Divided Sixth Circuit upholds ObamaCare’s individual mandate
Says Jonathan Adler:
A divided panel of the U.S. Court of Appeals for the Sixth Circuit, in an opinion by Judge Martin, has upheld the individual mandate against a Commerce Clause challenge. The same panel, in an opinion by Judge Sutton, rejected the argument that the mandate can be sustained as an exercise of the federal government’s taxing power (which means, to date, no court has accepted the taxing power argument).
Here’s the decision, and Ed Morrissey has more over at Hot Air. This ruling doesn’t concern the massive multi-state case against ObamaCare, which is important to keep in mind. Today’s ruling deals with the Thomas More Law Center’s case. This will all end up at the Supreme Court in any regard, so let’s pray that Anthony Kennedy wakes up on the Right side of the bed they day they hand down their ruling.
I entirely agree with you about Mr. Justice Kennedy and the floor on either side of his bed.
At the risk of quibbling (and this is), however:
The day that counts most, however, is actually likely to be the day of oral argument, immediately after which there will be the first preliminary vote taken in the Court’s private conference.
Mr. Justice Kennedy will almost certainly be in the majority either way on a 5/4 split. If he’s in the liberal camp, he’ll be the senior-most justice and hence will likely assign authorship of the opinion to himself. If he’s in the conservative camp, then Chief Justice Roberts will get to assign the majority opinion, and he’ll likely assign it to Kennedy because that’s the single most effective way to ensure he won’t go wobbly and change his mind after the preliminary vote taken during the conference.
This is likely to be the situation not only on the Obamacare appeal, but on other important appeals like the appeal from the Ninth Circuit on California’s Prop 8.
You are a lawyer indeed.
I can’t really comment, as guideline #1 requests that I “Avoid profanities or foul language.”
Dammit.
A summary of the dissent -
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? The ultimate issue in this case is this: Does the notion of federalism still have vitality? To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit (within
boundaries like the First Amendment and Due Process Clause), as long as the regulation concerns an activity or decision that, when aggregated, can be said to have some loose, but-for type of economic connection, which nearly all human activity does. See Lopez, 514 U.S. at 565 (“[D]epending on the level of generality, any activity can be looked
upon as commercial.”). Such a power feels very much like the general police power that the Tenth Amendment reserves to the States and the people. A structural shift of that magnitude can be accomplished legitimately only through constitutional amendment.
Why 6th Circuit ruling upholding ind mandate is not a total disaster http://northernvirginialawyer.blogspot.com/2011/06/sixth-circuit-sortof-upholds.html
Tough luck for those who wish harm on their fellow Americans. A healthy, productive citizenry is vital to our prosperity. Do what Jesus would do: Love one another and take care of each other. If you can’t muster the strength to do that, stay home on Sunday’s – you don’t belong in church.
The USSC has ruled that the Federals can regulate my backyard corn as potential interstate commerce, but it cannot tell me what to grow or to grow anything at all. Regulate insurance, but don’t require it.
Lets look at what has long been held by the courts.
[Current Supreme Court jurisprudence reveals that Congress may
use this category of its Commerce Power to regulate two related classes of activity. First, it has long been established that Congress may regulate economic activity, even if wholly intrastate, if it substantially affects interstate commerce. See Gonzales v.
Raich, 545 U.S. 1, 25 (2005); Morrison, 529 U.S. at 610; Lopez, 514 U.S. at 560. Second, Congress may also regulate even non-economic intrastate activity if doing so is essential to a larger scheme that regulates economic activity. For example, in Wickard v. Filburn, 317 U.S. 111 (1942), the Court upheld regulations limiting the amount of wheat that farmers could grow, even for non-commercial purposes. Even
though producing and consuming home-grown wheat is non-economic intrastate activity, Congress rationally concluded that the failure to regulate this class of activities would undercut its broader regulation of the interstate wheat market. This is because individuals would be fulfilling their own demand for wheat rather than resorting
to the market, which would thwart Congress’s efforts to stabilize prices.]
It seems to me that until the people and the states deal with these constitutional issues by an amendment, there will remain the potential for the federal government to continue to enact laws within the commerce clause as it so chooses…with few exceptions…and the courts will essentailly rule in favor of their actions.
Yes, there is a fair list of citations that each side will present in their arguments but there one simple fact. The Supreme Court has long given the latitutde of constitutionality to the congress especially in commerce clause cases. To reverse its long standing precedence surrounding commerce clause challenges would potentially open the door to a very big bag of legislative worms going back many decades….disrupting many segements of commerce and congress’ regulatory enactments. That sort of consequence would be a very good thing if…. done within an orderly process over time considering current national circumstances! Personally, I’m of the school limiting the commerce clause to only inter state free trade commerce issues….period! The ‘common good’ clause issues would be left to stand on its own merits between the people and the government.