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). Senior District Judge Graham, sitting by designation, dissented from the court’s Commerce Clause holding. The opinion is here.
Anderson says:
How does the 6th Circuit decide which cases get to have a district judge playing the part of an appellate judge?
This seems like a rather important case to have a district judge sit in on, regardless of how he votes; I wouldn’t be thrilled to see the law upheld by a district judge’s vote either (it would seem less “real,” not legally of course).
June 29, 2011, 1:12 pmguest says:
The meat of Sutton’s concurrence is at 43-48. He seems to be echoing a few of the arguments Orin Kerr made during his debate with Barnett.
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June 29, 2011, 1:15 pmruuffles says:
I believe the panels are assembled first not completely randomly, then the cases are assigned randomly.
June 29, 2011, 1:18 pmmerevaudevillian says:
Judge Sutton stresses that this is a facial challenge, not an as-applied challenge. The last few paragraphs display a kind of reflective position:
June 29, 2011, 1:22 pmRoger says:
Judge Sutton, on page 43: “Does the Commerce Clause contain an
June 29, 2011, 1:28 pmaction/inaction dichotomy that limits congressional power? No—for several reasons.”
MVArchie says:
“Virtually everyone requires health care services at some point, and unlike nearly all other
industries, the health care market is governed by federal and state laws requiring
institutions to provide services regardless of a patient’s ability to pay.”
I am not a constitutional scholar by any means, but I’ve always had some puzzlement at the above cited part of the rationale for the constitutionality of the legislation, which I read as a boostrapping argument – congress forces ERs to provide care without regard to ability to pay and that requirement becomes part of the basis of sustaining the comerce clause case. I don’t track why there isn’t an argument that congress can’t bootstrap the constutionaliy of health care on an entirely different congressional mandate, without opening the door to bootstrapping all legislation into inter state commerce issues on that basis. (Maybe that argument is being made; I don’t read the briefs.)
June 29, 2011, 1:31 pmguest says:
Sutton:
Seems like as-applied plaintiffs will have a hard time getting past this language. Sutton points out how the results could become very odd if PPACA is held constitutional as applied to present holders of health insurance policies, but unconstitutional as applied to the uninsured.
June 29, 2011, 1:35 pmSixth Circuit upholds ObamaCare mandate « Hot Air says:
[...] Jonathan Adler at the Volokh Conspiracy notes that the court did reject the tax argument for the mandate, which keeps the batting average [...]
June 29, 2011, 1:37 pmRavi says:
@MVArchie
Health care is different because, without the emergency care mandates, some people who could afford to pay for their health care (via insurance or another method) would be denied health care in an emergency situation. They would be denied because (regardless of their acutal ability to pay) sometimes they wouldn’t be able to demonstrate that ability to pay to a hospital’s (or other health care provider’s) satisfaction. Even worse, since we are talking about an emergency situation, these people are likely to be irreparably harmed by such a denial.
Emergency care mandates aren’t really for the uninsured – they’re for the rest of us. Giving emergency care to the uninsured is merely a compassionate side effect.
June 29, 2011, 1:47 pmB-Rob says:
“Not every intrusive law is an unconstitutionally intrusive law.” True; but given that EVERY person eventually requires health care, and given the treatment mandate, how “intrusive” is the insurance mandate in fact? It is a mandate that the individual take financial responsibility for the expenses of their own health care.
June 29, 2011, 1:49 pmjustin says:
The analysis by judge sutton of the broccoli question is well written and should hopefully put this red herring to pasture.
June 29, 2011, 1:50 pmuh_clem says:
Correct me if I’m wrong, but this appears to be the first decision on the merits that hasn’t broken along party lines. Martin was appointed by Carter, Sutton by Bush 43, and Graham by Reagan.
June 29, 2011, 1:53 pmFederal Dog says:
“It is a mandate that the individual take financial responsibility for the expenses of their own health care.”
No: It is a mandate that the individual pay, whether or not that person incurs health care expenses.
June 29, 2011, 1:54 pmMrTypo says:
The opinion has what appears to be a typo on page 24:
I believe that the word “flexible” here should be “inflexible” instead. Shouldn’t someone inform the court of this typo before this thing is officially published, or is it too late?
What is really shocking about this opinion is not the typo, but that that Judge Martin was appointed by George W. Bush and is a former Scalia clerk.
This is a really bad sign for those trying to overturn the individual mandate.
June 29, 2011, 1:54 pmjustin says:
federal appellate are constructed at random except all federal appellate panels must have two active judges on the panel. Thus, no judge can preside until they are no longer the most recent confirmee.
June 29, 2011, 1:55 pmguest says:
I think one could take that as a sign that the activity/inactivity distinction simply is not workable as a boundary for the Commerce Clause, particularly if Heart of Atlanta is to survive. The opportunities for piggy-backing would undermine the rule, and the line-drawing for what constitutes prior voluntary “action” would be hellish. Orin Kerr once asked, would PPACA be constitutional if amended to require that anyone who actively breathes oxygen must by health insurance? Anyone who acts by visiting a doctor? Anyone who acts by seeking or accepting employment? How do we know which acts would trigger and which wouldn’t?
June 29, 2011, 1:55 pmSteve says:
Judge Martin’s vote is unsurprising of course, but Judge Sutton’s stance is quite a signifier in the big picture. Judge Sutton is a comparatively young, energetic, and super-smart conservative appointed by Bush II. If he is not receptive to the arguments of the mandate opponents (in particular, the “activity/inactivity” distinction), there is little hope of persuading anyone at the appellate level other than the hacks and the hidebound.
Perhaps I am wrong and other circuits will emphatically demolish the mandate, but I see this as quite a portent.
June 29, 2011, 1:56 pmDonald says:
No doubt we’ll start seeing supporters of the individual mandate busily pointing out that Judge Sutton is a Bush 43 appointee to the court.
If I were the SG, this is the case I’d want SCOTUS to take. This is a very thoughtful (albeit not perfect) analysis from Judge Sutton (who may have just eliminated any chance he had for a SCOTUS nomination if the next administration is Republican). Sutton, I think, has for years defied expectations to an extent: when he first took the bench, the left screamed that he would be an ideologue. That really hasn’t been true.
The other potential benefit of plopping Judge Sutton’s decision in front of the Court: if I recall correctly, didn’t he clerk for Justice Scalia?
June 29, 2011, 1:57 pmJay S. says:
MVArchie, I think you’re exactly right about the bootstrapping argument, and I’ve never seen the government give a satisfying explanation that justifies the bootstrapping but doesn’t effectively allow mandates for all subject matters. I discussed that point in more detail right after the oral arguments in the Eleventh Circuit over at Just Enrichment.
June 29, 2011, 1:59 pmGuesterson says:
The Sixth Circuit asks its district court judges each year whether they would like to sit by designation for the upcoming year. If the judge accepts, then he/she sits by designation. Panels are chosen at random, as are the cases assigned to those panels.
June 29, 2011, 2:03 pmMrTypo says:
Speaking of typos, the George W. Bush nominee is Sutton, not Martin. Whatever. :)
June 29, 2011, 2:03 pmallouchsit says:
First, if Congress were actually interested in making individuals financially responsible for the expenses of their own health care, all they would have had to do was amend the Bankruptcy Code to make debts owed to health care providers nondischargeable. I am a bankruptcy attorney and I have clients in my office every week who have health insurance, but who are filing bankruptcy because they have health care costs not covered by their insurance.
Second, forcing an individual to buy health insurance, as the PPACA attempts to do, does not make that individual responsible for the expenses of their own health care. At most, it makes the insurance company responsible for those expenses. As I stated above, any amounts not paid by the insurance company can simply be discharged in bankruptcy.
June 29, 2011, 2:05 pmjosh says:
Justin and Steve
I highly doubt Sutton’s concurrence will change the debate much. I anticipate Barnett’s and Somin’s posts regurgitating why the arguments are wrong to appear any moment. The arguments will be the same (as Sutton’s, while eloquent, wasn’t that new). As a lawyer, I certainly hope for the power of persuasion, but, really, do you think anything that gets decided at this point is going to change either side’s mind?
June 29, 2011, 2:06 pmNick Baumann says:
Maybe I’m reading wrong, but it seems like the court didn’t get to the issue of whether the mandate can be sustained under the general taxation power. The court DID reject the argument that the suit was barred by the Anti-Injunction Act (“the Anti-Injunction Act does not remove our jurisdiction to consider this claim”), but the parties already agreed on that. The relevant section on general taxation powers is here:
“In light of the conclusion that the minimum coverage provision is a valid exercise of Congress’s power under the Commerce Clause, it is not necessary to resolve whether the provision could also be sustained as a proper exercise of Congress’s power to tax and spend under the General Welfare Clause.”
June 29, 2011, 2:06 pmMrTypo says:
Oops, speaking of typos, the George W. Bush nominee is Sutton, not Martin.
June 29, 2011, 2:10 pmWaingro says:
If this was the only Circuit Court of Appeals decision on the mandate, then I think Kennedy would use Sutton’s concurrence as cover.
June 29, 2011, 2:11 pmSenor says:
Regarding the brocolli question that Justin thinks was disposed of: when this reaches scotus it will be interesting to see if former sg Charles fried submits an amicus. Fried, of course, has publicly argued that congress can indeed mandate that you buy brocolli. You don’t have to eat it course, but that’s beside the point.
June 29, 2011, 2:11 pmFederal Dog says:
“First, if Congress were actually interested in making individuals financially responsible for the expenses of their own health care, all they would have had to do was amend the Bankruptcy Code to make debts owed to health care providers nondischargeable.”
This is exactly correct. The purpose of the law was always sweeping financial confiscation and government control of even the most intimate personal decisions.
June 29, 2011, 2:15 pmSteve says:
As Judge Sutton eloquently noted, the political debate is very likely to continue and to ultimately determine the issue. I was not suggesting that Judge Sutton’s opinion will stop people from disliking the health care law, I was merely noting that it tells us something important about the law’s future prospects in the courts.
June 29, 2011, 2:15 pmJoseph Slater says:
Not to quibble, but is it common to describe a decision as “divided” where there was no dissent, but instead a concurrence saying, “I don’t buy ALL of the majority’s arguments, but I buy the main one [here, Commerce Clause] so I join their result?
Also, while I’m sure that Sutton’s concurrence won’t change the minds of folks like Barnett and Somin, casting an objective eye re predictions, not being able to get Sutton on board might seem a bit of an ominous sign for ACA opponents.
June 29, 2011, 2:32 pmKay B. Day says:
Question.
The court references “five essential components designed to improve access to the health and health insurance markets, reduce the escalating costs of healthcare, and minimize cost shifting.”
PPACA, as we now know (CBO report) will actually cause premiums to rise, and considering the burden on the federal government because of Medicaid expansion, could even result in more drastic cost-shifting than exists at present.
Does it matter that they reference claims that have proven untrue?
I’m not an attorney, but my guess is the only hope of dodging this bullet is repeal. I read the bill. It’s one sorry piece of legislation and in my opinion, it tramples states’ rights.
best, KBD
June 29, 2011, 2:32 pmnoblesse says:
I appreciated that Sutton reminded the liberty hand-wringers that there is no question that the government can force you to buy health insurance: “States have authority under their general police powers to enact minimum coverage provisions similar to the one in the Affordable Care Act. See Mass. Gen. Laws Ann. ch. 111M, § 2 (West 2011).” Slip op. at 14.
The only question–and it’s a fair one–is whether the federal government has the right to do so.
June 29, 2011, 2:34 pmKazinski says:
He may be a conservative, but there is an unfortunate strain in the conservative movement of big government conservatives. They don’t have much different view than liberals or progressives of the power of government, just a different view of the policies that should be inflicted on the public.
Fortunately the small government forces seem to be on the ascendent, but even now they are a long way from triumphing, even in the conservative movement, let alone as a dominant force in the national debate. But we’ll get there.
June 29, 2011, 2:44 pmJesse-Az says:
This is the most often mis-cited law on the books. The law that hospitals must provide care to the uninsured has another tidbit to it that almost everyone using this argument seems to forget: Hospitals do not have to accept the uninsured if they do not accept Medicare/Medicaid reimbursement.
There is now law that ANY hospital HAS to treat the uninsured. The rest of your premise rests on a misunderstanding of current laws.
The Hospital/Uninsured issue falls on the same laurels as National Highway Speeds and DUI laws.
June 29, 2011, 3:21 pmgospace says:
No, it is a mandate that an individual buy insurance from an approved by the government insurance plan. It does not allow the individual to pay for medical care as needed, if that is what the individual chooses to do.
And the insurance mandate WILL cover care, as does current mandated insurance, that a lot of us would rather not pay for. I’d really like to know how much of my insurance dollar is going for the quackery of chiropracty, which is mandated to be covered in NY.
I will never- never go to a chiropractic quack, which by definition, is all of them. But I’m paying my fair share for others to provide quacks with employment.
June 29, 2011, 3:30 pmJay says:
District Judge Graham did dissent as to the judgment — he concurred that there was standing and with Judge Sutton’s view that this was not a tax, but disagreed with both the other judges on the Commerce Clause issue.
June 29, 2011, 3:51 pmnick says:
great news!
June 29, 2011, 3:53 pmJack G says:
Given the judges that make up the other Circuit Court panels, seems to me rather possible now that ALL of the Circuit Courts will uphold the law. If there is no Circuit Court split, would the Supreme Court take the case? It becomes more unlikely.
June 29, 2011, 3:54 pmUseful Slant says:
Even chiropractors need employment.
June 29, 2011, 3:55 pmUseful Slant says:
Even chiropractors need employment.
June 29, 2011, 3:55 pmJack G says:
Given the judges that make up the other Circuit Court panels, seems to me rather possible now that ALL of the Circuit Courts will uphold the law. If there is no Circuit Court split, would the Supreme Court take the case? It becomes more unlikely.
June 29, 2011, 3:56 pmjustcurious says:
Gospace writes: “I will never– never go to a chiropractic quack, which by definition, is all of them. But I’m paying my fair share for others to provide quacks with employment.” I never have and never will have children who attend a public school, but I have to pay my school taxes anyway. Is there a difference?
June 29, 2011, 3:59 pmAnderson says:
Thanks for the explanations on panels, y’all!
Can’t get Prof. Kerr’s post to open, but my would-be comment there will fit here too:
Sutton: How would the action/inaction line have applied to Roscoe Filburn?
That’s always been (part of) the problem with Barnett’s active/inactive shtick — OF COURSE it’s supposed to result in Wickard‘s being mistaken, and yet, the Sixth Circuit does not have the luxury of overturning Supreme Court precedent.
So, any analysis that contradicts settled constitutional law is unreliable.
Barnett, being an ideologue, wants to prove too much.
June 29, 2011, 4:01 pmAnderson says:
Thanks for the explanations on panels, y’all!
Can’t get Prof. Kerr’s post to open, but my would-be comment there will fit here too:
Sutton: How would the action/inaction line have applied to Roscoe Filburn?
That’s always been (part of) the problem with Barnett’s active/inactive shtick — OF COURSE it’s supposed to result in Wickard‘s being mistaken, and yet, the Sixth Circuit does not have the luxury of overturning Supreme Court precedent.
So, any analysis that contradicts settled constitutional law is unreliable.
Barnett, being an ideologue, wants to prove too much.
June 29, 2011, 4:02 pmDallas CPA says:
Federal Dog says:“It is a mandate that the individual take financial responsibility for the expenses of their own health care.”
No: It is a mandate that the individual pay, whether or not that person incurs health care expenses. Federal Dog(Quote)
June 29, 2011, 1:54 pm
That is precisely the point that everyone who makes the argument that everyone will incur health care costs someday fails to differentiate.
June 29, 2011, 4:49 pmsenor says:
I think Jack G is right about this. Assuming from the makeup of the panel that the 11th circuit upholds the mandate, I think it’s highly likely scotus will never hear this case. If they can avoid having to make a controversial decision, they will.
June 29, 2011, 4:57 pmsenor says:
I think Jack G is right about this. Assuming from the makeup of the panel that the 11th circuit upholds the mandate, I think it’s highly likely scotus will never hear this case. If they can avoid having to make a controversial decision, they will.
June 29, 2011, 4:57 pmJoseph Slater says:
Thanks. I saw that later, tried to correct myself, and haven’t been able to get to the site until now. But apologies to J.A.
June 29, 2011, 5:06 pmJoseph Slater says:
Thanks. I saw that later, tried to correct myself, and haven’t been able to get to the site until now. But apologies to J.A.
June 29, 2011, 5:06 pmmrego says:
“The purpose of the law was always sweeping financial confiscation and government control of even the most intimate personal decisions.” Which is why it should be attacked on Fifth Amendment grounds (“…nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”). Not to mention 13th Amendment (“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”). I guess I simply committed the crime of living, to be subject to this mandate. Note the law mandates most everyone buy an insurance product, even 1 day old babies.
June 29, 2011, 5:24 pmDJR says:
I see. So it’s unconstitutional as to people who die instantly with no possibility of health care? Plane crashes, murder victims, things like that?
June 29, 2011, 5:30 pmwolfefan says:
mrego – the law mandates that 1 day old babies buy insurance? Where does it do that?
June 29, 2011, 5:35 pmJay says:
True, although the 11th is the one circuit that I could imagine going en banc and perhaps reversing the panel.
June 29, 2011, 5:37 pmwolfefan says:
What I find most interesting is that even the dissenting judge did not endorse the activity/inactivity distinction. From Adam Serwer at The American Prospect:
Still, even Graham wrote of previous Commerce Clause decisions, “I do not interpret those cases as drawing a constitutional line between activity and inactivity.” Not a single judge on the panel accepted the inactivity/activity distinction most frequently cited by the ACA’s opponents.
June 29, 2011, 5:43 pmJon Shields says:
One interesting thing about Graham’s dissent is how he kept citing the dissent in Raich. That’s just another example of how this case is really about a certain group of people wishing we are living in a different jurisprudential universe. Of course, there have always been such people, ever since 1937, but we shouldn’t pretend that this quest to effectively overturn decades of precedent (regardless of how they characterize it) is fundamentally different than past attempts to do so.
June 29, 2011, 5:48 pmJon Shields says:
One interesting thing about Graham’s dissent is how he kept citing the dissent in Raich. That’s just another example of how this case is really about a certain group of people wishing we are living in a different jurisprudential universe. Of course, there have always been such people, ever since 1937, but we shouldn’t pretend that this quest to effectively overturn decades of precedent (regardless of how they characterize it) is fundamentally different than past attempts to do so.
June 29, 2011, 5:49 pmEarl says:
The difference is that your STATE can constitutionally impose such a law, but the feds should not.
June 29, 2011, 6:03 pmflenser says:
What is this “self-insurance” mumbo-jumbo all about? People who do not have private insurance and do not have public insurance do not have insurance.
But that is not “insurance” at all, any more than the person who drives a car when his insurance has lapsed can claim to be self-insured, or the person without flood insurance can claim to be self-insured. This “self-insured” term was concocted to make it seem as if people who are not engaging in an activity (purchasing health insurance) are engaging in that activity.
You might as well argue that my failure to purchase beer makes me a “self-beer-brewer”, when it actually makes me a person who does not purchase beer.
June 29, 2011, 6:07 pmJustin says:
This part of Graham’s dissent (ip) strikes me as extremely weak, and why I find the arguments against the IM bordering on frivolous:
Here, Congress’s exercise of power intrudes on both the States and the people. It brings an end to state experimentation and overrides the expressed legislative will of several states that have guaranteed to their citizens the freedom to choose not to purchase health insurance. See Idaho Code Ann. § 39-9003; Utah Code Ann. § 63M-1-2505.5; Va. Code Ann. § 38.2-3430.1:1.
All three of these bills were essentially legislative resolutions denouncing the Obama health care plan, and about as substantive as House Resolutions denouncing communism in China. The oldest of the three were passed in 2010. THIS is the dual sovereignty issue? Really?
June 29, 2011, 6:18 pmAnderson says:
Good point, Jon. 3 cites to O’Connor’s dissent. And this here is a future example to appear Prof. Orin S. Kerr’s forthcoming book, When District Judges Behave Badly:
“Never mind the case law, I see a *path* that we have the ‘opportunity’ to follow! Out with the ‘old’ jurisprudence, in with the ‘new’!”
June 29, 2011, 6:21 pmAnderson says:
You might as well argue that my failure to purchase beer makes me a “self-beer-brewer”, when it actually makes me a person who does not purchase beer.
Actually, I believe that makes you a person who owes me a beer.
June 29, 2011, 6:24 pmAsher Steinberg says:
The Graham dissent is pretty clownish. He rejects the activity/inactivity argument, only to hold for plaintiffs on the ground that… claims that the failure to insure have a massive impact on the healthcare market are too speculative and attenuated?
June 29, 2011, 6:35 pmThomas Moore Law Center Challenge to Obamacare Denied by Appeals Court | The Lonely Conservative says:
[...] state. Keep your eye on the Virginia case as well as the multi-state case led by Florida. Also, Jonathan Adler pointed out that the same panel rejected the government’s argument that the mandate can be sustained [...]
June 29, 2011, 6:53 pmwm tanksley says:
“Self-insured”, in states that define the term, means that you’ve got enough money set aside (somehow) that the state is willing to let you carry your own liability risk. So it means precisely what you’re denying.
-Wm
June 29, 2011, 6:58 pmJordan says:
Self-insurance is a term of art meaning that a person or company has a specific fund set aside to cover a specific range of possible losses…the main point being that the fund is not part of any kind of risk-pooled group. The individual or company has therefore assumed *all* the risk of loss, whereas group insurance covers your losses up to a given limit.
So, self-insurance is a thing.
That said, it’s a bit of a stretch to apply it to those who are usually called “uninsured,” meaning people who have not set aside either a fund or a group policy to cover losses.
But you could, at a stretch, think of uninsured individuals or companies as “self-insured” in the sense that you expect to cover any potential losses from your own income & assets.
This is normally how individuals without medical coverage (your typical unemployed student out of college, for instance) handle medical expenses.
From a Commerce Clause point of view, the 6th circuit is ruling that “self-insuring” simply by expecting to handle medical expenses out of your own salary & assets constitutes economic activity. It’s a pretty good argument.
June 29, 2011, 7:04 pmB-Rob says:
True but irrelevant for a number of reasons. First, I am not aware of a single hospital anywhere, whether non-profit or for profit, that does not take Medicare and Medicaid. So the distinction is meaningless in practice. Indeed, even if a hospital did not take Medicare or Medicaid, I am almost positive that their liability insurance company would mandate that they treat all emergency care patients anyway, for the obvious reason that it is near impossible in emergency situations to determine whether someone has valid insurance; whether they do not have valid insurance; whether they are on Medicare; or whether they are on Medicaid. The hospital is better off treating the patient and sorting out the coverage issues later than not treating a patient for any reason, and risk a lawsuit over the refusal to treat. And once you are treating all comers anyway, under what rationale would you choose not to accept Medicare and Medicaid?
June 29, 2011, 7:15 pmB-Rob says:
True but irrelevant for a number of reasons. First, I am not aware of a single hospital anywhere, whether non-profit or for profit, that does not take Medicare and Medicaid. So the distinction is meaningless in practice. Indeed, even if a hospital did not take Medicare or Medicaid, I am almost positive that their liability insurance company would mandate that they treat all emergency care patients anyway, for the obvious reason that it is near impossible in emergency situations to determine whether someone has valid insurance; whether they do not have valid insurance; whether they are on Medicare; or whether they are on Medicaid. The hospital is better off treating the patient and sorting out the coverage issues later than not treating a patient for any reason, and risk a lawsuit over the refusal to treat. And once you are treating all comers anyway, under what rationale would you choose not to accept Medicare and Medicaid?
June 29, 2011, 7:16 pmC says:
The State Government cannot force you to buy insurance. In Ohio, for automobile proof of financial ability to cover an accident, you can Post A Bond in lieu of buying insurance.
June 29, 2011, 7:45 pmJon Shields says:
I actually think it is fascinating that the Republican district judges have thrown out the mandate, whereas the (so far one) Republican appellate judge has upheld the mandate. I would have thought it would have been more likely for an appellate court judge to overrule the mandate than a district judge. District judges are super-constrained by precedent, and most of their work does not involve constitutional challenges to federal statutes. I would have thought that district judges would have been more likely to see that current precedent is clearly on the side of the law here, and to let the appellate court judges sort it out. Particularly because Presidents spend more time trying to ensure their appelate court nominees have similar ideologies (as opposed to district courts nominees, who tend to be less ideological).
Instead, we have had the Republican district judges throw out the mandate, usually on extremely flimsy grounds. Judge Hudson essentially read the N&P clause out of the constitution (saying it cannot provide in independent basis for a law if it cannot be upheld solely on the commerce clause). Judge Vinson essentially read Comstock out of Supreme Court jurisprudence (saying that the N&P clause doesn’t allow Congress to fix adverse consequences that it itself creates, even though the opposite was precisely the holding of Comstock and agreed to by 8 out of 9 justices in that case).
Now, we have Judge Graham, who frequently cites the dissent in Raich, and who’s logic is essentially as follows: If we allowed a mandate, that would be bad, so that can’t happen, and any precedent to the contrary should be ignored.
Meanwhile, we have Judge Sutton, who in the past has written some pretty partisan decisions (OHRP vs. Brunner, manufacturing a private right of action out of nowhere, only to be smacked down by a unanimous summary reversal by the SCOTUS days later, which in striking down Sutton’s decision cited a previous SCOTUS case that Sutton himself argued!). Yet he realized that the constitutionality of the mandate flows directly from the Supreme Court’s federalism jurisprudence. Instead of the district court judges being the most restrained, it has been the appelate court judges (with the caveat that of course a sample size of one is not that large).
June 29, 2011, 7:52 pmB-Rob says:
Here is the problem with this approach to financial responsibility. You are an average American making $50,000 per year and choose not to buy health insurance. You get hit by a bus and when all is said and done, you owe the hospital $139,456.77. The problem is not you discharging that debt in bankruptcy; the problem is that, even if you don’t discharge it, when is the hospital going to see their $139,456.77? My guess is, unless you hit the lottery, the hospital will never collect the whole sum; they will be lucky to get half after 10 years, what with your earnings. That $139,456.77, though, will be passed on this year to all the other people who did have insurance. Discharge of the debt, therefore, is not really dispositive in any sense of the problem of uncompensated health care.
June 29, 2011, 7:53 pmC says:
And, it is a mandate that each individual pre-pays, by buying insurance. Alternatives are not allowed: such as on-time pay (by paying in full when you receive care) or buying on credit (by paying a basic amount when you arrive for the doctor visit and the remainder either in-full, once receive and itemized bill, or on a monthly payment plan, which is a typical method for those now without insurance for larger bills).
And, it is a mandate not just to buy broccoli/insurance; it must be special brocolli:
(a) you can only buy the broccoli/insurance from not just any farm but from only the pre-approved list. There’s nothing to keep the government from declaring that only the expensive organic brand names qualify as government pre-approved.
(b) you cannot only buy one crown of broccoli; only the amount you decide you need. You must choose from the pre-packaged stuff, which has been government certified to contain the pre-approved minimum quantity. There’s nothing to keep the government from declaring the ‘commerce activity’ amount requires each pre-packaged bundle of broccoli to always include 3 crowns rather than 1 crown.
Individual choices will become meaningless in the political lobbying environment.
June 29, 2011, 8:02 pmB-Rob says:
Wrong. This is he popular shorthand for the bill, but it is not accurate. For example
1) The mandate is not that you, John, buy insurance; it is a mandate that you HAVE insurance. Someone else can buy it for you (such as a union welfare fund, an employer, your mom, or your spouse).
2) If you do not wish to, or fail to, have insurance, you will get hit with a surcharge that is, as Judge Sutton pointed out, less than the cost of insurance. So you have an option if you absolutely refuse to get insurance.
3) “insurance” would include many arrangements that are not really insurance, such as the Amish community’s policy of group “pay as you go, in cash”. My ex wife’s hospital recognizes this as a good program and treats lots of Amish folks. This would pass muster under Obamacare because the purpose of the program is satisfied, i.e., not free riders on insurance companies and no uncompensated care.
4) The mandate only kicks in if states have not put forth an appropriate alternative coverage plan. This, in my opinion, should have been grounds for denying standing on ripeness grounds, since no one knows whether their state will have a plan in place three years from now.
In other words, there are many options available short of you purchasing insurance. These alternate plans, in addition, would get you around the problem of paying for coverages that you think you do no need. See, no, I also do not believe in chiro-quacktic medicine. But if two years down the road, I get a back injury and my orthopedist or rehab doctor suggest that I have that added onto a rehab program, then I will wish that it was covered.
June 29, 2011, 8:05 pmB-Rob says:
Wrong. This is he popular shorthand for the bill, but it is not accurate. For example
1) The mandate is not that you, John, buy insurance; it is a mandate that you HAVE insurance. Someone else can buy it for you (such as a union welfare fund, an employer, your mom, or your spouse).
2) If you do not wish to, or fail to, have insurance, you will get hit with a surcharge that is, as Judge Sutton pointed out, less than the cost of insurance. So you have an option if you absolutely refuse to get insurance.
3) “insurance” would include many arrangements that are not really insurance, such as the Amish community’s policy of group “pay as you go, in cash”. My ex wife’s hospital recognizes this as a good program and treats lots of Amish folks. This would pass muster under Obamacare because the purpose of the program is satisfied, i.e., not free riders on insurance companies and no uncompensated care.
4) The mandate only kicks in if states have not put forth an appropriate alternative coverage plan. This, in my opinion, should have been grounds for denying standing on ripeness grounds, since no one knows whether their state will have a plan in place three years from now.
In other words, there are many options available short of you purchasing insurance. These alternate plans, in addition, would get you around the problem of paying for coverages that you think you do no need. See, no, I also do not believe in chiro-quacktic medicine. But if two years down the road, I get a back injury and my orthopedist or rehab doctor suggest that I have that added onto a rehab program, then I will wish that it was covered.
June 29, 2011, 8:05 pmMikeInOhio says:
June 29, 2011, 8:07 pmB-Rob says:
There is a simple explanation — to the extent there are hack federal judges, they are on the district court level, not the court of appeals. Hence the commentary that Graham’s dissent was “not very persuasive” is no surprise. Likewise, the Virginia judge totally flubbing the analysis of one key line of cases, a fact that Orin pointed out some time ago.
You can bet that Sutton’s opinion will be HEAVILY cited by the 4th Circuit when they decide the Virginia case. Likewise, the 11th will have to deal with the logic of his opinion, too.
June 29, 2011, 8:11 pmcbunix23 says:
We need to roll back more than Obamacare. We need to roll back the financial incentives that encourage people to push their financial responsibilities off onto taxpayers. We need to let people die, or live in misery, if the do not have insurance and have an unexpected medical emergency. We need to let people live, or die, with the consequences of their bad choices. We need to get back to demanding everyone take responsibility for their own situation. We need to deal with our own pre-existing conditions either on our own, or through purchased medical care. We need to separate employment from medical insurance, that doesn’t mean we need the government involved. We need to let hospitals limit how much care they are going to give someone that has no way. We need to act like grown ups and not a bunch of whiny babies that want someone feed them and change their diaper. Grow up, America. We need freedom. Not more oppression.
June 29, 2011, 8:14 pmCMH says:
So if the individual mandate had a provision that said “Buy health insurance or a buy a bond that will cover the costs of your health care if you don’t,” that would be okay? I don’t understand your point here. Nor do I understand any meaningful distinction between the two products that supports a view that state government can’t require you to purchase insurance, but can require you to purchase a bond.
June 29, 2011, 8:15 pmC says:
Other differences:
You get to VOTE DIRECTLY on how much tax you pay.
- If you don’t like how the vote turns out, you can move to a different school district.
- You can choose your new school district based on whether they use Property taxes, Income Taxes, and the rates of each.
This is a FEDERAL individual mandate. (Does it also apply to U.S. citizens who live outside the county, some or all of the calendar year?)
The amount you pay is decided by Bureaucrats: first by the government bureaucrats created a list of minimum coverage requirements and second by insurance company bureaucrats deciding how much Premiums to link to the minimum and higher levels of coverage. The amount you pay becomes very indirect, taking away your liberty choice by the amount of imposed layers.
June 29, 2011, 8:22 pmWhitehall says:
The more I visit this site, the less I respect lawyers, judges, the legal profession, and the whole intellectual structure they’ve created.
My opinion hasn’t yet degenerated into total disgust and contempt only because there are a few of you who understand and respect the compact amongst the citizens that is called the US Constitution. Some lawyers are pretty snappy dressers too – I respect that.
Anyone who can argue with sincerity that the Commerce Clause is so expandable that it negates the rest of the Constitution’s limits on federal power is a clear political enemy. They are either a tyrant or a facilitator of tyrants. Of course, some of my best friends are liberals.
However, failing a clear and prompt judicial rejection, the case of Obamacare is best resolved politically, through the electorial process. We voted for representatives who made this thing law. It’s the voters’ responsiblity to find and elect representatives who will correct it.
June 29, 2011, 8:30 pmB-Rob says:
Ayn Rand, is that you? I thought you had died a long time ago!
Our country has advanced past the age where we let people die in the gutter because they do not have a valid insurance card on them. You think we should return to such a system; I doubt more than the typical misanthropic and/or sociopathic 10% of the population would agree. We have a safety net because, as with all other highly industrialized countries, we are simply above the malthusian/darwinian culling that your approach would induce. We are simply better than what you would have us to be.
June 29, 2011, 8:34 pmKay B. Day says:
B-Rob, On hospitals that do not accept Medicaid or Medicare, the system praised by Pres. Obama, Mayo, takes neither at some of their locations, including in my home city.
June 29, 2011, 8:39 pmB-Rob says:
June 29, 2011, 8:43 pmB-Rob says:
Kay B. Day, you said that Mayo no longer accepts Medicare and Medicaid. That is not entirely true. The limited accepting patients from two states, per this article.
June 29, 2011, 8:47 pmSteve2 says:
That “reflective position” is naive and mistaken. This law, assuming it works as intended, isn’t going to go away for the same reason that most entitlement/welfare/social safety net laws haven’t gone away: it’ll set up a positive feedback loop. The law’s purpose is to keep alive vermin who are supposed to die. If it achieves that, then instead of dying, they will continue voting and continue supporting the law, which will help their numbers keep growing, which will mean even more support for the law, and so forth. It’s what we’re seeing now as each year the number of people who’ve lived past the mid-sixties, when everyone should die, increases and with it opposition to getting rid of Social Security and Medicare increases.
June 29, 2011, 9:38 pmClark says:
Actually, I think a significant fraction of the population would not want to be left to die in the gutter themselves, but are perfectly happy to have that happen to others.
“I’ve been on food stamps and welfare. Did anybody bail me out? No!”
The rhetoric by Craig “Coach” Nelson in his leadup to why he shouldn’t have to pay taxes is not atypical of the folks who just want the gubmint hands off their medicare.
June 29, 2011, 9:57 pmKay B. Day says:
B-Rob, why not just go straight to the horse’s mouth:
http://www.mayoclinic.org/becomingpat-jax/financial.html
Note in my original post I referenced “some” Mayo locations. Note also the article you posted is almost 2 years old.
An update regarding Mayo policy from Heartland:
http://www.heartland.org/healthpolicy-news.org/article/27913/Mayo_Clinic_Makes_Medicare_Medicaid_Cuts.html
There are also some longterm and even subacute facilities that won’t accept the government M programs.
June 29, 2011, 10:02 pmcbunix23 says:
There’s never enough money to pay for all the things the left wants, there’s always some other problem that needs to be solved. The solution to socialism is always more socialism. Isn’t it ? That’s garbage and will eventually bankrupt the US.
If a hospital freely choose to treat someone for free that’s fine with me. If a charity that receives voluntary donations wants to pay for the health care of indigents that’s fine with me. If NOW wants to pay for free abortions to whoever asks for one it doesn’t matter to me one bit. If you want to pay for your neighbors boob job I don’t care, go ahead.
But but they’ll run out of money you say. Well, yes, that’s right. That’s a feature not a bug.
I personally don’t object so much to the idea of a /small/ safety net to cover the /small/ percentage of needy people that can’t deal with their situation. What I object to is the idea that the safety net has no limit to its size.
More more more. That’s all the left ever says. No more. The federal government budget should be limited to no more than 10% of GDP. Period. Spend it on what you want, but 10% is all you get.
I have to live within my means, so should government at all levels.
June 29, 2011, 11:01 pmClark says:
This is good in theory, but you are quite confused. Some significant chunk of the GDP measures additional utility added by the federal government. For example, if the federal government builds roads and enables housing to be built up in the CA hills, some of the contribution to the GDP from the construction and other activity, associated transportation etc. is actually value added by the federal government. Rules like “The federal government budget should be limited to no more than 10% of GDP. Period. Spend it on what you want, but 10% is all you get.” are probably good for signs at rallies (although you need to make it more pithy so it fits the back of your car), but they show a lack of basic economic understanding.
June 29, 2011, 11:20 pmfalse seriousness says:
There you go, a great summation of conservative / libertarian values. Maybe one day you will be ashamed of this comment, but perhaps I hope for too much.
Nothing says FREEDOM like people dying from preventable illness because they are old, poor or unemployed.
June 30, 2011, 2:12 amSteve2 says:
Assisting flawed people to survive and reproduce does qualify as an “advancement”, but towards an undesirable end. Culling benefits every species. Humans are no exception.
This law, like many of the mistakes of the twentieth century, is motivated by two persistent and seductive falsehoods: that people are all equal and that life is a right rather than a privilege that must be continuously re-earned.
And false seriousness, “freedom” isn’t the issue. The poor, old, and unemployed not deserving to live is the issue.
June 30, 2011, 6:35 amfalse seriousness says:
Steve2, I can’t tell if you are serious, or offering some kind of super-savvy snark to illuminate the moral depravity of libertarians. If the latter, it was not effective. If you are serious, then you’re probably posting from jail or something.
June 30, 2011, 9:56 amSarcastro says:
Indeed! 3 generations of imbeciles is enough!
June 30, 2011, 10:11 amleo marvin says:
You can never be certain who’s for real on the internet, but FWIW that’s been his consistently stated position here for some time.
June 30, 2011, 8:35 pmGospace says:
Yes. Children make up future citizens. The govenment has a vested interest in the training, education, and/or indoctrination of future citizens, however you want to phrase it.
July 1, 2011, 10:36 pmcbunix23 says:
If the mandate that everyone be covered is so important then why are exemptions being granted at all ? That’s just a rhetorical question, I know the answer is politically based, it’s the usual ” help your friends and screw your opponents”.
Well well, I’ve been called quite confused, misanthropic, sociopathic, and even “Ayn Rand”, that doesn’t change economic reality. Trying to drive me away from your hangout ? Sorry, I’m not going away over some lame insults by leftist thugs.
Ww got away from
Your charitable instincts are fine, but why do you insist on stealing to accomplish your goals ? I know, it’s just easier that way isn’t it.
July 2, 2011, 5:30 pmcbunix23 says:
If the mandate that everyone be covered is so important then why are exemptions being granted at all ? That’s just a rhetorical question, I know the answer is politically based, it’s the usual ” help your friends and screw your opponents”.
Well well, I’ve been called quite confused, misanthropic, sociopathic, and even “Ayn Rand”, that doesn’t change economic reality. Trying to drive me away from your hangout ? Sorry, I’m not going away over some lame insults by leftist thugs.
The more we get away from principles of personal responsibility and helping each other and instead rely on the government the more that government will rule everything in our lives.
No more toilets that flush enough. No more light bulbs that are bright enough.
Go on admit it. You like being in charge and bossing everyone else.
July 2, 2011, 5:36 pmcbunix23 says:
For an excellent read of how to reduce primary care costs by 85% and improve patient outcomes see:
http://blog.westandfirm.org/2011/07/do-it-yourself-health-reformers.html
basically, doctors need to stop dealing with insurance companies at all.
Freedom works, socialism does not.
July 5, 2011, 7:17 pm