Sixth Circuit Upholds Individual Mandate In ACA As Constitutional
Opinion here (PDF). The vote was 2-1. I discuss the dissent on the flip.
First, the court ruled that the individual mandate regulates economic activity:
The minimum coverage provision regulates activity that is decidedly economic. In Raich, the Supreme Court explained that “‘[e]conomics’ refers to ‘the production, distribution, and consumption of commodities.’” Id. at 25 (quoting Webster’s Third New International Dictionary 720 (1966)). Consumption of health care falls squarely within Raich’s definition of economics, and virtually every individual in this country consumes these services. Individuals must finance the cost of health care by purchasing an insurance policy or by self-insuring, cognizant of the backstop of free services required by law. By requiring individuals to maintain a certain level of coverage, the minimum coverage provision regulates the financing of health care services, and specifically the practice of self-insuring for the cost of care. The activity of foregoing health insurance and attempting to cover the cost of health care needs by self-insuring is no less economic than the activity of purchasing an insurance plan. Thus, the financing of health care services, and specifically the practice of self-insuring, is economic activity.
More on the flip.
Moreover, the Necessary and Proper Clause provides Congress with the authority to act even if the individual mandate did not reach economic activity, rules the court:
Alternatively, even if self-insuring for the cost of health care were not economic activity with a substantial effect on interstate commerce, Congress could still properly regulate the practice because the failure to do so would undercut its regulation of the larger interstate markets in health care delivery and health insurance. In Raich, the Supreme Court explained that Congress can regulate non-commercial intrastate activity if it concludes that it is necessary in order to regulate a largerinterstate market. 545 U.S. at 18. The Court found relevant that unlike the single-subject criminal statutes at issue in Morrison and Lopez, the classification of marijuana at issue in Raich was “merely one of many ‘essential part[s] of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.’” Id. at 24-25 (alteration in original) (quoting Lopez, 514 U.S. at 561). The Raich Court highlighted two aspects of Congress’s broad power under the Commerce Clause. First, Congress may aggregate the effects of non-commercial activity and assess the overall effect on the interstate market. Id. at 22. Second, the rational basis test applies to Congress’s judgment that regulating intrastate non-economic activity is essential to its broader regulatory scheme. Id. at 19. Thus, where Congress comprehensively regulates interstate economic activity, it may regulate non-economic intrastate activity if it rationally believes that, in the aggregate, the failure to do so would undermine the effectiveness of the overlying regulatory scheme.5
On the issue of whether the Congress can regulate "inactivity":
As long as Congress does not exceed the established limits of its Commerce Power, there is no constitutional impediment to enacting legislation that could be characterized as regulating inactivity. The Supreme Court has never directly addressed whether Congress may use its Commerce Clause power to regulate inactivity, and it has not defined activity or inactivity in this context. However, it has eschewed defining the scope of the Commerce Power by reference to flexible labels, and it consistently stresses that Congress’s authority to legislate under this grant of power is informed by “broad principles of economic practicality.” Lopez, 514 U.S. at 571 (Kennedy, J., concurring); see Wickard, 317 U.S. at 120 (explaining that Congress’s power cannot be determined “by reference to any formula which would give controlling force to nomenclature such as ‘production’ and ‘indirect’ and foreclose consideration of the actual effects of the activity in question upon interstate commerce”).
The dissent says the individual mandate exceeds the Commerce Power:
Because the mandate regulates decisions not to purchase health insurance – conduct falling outside the ordinary sense of the word “commerce” (the trade or exchange of a good, see Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 72 (1824)) – Congress expressly invoked the third category of Commerce Clause power as its authority for enacting the mandate. See ACA § 1501(a)(1). And in various suits across the nation challenging the constitutionality of the mandate, the government has consistently defended the mandate under Congress’s power to regulate activities that substantially affect interstate commerce.
Here is the dissent's malarkey on the Necessary and Proper Clause:
This argument deftly switches the focus from the private, non-commercial nature of plaintiffs’ conduct (the decision to be uninsured) to the perceived economic effects of their absence from the insurance market. Certainly, plaintiffs’ conduct may be considered in the aggregate with the conduct of similarly-situated individuals, see Raich, 545 U.S. at 20; however, the Commerce Clause cannot be satisfied when economic activity is lacking in the first instance.2 “Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.” Lopez, 514 U.S. at 560; see also Morrison, 529 U.S. at 611 (“[I]n those cases where we have sustained federal regulation of intrastate activity based upon the activity’s substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor.”); Raich, 545 U.S. at 17 (Congress may regulate “purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce”). It is true that decisions not to purchase insurance are in some sense economic ones. They are choices about risk and finances. When viewed in the aggregate, these decisions have economic consequences. Congress, for instance, has found that: The cost of providing uncompensated care to the uninsured was $43,000,000,000 in 2008. To pay for this cost, health care providers pass on the cost to private insurers, which pass on the cost to families. This cost-shifting increases family premiums by on average over $1,000 a year. By significantly reducing the number of the uninsured, the requirement, together with the other provisions of this Act, will lower health insurance premiums. 42 U.S.C. § 18091(F). In an amicus brief, certain economic scholars point to other costshifting effects caused by decisions to be uninsured. The first relates to adverse selection, or the positive correlation between demand for insurance and the risk of loss. When healthy individuals opt not to buy insurance, the pool of insured persons is smaller and less healthy as a whole, thus raising premiums. Second, when previously uninsured individuals do obtain insurance, they tend to do so when they have a significant medical need and thereby consume more and costlier services.
That pretty much should end the discussion - a substantial effect on commerce. Buuut noooooo. . . :
Lopez and Morrison rejected a view of causation whereby the cost-shifting to society caused by violent conduct can satisfy the substantial effects test. See Lopez, 514 U.S. at 564 (rejecting the government’s “costs of crime” and loss of “national productivity” reasoning); Morrison, 529 U.S. at 615 (same). The government fails to show why a view of cost-shifting caused by risky conduct should fare any better. The problem with the government’s line of reasoning here is that it has no logical end point, and it illustrates precisely Justice Thomas’s concerns with the substantial effects test. See Morrison, 529 U.S. at 627 (Thomas, J., concurring) (calling the test “rootless and malleable”). That test, when paired with the aggregation principle, invites manipulation and “draw[ing] the circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on commerce.” Lopez, 514 U.S. at 600 (Thomas, J., concurring)
For those who do not know, Justice Thomas concurred with the majority in Lopez, because he disagreed with its maintenance of the "substantial effects" test. The substantial effects test remains good law. The dissenting judge is blatantly flaunting a binding Supreme Court rule.
In essence, the dissenting judge does not care about binding precedent:
The “hard work for courts” is identifying “objective markers for confining the analysis in Commerce Clause cases.” Raich, 545 U.S. at 47 (O’Connor, J., dissenting). When dealing with the outer limits of Congress’s powers, “first principles” must be heeded. See Lopez, 514 U.S. at 552. The federal government is one of enumerated powers. Congress’s authority must have limits, lest the Tenth Amendment’s reservation of powers to the States and the people be without meaning. Principles of federalism thus should guide a court’s examination of novel exercises of Commerce Clause power.
(Emphasis supplied.) Yes, Justice O'Connor was in dissent in RaIch. I suppose I could go on, I see no point to it. When a circuit court judge decides that binding Supreme Court precedent is immaterial to his analysis, there's not much to say about the opinion.
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