Sixth Circuit Upholds Individual Mandate In ACA As Constitutional

By Big Tent Democrat, Section Constitution
Posted on Wed Jun 29, 2011 at 11:33:25 AM EST
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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 ratio