# 6th Circuit Court of Appeals upholds Affordable Care Act **URL:** \ **Category:** Great Debates\ **Created:** [June 30, 2011, 12:00am UTC](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331 "2011-06-30T00:00:13Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [June 30, 2011, 12:00am UTC](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331/1 "2011-06-30T00:00:13Z")
[This](http://www.latimes.com/health/la-na-healthcare-ruling-20110630,0,4695606.story) 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. > [@Lose Angeles Times](#): > > “We find that the minimum coverage provision is a valid exercise of legislative power by Congress under the Commerce Clause,” a 2-1 majority of the panel concluded, rejecting a challenge by the conservative Thomas More Law Center. > Notably joining the majority opinion was Judge Jeffrey Sutton, an appointee of President George W. Bush and a former law clerk to conservative Supreme Court Justice Antonin Scalia. > > … > > "Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of the national legislation, **allowing the people’s political representatives, rather than their judges, to have the primary say,"** [emphasis mine] Sutton wrote. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 30, 2011, 12:54am UTC](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331/2 "2011-06-30T00:54:05Z")
> [@Blalron](#): > > [This](http://www.latimes.com/health/la-na-healthcare-ruling-20110630,0,4695606.story) 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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 30, 2011, 1:14am UTC](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331/3 "2011-06-30T01:14:36Z")
From Judge Sutton’s opinion: > [@](#): > > How would the action/inaction line have applied to Roscoe Filburn? Might he have responded to the Agricultural Adjustment Act of 1938 by claiming that the prohibition on planting more than 11.1 acres of wheat on his farm compelled him to action—to buy wheat in the interstate market so that he could feed all of his animals? And is it any more offensive to individual autonomy to prevent a farmer from being selfsufficient when it comes to supplying feed to his animals than an individual when it comes to paying for health care? It seems doubtful that the Wickard Court would have thought so. See Wickard, 317 U.S. at 129 (acknowledging that the law “forc[ed] some farmers into the market to buy wheat they could provide for themselves”). How would the action/inaction line apply if someone like Angel Raich sold her house, marijuana plants and all? The Controlled Substances Act would obligate the new owner to act (by removing the plants), see 21 U.S.C. § 844, but it seems doubtful that he could sidestep this obligation on the ground that the law forced him to act rather than leaving him alone to enjoy the fruits of inaction. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [June 30, 2011, 4:26pm UTC](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331/4 "2011-06-30T16:26:50Z")
Here’s the [opinion](http://www.ca6.uscourts.gov/opinions.pdf/11a0168p-06.pdf) 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. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 30, 2011, 4:46pm UTC](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331/5 "2011-06-30T16:46:21Z")
The dissenter is also not a member of the 6th Circuit Court of Appeals, but was sitting by designation. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [June 30, 2011, 6:01pm UTC](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331/6 "2011-06-30T18:01:14Z")
> [@Blalron](#): > > Here’s the [opinion](http://www.ca6.uscourts.gov/opinions.pdf/11a0168p-06.pdf) 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! 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. > [@Blalron](#): > > 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. 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. ---
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [June 30, 2011, 6:22pm UTC](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331/7 "2011-06-30T18:22:38Z")
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. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [June 30, 2011, 6:30pm UTC](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331/8 "2011-06-30T18:30:14Z")
> [@magellan01](#): > > While not a fan, I have much, much less problem with the money coming through taxes than I do a mandate like this. What’s the difference? ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [June 30, 2011, 6:30pm UTC](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331/9 "2011-06-30T18:30:38Z")
Excellent news! The US just got a little bit better for its citizens today! 😃 ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 30, 2011, 6:34pm UTC](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331/10 "2011-06-30T18:34:33Z")
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. ---
**Author:** ![mlees](https://avatars.discourse-cdn.com/v4/letter/m/ba8739/32.png) [@mlees](https://boards.straightdope.com/u/mlees)\ **Post date:** [June 30, 2011, 6:59pm UTC](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331/11 "2011-06-30T18:59:17Z")
> [@Jonathan\_Chance](#): > > 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? \*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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 30, 2011, 7:05pm UTC](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331/12 "2011-06-30T19:05:06Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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. 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. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [June 30, 2011, 7:14pm UTC](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331/13 "2011-06-30T19:14:17Z")
> [@Bricker](#): > > 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](http://articles.latimes.com/2011/may/11/nation/la-na-health-virginia-20110511), 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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 30, 2011, 7:20pm UTC](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331/14 "2011-06-30T19:20:58Z")
> [@Blalron](#): > > Why do you think that? According to the [LA Times](http://articles.latimes.com/2011/may/11/nation/la-na-health-virginia-20110511), 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_. ---
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [June 30, 2011, 7:24pm UTC](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331/15 "2011-06-30T19:24:30Z")
> [@mlees](#): > > \*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. 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. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 30, 2011, 9:44pm UTC](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331/16 "2011-06-30T21:44:22Z")
> [@Bricker](#): > > I’m thinking of a rehearing _en banc_. 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. ---
**Author:** ![Mr\_Smashy](https://avatars.discourse-cdn.com/v4/letter/m/2bfe46/32.png) [@Mr\_Smashy](https://boards.straightdope.com/u/Mr_Smashy)\ **Post date:** [June 30, 2011, 9:49pm UTC](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331/17 "2011-06-30T21:49:09Z")
> [@Miller](#): > > What’s the difference? 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](http://en.wikipedia.org/wiki/Sixteenth_Amendment_to_the_United_States_Constitution) (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 [definition](http://www.thefreedictionary.com/commerce)that defines it as such. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 30, 2011, 9:54pm UTC](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331/18 "2011-06-30T21:54:13Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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. 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). ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 30, 2011, 10:02pm UTC](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331/19 "2011-06-30T22:02:48Z")
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. ---
**Author:** ![Mr\_Smashy](https://avatars.discourse-cdn.com/v4/letter/m/2bfe46/32.png) [@Mr\_Smashy](https://boards.straightdope.com/u/Mr_Smashy)\ **Post date:** [June 30, 2011, 10:46pm UTC](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331/20 "2011-06-30T22:46:10Z")
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) [Next page](https://boards.straightdope.com/t/6th-circuit-court-of-appeals-upholds-affordable-care-act/587331.md?page=2)