Great news: Federal judge finds ObamaCare mandate constitutional

posted at 9:39 pm on October 7, 2010 by Allahpundit

The worst part? This really is well in line with the Supreme Court’s ridiculously expansive Commerce Clause jurisprudence. You can’t opt out of interstate marijuana commerce by growing and using your own at home, so why should you be able to opt out of interstate health insurance commerce when you’re bound to use medical facilities somewhere at some point? The key bit:

The costs of caring for the uninsured who prove unable to pay are shifted to health care providers, to the insured population in the form of higher premiums, to governments, and to taxpayers. The decision whether to purchase insurance or to attempt to pay for health care out of pocket, is plainly economic. These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance. These are the economic effects addressed by Congress in enacting the Act and the minimum coverage provision.

The health care market is unlike other markets. No one can guarantee his or her health, or ensure that he or she will never participate in the health care market. Indeed, the opposite is nearly always true. The question is how participants in the health care market pay for medical expenses – through insurance, or through an attempt to pay out of pocket with a backstop of uncompensated care funded by third parties. This phenomenon of costshifting is what makes the health care market unique. Far from “inactivity,” by choosing to forgo insurance plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars, $43 billion in 2008, onto other market participants. As this cost-shifting is exactly what the Health Care Reform Act was enacted to address, there is no need for metaphysical gymnastics of the sort proscribed by Lopez…

The Supreme Court has consistently rejected claims that individuals who choose not to engage in commerce thereby place themselves beyond the reach of the Commerce Clause. See, e.g., Raich, 545 U.S. at 30 (rejecting the argument that plaintiffs’ homegrown marijuana was “entirely separated from the market”); Wickard, 317 U.S. at 127, 128 (home-grown wheat “competes with wheat in commerce” and “may forestall resort to the market”); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (Commerce Clause allows Congress to regulate decisions not to engage in transactions with persons with whom plaintiff did not wish to deal). Similarly, plaintiffs in this case are participants in the health care services market. They are not outside the market. While plaintiffs describe the Commerce Clause power as reaching economic activity, the government’s characterization of the Commerce Clause reaching economic decisions is more accurate.

I’m not sure why he resorted to that final lethal formulation about activity vs. decision when it doesn’t really capture his basic point and is bound to be trumpeted tomorrow by critics raising the alarm of federal overreach. What he’s saying here, basically, is that we’re all either already or potentially engaged in health-care commerce because none of us will fail to seek essential medical services if they’re required and none of us will be denied essential services if we can’t pay. The supermarket will turn away a starving man if he has no money; not so the ER and people who are sick, so for all intents and purposes, we’ve all already opted in here. That being so, the feds can regulate how those services are paid for. By framing it in terms of decisions instead of activity, though, the judge opens himself up to this devastating line from Peter Suderman: “If it’s an economic decision, the federal government can make it for you. That’s the takeaway from a ruling this afternoon by a federal judge in Michigan.” That’s not quite what the court is saying — it’s more like “because you’ll eventually decide to avail yourself of life-and-death services that can’t be refused you, the federal government can make you help pay for them” — but Suderman’s formulation is the one that will resonate politically. Same for this explanation from one of the plaintiffs’ lawyers:

“The trouble, if you think about it, is if Congress has authority to regulate nonactivity then it has the ability to regulate anything,” Muise said. Congress can “tell you to exercise three times a week, to take certain vitamins, to refrain from eating certain foods because, at some point, costs are going to be incurred to the health care market. I find that very troubling when we have a federal government that’s supposed to be of limited, enumerated powers,” he said.

Yeah, that’s the greater worry, I think — that if we’re all necessarily “active” in health-care commerce at all times, theoretically there’s no limit to what sort of further activity can be mandated in the interest of spreading costs. Can the overweight man or woman be forced to diet because he/she is more likely to need medical services? Presumably that would be dealt with via higher insurance premiums, but we all know only too well already that federal pressure on insurers to keep premiums down will create all sorts of inefficiencies, which is where we get into ye olde rationing problem. Simple question: What’s the limiting principle on this decision? Would the feds be barred from penalizing people for failing to maintain, say, a certain BMI target because of the right of privacy or bodily autonomy, etc? Or would they not be barred at all? Where does this end?

Via Eyeblast, maybe this’ll win you over.


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Well, nuts.

joe_doufu on October 8, 2010 at 12:37 PM

Poor judicial reasoning. I’m not surprised. It’s hilarious: our government identified a problem that affects everyone. They decided to solve it in a way that infringes on personal liberty. But instead of arguing that “yes, it’s a problem that affects everyone, but you should have found a way to fix it that isn’t unconstitutional”, they say the ubiquity of the problem means any legislation addressing the problem is necessarily constitutional. Absurd!

I would not be surprised to see the SC abandon some of its more recent jurisprudence in order to invalidate this ruling.

alwaysfiredup on October 8, 2010 at 12:44 PM

Good luck with that when the BATF, FBI, US Marshalls, and IRS agents come knocking. Don’t forget that, until January 20, 2013, their boss is sympathetic to this Lawgiver-In-Black’s “reasoning”.

steveegg on October 8, 2010 at 1:02 AM
Bingo. The US Marshal Service is explicitly at the disposal of the Judiciary, so Hamiltons argument has been mooted since 1789.

LarryD on October 8, 2010 at 12:14 PM

Which is proof in the pudding just how necessary the 2nd really is.

Badger40 on October 8, 2010 at 12:50 PM

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

It seems that some judges have forgotten this.
Perhaps they’re hung up on what enumeration is.
Whatever the deal is, the constant changing of definitions & the broad based ‘interpretations’ of what this & that means are the only way that tyrants have to gain their power.
States, please take back your rights.

Badger40 on October 8, 2010 at 12:54 PM

States, please take back ASSERT your rights.

Badger40 on October 8, 2010 at 12:54 PM

Badger40 on October 8, 2010 at 12:54 PM

It ends with a constitutional amendment or the second amendment.

joshlbetts on October 8, 2010 at 1:06 PM

Are you familiar with how the bill works? It’s very beneficial to low-income people.

crr6 on October 8, 2010 at 12:34 AM

Classic intellectual leftist bankruptcy. The only thing that helps low income people is successful people. Successful people create wealth, create jobs, donate to charity, provide for the poor. Government creates poverty to justify the theft of property and wealth from those who have earned it.

By taking wealth from those who produce it you doom low income to a perpetual low income, if any.

darwin on October 8, 2010 at 1:39 PM

darwin on October 8, 2010 at 1:39 PM

He/She didn’t actually read it. Low income people can’t afford the premiums.

By the way, after one deducts all the people and companies who already have waivers, what main group is left?

dogsoldier on October 8, 2010 at 1:51 PM

joshlbetts on October 8, 2010 at 1:06 PM

This.

itzWicks on October 8, 2010 at 2:48 PM

If my religious beliefs preclude me from opting for hopital care, could I get an exemption in from the Health Care mandate?

hawksruleva on October 8, 2010 at 2:49 PM

Are you familiar with how the bill works? It’s very beneficial to low-income people.

crr6 on October 8, 2010 at 12:34 AM

You mean like the people at McDonald’s who would have lost coverage without a waiver?

hawksruleva on October 8, 2010 at 2:50 PM

It ends with a constitutional amendment or the second amendment.

joshlbetts on October 8, 2010 at 1:06 PM

I’d love to know what activity is NOT covered by the Commerce Clause. If “commerce” is any activity or non-activity performed or contemplated by any person, what’s left?

hawksruleva on October 8, 2010 at 2:53 PM

Are you familiar with how the bill works? It’s very beneficial to low-income people.

crr6 on October 8, 2010 at 12:34 AM

So was Robin Hood. But in the end, he was merely a thief. In modern times, he would be liberal politician.

BobMbx on October 8, 2010 at 2:56 PM

Love that video. Basically those kids are saying “don’t make me pay for my own stuff”.

That’s the spirit that made America great!

hawksruleva on October 8, 2010 at 2:56 PM

Impeach that judge.
Time to start flexing our muscles and recalling these dumb ass judges that cannot APPLY the constitution.

ColdWarrior57 on October 8, 2010 at 2:56 PM

So was Robin Hood. But in the end, he was merely a thief. In modern times, he would be liberal politician.

BobMbx on October 8, 2010 at 2:56 PM

Actually, Robin Hood reclaimed taxes from the government and fought against its encroachment into the lives of ordinary Englishmen. The whole “stealing from the rich” thing is just a liberal canard.

hawksruleva on October 8, 2010 at 2:58 PM

I’d love to know what activity is NOT covered by the Commerce Clause. If “commerce” is any activity or non-activity performed or contemplated by any person, what’s left?

hawksruleva on October 8, 2010 at 2:53 PM

Flying airplanes into buildings, head lopping, and honor killings.

Those are Constitutionally protected activities. Expression, religion, etc.

BobMbx on October 8, 2010 at 2:58 PM

Impeach that judge.
Time to start flexing our muscles and recalling these dumb ass judges that cannot APPLY the constitution.

ColdWarrior57 on October 8, 2010 at 2:56 PM

Sadly, that judge is pretty much following precedent. What’s needed is a Supreme Court ruling that overturns the Wickard case, a ruling which dramatically increased the government’s reach into our lives.

hawksruleva on October 8, 2010 at 3:00 PM

Actually, Robin Hood reclaimed taxes from the government and fought against its encroachment into the lives of ordinary Englishmen. The whole “stealing from the rich” thing is just a liberal canard.

hawksruleva on October 8, 2010 at 2:58 PM

So, he was really a middleman then, helping to re-distribute the wealth, in ways the tax authority didn’t appreciate.

Now, if he had reclaimed the taxes and returned it to whom it was taken from….

But that ain’t what happened.

BobMbx on October 8, 2010 at 3:03 PM

Are you familiar with how the bill works? It’s very beneficial to low-income people.

crr6 on October 8, 2010 at 12:34 AM

And since the Democrats are committed to creating more and more low-income people all the time, so the bill will benefit more and more people as long as the Democrats continue to reign… right?

malclave on October 8, 2010 at 3:05 PM

Are you familiar with how the bill works? It’s very beneficial to low-income people.

crr6 on October 8, 2010 at 12:34 AM

Yes, because it expands access to Medicaid, which is completely unrelated to our topic: the existence/constitutionality of the federal mandate. If you don’t qualify for medicaid at the increased ranges, though, watch out. The “subsidies” in the bill a) aren’t large enough to make insurance affordable and b) are likely to be slashed/underfunded by an incoming congress.

alwaysfiredup on October 8, 2010 at 3:25 PM

Sorry, the governmetn called, they’re going to have to take 100% of your income, assets, and property and make the allowed purchases they have determined you shoud make for you.

It’s completely legal and constitutional; Commerce Clause says that the government is entitled to 100% of your income… apparently.

If you didn’t sell all your assets and give all that money to the government to buy certain things for you; it would have an impact on interstate commerce… see how that works? Clearly the government has the right to confiscate all your property and income via the Commerce Clause.

Or something…

gekkobear on October 8, 2010 at 3:29 PM

Now, if he had reclaimed the taxes and returned it to whom it was taken from….

But that ain’t what happened.

BobMbx on October 8, 2010 at 3:03 PM

Good point!

hawksruleva on October 8, 2010 at 3:50 PM

This judgement in this case means nothing. The Plantiffs don’t even have standing or a role as the States do.
It’s the State’s lawsuit that will win in the Supreme court.

LeeSeneca on October 8, 2010 at 5:10 PM

Slightly OT: this article regarding implementing ObamaCare before the election:
http://thehill.com/blogs/healthwatch/health-reform-implementation/123305-obama-grapples-with-implementing-unpopular-health-law-weeks-before-election

txmomof6 on October 8, 2010 at 5:20 PM

If my religious beliefs preclude me from opting for hopital care, could I get an exemption in from the Health Care mandate?

hawksruleva on October 8, 2010 at 2:49 PM

It seems to me in the early days after passage, a lot of people were tongue-in-cheek talking about becoming Amish, as they are exempt. Perhaps I’m misremembering????

Chewy the Lab on October 8, 2010 at 5:55 PM

OK, I’m a loon, I admit it.

Tenth Amendment Center
http://www.tenthamendmentcenter.com
http://www.nullifynow.com

I’ll be curious to see what transpires when our A/G here in Virginia gets his (our) day in court for ObeymeCare.

oldleprechaun on October 8, 2010 at 5:57 PM

The Commerce Clause gives the govt. authority to do whatever it wants? Gee, someone needs to tell all the idiot founding fathers that they really didn’t want to keep the govt. from getting too powerful and all their writings to the contrary are lies.
s/

This is the second time in a few months that a Clinton appointed judge made a far left ruling (AZ SB1070). Remember folks, the dems pick these judges for a reason–they will go to the far left on critical issues like good little traitors.

Hard Right on October 8, 2010 at 7:46 PM

Ahhh the sweet smell of Judicial Tyranny.

MCGIRV on October 8, 2010 at 8:02 PM

I expect nothing less from a Clinton appointee.

Woody

woodcdi on October 8, 2010 at 8:58 PM

AP check out U.S. v Lopez, it’s a fairly recent 5-4 (our five conservative justices) case that essentially overturned the horrific WWII era Wicker v Filburn case that gave congress the omnipotent commerce clause powers.

It regarded Dems trying to tie arbitrary gun control to commerce.

Now activities regulated via the government with the commerce clause must have a substantial effect on interstate commerce. Not just any effect like it used to. Insurance doesn’t cross state lines.

scotash on October 9, 2010 at 1:18 AM

Speaking of which, I’ll bet crr6 and Jimbo didn’t even remember the Lopez “precedent” which is now the law of the land. The Federal judge that made this ruling is going to get slapped down HARD. Then shortly after, as a reward for not knowing how to be a good judge and follow precedent, the judge will be elevated to the Supreme Court by Obama just like Sotomayor was.

scotash on October 9, 2010 at 1:23 AM

correction: Wicker = Wickard

scotash on October 9, 2010 at 1:26 AM

I don’t care what some federal judge says. I resist.

long_cat on October 10, 2010 at 12:06 PM

The begining of the end to once was a great Nation. The Federal Judiciary is loaded with leftist Judges. To name a couple- Judge Susan Bolton, who halted key parts of SB1070.State of Az’s Immigration Law. That law should also tell us where Obama is on the immigration issue- he has instructed the Dept of Justice to sue the State of Az, which they did.
Then Judge Vaughn Walker who ruled against the majority of the voters in California on the same sex marriage, Proposition 8 claiming that it was unconstitutional. No surprise here- The Judge is a homosexual.
We can expect to see more of these types of decisions from these activist Judges in the Federal Judiciary.

flintstone on October 10, 2010 at 6:46 PM

OK, I’m a loon, I admit it.

Tenth Amendment Center
http://www.tenthamendmentcenter.com
http://www.nullifynow.com

I’ll be curious to see what transpires when our A/G here in Virginia gets his (our) day in court for ObeymeCare.

oldleprechaun on October 8, 2010 at 5:57 PM

You’re not a loon.
Haven’t read this book yet, but I’m going to soon.
I have always maintained this.
Woods puts it into a historical, Const, context.
I watched him on CSPAN from the Air Museum in Fargo ND yesterday. He’s an excelletn speaker & really got his point across.
The states have been absolute COWARDS for over a hundred years in standing up to the federal govt.
And yet when we mention nullification & the 10th, people on the left & right call us cranks.
The history of the 10th needs to be relearned.
We ALL need to push this.
It is really the only way to limit the encroachment of the federal govt’s stolen power.
Nullification ALSO applies to the judiciary.

Badger40 on October 11, 2010 at 10:26 AM

So, they can tell us to buy anything they want us to buy, and probably do anything they want us to do, because everything in life is somehow connected to commerce?

In other words, we must buy and do whatever the government tells us, on pain of additional punitive taxes?

This is terribly depressing.

Alana on October 11, 2010 at 4:32 PM

Or wait. I really should have said, those of us who are taxpayers must pay and do what the government says we must.

Alana on October 11, 2010 at 4:35 PM

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