn’t make an activity/inactivity distinction (it simply says Congress can regulate Commerce), and neither does any Supreme Court precedent. Courts have upheld a federal law to enforce child support payments. The failure to pay child support is most definitely an “inactivity”, but Congress can still regulate it!
The 6th circuit pointed out that virtually everyone requires health care at some point in their lives. Those who opt not to buy insurance are engaging in an activity: risk retention, or “self insuring”. They expect that they’ll be able to cover any loss that happens to them, or that they’ll remain healthy for the forseeable future. But in the aggregate, this activity substantially affects interstate commerce. Many risk retainers aren’t able to pay the full cost of their care, and since emergency rooms aren’t allowed to turn people away this shifts the costs on to other people to the tune of 43 billion dollars per year.
The dissenter is also not a member of the 6th Circuit Court of Appeals, but was sitting by designation.
I am not a lawyer so I’m sure I’m not appreciating some of the nuances, but in your example someone did something (had a baby) in order to fall under the regulation. With the mandate you simply have to be breathing.
And if this is all correct, it does justify that the populace pay for it (much like social security). But then, it should be done as a tax. While not a fan, I have much, much less problem with the money coming through taxes than I do a mandate like this. And while I never throw around Palinisms concerning “freedom”, the U.S. just got a bit less free with this ruling. I can’t believe in how it was decided. Unbelievable.
To a certain extent I understand your reasoning, Magellan. But I see the backside of that as well.
Is it the freedom to choose not to have health insurance?
Or is it the freedom to choose to transfer your health costs to others?
Because that’s what going without (whether voluntarily or otherwise) amounts to. Provided we accept that emergency room coverage must be provided without regard to ability to pay (a policy I consider proper, by the way) then going without health coverage is transferring ones costs to another. Even if you posit that there are some people self-insuring in this way (and I’m sure there are) who can afford to cover all costs associated with their own health care I think you’d be hard pressed to convince people that is more than a very small percentage of uninsured.
What’s the difference?
Excellent news! The US just got a little bit better for its citizens today! 
No, it just didn’t get worse. Anyway, it remains to be seen whether the Supes will grant certiorari- or whether the other circuits will follow this reasoning.
*shrug
Some people use the police, public school, and fire services more tha n I do, too, and yet those costs are transfered to others.
No one can know the future with certainty, but I’m willing to bet that the Fourth Circuit reaches a different result. And if that happens, the circuit split practically guarantees cert.
Why do you think that? According to the LA Times, all three judges on the case were appointed by Democrats, and when the case went to oral argument they made skeptical comments about the lawsuit.
I’m thinking of a rehearing en banc.
Sure, through the form of taxation. In your example, the costs are transferred to you, actually. For the services that others have used and you have not.
However, that establishes that there can be a public interest in certain services being paid for by the public whether they will or no. It was certainly a fact in the past that fire protection was only provided to those who had paid for insurance. Nowadays fire protection is provided through government or government-regulated providers and paid through taxation. Clearly, such can occur and be constitutional (in my non-lawyer mind).
Mind you, I’d be more comfortable leaving the insurance companies out of it and going single-payer. But I don’t think the power is there to overcome the lobbying efforts against single payer.
Don’t the same judges who hear the case in panel also consider the motion for rehearing? Seems unlikely that they’ll grant it if they think the suit is frivolous.
Big difference, of course. If it were a tax (a direct tax) then it would be blatantly unconstitutional, since it exempts certain groups of people (Indians, for example) and favors large families. Unless you plan to pass another 16th amendment (ie, it’s not apportioned among the states by population).
As for your thoughts, Blalron, that Commerce means both buying and selling = not buying and selling, that’s the crux of the issue and I’ve love to see a definitionthat defines it as such.
No.
Local Rule 35(b) of the Fourth Circuit provides that rehearing en banc may be granted by a majority of the active circuit judges (minus any who are disqualified from the case). This is consistent with Fed. R. App. P. 35(a).
I agree with what Bricker is saying. It’s not how I would like the commerce clause jurisprudence to be, but if they are going to hold like they did in Raich and still contend that Wickard was correct, they can’t rightly decide the other way here.
But textually it is an interesting argument: They regulate commerce by forcing you to participate in it. It seems rather far fetched. Like saying that the Commissioner can “regulate” Major League Baseball by making people who aren’t even fans buy tickets to games.
Like I’ve pointed out before on these lefty boards, would it be constitutional for the Feds to force people to buy cars, if they thought that would be good for the economy? Or eliminate the free-rider syndrome (in this case, literally) by obviating the need to build mass transit?
Or would that be an abuse of Congress’ powers, of overreaching? (and probably as blatantly against the 10th amendment as it gets)