Comments on: APPEALS COURT UPHOLDS OCARE MANDATE

By: Diogenes

Diogenes — Fri, 01 Jul 2011 03:11:19 +0000

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.

By: nyp

nyp — Fri, 01 Jul 2011 02:21:54 +0000

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.

By: Diogenes

Diogenes — Fri, 01 Jul 2011 00:32:16 +0000

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

By: nyp

nyp — Thu, 30 Jun 2011 10:56:35 +0000

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 “direct�? and “indirect�? effects test of prior Commerce Clause jurisprudence.”

So my point stands.

As for merits of the “inactivity” argument, itself, Judge Sutton said it best:
“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.”

By: Diogenes

Diogenes — Thu, 30 Jun 2011 04:19:51 +0000

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.

By: nyp

nyp — Thu, 30 Jun 2011 03:44:06 +0000

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.”