June 29, 2011

6th Circuit upholds the individual mandate.

Ilya Somin comments:
Today’s 2–1 Sixth Circuit Court of Appeals decision upholding the constitutionality of the individual mandate is undeniably a setback for mandate opponents. Up until now, judges’ votes in the mandate cases had split along ideological and partisan lines. Every conservative Republican judge had voted to strike it down, while every liberal Democrat voted to uphold it. Even in the Sixth Circuit, two of the three judges fit the same pattern (Judge Boyce Martin, and Judge Graham in dissent). But Judge Jeffrey Sutton, a well-known conservative judge has now become the first exception to it. Like Martin, he voted to uphold the mandate as an exercise of Congress’ powers under the Commerce Clause.

At the same time, Martin and Sutton’s opinions highlight a central weakness of the pro-mandate position in even more blatant form than previous opinions upholding the mandate. Their reasoning has extremely radical implications. Unlike previous decisions upholding the mandate, which ruled that failing to purchase health insurance is “economic activity,” Martin and Sutton conclude that Congress has the power to regulate inactivity as well, so long as the inactivity has some kind of “substantial” economic effect.

65 comments:

Pogo said...

6th Circuit renders meaningless the Constitution.

Phil 3:14 said...

Don't we all know where this is headed. In the mean time does it make that much difference?

MadisonMan said...

Does my commenting here, which is inactivity as far as my job is concerned, have a substantial economic effect?

I don't want to be regulated!

Carol_Herman said...

Same Constitution. Different days and time. It upheld slavery. It said women couldn't vote.

So, I'm not too impressed. We've got enough circuits that the "individual mandate" is some sort of legal joke. The issue lets lawyers pay for their mortgages. It lets them hire staff.

For Nancy Pelosi? When the bill got signed into law and opened ... it blew her out of the Speaker's Office.

And, obama ain't doing too hot, either.

Now, if one of the supreme court justices needs to be replaced ... and obama is still in office ... Something tells me he'd choose Patrick Fitzgerald. (About as popular as the individual mandate. Plus, tossing in sotomayor, and kagan, to boot.)

Then? Well, then.

Maybe, we can revolt?

Maybe, Orin Hatch has enough fears that he'll be replaced in his primary fight ... that Patrick Fitzgerald would be the least of his worries?

Leadership in DC is lacking.

If Abraham Lincoln had taken a lack of leadership to heart ... our Union would have been lost.

You know, I also notice that Israel does just fine when she keeps her powder dry.

Heck, I've heard obama. But Bibi didn't fold. Then I just saw that Q-Daffy is still alive. Assad hasn't stopped killing his own people. Tourism is down in egypt. And, dead in greece. Maybe, even Turkey? And, the nut-in-a-dinner-jacket is losing his leadership role in iran.

All of this without Israel having to fire a shot.

Sure keeps me believing that God works in strange ways. You know what? I'm going to leave these problems on his desk.

Drew said...

Their reasoning has extremely radical implications.

That's putting it mildly! Yikes!

America, I hardly recognize you anymore.

rickf101 said...

I didn't by a Gulfstream G5 jet today which had a significant negative impact on the economy. So congress can force me to buy that jet now?

rickf101 said...

by => buy

Mark O said...

Doom.

Mark said...

So, Congress can tell me that I must buy a union-built car every three years, because not doing so will adversely affect the economy?

Tonight I begin looking for a job in Australia or New Zealand.

Carol_Herman said...

Oh, MarkO, you're always so lighthearted.

If "doom" means I gotta call a lawyer to get my insurance to work ... "after doom" ... will you be available?

MikeinAppalachia said...

Carol-
Interesting-can you please cite the relative section and text of the Constitution that upheld slavery and also that which prevented women from voting?

DKWalser said...

Or, in other words, the power of the federal government is not limited in any meaningful way.

tfmaguire42 said...

The pro-mandate position seems to me to be a pretty straightforward case of the argument that proves too much. I've always considered the commerce clause to be the clause that ate the constitution, but that truly is the case today. Under this reasoning, there are no longer any constitutional restraints on federal power.

Michael said...

"Martin and Sutton conclude that Congress has the power to regulate inactivity as well, so long as the inactivity has some kind of “substantial” economic effect"

Outstanding!! Good news for the railroads people aren't riding, the crap GM cars people aren't buying, all the splendid green energy programs the govt. supports. Well done, comrades. The middle west region will produce forty percent more wheat this year than last.

reader_iam said...
This comment has been removed by the author.
reader_iam said...

So, would it be possible to construe from this that inactivity of other sorts--say, for example, having never held a remunerative job--is also an "economic activity" (in the sense of "lack thereof")? With the implied underpinning that failing to provide, at bare minimum, for one's self, carries consequences if such failure forces others to carry your load?

Just thinking out loud, for now.

(And I'd suggest others read neither too much nor too little in that rumination while acknowledging "who the hell cares what I'd suggest?".)

Sorry, had to delete and repost because I couldn't stand the lack of an end parenthesis.

sorepaw said...

Blecch!

I'm not sure anyone needed reminding.

But if they did...

Jeffrey Sutton has proven that not all intellectually bankrupt judges are "liberals."

Roux said...

Under this dumbass ruling I guess we will all have to buy a Chevy.

Carol_Herman said...

MikeinAppalacia. Either you went to law school with obama. Or too much moonshine froze your brain cells.

Carol_Herman said...

I can remember back to 1960, when Nixon and JFK were fighting to win the presidency. And, JFK was asked a question about the expanding use of the Commerce Clause.

And, I remember his answer, for some reason. He said it would only apply to a house that was situated on a state line. In other words, half the house was deeded in one state ... While the other half was in another. And, only then would the Federal government have any clout.

I blame the whole growth of the Commerce Clause on Eisenhower. Who funded our freeway system. We never had these problems with Route 66.

nevadabob said...

An Althouse-uxtuposition:

Court Upholds ObamaCare
Obama Support Falls To 42%

edutcher said...

This is why there's no mention of handing the power to "interpret" the Constitution in the Constitution.

Carol_Herman said...

MikeinAppalacia. Either you went to law school with obama. Or too much moonshine froze your brain cells.

Hate to tell you, but he's absolutely right. If you're referring to the Three Fifths Compromise, that's just a recognition of a condition at the time. Nowhere in the Constitution is slavery endorsed. Nor is an all-male franchise.

You need to stop listening to Steffi.

I blame the whole growth of the Commerce Clause on Eisenhower. Who funded our freeway system. We never had these problems with Route 66.

But that was only until George Maharis left the show.

Dust Bunny Queen said...

Martin and Sutton conclude that Congress has the power to regulate inactivity as well, so long as the inactivity has some kind of “substantial” economic effect

So.....

IF a family decides to only have one child, when the support of future Social Security and Medicare recipients dictates that it requires the economic activity of 6 children.....

Will the government force them to screw more and create more substantial economic cogs in the machine?

After all the inactivity of not producing children will have a 'substantial' economic effect.

Better get fucking all you sad sacks out there with less than 6 kids. The government mandate to screw is upon you!!!

reader_iam said...

From where I sit, the Constitution IS an individual mandate. This is an extension of that, though not the one I'd prefer. My preferred extension-approach is quite different. But it got trumped, long ago, and shoved aside every day since then and no matter how much people scream in theory, what they embrace and demand is entirely something else.

And no one, pretty much absolutely no one, really wants to go there in terms of dollars paid into private health-care insurance and what that ought mean in terms of those who've paid in a whole lot, but taken out perishing little for many years, and what THOSE people are owed, should the time ever come when they need it and, yes, are *owed* it. Based on sheer dollars, if nothing else (and there's plenty else, make no mistake about it).

It's sorta like the whole school model: an exercise in supporting the dishonest in order to prop up the dysfunctional (and, alternatively, an exercise in supporting the dysfunctional in order to prop up the dishonest) on the backs of those who truly do believe in certain core values and live them, and even persevere despite consistently getting spit in the face--from, yes, left AND right--for their trouble.

Pfft.

reader_iam said...

I do want to repeat a paragraph from my first comment-post here (because I really would like people to think about it):

So, would it be possible to construe from this that inactivity of other sorts--say, for example, having never held a remunerative job--is also an "economic activity" (in the sense of "lack thereof")? With the implied underpinning that failing to provide, at bare minimum, for one's self, carries consequences if such failure forces others to carry your load? [Emphasis added]

Carol_Herman said...

edutcher, you are just nuts. Do your copy & paste shtick as much as you like ...

You'll never change reality.

There were 13 states in the union.

And, after the US Constitution was passed, we immediately got a BILL OF RIGHTS ... to enhance the new system. Which diverted away from England's monarchy.

Slavery was incorporated.

You had to be a male and an owner of property to even have the right to vote.

And, if you add on the Declaration of Independence ... where it starts WE THE PEOPLE ...

You get the gist that for the first time in history people were considered citizens. Not subjects.

The bullshit argument about "individual mandates" being "for the People" ... runs counter to common sense.

Obama hasn't sold it.

And, there's a good chance, ahead, that the whole democrapic party will be derailed.

Will another choo choo train be coming down those same tracks?

As far as I'm concerned obama is the worst president we've had in our history. And, he got to this abysmal state quickly.

I'd say from the day he decided to comment about the Cambridge police officer ... where "acting stupidily" really set him off course. The beer summit didn't help.

And, yes. Politicians can lose voters ... just like Wall Street can lose retail customers.

And, it's obama's fault that he just went and made things worse!

Meanwhile? People are sticking with our system. There are no revolutions in the streets. We're not even at the point in 1968, when Hubert Humphrey saw his nomination victory go up in smoke.

reader_iam said...

There were 13 states in the union.

Colonies, Carol, colonies.

reader_iam said...

What there was, was: 13 original colonies.

Peter said...

@ MikeinApp:

"please cite the relative section and text of the Constitution that upheld slavery"

I suppose it all depends on what you mean by "upheld" -- as opposed to what edutcher calls "a recognition of conditions at the time" -- but I would proffer Article IV, Section 2:

"No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due."

While this wording may also comprise indentureship and contractual obligations, the meaning is pretty clear. It promises that escaped slaves would be returned -- but also that, don't worry, we're not going to fuck with your slaveholding laws and not let other states fuck with them either.

Of course, it also means that the Constitution is just fine with the end of slavery too.

Still don't see what this has to do with the topic.

reader_iam said...

Back to health insurance issues (as opposed to health care):

Everyone acts as if the history of what private insurance companies have charged for and have offered is irrelevant. Everyone acts as if that was a pristine process, and as if it's a pristine business now (much less beleaguered). Everyone ALSO acts as if the sales model for that was somehow a holy thing. On this very blog, there are people who act as if, in their selling of various financial products (including health insurance products) was oh, so, very core-[patriotic]-values driven.

Well, I call bullshit. They were commission driven. Of course the information that financial professionals and professional financial planners** is, and was, useful. However, let's also keep that in context. They were, and are, in business to be 2) employed and 1) make money.

People are people. I'm with Sowell on that: I'm of the constrained vision and pretty much always have I been (from long before I picked up his book upon its original release and experienced recognition) in pretty much every way.

True belief in and embracing of Sowell's notion requires something. I see here a lack of acknowledgment of that.

grackle said...

I don't believe the courts, including the SCOTUS, will rid us of Obamacare. The history of the court paints them as exceedingly reluctant to rule against major legislation.

As for repeal, in the unlikely event that a repeal were to get past both Houses it would certainly be vetoed by Obama.

My feeling is that Obama will retain the Presidency and that the GOP will not gain a supermajority in the Senate. If I had to place a bet right now that’s the way I would have to go. There’s a lot of Althouses in this nation(ain’t rationalization great!) and Obama knows he can count on their loyalty when the chips are down.

If Obamacare gets 4 years to become embedded and to create a dependency and an expectation of free medical care from the public it’s going to become permanent. This is the Progressive strategy and it seems to likely to work.

Dad29 said...

Well, it would seem that the decision has arrived at the logical end of com-clause interprets (beginning with Filburn.

All Your Inactivity Are Ours!!"

Dad29 said...

It said women couldn't vote.

Not true. Patterico:

look at the original Constitution, before the Nineteenth Amendment was added, and ask yourself if there is a single word that forbid women from voting? It isn’t there.

Now, Section 2 of the Fourteenth Amendment allows for gender discrimination in voting without any penalty in representation. But there is a world of difference between allowing something to be prohibited, and prohibiting it.


19th clarified.

edutcher said...

Peter said...

While this wording may also comprise indentureship and contractual obligations, the meaning is pretty clear. It promises that escaped slaves would be returned -- but also that, don't worry, we're not going to fuck with your slaveholding laws and not let other states fuck with them either.

The reference to bonded indenture is accurate. They were as much property as slaves. Peter is taking a leap here that I think is unwarranted.

As I noted, the Constitution recognizes certain compromises meant to hold the coalition of states together, but the idea that this is special to slaveowning states is inaccurate. All or almost all states allowed slavery, some were more dependent on it than others.

ricpic said...

Carol Herman babbles on. What a frickin' blowhard.

ricpic said...

My feeling is that Obama will retain the Presidency...

Based on what, his sterling handling of the economy? Get past schvartzes and perfessers and he's got no one no how.

reader_iam said...

Oh, I don't know, ricpic. I think it's possible he might just pull it out, on account of how his oppositions happen to be choosing their battles.

(TBC, FTR, ricpic: I did not vote for O "then" time and I will not vote for him "next" time.

Of course, that sort of thing doesn't matter to you, ricpic, on account of you requiring a whole other number of things, club-bouncer that you are, the power to exclude being first among whatever number of things.

Sayyid said...

"Martin and Sutton conclude that Congress has the power to regulate inactivity as well, so long as the inactivity has some kind of “substantial” economic effect."

What?! This is simply incoherent. Using this "inactivity that has substantial effects on commerce" idea the court can literally uphold anything. That's not a figurative use of the word "literally," either. Example: Gun Free School Zones Act. Prohibiting people from carrying guns within X feet of a school is a regulation of the "inactivity" of not buying a bodyguard to follow you around whenever you're close to a school. The "bodyguards to follow you around schools" market would be substantially affected by these penalties because if 300 million Americans decide to hire protection instead of carrying guns, that would have a major economic effect. Therefore congress had plenty of rational basis to pass the law.

This is fun. The Violence Against Women Act regulated the economic inactivity of "nursing your wounds after a strenuous wife-beating." When people are nursing their bruised knuckles, they aren't working. If no Americans had to nurse their bruised knuckles, economic output would increase while they were at their jobs. Therefore, Congress had a rational basis to pass this law.

Or how about this, the Big Ultimate Limber Limbs Stretch for Health, Intelligence, and Tensility Act. It mandates that each person get up every 15 minutes and flex their arms like The Rock on Splash Mountain. This regulates the economic inactivity of, erm, sitting and doing nothing. Or not laughing. Or not being a consumer whore at that very moment. This could rationally be found to cause a substantial effect on interstate commerce because everyone would laugh at each other, and happy people spend more money. Thus the law is perfectly within the commerce power.

I could go on, but I think the BULLSHIT Act pretty much proves the point. There's absolutely nothing at all that Congress couldn't point and say "aha! This means that they're NOT doing something that impacts commerce right now!"

DADvocate said...

Lefties are determined to flush freedom down the toilet.

Phil 3:14 said...

reader:
Well, I call bullshit. They were commission driven. Of course the information that financial professionals and professional financial planners** is, and was, useful. However, let's also keep that in context. They were, and are, in business to be 2) employed and 1) make money.

And your point is?

CharlesVegas said...

Come and get it.

ricpic said...

Even if I wanted to "exclude," reader iam, which I don't, I lack the power to do so. But I don't crave the power because I'm not a self-righteous shit like you, dearie.

reader_iam said...

Phil 3:14:

I believe in business. I do not believe in romanticizing it (for the love of theory, or whatever). I believe in buying and selling,going right-down-to-it exchange of value for value.

ricpic:

Zing! I knew you'd betray yourself, and so you did.

Alex said...

DOesn't matter really. It's going to the SCOTUS for final decision.

reader_iam said...

Lefties are determined to flush freedom down the toilet.

And so are ... whatevers.

Here's the bottom line:

Most people, it seems, when they organize into groups, can't help themselves from indulging in dictation. They want to remake others into themselves (or, at least, want them to follow rules which they, themselves, might or might not follow). What they want is to dictate and to be followed specifically as dictated.

This is not a new thing.

reader_iam said...

Even if I wanted to "exclude," reader iam, which I don't, I lack the power to do so. But I don't crave the power because I'm not a self-righteous shit like you, dearie.

Here's my theory, ricpic: You just don't like me and you'd prefer I not exist--and that, as they say, is that.

Fortunately for you, you have Meade on your side as well as Althouse and, yes, even Trooper. Whatever. That support is why you feel so free to throw out so freely the insults you do, the questionable foundations for which notwithstanding.

Carry on, dude! Enjoy. This is 2011. You get to revel as if it's 2009. Your target gets to be amused because it's *not* 2009

cubanbob said...

It appears that judge Sutton in paying due deference to stare decicis concluded that the mandate is the logical conclusion of Wickard. Ironically by applying conservative judging he realized that by voting against the mandate he would be curbing if not overriding Wickard v Fillburn and therefore in by applying stare decisis he had to vote for the mandate in order to be consistent with Wickard. The question is will the conservative on the SCOTUS become conservative activists and overturn Wickard by using the mandate as a vehicle for a decision that should have never been rendered in the court in the 1930′s had been true to the constitution.

The Grey Man said...

So Professor Althouse, under the logic of this ruling, would the fact that I have never murdered anyone or set fire to anything be considered criminal activity? Could I be penalized for same?

Professor, I sometimes disagree with you, but I do respect you personally.

That being said, this is the sort of thing that makes the rest of us go "Sheesh!! Lawyers!!"

Carol_Herman said...

To vote back in 1789, you needed to have a penis. Your skin needed to be white. (So you couldn't be black or red indian.) You couldn't be female. And, you needed to own property.

Females couldn't go to contract to own property, either.

Inheritance laws also benefited those with penises, versus those with vaginas.

Of course, both sexes could have babies.

And, if you were in france, everybody, rich and poor alike, would go to jail for stealing bread.

Before women could vote, it got so bad, women threatened to withhold sexual intercourse from their husbands.

You know, I'm not so sure that "free medical care is the issue."

I'm not even so sure its the insurance companies ... because who wouldn't want to insure against fire, let's say? Insurance is there because people believe in it. If they didn't belive in it they wouldn't buy it.

While what drove our costs up were the fallacies that if a doctor did something you'd be better. You'd get better. And, you wouldn't die.

Then along came lawyers.

Who figured out how to convince juries to award humongous sums for malpractice claims.

At the bottom?

It's not doctors.

It's the lawyers.

And, as Shakespeare said, he thought all the lawyers should be killed. While he gave playwrights a free pass.

There are pretty good odds that Obamacare works only if it arrives without you having to do anything.

It's like imagining you can get fire protection without having to do anything.

Meanwhile, Nancy Pelosi lost her big office. And, had to move across the hall. Because democraps didn't demand she quit.

And, the majority, now, of republicans, forgot all about the Tea Party ... as soon as they began arguing over committee slots and office space.

Politicians are gonna run on voiding Obamacare. You can't fool me. It's just that their pledges don't amount to a hill of beans.

Carol_Herman said...

Jobs and obamacare are gonna be major issues. Every single politician is gonna promise you work. And, every one of them, too, will promise to repeal obamacare.

Some will promise you to replace obamacare with something better.

And, hillary will announce she cares, and wants to replace obama.

That's politics in a nutshell for you.

Carol_Herman said...

Turnout's always been a problem for politicians.

Before women could vote, free drinks were offered at the polls, just to get men to show up.

Then, back in the 1940's, or 1950's ... I've got memories of a truck that had a band inside. That stopped and played ... As a way of getting the public's attention for a particular politician.

I remember, too, that politicians used to give out buttons.

Flyers, too. But they weren't on par with buttons.

I don't know when politicians began counting the dead. But, this, too, got incorporated into our political system.

Maybe, that's all obamacare is about? Once enrolled you'll go on voting long after you're dead?

Other than that, I'm not so sure you can get people to show up to work, unless they're reimbursed.

Can you even afford treatment without funny money?

You just can't change "one law" to fix the system. It seems broken in many, many places.

Can we pay the lawyers less?

Didn't contingency fees put lawyers on the map, the way obamacare is trying to change medicine?

What if doctors got contingency fees? High pay if you lived. But no pay if the medicine made you sick. And, or, died.

What if the only thing changed was that you could get medicine without prescriptions?

Isn't Big Pharma part of this problem?

MikeinAppalachia said...

Carol-
I did not atttend Harvard Law. It may be due to bourbon but certainly not moonshine. You may be interested to know that it has become very difficult to locate moonshine of acceptable quality as the necessary techniques did not survive to the present generation in any number and also due to the much higher profit potential in producing other organic substances at present. Regardless, the Constitution as originally ratified did not uphold slavery or deny women voting rights,
Peter-
I can see such an argument but I think your cite goes to contracts more than a "back-door" on slavery. And you are correct-has nothing to do with this topic any more than the current status of moonshine.

VanderDouchen said...

Single payer, socialized medicine was the end-game, and single payer socialized medicine is what we're going to have. The state holds a monopoly on violence, and violence they are going to have. People are going to die because they choose not to prove to the state that they hold valid insurance.

Invest in precious metals (lead, copper, brass, etc...), The end game they want is the end game they are going to get.

WV: rensierm:

Your children are going to be held for rensierm until you prove you have insurance, unless you are part of the mooching class, then it's all good.

davis,br said...

I guess we're going to need the 28th Amendment to the Constitution:

Congress shall make no law mandating the purchase by individuals of products nor services.

Jeezus. So it's come to this.

viator said...

If you regulate both activity and non-activity, what is left? The Commerce Clause, road to tyranny?

X said...

oh boy, unfettered majority rule. better make sure you're not in the minority, because, well, commerce clause bitches.

gerry said...

Well, The USSC will have its say, although I am not encouraged. Thank heaven none of us may have to worry about anything domestic soon.

machine said...

It's funny how on all of there republican blogs, no one seems to note that the mandate was/is a republican idea...whatever happened to personal responsibility?
Now you want all of society to pay for the health care of those who can't/won't pay for it themselves...who are the socialists again?

Don said...

"Land of the Free" really just refers to Belize's national anthem. Under the US Constitution, the power to regulate commerce among the several states includes the authority to coerce economic activity in anticipation of some potential future commercial activity. If the Supreme Court upholds this travesty, I really hope Congress enacts a law allowing military members an opportunity to leave the service. If you have to serve a totalitarian state, it might as well be one that pays decently.

X said...

machine, it's funny that you can't see how this expansion of government authority can gore your sacred oxen.

individual rights? not if it can be argued it affects commerce.

FloridaSteve said...

If this law holds up then I don't think the dems will hold a majority for a very long time.

Can we just get this to the Supreme court already and settle it... one way or the other.

machine said...

X, please answer the following questions:

1) Was the individual mandate a republican idea, adopted by the administration?

2) Do you want US citizens as a whole to pitch in and pay for the health care of those who do not want to pay? (including illegal aliens?)

X said...

machine, there are republicans that are statist just like you. doesn't make it right.

I already pay for poor people's health care through my county hospital tax.

how is forcing someone to join a community rated insurance pool not forcing them to subsidize fat, smoking, lazy, foolhardy people's healthcare?

to answer your second question, no, and that's why I am not hiring and instead automating and outsourcing. can't find a job? thank obamacare.

Fred4Pres said...

Sutton's decision is a bad thing. This is dangerous.

Joe said...

On NPR last night, that this was a 2-1 decision wasn't even mentioned until the last line of Nina Totenberg's story. The entire report wasn't even about Sutton's constitutional reasoning, but that he declared the individual mandate constitutional because it was a good idea. That's really is the extent of his reasoning.

Again, not one word about the arguments of the other judges, only the point that while the decision was 2-1, none of the three agreed with each other on just about anything.