Sixth Circuit upholds individual mandate

Thomas More Law Center, et al. v. Obama, et al., No. 10-2388


This case is instructive for how to pursue further argument in the issue. The case is the first appellate decision, and is expected to be appealed to the U.S. Supreme Court. This Circuit was considered the most likely to overturn the individual mandate, and thus provide a circuit conflict that the Supreme Court would want to resolve.

It appears the opinion of Judge Sutton is directed toward U.S. Supreme Court Justice Kennedy, expected to be the swing vote on the case. The dissent by Judge Graham provides support for the opposite position.

Judge Sutton provides the key language:  “The Court has upheld other federal laws that involve equally substantial, if not more substantial, incursions on the general police powers of the States and the autonomy of individuals.  If, as Wickard shows, Congress could regulate the most self-sufficient of individuals – the American farmer – when he grew wheat destined for no location other than his family farm, the same is true for those who inevitably will seek health care and who must have a way to pay for it.  And if Congress could regulate Angel Raich when she grew marijuana on her property for self-consumption, indeed for self-medication, and if it could do so even when California law prohibited that marijuana from entering into any state or national markets, it is difficult to see why Congress may not regulate the 50 million Americans who self-finance their medical care.”

Further:  "What is more, inaction is action, sometimes for better, sometimes for worse, when it comes to financial risk."

Further: “The rub is the other method of paying for medical care: self-insurance. There are two ways to self-insure, and both, when aggregated, substantially affect interstate commerce. One option is to save money so that it is there when the need for health care arises. The other is to save nothing and to rely on something else—good fortune or the good graces of others—when the need arises. Congress found that providing uncompensated medical care to the uninsured cost $43 billion in 2008 and that these costs were shifted to others through higher premiums. See 42 U.S.C. § 18091(a)(2)(F). Based on these findings, Congress could reasonably conclude that the decisions and actions of the self-insured substantially affect interstate commerce.”

See also pp. 47-48, discussing the EMTALA requirement that hospitals provide emergency care even to those who can’t pay. Judge Graham points out that "...Congress cannot be tolerated to justify its exercise of power by creating its own substantial effects." Or because the states do the same, by requiring "emergency" treatment of everyone, and then broadly interpreting "emergency" to include everything needed to extend life indefinitely. The individual mandate to buy insurance rests on the mandate to treat everyone. The way to solve the collective action problem is to repeal the mandates to treat. If any legislative body mandates treatment then it incurs the duty to pay for it, respondeat superior. A mandate to treat cannot create a constitutional authority to do anything. Constitutional authority is not contingent on legislative acts that create some condition.

Note that Judge Sutton does not rule out future as-applied challenges to the mandate but only the current facial challenge. See pp. 37-38, 49-50, and 52-53.

A sentence in the dissent weakened Judge Graham's argument.  It said that the decision to self-insure is noncommercial, to justify its holding.  But this contradicted by Wickard.  If the case for constitutionality turns on this, then there is little chance of prevailing unless it is distinguished from the line of cases from McCulloch through Wickard and Raich.

Once again we see the cited cases as those that have the most pernicious impact on jurisprudence, and that the key is to attack the line of precedents that began with McCulloch v. Maryland, as I argue in Unnecessary and Improper. Focusing only on the "action-inaction" distinction is a weak reed on which to hang the issue. The original meaning of "carrying into execution" has never been addressed by the Supreme Court, and we need persuasive argument that the phrase limits powers "necessary and proper" to only making an effort, and does not allow doing anything that might serve an outcome for which the authorized effort might be made.

If we lose this one, it is unlikely that even winning the presidency and both houses of Congress (the Senate by 60 votes) would be able to overcome the momentum of the Health Care Act, the repeal of which ar this point would wreck the health care system as thoroughly, and more abruptly, as enactment of it will. The only way forward is nullification and constitutional amendments.

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