D.C. Circuit upholds Affordable Care Act

[one...two...tree 2,762]

Given that the Justices of the Supreme Court are meeting this Thursday to consider whether to take on any of the pending Affordable Care Act challenges this Term, today's decision of the D.C. Circuit upholding its constitutionality is more for scoreboard purposes than anything else, except ... Except that the decision was written by Judge Laurence Silberman, a leading judicial conservative for decades, and as with the Sixth Circuit decision by Judge Jeffrey Sutton in June, his opinion augurs well for a Supreme Court outcome in which the Act is deemed within Congress's Article I powers.

In particular, here's what Judge Silberman (joined by Judge Harry Edwards) has to say about the whole activity/inactivity/and-what-are-the-limits-of-this-power foofaraw surrounding the individual mandate:

The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants’ argument. No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an

activity

involving, or substantially affecting, interstate commerce [...] To be sure, a number of the Supreme Court’s Commerce Clause cases have used the word “activity” to describe behavior that was either regarded as within or without Congress’s authority. But those cases did not purport to limit Congress to reach only existing activities. They were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question–presented here–of whether “inactivity” can also be regulated. In short, we do not believe these cases endorse the view that an existing activity is some kind of touchstone or a necessary precursor to Commerce Clause regulation.

Instead, Judge Silberman pointed to the Supreme Court's unanimous decision in Wickard v Filburn (1942), in which the Court deemed within Congress's commerce clause powers a law penalizing farmers for growing wheat they had no intention of selling. But what about the fact that the individual mandate is novel, and that its proponents have identified no limits to what could be mandated in the future?

Since appellants cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent, they emphasize both the novelty of the mandate and the lack of a limiting principle. The novelty–assuming

Wickard

doesn’t encroach into that claim–is not irrelevant. The Supreme Court occasionally has treated a particular legislative device’s lack of historical pedigree as evidence that the device may exceed Congress’s constitutional bounds. But appellants’ proposed constitutional limitation is equally novel–one that only the Eleventh Circuit has recently–and only partially–endorsed. Moreover, the novelty cuts another way.

We are obliged–and this might well be our most important consideration–to presume that acts of Congress are constitutional. Appellants have not made a clear showing to the contrary.

We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation. That difficulty is troubling, but not fatal, not least because we are interpreting the scope of a long-established constitutional power, not recognizing a new constitutional right. Cf.

Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252, 2272 (2009) (Roberts, C.J., dissenting)

. It suffices for this case to recognize, as noted earlier, that

the health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services.

Judge Brett Kavanaugh, a GWB nominee, dissented–but not really on the merits, but rather on the Court's jurisdiction to hear the case under the Anti-Injunction Act (please, please don't ask me what this means), and on the basis that there's no need to decide the constitutionality of the individual mandate now since Congress could repeal or modify the provision before it is scheduled to take effect. If a phrase like "310 million people who have over-absorbed their Posner" means anything to you, you should go on and read his 65-page dissent. Here's two representatitve grafs for the lawgeeks among us:

Moreover, despite the Government’s effort to cabin its Commerce Clause argument to mandatory purchases of health insurance, there seems no good reason its theory would not ultimately extend as well to mandatory purchases of retirement accounts, housing accounts, college savings accounts, disaster insurance, disability insurance, and life insurance, for example. We should hesitate to unnecessarily decide a case that could usher in a significant expansion of congressional authority with no obvious principled limit [...] Between now and 2015, Congress might keep the mandate as is and the President may enforce it as is. If that happens, the federal courts would resolve the resulting

constitutional case by our best lights and would not shy away from a necessary constitutional decision. But history tells us to cross that bridge only if and when we need to. Unlike the majority opinion, I would adhere to the text of the Anti-Injunction Act and leave these momentous constitutional issues for another day – a day that may never come.

His opinion, however, did not prevail, so the proper place to conclude is where Judges Silberman and Edwards did:

t is irrelevant that an indeterminate number of healthy, uninsured persons will never consume health care, and will therefore never affect the interstate market.

Broad regulation is an inherent feature of Congress’s constitutional authority in this area; to regulate complex, nationwide economic problems is to necessarily deal in generalities

. Congress reasonably determined that as a class, the uninsured create market failures; thus, the lack of harm attributable to any particular uninsured individual, like their lack of overt participation in a market, is of no consequence. That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before–but that seems to us a political judgment rather than a recognition of constitutional limitations. It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.

The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.

See

Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258-59 (1964)

.

We may hear from the Supreme Court as soon as next Monday as to whether any of the Affordable Care Act cases presently before it will be heard this term.

http://www.dailykos.com/story/2011/11/08/1034284/-DC-Circuit-upholds-Affordable-Care

[Mr. Big Dog 10,747]

Congress gets to forge national solutions to national problems? That's crazy commie talk.

[one...two...tree 2,762]

Congress gets to forge national solutions to national problems? That's crazy commie talk.

Insurance mandate was a Republican idea before it became a communist conspiracy to force RWN's to wear Depends.

[Obama 2012 1,714]

There's a special place in hell for anyone who voted for the individual mandate and who upholds it.

They will find themselves there soon enough if it survives the SCOTUS.

[one...two...tree 2,762]

There's a special place in hell for anyone who voted for the individual mandate and who upholds it.

They will find themselves there soon enough if it survives the SCOTUS.

Commerce. End of argument.

[Obama 2012 1,714]

Commerce. End of argument.

you're ignorant as hell if you are using that reasoning.

the government cannot force you to partake in commerce that you may or may not use.

Not only that, health insurance is not traded across state lines, therefore is not controllable by the Feds to begin with!!!

[one...two...tree 2,762]

you're ignorant as hell if you are using that reasoning.

the government cannot force you to partake in commerce that you may or may not use.

Not only that, health insurance is not traded across state lines, therefore is not controllable by the Feds to begin with!!!

Your insurance coverage extends beyond state lines. It is well within the jurisdiction of Congress to regulate, and there is no such thing as opting out of health care in this country, unless you advocate bodies of people dying on the streets.

[Obama 2012 1,714]

Your insurance coverage extends beyond state lines. It is well within the jurisdiction of Congress to regulate, and there is no such thing as opting out of health care in this country, unless you advocate bodies of people dying on the streets.

no such thing as opting out? bodies in the streets? You can't be serious?

[one...two...tree 2,762]

no such thing as opting out? bodies in the streets? You can't be serious?

Try working at a hospital and then you might understand better. People from out of state without health insurance are routinely cared for in hospitals, sometimes racking up huge bills that they will never be able to pay. Those with insurance have the mobility to be treated out of area and out of network. Health care providers and health insurance companies work together across state lines. That falls well within the jurisdiction of Congress under the Commerce Clause and health care has a huge impact on the GDP. There's no logical argument that is based on the Constitution as to why an insurance mandate is unconstitutional.

[luckytxn 2,264]

Your insurance coverage extends beyond state lines. It is well within the jurisdiction of Congress to regulate, and there is no such thing as opting out of health care in this country, unless you advocate bodies of people dying on the streets.

Spoken like a true Socialist.

[luckytxn 2,264]

It was and is unconstitutional. The Feds telling us that we have to buy anything under penalty of huge fines is a huge over reach. We might as well now just start calling ourselves the United Socialists states of Amerika.

[Obama 2012 1,714]

Try working at a hospital and then you might understand better. People from out of state without health insurance are routinely cared for in hospitals, sometimes racking up huge bills that they will never be able to pay. Those with insurance have the mobility to be treated out of area and out of network. Health care providers and health insurance companies work together across state lines. That falls well within the jurisdiction of Congress under the Commerce Clause and health care has a huge impact on the GDP. There's no logical argument that is based on the Constitution as to why an insurance mandate is unconstitutional.

I don't use the health care system. I don't go to the doctor, nor can you prove or disprove that I will go anytime in the near future or my lifetime.

Therefore you cannot rationally say that I should have to buy insurance.

Regulating insurance, regulating health care itself is one thing. FORCING someone to buy a product and/or service is a complete other.

[luckytxn 2,264]

I don't use the health care system. I don't go to the doctor, nor can you prove or disprove that I will go anytime in the near future or my lifetime.

Therefore you cannot rationally say that I should have to buy insurance.

Regulating insurance, regulating health care itself is one thing. FORCING someone to buy a product and/or service is a complete other.

To a Socialists way of thinking having control of people is paramount. Not having control over what they eat or even think or any facet of ones lives is unfathomable. From the moment you are born until the day you die they want complete control of you.

[The_Dude 1,142]

To a Socialists way of thinking having control of people is paramount. Not having control over what they eat or even think or any facet of ones lives is unfathomable. From the moment you are born until the day you die they want complete control of you.

Seriously Juggalo, you need to get back to work, the fries are burning.

[one...two...tree 2,762]

I don't use the health care system. I don't go to the doctor, nor can you prove or disprove that I will go anytime in the near future or my lifetime.

Therefore you cannot rationally say that I should have to buy insurance.

Regulating insurance, regulating health care itself is one thing. FORCING someone to buy a product and/or service is a complete other.

Health care extends beyond seeking the personal care of doctor. If you dropped to the floor right now and turn blue because of asphyxiation, someone can dial 911 and get an ambulance. Paramedics will try to stabilize you and bring you to the hospital. Now, if you're saying that you have a choice to decline such help, go ahead and try it. I've seen patients get titled because a doctor determined that the person's life was in danger and that person lacked the capacity to accept medical treatment. All of that takes place without you actually seeking out a doctor and without your explicit permission or even choice.