The Sixth Circuit Court of Appeals has upheld the individual mandate against a Commerce Clause challenge by the Thomas More Law Center. This is the first time an appeals court has ruled on the mandate, but the logic is just as Orwellian as some of the lower court rulings. Two of the three judges bought the argument that NOT buying a product constitutes interstate commerce that can be regulated by Congress:
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.
Note the semantic contortion that defines “foregoing health insurance” (i.e. not buying it) as an “activity.” This is utter nonsense and one of the judges said so in a dissenting opinion:
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?
Answer: none. This is why the judges of the Eleventh Circuit Court of Appeals will probably strike down the mandate when they deliver their decision later this summer. And it’s hard to imagine the Supreme Court, where this question will ultimately be decided, buying the kind of pretzel logic used by the Sixth Circuit today.
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Actually, none of the three judges (including the dissenter) bought the “activity/inactivity” distinction. As Judge Sutton (a Scalia clerk and Federalist Society member!) wrote: “”Requiring insurance today and requiring it at a future point of sale amount to policy differences in degree, not kind, and not the sort of policy differences removed from the political branches by the word ‘proper’ or for that matter ‘necessary’ or ‘regulate’ or ‘commerce.’” (Pp.49-50). Because everyone concedes that Congress can regulate the terms of the economic or commercial activity of obtaining health care, then it follows that Congress can, ex ante, require “insurance today. … Health insurance is unlike most (if not all) other commercial products, such that upholding a mandate to acquire it would not empower Congress to force people to fill-in-the-blank (eat broccoli, join health clubs, buy GM cars, etc.). Regulating how citizens pay for what they already receive (health care), never quite know when they will need, and in the case of severe illnesses or emergencies generally will not be able to afford, has few (if any) parallels in modern life. Not every intrusive law is an unconstitutionally intrusive law. And even the most powerful intuition about the meaning of the Constitution must be matched with a textual and enforceable theory of constitutional limits, and the activity/inactivity dichotomy does not work with respect to health insurance in many settings, if any of them.”
Posted 29 Jun 2011 at 10:44 pm ¶Au contraire, mon ami. When Judge Martin twisted himself into the rhetorical clove hitch quoted in the first block, he tipped his hand. It’s obvious that he knows the activity issue is a problem and that is why he went to such pains to inoculate the mandate with that ridiculous sentence.
Posted 29 Jun 2011 at 11:19 pm ¶The point I made stands: none of the judges, including both the Scalia clerk and the partially dissenting Reagan appointee, accepted the validity of the “activity/inactivity distinction” as a means of analyzing Commerce Clause cases in general and the healthcare reform case in particular. In his partial dissent Judge Graham wrote: “Yet I do not interpret those cases as drawing a constitutional line between activity and inactivity. That distinction would suffer from the same failings as the “directâ€? and “indirectâ€? effects test of prior Commerce Clause jurisprudence.”
So my point stands.
As for merits of the “inactivity” argument, itself, Judge Sutton said it best:
Posted 30 Jun 2011 at 5:56 am ¶“In most respects, a mandate to purchase health insurance does not parallel these other settings or markets. Regulating how citizens pay for what they already receive (health care), never quite know when they will need, and in the case of severe illnesses or emergencies generally will not be able to afford, has few (if any) parallels in modern life. Not every intrusive law is an unconstitutionally intrusive law. And even the most powerful intuition about the meaning of the Constitution must be matched with a textual and enforceable theory.of constitutional limits, and the activity/inactivity dichotomy does not work with respect to health insurance in many settings, if any of them.”
My point stands.
Nope. Not even Judge Martin rejected the “activity-inactivity” argument. As law prof Randy Barnett points out:
Judge Martin did not question the activity-inactivity distinction. “In applying this jurisprudence, our first duty is to determine the class of activities that the minimum coverage provision regulates.� And “[t]he minimum coverage provision regulates activity that is decidedly economic.� Later he writes, “far from regulating inactivity, the provision regulates active participation in the health care market.� For his Commerce Clause Analysis, he accepted the government’s characterization of the activity reached by the statute
Posted 30 Jun 2011 at 7:32 pm ¶In the passage you quote Judge Martin notes that even if once accepted a constitutional activity/inactivity distinction, the decision to plan for one’s future health care needs by self-savings rather than by purchasing insurance easily counts as “activity” for Commerce Clause purposes.
Posted 30 Jun 2011 at 9:21 pm ¶You’re still missing the point, nyp. If Martin were as dismissive of the activity-inactivity distinction as you claim, he would not have spilled so much ink trying to convince us that “foregoing health insurance” is an activity.
And you, like so many ObamaCare supporters, are ignoring the obvious point that the mandate doesn’t require people to “plan for one’s future health care needs.” It requires people to buy a product from an insurance industry you claim is run by crooks.
Posted 30 Jun 2011 at 10:11 pm ¶Post a Comment