Sixth Circuit upholds ObamaCare mandate

posted at 1:15 pm on June 29, 2011 by Ed Morrissey

The decision got overlooked in all of the attention to Barack Obama’s press conference, but nonetheless this will make some big news.  The Sixth Circuit has denied an appeal by the Thomas More Law Center and a group of individuals whose challenge to the ObamaCare mandate lost at the district-court level.  In a split decision, the panel upheld the individual mandate as falling within the power of Congress to regulate interstate commerce, and ruled that the Constitution does not forbid regulation of “inactivity”.

The conclusion sums up the decision, in which the panel accepted the government position entirely:

Virtually everyone will need health care services at some point, including, in the aggregate, those without health insurance.  Even dramatic attempts to protect one’s health and minimize the need for health care will not always be successful, and the  health care market is characterized by unpredictable and unavoidable needs for care. The ubiquity and unpredictability of the need for medical care is born out by the statistics.  More than eighty percent of adults nationwide visited a doctor or other health care professional one or more times in 2009.  Centers for Disease Control and Prevention National Center for Health Statistics, Summary Health Statistics for U.S. Adults: National Health Interview Survey, 2009, table 35 (2010).  Additionally, individuals receive health care services regardless of whether they can afford the treatment.  The obligation to provide treatment regardless of ability to pay is imposed by the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd, state laws, and many institutions’ charitable missions.  The unavoidable need for health care coupled with the obligation to provide treatment make it virtually certain that all individuals will require and receive health care at some point.  Thus, although there is no firm, constitutional bar that prohibits Congress from placing regulations on what could be described as inactivity, even if there were it would not impact this case due to the unique aspects of health care that make all individuals active in this market.

In light of the conclusion that the minimum coverage provision is a valid exercise of Congress’s power under the Commerce Clause, it is not necessary to resolve whether the provision could also be sustained as a proper exercise of Congress’s power to tax and spend under the General Welfare Clause, U.S. Const. Art. I, § 8, cl. 1.

V.  CONCLUSION

Congress had a rational basis for concluding that, in the aggregate, the practice of self-insuring for the cost of health care substantially affects interstate commerce. Furthermore, Congress had a rational basis for concluding that the minimum coverage provision is essential to the Affordable Care Act’s larger reforms to the national markets in health care delivery and health insurance.  Finally, the provision regulates active
participation in the health care market, and in any case, the Constitution imposes no categorical bar on regulating inactivity.  Thus, the minimum coverage provision is a valid exercise of Congress’s authority under the Commerce Clause, and the decision of the district court is AFFIRMED.

Judge Graham’s dissent also falls along predictable lines:

If Congress exceeded its authority by enacting the mandate, then the mandate is “legally stillborn” and cannot be valid in any application.  Virginia v. Sebelius, 728F.Supp.2d 768, 774 (E.D. Va. 2010).  “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.  No legislative act, therefore, contrary to the Constitution can be valid.”  The Federalist No. 78 (A. Hamilton).  As cases in point, Lopez and Morrison struck down statutes as facially unconstitutional under the Commerce Clause and did so without reference to Salerno.  United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 598 (2000). …

If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be.  What aspect of human activity would escape federal power?  The ultimate issue in this case is this: Does the notion of federalism still have vitality?  To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit (within boundaries like the First Amendment and Due Process Clause), as long as the regulation concerns an activity or decision that, when aggregated, can be said to have some loose, but-for type of economic connection, which nearly all human activity does.  See Lopez, 514 U.S. at 565 (“[D]epending on the level of generality, any activity can be looked upon as commercial.”).  Such a power feels very much like the general police power that the Tenth Amendment reserves to the States and the people.  A structural shift of that magnitude can be accomplished legitimately only through constitutional amendment.

That question may have more resonance for the case brought by the states.  The question of standing didn’t prevail in Thomas More Law Center v Obama, but neither did any of the plaintiffs represent sovereign states, either.  The question of federal usurpation of power will matter more in the context of Virginia v Sebelius and the multi-state case originating in Florida.

However, this will give the Obama administration some political breathing room until those two cases get to the appellate court.  This is just one more stop along the road anyway, as this won’t get resolved until the Supreme Court decides to combine the cases and make a final ruling.

Update: Jonathan Adler at the Volokh Conspiracy notes that the court did reject the tax argument for the mandate, which keeps the batting average for that White House argument at .000.  (via Aaron Worthing)

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

Comment pages: 1 2

Freddy on June 29, 2011 at 2:49 PM

Whoa. I didn’t see that. I’m going to have to read that whole ruling. This is crazy.

KMC1 on June 29, 2011 at 2:52 PM

The explanation of this so called decision reads more like a justification for Obamacare than an actual judicial analysis. It reads more like what the lawyers for the slave mandate… I mean, health mandate would say as opposed to whether or not the federal government can just mandate everything in your life.

And let’s not get started about the misread of the Commerce Clause in there… uughhh..

On a different note, has Obama ever explained how he intends to pay for this yet? Because, since he is currently coming out as “so concerned” about the deficit of this country (to the point of pretending to be tough on Congress for not doing their homework even though he remained silent when his party failed to produce budgets in recent years, not to mention we are still waiting on 2012′s from the Senate), how are we gonna pay for all the people that will drop coverage, pay the fine, and be covered by O-Care. That will be most of the country in a few years if this law is carried out.

ptcamn on June 29, 2011 at 2:54 PM

The Georgia court rule yet?

stenwin77 on June 29, 2011 at 3:03 PM

Activist Republican Judges! Of them I can Approve!

/crr6

Del Dolemonte on June 29, 2011 at 3:03 PM

“The fix is in…”

Khun Joe on June 29, 2011 at 3:11 PM

Breaking:

Secret Service to be renamed His majesty’s royal guard.

darwin on June 29, 2011 at 2:00 PM

Praetorian Guard more like it.

VikingGoneWild on June 29, 2011 at 2:40 PM

*************************
What about Leibstandarte to go with the National Socialism meme?

NMRN123 on June 29, 2011 at 3:17 PM

More than eighty percent of adults nationwide visited a doctor or other health care professional one or more times in 2009.

While I am not denying that everyone will require the needs of a doctor sometime in their lives, this stat is bogus. How many of those people had to go to get a prescription renewed? I know that if they would just give me birth control pills then I would never go to the doctor. Same thing for many other benign scripts. I am held hostage to these people because if I want a renewal I have to go for an exam. For dangerous prescriptions that require monitoring, no problem, but doctors use this as an excuse to get you in there for really safe prescriptions that should be OTC.

mrsmwp on June 29, 2011 at 3:24 PM

I swear sometimes it seems like circuit courts throw sh*t against a wall just to see if SCOTUS lets it stick.

Extrafishy on June 29, 2011 at 1:40 PM

They made abortion legal.

Laws mandating purchase (cars, food, guns :-), etc)is okay, but how about a law mandating gym membership with automatic tracking of exercise hours and a law compelling an individual to comply with the government issued height/weight standards. These laws alone will reduce medical costs to the nation. Furthermore, those paraplegics, they can pay a penalty for not using the gyms although they are having to purchase the gym membership.

PrettyD_Vicious on June 29, 2011 at 3:32 PM

Ah yes, the new revised Constitution according to our courts:

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

The rest of it is just crap, this statement alone gives the government full power for any and every action they’d want with no restrictions… so lets junk the rest of the text.

That’s what the founding fathers wanted, right? A Document with a small statement in the middle giving full control over any action to the omnipotent federal government?

gekkobear on June 29, 2011 at 3:36 PM

Just to reiterate:

If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be. What aspect of human activity would escape federal power?

Such a power feels very much like the general police power that the Tenth Amendment reserves to the States and the people.

So, not only will Obamneycare help bankrupt the nation at a much faster rate, it will also set the precedent of a government without limits.

Chip on June 29, 2011 at 3:37 PM

More than eighty percent of adults nationwide visited a doctor or other health care professional one or more times in 2009.

Oh yeah? Well more than 99% of adults will consume food and water in the next year; so we must confiscate $150/week from every man woman and child to purchase their approved mandated food/water choices that the government will allow and permit.

This is totally constitutional and having the government take away choices, options, and freedoms is exactly why we have a Constitution in the first place… I guess.

gekkobear on June 29, 2011 at 3:38 PM

A smart Republican would immediately introduce a bill requiring everyone to own a car. You don’t want a car? You don’t need a car? Too bad. The law says you have to have one.

CurtZHP on June 29, 2011 at 1:21 PM

Just require everyone in the U.S. to regularly purchase minimum amounts of tobacco, alcohol, and guns and ammunition.

Then, in the name of “jobs”, beef up the ATF to a Cabinet-level position to oversee this. Of course, the new Secretary of ATF can provide waivers to exempt people from the law.

The Deomcrats shouldn’t mind… this only requires people to BUY these things. They can still make it illegal to USE them.

malclave on June 29, 2011 at 3:42 PM

Don’t forget sex. Everyone at some point in the life will want sex. Some more than others so hormone level tests should be administered to ensure the horniest get the sex they need.

I suggest Anthony Weiner as Sex Czar.

darwin on June 29, 2011 at 1:38 PM

So, I may have a constitutional Right to nail Megan Fox?

Is this a great country, or what?

trigon on June 29, 2011 at 3:44 PM

It all comes down to…. Anthony Kennedy, and who knows what that guy will do.

Or it will get repealed, if the Rebublicans take the Senate and the White House.

Or…serfdom.

God help us.

xrayiiis on June 29, 2011 at 3:47 PM

That’s what the founding fathers wanted, right? A Document with a small statement in the middle giving full control over any action to the omnipotent federal government?

gekkobear on June 29, 2011 at 3:36 PM

Wouldn’t it be great if some of the Leftist Legal Geniuses around here could explain this all to us.

How in Hades’ could you maintain a government like this?

Chip on June 29, 2011 at 4:04 PM

It all comes down to…. Anthony Kennedy, and who knows what that guy will do.

Or it will get repealed, if the Republicans take the Senate and the White House.

Or…serfdom.

God help us.

xrayiiis on June 29, 2011 at 3:47 PM

Or Sic Semper Tyrannis all over again.

War within our borders likely is what Zero, Zero’s hack judge appointees and Clintoon’s hack judge appointees want anyway. Judges of easy virtue and lust for power.

An earlier poster alluded to the Supremes already making the homicide of abortion legal. That is the slippery slope towards government killing for its own convenience. The Kelo decision? That’s the piles of dentures and eyeglasses outside Auschwitz the government owns too. They just didn’t have the time to go green Red with those.

viking01 on June 29, 2011 at 4:14 PM

That’s what the founding fathers wanted, right? A Document with a small statement in the middle giving full control over any action to the omnipotent federal government?

gekkobear on June 29, 2011 at 3:36 PM

Most people don’t know this but after the Articles of Confederation proved to be too weak the founding fathers send a letter back to King George III and asked for take-backsies on the whole revolution thing but were rejected and so they wrote the Commerce Clause into the Constitution in the hopes that again some day national tyranny would save the day.

gwelf on June 29, 2011 at 4:28 PM

More than eighty percent of adults nationwide visited a doctor or other health care professional one or more times in 2009.

More than 80% watch tv on a daily basis, drive a car, eat food, breath, sleep, and do many other things.

Does that mean congress has the right to enact laws to tell you what shows to watch, what car to buy, what food to eat, what mattress to sleep on and everything else?

According to this absurd “reasoning” by the 6th Circuit, congress can control absolutely every aspect of your life. There is no limit whatsoever to federal power.

The constitution is now meaningless.

Monkeytoe on June 29, 2011 at 4:44 PM

I’ll go one further – what the 6th is in effect saying is that since nobody has sued to overturn the EMT act, the powers assumed by congress in it are legitimate, and therefore the constitution must accomodate it.

Vashta.Nerada on June 29, 2011 at 2:12 PM

I do not think you have to prove the EMT act to be unconstitutional to realize that that EMT act, by itself, cannot expand the powers of government.

The 6th is saying the federal government has the right to force you to buy insurance, because your decision to not buy insurance has a cumulative impact on interstate commerce. However, that decision, or inactivity, only has an impact on commerce because of the existence of EMT act. So, it is the EMT act that is having the impact on commerce — not the inactivity. Without the act, an uninsured patient would not be entitled to care and would have no impact on the insurance market.

I just do not understand why no one is making this argument. Are they concerned that they will be called heartless for wanting to turn poor people out on the street without medical care, because that is BS. It just recognizes that a statutory created duty cannot expand government power under the Constitution. You do not even need to challenge the EMT act to make this argument.

tommylotto on June 29, 2011 at 4:44 PM

and ruled that the Constitution does not forbid regulation of “inactivity”.

I don’t know if this more Orwellian or Kafkaesque. Inactivity is really an activity, you see.

By this court’s Orwellian or Kafkaesque logic, if the Feds wanted a subsidized program requiring all parents to buy their kids laptops because it’s educational (or anything else perceived as good) they could do it. I trust most of our Supreme Court is still sane.

Chessplayer on June 29, 2011 at 5:02 PM

Update: Jonathan Adler at the Volokh Conspiracy notes that the court did reject the tax argument for the mandate, which keeps the batting average for that White House argument at .000.

“Oh Snap!”

/crr6

Del Dolemonte on June 29, 2011 at 5:05 PM

Del Dolemonte on June 29, 2011 at 5:05 PM

Where is crr6 to defend this abomination against the very idea of limited government?

Chip on June 29, 2011 at 5:17 PM

A serious question: Everyone will die at some point. What happens when the relatives cannot pay for the funeral? Is funeral insurance mandatory already or I am giving the Democrats more ideas?

neuquenguy on June 29, 2011 at 5:20 PM

Where is crr6 to defend this abomination against the very idea of limited government?

Chip on June 29, 2011 at 5:17 PM

She has an ‘internship’ now in which she furthers the interests of big evil corporations. She will be insufferable as soon as she gets off from ‘work’.

stvnscott on June 29, 2011 at 5:22 PM

A serious question: Everyone will die at some point. What happens when the relatives cannot pay for the funeral? Is funeral insurance mandatory already or I am giving the Democrats more ideas?

neuquenguy on June 29, 2011 at 5:20 PM

The government will mandate you buy a supremely expensive burial plot to pay for people who don’t want to buy their own.

darwin on June 29, 2011 at 5:56 PM

The government will mandate you buy a supremely expensive burial plot to pay for people who don’t want to buy their own.

darwin on June 29, 2011 at 5:56 PM

Casket manufacturers do ship across states lines.

CW on June 29, 2011 at 6:05 PM

The obligation to provide treatment regardless of ability to pay is imposed by the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd, state laws, and many institutions’ charitable missions.

EMTALA does not require medical care be provided free. It just requires EMERGENCY medical care be given first without being predicated on ability to pay. Once the emergency is past, the provider is still free to try to collect.

State laws are a matter of law for states.

What do charitable missions have to do with the government mandating the purchase of health insurance? For charitable missions, the bill is still being paid by the organization providing the charity, which may or may not be the organization actually providing the care.

All three of these arguments are specious fig leafs for handing down the decision they wanted to hand down. IOW, excuses.

tom on June 29, 2011 at 6:17 PM

The requirement to provide medical care to everyone regardless of ability to pay is not Constitutional. It is merely statutory. Those statutes could be rescinded and no health care need to provided to poor people or those foolish enough to not buy insurance. I am not advocating that policy, but a statutory created mandate should not create expanded government power under the Constitution. It makes no sense.

tommylotto on June 29, 2011 at 1:56 PM

Well put. Wouldn’t the proper remedy, then, be to rule EMTALA unconstitutional?

tom on June 29, 2011 at 6:24 PM

Well put. Wouldn’t the proper remedy, then, be to rule EMTALA unconstitutional?

tom on June 29, 2011 at 6:24 PM

More seriously, it’s not really hard to interpret EMTALA as simply requiring emergency care to be provided first, without claiming that it requires medical care to be provided free.

tom on June 29, 2011 at 6:28 PM

Del Dolemonte on June 29, 2011 at 5:05 PM

Where is crr6 to defend this abomination against the very idea of limited government?

Chip on June 29, 2011 at 5:17 PM

Probably in WI giving pro bono advice to those lady SC Justices?

Here’s a fascinating audio update on that story from this morning. It confirms that the Left has practiced Soros-Funded Junk Journalism to generate a false “news” story. Dr. Goebbels would be proud of their efforts.

http://media2.620wtmj.com/sykes/062911_Details_Into_Supreme_Court_Scuffle.mp3

Del Dolemonte on June 29, 2011 at 6:30 PM

Umm which original case did this appeal address, which state? No where does it state. Everyone assumes we all know where the 6th appellate court resides and which case it addresses. Does this mean this particular case reaches the supremes first? Can the Supremes pull all of the cases out of the appeals courts nationwide and address them in one ruling?

karenhasfreedom on June 29, 2011 at 6:47 PM

The unavoidable need for health care coupled with the obligation to provide treatment make it virtually certain that all individuals will require and receive health care at some point.

Does this apply to unborn babies needing treatment from, say, abortion … or is that argument, too, “legally stillborn?”

eucher on June 29, 2011 at 6:48 PM

Furthermore, Congress had a rational basis for concluding that the minimum coverage provision is essential to the Affordable Care Act’s larger reforms to the national markets in health care delivery and health insurance.

waitaminit …

Did they just make part of their justification that this is OK is just because “hey, they need the money”??

Wow, what a great justification for making laws.

dissent555 on June 29, 2011 at 7:27 PM

A serious question: Everyone will die at some point. What happens when the relatives cannot pay for the funeral? Is funeral insurance mandatory already or I am giving the Democrats more ideas?

neuquenguy on June 29, 2011 at 5:20 PM

well, they say the only things you can be certain about are death and taxes. How about mandating some taxes insurance, in case you find yourself unable to pay your taxes.

My God, it’s elephants all the way down …………..

dissent555 on June 29, 2011 at 7:32 PM

Del Dolemonte on June 29, 2011 at 5:05 PM

Where is crr6 to defend this abomination against the very idea of limited government?

Chip on June 29, 2011 at 5:17 PM

Probably in WI giving pro bono advice to those lady SC Justices?

Here’s a fascinating audio update on that story from this morning. It confirms that the Left has practiced Soros-Funded Junk Journalism to generate a false “news” story. Dr. Goebbels would be proud of their efforts.

http://media2.620wtmj.com/sykes/062911_Details_Into_Supreme_Court_Scuffle.mp3

Del Dolemonte on June 29, 2011 at 6:30 PM

Look over there, the Koch brothers!!

slickwillie2001 on June 29, 2011 at 7:40 PM

Del Dolemonte on June 29, 2011 at 6:30 PM

Look over there, the Koch brothers!!

slickwillie2001 on June 29, 2011 at 7:40 PM

The folks at Power Line have been the ones disassembling the pathetic efforts to smear the Kochs. BTW, anyone seen the new Power Line format?

Del Dolemonte on June 29, 2011 at 7:45 PM

The majority is ludicrous.

All of us will need shelter. Should government control the residential housing market and compel individuals to buy houses?

All of us will need clothes.

All of us will need food.

Where does it end?

With the destruction of this country, by a fifth column called the cadaver of the Democrat Party, a once-proud, patriotic group that has been subsumed by the maggots known as Marxists.

directorblue on June 29, 2011 at 8:19 PM

This judge is a criminal. No ethical person would disagree. He is part of the democrat party, an anti-american group of thugs.

proconstitution on June 29, 2011 at 8:44 PM

“Oh Snap!”

/crr6

Del Dolemonte on June 29, 2011 at 5:05 PM

Indeed.

It may not be apparent from Ed’s perfunctory coverage, but this is a big deal. A very big deal. It’s a big deal for three main reasons.

1) Judge Sutton is one of the most conservative federal appellate judges in the country. He’s also one of the smartest. Other judges (including ones on SCOTUS) will take his opinion very, very seriously. For that reason, the fact that he found the mandate to be constitutional is extremely significant.

2) As I predicted, the depth and level of the analysis in all of the opinions here improved a great deal compared to the district court rulings. Each of the judges (and Sutton in particular) took great care to address each side’s arguments with thoughtful, targeted responses, rather than just regurgitating lines from the parties’ briefs. As far as I can tell, a great deal of Sutton’s opinion wasn’t even hinted at in the DOJ’s briefs. He just concocted it on his own, partially based off of responses he received to his questions at oral arguments.

3) This means that there’s a real chance that there won’t be a Circuit split, which means that there’s a real chance this won’t even be reviewed by SCOTUS. I still think that at least one COA will strike down the law, forcing a Circuit split and making SCOTUS review likely. But then again, Sutton’s opinion changes everything. I’m sure the judges on the 11th Circuit are reading it very carefully.

Anyway, based off of the comments I’ve seen, it doesn’t look like many people here read the opinion. That’s unfortunate, because as I said, both judges in the majority took great care to thoughtfully (and at times, eloquently) address many of the arguments your side makes. I’d highly recommend reading the portion of Sutton’s opinion on the inactivity/activity distinction. Another part in the particular echoed much of what I’ve said here for the past year or so:

Any remaining doubt about rejecting this facial challenge is alleviated by the most enduring lesson of McCulloch, which remains an historical, not a doctrinal, one. No debate in the forty years after the country’s birth stirred the people more than the conflict between the federalists and anti-federalists over the role of the National Government in relation to the States. And no issue was more bound up in that debate than the wisdom of creating a national bank. In upholding the constitutionality of a second national bank, not a foregone conclusion, the Supreme Court erred on the side of allowing the political branches to resolve the conflict. Right or wrong, that decision presented the challengers with a short-term loss (by upholding the bank) and set the platform for a potential long-term victory (by allowing them to argue that Congress should not make the same mistake again). There was no third national bank. But see Federal Reserve Act, ch. 6, 38 Stat. 251 (1913).
Today’s debate about the individual mandate is just as stirring, no less essential to the appropriate role of the National Government and no less capable of political resolution. Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.

crr6 on June 29, 2011 at 9:38 PM

Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.

crr6 on June 29, 2011 at 9:38 PM

Tell it to Dred Scott.

Fighton03 on June 29, 2011 at 9:55 PM

crr, since you are so great at this…what is the ONLY guarantee granted by the US constitution?

Fighton03 on June 29, 2011 at 9:56 PM

1) Judge Sutton is one of the most conservative federal appellate judges in the country. He’s also one of the smartest.

crr6 on June 29, 2011 at 9:38 PM

Gee… he rules the way crr6 likes, so he’s “one of the smartest”. Didn’t see that coming.

malclave on June 29, 2011 at 10:23 PM

1) Judge Sutton is one of the most conservative federal appellate judges in the country. He’s also one of the smartest.

crr6 on June 29, 2011 at 9:38 PM

Gee… he rules the way crr6 likes, so he’s “one of the smartest”. Didn’t see that coming.

malclave on June 29, 2011 at 10:23 PM

To the Left, the word “smart” is just another word with a flexible meaning, like “sex” or “is”.

Del Dolemonte on June 29, 2011 at 10:32 PM

Just to reiterate:

If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be. What aspect of human activity would escape federal power?

Such a power feels very much like the general police power that the Tenth Amendment reserves to the States and the people.

So, not only will Obamneycare help bankrupt the nation at a much faster rate, it will also set the precedent of a government without limits.

Note that crr6 didn’t answer that.

Chip on June 29, 2011 at 10:53 PM

Note that crr6 didn’t answer that.

Chip on June 29, 2011 at 10:53 PM

Ah, the ever present “if this, then anything” argument. Did you read the opinion, Chip? Because that’s addressed:

The individual mandate also steers clear of the central defect in the laws at issue in Lopez and Morrison. Health care and the means of paying for it are “quintessentially economic” in a way that possessing guns near schools, see Lopez, 514 U.S. 549, and domestic violence, see Morrison, 529 U.S. 598, are not. No one must “pile inference upon inference,” Lopez, 514 U.S. at 567, to recognize that the national regulation of a $2.5 trillion industry, much of which is financed through “health insurance . . . sold by national or regional health insurance companies,” 42 U.S.C. § 18091(a)(2)(B), is economic in nature. Nor does this approach remove all limits on the commerce power.
As Lopez and Morrison suggest, a majority of the Court still appears to accept the line between regulating economic and non-economic conduct, which is why a general murder or assault statute would exceed congressional power.

crr6 on June 29, 2011 at 10:58 PM

Ah, the ever present “if this, then anything” argument. Did you read the opinion, Chip? Because that’s addressed:

crr6 on June 29, 2011 at 10:58 PM

your argument is specious since there are other non economic issues within the gun argument. To remain within the economic frame, how many citizens were mandated to bank at the second US bank..since previously you cited the ‘smart’ justices reference to that.

Fighton03 on June 29, 2011 at 11:13 PM

BTW……crr, economic includes commerce, but commerce by no means defines ‘economic’.

Fighton03 on June 29, 2011 at 11:14 PM

Chip on June 29, 2011 at 10:53 PM

Chip, I have a question for you, and I’d really appreciate an honest answer.

Historically, whenever SCOTUS has handed down an opinion upholding the more expansive view of federal power, libertarians and conservatives have rather dramatically protested (as you have here) that the opinion means that there are no longer any limits on federal power. It happened after McCulloch, it happened after Wickard, it happened after Raich, and it will happen again if SCOTUS upholds the mandate. Like clockwork, whenever a decision (especially a commerce clause decision) comes down in favor of the government, you guys say the days of a limited federal government are finished.

The problem is, absent a retraction of federal power in intervening decisions, the “if this, then anything” argument can only be true once, i.e., if McCulloch eliminated all limits on federal power, how can it be that Raich (or this opinion) eliminated all limits on federal power? I thought those limits were already gone? Do you see the problem there?

In light of that, your “if this, then anything” argument starts to look a lot less like a serious argument and a lot more like a dishonest, hyperbolic scare tactic. What say you?

crr6 on June 29, 2011 at 11:26 PM

The problem is, absent a retraction of federal power in intervening decisions, the “if this, then anything” argument can only be true once, i.e., if McCulloch eliminated all limits on federal power, how can it be that Raich (or this opinion) eliminated all limits on federal power? I thought those limits were already gone? Do you see the problem there?

crr6 on June 29, 2011 at 11:26 PM

Nope….once again your argument is fallacious. Each further encroachment is only another example that there is no limit to federal power and that governmet may seize more power simply by fiat.

Fighton03 on June 29, 2011 at 11:31 PM

Nope….once again your argument is fallacious. Each further encroachment is only another example that there is no limit to federal power

That’s rarely (if ever) how you guys frame it though. You say that now there are no limits on federal power, i.e. there were previously at least some limits on federal power, and as a result of this decision there are none.

or, and that governmet may seize more power simply by fiat.

Fighton03 on June 29, 2011 at 11:31 PM

How could the government seize more power if its power was already unlimited? You’re a victim of your own hyperbole.

If you were honest, you’d just say “under this decision, the federal government has more power than I, as a libertarian, would prefer.” But of course, that isn’t quite as catchy as screeching “OMG NOW THERE IZ NO LIMIT TO WHAT TEH GOVERNMENT CAN DOES TO UZ!”

crr6 on June 29, 2011 at 11:41 PM

That’s rarely (if ever) how you guys frame it though. You say that now there are no limits on federal power, i.e. there were previously at least some limits on federal power, and as a result of this decision there are none.

crr6 on June 29, 2011 at 11:41 PM

REALLLY????? you think anyone on this site would argue that..UP UNTIL THIS DECISION federal power was in check? really? please…check your strawmen at the door.

Fighton03 on June 29, 2011 at 11:47 PM

REALLLY????? you think anyone on this site would argue that..UP UNTIL THIS DECISION federal power was in check? really? please…check your strawmen at the door.

Fighton03 on June 29, 2011 at 11:47 PM

Check your own strawman. I never said they thought it was “in check,” but they must have thought that there were at least some limits on federal power. Otherwise, arguing that the mandate eliminates any limits on federal power wouldn’t make any sense.

crr6 on June 29, 2011 at 11:52 PM

crr6 on June 29, 2011 at 11:52 PM

true…you have never argued that federal government should have ANY limit, I will grant you that. Of course, most of us have argued that at some point the constitution represented a limit on power of the federal government. But as they say…how does a pygmy eat an elephant.

Fighton03 on June 29, 2011 at 11:57 PM

true…you have never argued that federal government should have ANY limit, I will grant you that.

Actually, I have. Repeatedly.

Of course, most of us have argued that at some point the constitution represented a limit on power of the federal government.

Fighton03 on June 29, 2011 at 11:57 PM

Of course. It still does.

crr6 on June 30, 2011 at 12:01 AM

crr6 on June 30, 2011 at 12:01 AM

no…you have asserted that the federal government can do what YOU want it to do.

Fighton03 on June 30, 2011 at 12:04 AM

buh bye…..

Fighton03 on June 30, 2011 at 12:44 AM

The unavoidable need for health care coupled with the obligation to provide treatment make it virtually certain that all individuals will require and receive health care at some point.

Nowhere in the Constitution does it allow such reasoning to grant powers to the federal power. It can only be extrapolated from New Deal type power grabs, which should be repealed also. We can repeal them ourselves, or wait until the Chinese take over the IMF and do it for us so that our kids can start paying off the debt we have placed on them.

pedestrian on June 30, 2011 at 1:59 AM

“If people let government decide what foods they eat and what medicines they take, their bodies will soon be in as sorry a state as are the souls of those who live under tyranny.”…

“I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of them.”

Thomas Jefferson.

Lost wisdom.

Egfrow on June 30, 2011 at 4:56 AM

Everyone goes to a doctor, therefore interstate commerce.

Baffling. Is there anything the Commerce Clause can’t do?

BKennedy on June 30, 2011 at 7:39 AM

BKennedy on June 30, 2011 at 7:39 AM

Not according to the socialists and their socialist judges.

This is why being a socialist immediately makes one incompetent to be a judge. These things are mutually exclusive.

dogsoldier on June 30, 2011 at 8:39 AM

crr6 on June 29, 2011 at 11:26 PM

Just to reiterate (wow, was I prescient when I posted that) The following quotes came from the Judge Graham’s dissent:

If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be. What aspect of human activity would escape federal power?

So besides going into a long distracting dissertation designed to deflect the dialog (oh, stuck on the ‘d’ words) you have failed to address this central issue, and that is:

What aspect of human activity would escape federal power?

The other opinion you cited had the statement:

a majority of the Court still appears to accept the line between regulating economic and non-economic conduct,

So it would appear (to use that word) that the line has yet to be crossed, but there doesn’t appear to be a bar from crossing that line, hence the phrase from Judge Graham’s dissenting opinion:

It is difficult to see what the limits on Congress’s Commerce Clause authority would be.

Which is followed up with:

What aspect of human activity would escape federal power?

On top of which, what wouldn’t be considered an economic activity?

I’d really appreciate an honest answer on this for once.

Chip on June 30, 2011 at 12:51 PM

“Thus, although there is no firm, constitutional bar that prohibits Congress from placing regulations on what could be described as inactivity, even if there were it would not impact this case due to the unique aspects of health care that make all individuals active in this market.”

These judges are practically bragging that, if they are not ignoring it already, they would be willing to ignore the Constitution.

Ira on June 30, 2011 at 7:56 PM

On top of which, what wouldn’t be considered an economic activity?

I’d really appreciate an honest answer on this for once.

Chip on June 30, 2011 at 12:51 PM

Ok. This ruling doesn’t disturb Morrison or Lopez. So beating your wife isn’t economic activity. Possessing a handgun in a school zone isn’t economic activity.

I’m not sure how to answer more directly than that. Now can you answer my question?

Thanks.

crr6 on July 1, 2011 at 1:10 AM

Are ya there, Chip?

crr6 on July 2, 2011 at 12:02 PM

Anyway, based off of the comments I’ve seen, it doesn’t look like many people here read the opinion. That’s unfortunate, because as I said, both judges in the majority took great care to thoughtfully (and at times, eloquently) address many of the arguments your side makes.

Yes crr6, and they didn’t both sign the same argument; because they made separate arguments disagreeing with each other on many of the points…

So we had one in favor for one set of reasons, one in favor on a different set of reasons, and one against in the 3 judge ruling. Three different decisions from three judges.

Clearly there is a solid consensus, the argument is closed, and no more debate is necessary.. because the 3 judges agreed… on not much of anything.

Anyone who disagrees is crazy, we have a clear and concise consensus of… whichever Judge crr6 most agrees with I guess.

Anyone impressed yet?

gekkobear on July 3, 2011 at 3:49 AM

Comment pages: 1 2