Editor's Note :

Editor's Note :

On Monday morning the court hears oral argument in Lucia v. Securities and Exchange Commission. Ronald Mann has our preview.
On Monday morning the court also hears oral argument in Pereira v. Sessions. Jennifer Chacon has our preview.
On Monday afternoon the court hears oral argument in Chavez-Meza v. United States. Susan Klein has our preview.

Briefly Mentioned :

Briefly Noted :

The Supreme Court will release orders from the April 20 conference on Monday at 9:30 a.m. There is a possibility of opinions on Tuesday at 10 a.m.

Tom Goldstein Publisher

Posted Mon, October 3rd, 2011 8:02 am

The Affordable Health Care Act

Our first topic asks the Community to discuss what the Supreme Court should do in the health care cases.  We ask what the Justices “should” – as opposed to “will” – do to encourage you to discuss the issues related to the cases not in terms of predicting the outcome, but of first principles.  You’ll see that we have a thread on what the outcome will be; we just don’t want that to be the focus.

For example, if you believe that the Court’s jurisprudence interpreting the Commerce Clause is misguided – presumably because it gives Congress too much authority – you should feel free to advance that view.  Alternatively, defend the Court’s existing decisions.  But don’t merely revert to saying that it “should” uphold the law because that result is dictated by existing precedent.  And of course, you can feel free to say that existing precedent does not save the statute, which is what the Eleventh Circuit held.

Other issues are fair game too.  For example, relatively little attention has been given (outside of the Fourth Circuit’s decision) to the question whether these suits are being brought too early (in light of the Anti-Injunction Act and Tax Injunction Act) or by the wrong parties (the question of standing).  Also worthy of discussion is which of the cases the Justices should hear (for example, the Sixth or Eleventh Circuit case or one of the others) and whether the Court should grant cert. at all.

If you’re a lawyer, feel free to bring to bear all manner of legal arguments.  If you’re into history, add that perspective.  If you’re a lay person, give us your sense of how the Court should rule.

But keep in mind that an essential part of the issue for discussion is what “the Supreme Court” should do.  This isn’t a debate about whether the law is good or bad – a point that likely will play little role in the cases – or whether the Obama Administration, Democrats, or Republicans are evil, socialists, obstructionists, or the greatest thing since sliced bread.  If you make comments like that, we’re going to delete them, so don’t waste your time.

Full disclosure:  If the Supreme Court grants certiorari, the Goldstein & Russell firm will be representing AARP in an amicus brief on the merits.  But as always, the blog takes no position on the cases.  And our moderation of the comments won’t have anything to do with whether you think the statute is constitutional, so long as the comments are on point.

  • Tom Goldstein – 0 Promoted Comments

    In this thread, discuss generally whether the ACA’s individual mandate exceeds Congress’s power under the Commerce Clause.

    • Cory Andrews – 2 Promoted Comments

      The Supreme Court should recognize that even its broadest Commerce Clause precedents do not give Congress the authority to compel Americans to purchase a product they do not want. However elastic Congress’s power may be under the Commerce Clause, it is not unlimited. In construing this power thus far, the Supreme Court has limited it to the regulation of individuals already engaged in “commerce.” In other words, the Commerce Clause permits Congress to regulate commerce, not to command it, and not to create it from whole cloth where none exists. The Court should confirm that Congress is permitted to regulate economic “actors,” but not those who have never entered the relevant marketplace and who merely wish to be left alone. That’s a bridge too far.

      • Josh Rosenbluth – 0 Promoted Comments

        I’m sympathetic to drawing a line at people who want to be left alone. But after they get sick, when either 1) tax payers pick up the bill or 2) insurance can be bought at the last minute for the same rate, I’m not sure I would charcterize not having insurance as “being left alone”.

        • Cory Andrews – 2 Promoted Comments

          If the mandate worked “after they get sick” and seek services, I doubt we would be having this conversation. But as written, the mandate regulates neither the consumption of medical services nor any other activity, but applies instead to virtually all uninsured Americans whether or not they consume health care services. If the individual mandate operated as you suggest, one could simply avoid the mandate by not consuming health care services; but such “opting out” is not allowed under the PPACA.

          • Josh Rosenbluth – 0 Promoted Comments

            I didn’t suggest that the mandate operate only after people get sick. I’m merely observed the appeal to “being left alone” is not persuasive because we cannot know ahead of time who amongst us will get sick and be unable to pay our bills.

      • Walter Slocombe – 0 Promoted Comments

        This argument simply assumes the hard question — have people who don’t buy insurance entered the “economic marketplace” by creating a situation in which, in one way or another, they may very well end up depending on others to finance their health care.

        By the way, for those who argue that ObamaCare is beyond congressional power, what is the constitutional basis for the federal ban on late term abortion. (I know the statute refers to “interstate commerce,” and presumably crossing state lines to get a late term abortion would be commerce, but how about the general case?)

        • Martin Paternoster – 0 Promoted Comments

          Forgive my ignorance, but when I read “may”, it means it is possible, and not definite, correct?

          Therefore, it is not a given that someone who chooses not to obtain health insurance will enter the health insurance marketplace, so the Individual Mandate then forces that individual into it.

          Mandating entry to a given market is, as far as I can tell beyond the reach of the Interstate Commerce Clause.

          There is nothing commercial about doing nothing.

    • Erwin Chemerinsky – 3 Promoted Comments

      The Court should uphold the individual mandate in the Affordable Care Act. Fifty million Americans lack health care and there is a huge cost to this in terms of needless deaths and unnecessary suffering. Those without insurance impose an enormous economic cost on the system. This is a national problem and the national government should have the power to deal with this.

      Under current constitutional law, the individual mandate is clearly constitutional. Under test now used for the commerce clause, Congress can regulate economic activity that has a substantial effect on interstate commerce. Thus, there are two questions: is Congress regulating economic activity and if so, is there a substantial effect on interstate commerce? As to the former, everyone is engaged in economic activity with regard to health care: they are either self-insuring or purchasing insurance. There is an enormous effect on interstate commerce; health care is an $850 billion industry. In the last Supreme Court decision concerning the commerce power, Gonzales v. Raich (2005), the Court said that Congress could prohibit the cultivation of small amounts of marijuana for personal medicinal use. Then surely Congress can regulate an almost trillion dollar industry.

      • Daniel Artz – 1 Promoted Comment

        The claim that PPACA is “clearly” constitutional is a dead giveaway that you’re aarguments are less than persuasive. The notion that “everyone is participating in the health care market” is simply not self-evident. Those that you claim are “self-insuring” — i.e., all those to which the individual mandate is targeted — have done nothing to participate in the healthcare market unless and until they need goods or services, which may be months or years after they are mandated to purchase insurance. Indeed, for the vast majority of young, healthy individuals, their only participation will be for routine visits (vaccinations, regular gynecological visits for females, etc.), which, given a choice, they could almost invariably purchase directly for far less than the cost of insurance. If a person without insurance is and remains healthy, there is simply no participation in any marketplace for healthcare goods or services. While such people are rare, there are examples of people who live completely healthy lives, who never have need of a doctor, surgeon, or prescription medication. Even assuming a need for healthcare, your assumption that the uninsured will “impose huge additional costs” on the system simply does not withstand scrutiny. While many “self-insuring” individuals may in fact be impecunious, imposing costs on taxpayers because the government compels health care providers to treat even those unable to pay, there are also a great many “self-insured” who are quite capable of paying for the costs of service, and prefer to do so directly rather than through insurance. Your argument is really not based upon Constitutional first principals, which cannot be twisted or strained so far as to justify the Individual Mandate, but rather on your purely policy argument that the Individual Mandate is necessary to protect against cost-shifting resulting from the costs of treating those uninsured who are unable to pay. This is fairly ironic, since it is the Federal Government that is the ultimate cause of that cost-shifting. First, the Government compels health care providers to treat the uninsured, but refuses to pay the costs. That raises a significant 5th Amendment problem, in my view, but that’s a different issue. Second, the Federal Government, through the Medicare and Medicaid Programs, is the single largest payor for health care services, yet in both programs its reimbursement rate to providers is less than 80% of the cost of service, effectively compelling health care providers to shift costs onto the private payor market – those having health insuranmce and those self-insureds able to pay. Knowing this, what you are arguing is that the Commerce power gives Congress the authority to solve every problem, even those caused by bad public policy decisions by Congress. It strikes me as incredibly odd that Congress can expand its own authority under the Commerce Clause by simply making a problem large enough with its own stupid legislation.

      • Jeff Hall – 0 Promoted Comments

        First, how big a problem the uninsured or under insured are has nothing to do with whether or not PPACA is constitutional. I find it odd that someone of your statue would think that it does.

        Second, I can find no definition of commerce that would include the idea of self-insuring within its bounds. Even the broadest definition of commerce includes the idea of an interaction between more than one person. This is a key feature that “self insuring” lacks. Think for a minute about the consequences of saying that the government can regulate the decision to “self insure.” In a very real sense, every single thing you do or don’t do that you don’t pay for someone else to insure you for you are self insuring. Did you prepay for your next meal? No, then you’re self insuring it (and of course, if you did prepay for it, then that’s commerce and we can regulate that as well.

        There are certainly some good arguments that PPACA is constitutional. For example you could argue that it’s a necessary part of a larger regulatory scheme that regulates the interstate market for health insurance. This would fall neatly within Justice Scalia’s definition of the scope of the commerce power from Raich. But your post relies on a constitutional principal that doesn’t exist, and follows it with a definition of commerce that comes out of no dictionary I can find.

        • Robert Baker – 0 Promoted Comments

          Tthere are approximately 50 million people in the United States who lack health insurance coverage. Although some of these 50 million people may have the means to pay for necessary healthcare out of their own pockets (see Daniel Arts, above), it is clear beyond cavil that the vast majority of these 50 million people cannot afford to pay for catastrophic health conditions, and that their care will be paid for by those of us with health insurance and who are taxpayers. There is no doubt that the cost of health care for the one-sixth of our population that lacks insurance has a significant effect on interstate commerce. It is this substantial effect on interstate commerce that allows Congress to legislate in this field in compliance with our Constitution. Congress therefore has the power to mandate purchase of healthcare insurance in the same sense that Massachusetts can mandate such purchase, or in the sense that most states have mandated the purchas of automobile liability insurance. For the Supreme Court to hold otherwise, it will have to turn back the clock on Commerce Clause powers to what it was 75 years ago during the Great Depression of the 1930’s.

          • Jeff Hall – 0 Promoted Comments

            Whether or not a a state can mandate health insurance or a car insurance has nothing to do with what the Constitution does or does not allow. States have a plenary power to regulate for the general welfare. Congress does not. Congress may tax and spend for the general welfare. Congress may regulate interstate commerce. The problem with your statement “It is this substantial effect on interstate commerce that allows Congress to legislate in this field in compliance with our Constitution” is that it’s ignores two cases that have said otherwise. Both Lopez and Morrison concluded that the acts being regulated would have, in the aggregate, a substantial effect on interstate commerce, but both of those regulations were struck down. They were struck down because if the Court upheld them, they would have essentially converted the Commerce Clause power into a plenary power to regulate that Congress clearly does not have. The same problem exists here. If not buying something is commerce, then everything is commerce.

            Think about every dumb study you’ve ever read that concluded that some mundane task “costs employers $XX Millions every year. “http://www.telegraph.co.uk/technology/google/7764218/Google-Pac-Man-doodle-cost-economy-120-million.html”
            Clearly Google Doodles have a significant effect on interstate commerce. Should the federal government be able to ban them? Require them? Mandate that you create at least one a year from age 25 till death?

          • Josh Rosenbluth – 0 Promoted Comments


            You say, “[i]f not buying something is commerce, then everything is commerce.” Are you arguing that if the mandate is upheld, then the statutes at stake in Lopez and Morrison would also have to be upheld because “everything (including what those statutes regulate) is commerce”?

          • Michael Desmarais – 0 Promoted Comments

            There is an obvious difference between requiring automobile liability insurance and the health care mandate. Driving a car is a privilege. Secondly, automobile liability insurance insures the vehicle, not the driver. States do not require residents to purchase automobile insurance to obtain/hold a drivers license.

            You would then have to ask yourself, if an insurance mandate is constitutional, why hasn’t the federal government mandated automobile insurance for all?

      • Frank Skog – 0 Promoted Comments

        The last numbers I saw indicated that uncompensated care by the uninsured amounted to about 2% of the total health care bill.

        Anyone that claims that the uninsured as a class pass costs to others rather than paying out of pocket others needs to provide a facts to support that assertion. Does a 2% problem justify this overreach?

        I know several people that are uninsured but pay their medical bills out of pocket.

    • Dawn Johnsen – 1 Promoted Comment

      At the risk of sounding like a broken record (pardon the dated allusion), the case for Congress’s commerce clause authority to enact the ACA is simple and strong. The Supreme Court should treat it as such. The Court need not wrestle with the outer limits of the authority, or precisely how it will protect us from a government that may one day try to force-feed us all broccoli. The Justices should put an end to the harmful obfuscation that has developed around the commerce issue with a straightforward ruling reaffirming Congress’ plenary authority and upholding the Act. On a matter of this import and general interest, the Court should strive for a clear and direct ruling that can be understood by the American people. Any dissenting Justice who would strike down the Act—there should be no more than one on the merits (the Anti-Injunction Act question is far more difficult)—should be equally direct and acknowledge the radical nature of his approach.

    • Joe Cocurullo – 0 Promoted Comments

      The law clearly falls within Congress’ Commerce Power. The Supreme Court, by a ruling written by CJ Roberts to give it force, should say as much, underlining how clearly the law falls under it and contra to the 11th Cir., does so without providing “no limits.” To gain a larger majority, Breyer et. al. can write a concurrence that goes further, the Court should set some guidelines drawing lines. I’m flexible on where they are.

      • Martin Paternoster – 0 Promoted Comments

        So, what exactly ARE these limits you mention?

        What are the limitations to the Individual Mandate?

        What, specifically, would prevent that clause from kicking in for an individual?

        Or to ask another way, what specifically would I have to do for the mandate to apply to me?

    • Mike Breeland – 0 Promoted Comments

      I’m a little confused. We are assured that the Commerce clause has limits:
      The Court need not wrestle with the outer limits of the authority, or precisely how it will protect us from a government that may one day try to force-feed us all broccoli.


      and contra to the 11th Cir., does so without providing “no limits.”

      Yet were also told that there is no need to define those limits, just that the individual mandate is within them. But as a practical matter once those limits are set, the only thing Congress couldn’t force us to purchase are items that don’t have ” a substantial effect on interstate commerce”. Automobiles have an substantial effect on commerce, probably broccoli too.

      Where are the limits?

    • – 1 Promoted Comment

      I think the individual mandate exceeds Congress’s powers under the Commerce Clause and Lopez, Wickard, Raich, and Heart of Atlanta.

      The mandate clearly regulates an activity that substantially affects interstate commerce, so the analysis should focus on whether upholding the law would unreasonably open up a new horizon of congressional power, and whether it encroaches upon the individual’s decision making powers.

      First, this regulation is a new animal in federal regulation. Wickard (production of crops for personal, intrastate consumption) upheld what could be characterized as regulation of a personal decision of whether to buy crops rather than produce them for personal use. Despite this, the regulation was really prohibitory rather than mandatory, meaning Wickard didn’t have to buy crops from someone else, he just was prohibited from producing them himself. Raich (production of marijuana for personal, intrastate consumption) upheld basically the same thing in a different context, it was purely prohibitory. Heart of Atlanta (discrimination against hotel customers on the basis of race) prohibited racial discrimination, it didn’t mandate that hoteliers had to deal with minority customers, they just could not discriminate against them on the basis of race. The Individual Mandate, if upheld, would give Congress power to implement mandatory regulations on individual decisions, a significant expansion of their Commerce Clause powers into a realm traditionally not within their power.

      Second, as a prudential argument, the Individual Mandate also intrudes upon powers traditionally held by individuals. Under Lopez, the SCOTUS struck down a law where Congress was intruding upon police powers traditionally held by the state.

      Under the federal system, decision making power is divided between the federal government, state governments, local governments, and individuals. The federal government only gets those powers that are enumerated in the constitution, the state gets non-enumerated powers under the 10th amendment, and individuals get non-enumerated powers under the 10th amendment PLUS protection under the Bill of Rights.

      Since the constitution seems to hold individual rights and powers in higher esteem than state and federal powers, an intrusion upon individual powers should be treated with more scrutiny than ones upon state powers.

      Since the individual mandate would open a new and wide horizon for potential federal regulation and such regulation would impede upon decision-making powers traditionally held by individuals, it should be struck down as overreaching by Congress beyond their enumerated powers.

      U.S. v. Lopez. 514 U.S. 549 (1995)
      Wickard v. Filburn, 317 U.S. 111 (1942)
      Gonzales v. Raich. 545 U.S. 1 (2005)
      Heart of Atlanta Motel v. U.S. 379 U.S. 241 (1964)

  • Tom Goldstein – 0 Promoted Comments

    In this thread, discuss the “uniqueness” of the individual mandate and whether the challenge to the statute calls into question the constitutionality of other statutes (and whether that is a good thing).

    • roxanne friedman – 4 Promoted Comments

      This thread of analysis is what I call the libertarian argument. The 11th Circuit dissent responded to it as such, and although the majority denied its intent to raise any such argument, anyone listening to Judge Hull asking or reading her writing about the unthinkability of compelling anyone to buy health insurance every month for their entire life can tell this is not about forcing people to buy broccoli, to her this is like sumptuary laws.

      What this argument (and the broccoli argument) ignores (and what the government doesn’t argue) is that what ACCA does is eliminate the fee-for-services market for necessary health care (except for foreign nationals). While you can still get cosmetic surgery or experimental cancer care if you can afford it, hospitals and medical practices are becoming like “state stores” in those states which maintain a monopoly on liquor sales. Even Goldfinger can’t buy enriched uranium.

      I’m sure that lots of US citizens felt robbed of their liberty when the Homestead Act was repealed in 1976 (1986 in Alaska), pulling up stakes and moving on was a way of life here in the Old Fifth Circuit. But you’re not guaranteed a health care market any more than you are a homestead.

    • Robert Baker – 0 Promoted Comments

      To overturn mandatory purchase of health insurance, the Court would have to overturn the precedents which held Social Security and Medicare to be constitutional. Social Security and Medicare are, of course, retirement and health insurance systems that all employees in the United States are mandated to purchase by law through payroll taxes. There is no difference in requiring purchase through payroll taxes and requiring direct purchase. To overturn Obamacare, the Court would have to roll the clock back to the mid-1930’s in terms of Congress’ power to legislate pursuant to the Commerce Clause. Such a rollback would work great damage on society as we know it.

      • Timothy Morgan – 0 Promoted Comments

        The problem with your argument, and, frankly, what is the nub of the argument here, is whether Congress could penalize a person for failing to purchase healthcare insurance, versus (as with Social Security or Medicare) enacting a direct tax on an individual to compel participation in a Federal scheme or program such as that contained in the ACA. Stop it with the simplistic platitudes about this being an easy Commerce Clause decision. It plainly is not….

        • Robert Baker – 0 Promoted Comments

          Here is what Jeffrey Toobin has to say about Federal government mandates to purchase. http://nyr.kr/pAZz9A. Certainly not the final word on this issue.

      • Daniel Artz – 1 Promoted Comment

        Robert, your argument asserts, without support, that Social Security and Medicare are “insurance”. But that is simply not so. In any true insurance market, there is a spreading of risk and the insurer is required to reserve for estimated claims. In neither Social Security nor Medicare is there now (nor has there ever been) any reserve established for actuarially estimated claims. While Rick Perry has received loud hoots for calling Social Security a “Ponzi Scheme”, none of those hoots were accompanied by any real analysis of how, factually, Social Security differred from the classic Ponzi Scheme. In fact, there is no material difference. Social Security was established in the late 1930’s (sorry, I have forgotten the exact year), with benefits paid out immediately to recipients who had never contributed a dime in Social Security Taxes. Initially, there was a very low tax rate, and a very low cap on wages covered by the FICA tax; there was no direct link between taxes paid in by, and benefits payable to, any individual wage earner. Early retirees who lived to the average expected lifespan invariably collected a very large multiple of the taxes which they paid in. Meanwhile, those late to the party (like myself, scheduled to retire with full benefits in about 8 years, unless Congress raises the Retirement Age) can expect to collect only a fraction of total FICA taxes (Employee and Employer Share) paid on their behalf. Meanwhile the “Trust Fund”, invested in very low yield Treasury Notes, will run dry before 2019, meaning even the meager benefits I can currently expect to receive are likely to be cut before my retirement. And there is another huge difference between Insurance and either Social Security or Medicare — a contractual obligation. With Insurance, I have a contractual right to collect from an insurer on a claim within the coverage of the policy. You have no such right for either Social Security or Medicare; Congress is constitutionally free to rescind either program at any time, raise the retirement age, lower benefits, or any combination. And if it cuts the program entirely, the Fed gets to keep all of the FICA taxes it has collected over the years. You have nothing but an empty promise of future benefits that any future Congress is free to break with impunity. That is NOT insurance.

    • Ashley Batyko – 2 Promoted Comments

      I don’t think the concept of a “mandate” is a very unique one in the course of American history. Other legislation enacted has used a “mandate” to make the legislation feasible. We only have to look at the alphabet soup of the Roosevelt era to comprehend this. An example would be the Social Security Act (SSA). One section of the act set up what we know as Social Security today, which is a portion of our income is taken out of our paychecks and put into Social Security. Then at age 65 (age of retirement) we receive money from Social Security and therefore we don’t have to worry about not having any money saved for retirement and being a burden on society. This could be considered a government “mandate”. We HAVE to have a portion of our income that we get from our employers put into social security; we don’t have a choice. Without the mandate we probably wouldn’t have social security because maybe not many people would pay into it and then we would just get rid of it over time. It wouldn’t be as important to the majority of people as it is now.
      I suppose you could say that if the Healthcare mandate is being questioned for constitutionality than the SSA should be too. Well, it was in fact. The Court upheld the constitutionality of the SSA in the cases of Steward Machine Company v. Davis and Helvering v. Davis. And this Court was considered a conservative court, like our court now. I doubt the SSA will be reviewed again because of the review of the Healthcare legislation, but it is possible. It would be very, very hard for the Court to rule the SSA unconstitutional though. For one reason, they would be breaking with precedent. But, a more important reason, is that they would be getting rid of legislation that everyone benefits from and that nobody wants taken away. That would be politically very dangerous for the Court. It has been said that Social Security is like the “third rail” (on the train tracks), you touch it, and you die. And I don’t believe the Supreme Court is immune to this.

      • Robert Arnoldt – 1 Promoted Comment

        There are exceptions to the mandatory SSA contribution. Certain pensioned employees are exempt from paying into Social Security, and are subsequently not eligible for benefits based on those years of employment. As is the case with mandatory car insurance, I don’t think Social Security is a good comparison. I’m not sure there is a comparable program currently on the books. That’s why this is so challenging. This truly is new ground.

  • Tom Goldstein – 0 Promoted Comments

    In this thread, discuss whether the Supreme Court has properly interpreted the Commerce Clause.

    • David Kopel – 1 Promoted Comment

      The Court should re-affirm Gibbons v. Ogden, which followed the original understanding of the interstate commerce clause: “commerce” means mercantile exchange, plus some closely-related subjects, such as navigation. Among the subjects which are not interstate commerce, according to Gibbons, are “health laws of every description.” The Court should then over-rule South-Eastern Underwriters (1944), which broke from long-established precedent, and declared that even purely intrastate insurance was interstate commerce. Because South-Eastern claimed to be following original meaning, the modern Court should simply point out that none of the original sources cited by the South-Eastern opinion remotely support the contention that all forms of insurance are “commerce.”

      Finally, Congress should explain that the Necessary and Proper clause underscores the unconstitutionality of the mandate. As McCulloch v. Maryland demonstrated, the original meaning of the clause affirms the Congress may exercise powers which are incidental to an enumerated power. The power to compel a private person to engage in commerce with a private company is not an incident of, or lesser than, the power to regulate voluntary interstate commerce. Further, government-created monopolies were, in the Founding Era, a paradigmatic example of improper government action. Therefore, it is not constitutionally “proper” to force citizens to spend their money on a government-favored Big Insurance oligopoly.

    • Karl Bielefeldt – 1 Promoted Comment

      My layperson’s opinion is that too much attention has been paid to the meaning of the word “commerce” rather than what it means to regulate, perhaps because this is maybe one of the first times its meaning has been relevant.

      “To regulate” means to bridle, check, constrain, contain, curb, hold back, inhibit, pull in, rein in, restrain. Its connotation is one of restricting existing activity, not producing it. To cite another common use of the word in the English language, a regulator on a pressure valve keeps the pressure from getting too high. It has no means of generating pressure on its own. It only has the power to restrict the pressure generated by another means, such as heat or a compressor.

      Other powers of Congress are described with more active verbs: to provide, to make, to pay, to establish, to promote, to constitute, to define, to declare, to exercise, to control. Had the founders intended Congress to actively direct commerce rather than restrict it, another verb would have been chosen for the commerce clause.

    • Philip Thoennes – 2 Promoted Comments

      The idea of commerce as direct exchange was clearly set aside by the Supreme Court in Wickard v Filburn, along with conventional notions of production and consumption. Indeed, doesn’t the mitigation of risk in an insurance market constitute exchange (direct or otherwise), especially considering the sheer number of participants and dollars that constitute our health care market? (Some) of the Circuit Courts have easily reached this conclusion. Consider if the Court had gone the other way in Wickard, allowing farmers to opt-out of Congressionally mandated commodity quotas. Now imagine a farmer, or group of farmers, reentering the market due to supply or demand considerations, likely continuing and exacerbating interstate price fluctuations that Congress sought to control in the first place. The same logic may be applied to the Affordable Care Act, in recognizing that anything less than universal participation in the health insurance market will thwart the effectiveness of the rest of the Act (thus falling under the Necessary and Proper mantle, as well).

      The health care market already displays near universal membership, and Congress is well within its limits in applying its Commerce Clause power to the fundamentally commercial health insurance market in order to achieve this same level of participation in the interest of reform. This is so, regardless of one’s political persuasion re government size and spending.

  • Tom Goldstein – 0 Promoted Comments

    In this thread, discuss whether the individual mandate should be upheld under Congress’ taxing power.

    • – 3 Promoted Comments

      The congressional taxing power is a tricky issue in the case of the individual mandate, although I have doubts that it can be sustained under the Taxing and Spending Clause.

      The primary inquiry is whether the mandate can be classified as a tax, and the response is probably not. It is true that the mandate is nominally imposed through the Internal Revenue Code. However, as Judge Sutton discussed at length in his concurrence in Thomas More Law Center v. Obama, the mandate does not function as a tax. Indeed, the “penalty” for not complying with the individual mandate is not a tax penalty (in the sense of a punishment for some tax deficiency, for example), but a fine.

      It is also telling that in its findings under Section 1501 of PPACA, Congress expressly cited to the Commerce Clause – and not the Taxing and Spending Clause – as the source of its authority to impose the mandate. Calling the individual mandate a tax is tenuous. The battle over the constitutionality of PPACA will likely be fought under the Commerce Clause.

      But let us assume for argument’s sake that the mandate were deemed a tax. Recent commentary suggests that the old line between revenue-raising and regulatory taxes no longer applies. However, most of the cases since 1936 addressing the distinction dealt with it in the Tax Anti-Injunction Act context. One can make a compelling argument that the term “tax” as used in the AIA is not necessarily the same as that used in the Constitution.

      It might therefore be too soon to sound the death knell for US v. Butler. There, the Court held that where a purported tax aims to regulate – rather than simply raise revenue – it is allowable only where Congress has the ability to otherwise directly regulate the conduct it seeks to indirectly discourage by taxation. This distinction makes sense, and the Court has never overturned Butler.

      Why should Congress be able to regulate indirectly by taxation where it cannot regulate directly under an enumerated power? If this distinction is still vital – and I think it should be – then the individual mandate will almost certainly be classified as regulatory. After all Congress itself acknowledged that it derived its power to enact the mandate from its ability to regulate interstate commerce. And so again we return to the Commerce Clause.

  • Tom Goldstein – 0 Promoted Comments

    In this thread, discuss whether the Court should grant certiorari and if so in which case.

    • – 3 Promoted Comments

      The Court should grant all the cert petitions in the 26-state/NFIB case, hold that the individual mandate exceeds the federal government’s constitutional authority, find that provision to be inextricable from the overall regulatory setup, and therefore strike down all of Obamacare. By doing so, it would reaffirm that while Congress can do a great many things under the modern interpretation of the Commerce Clause, what it cannot do is, as the Eleventh Circuit concluded, “mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.” Indeed, just because Congress can regulate the health insurance industry does not mean it can also require people to buy that industry’s products.

      And the individual mandate’s constitutional defects expose the fatal flaws in the legislation generally. The regulatory burden and economic uncertainty — let alone direct financial cost — that Obamacare imposes on individuals, businesses, states, and the nation as a whole are part and parcel of a noxious scheme centered on the mandate. The Supreme Court should make clear that some things are beyond the government’s reach and that the judiciary cannot abdicate its duty to hold Congress’s feet to the constitutional fire. The relief (and certainty) that such a ruling would provide to a nation battered by this among so many other pieces of economically harmful administration policies cannot come soon enough.

      • Joyce Pigge – 0 Promoted Comments

        Scotus and ScotusBlog provide excellent opportunities for considered exchange of ideas and respect for opposing viewpoints. Even if I might often disagree, I regularly read Volokh Conspiracy—there is always the potential of something to learn. Why do I write this? Because I am greatly disappointed in the disrespect shown to Mr. Goldstein and Scotus by Mr. Shapiro. No where in the “set-up” to this discussion is the term, “Obamacare” used. I have not read every entry closely, but, a quick review would suggest this inaccurate, disrespectful and pejorative term does not appear. My assumption is these contributors desire to enter into the spirit of this exercise without resort to hyperbole and invective.

        • Joe Cocurullo – 0 Promoted Comments

          A reader to Volokh Conspiracy would be familar with Mr. Shapiro’s use of “Obamacare” since that is repeatedly used (at times as a tag) by members of that blog.

          The furtherance of this term, which often has a negative connotation is unfortunate. It is not a neutral term and its use in debating the legislation is misguided at best. The acceptance of the term in the media and so forth does not negate this problem; it in a way furthers it.

          The legislation has a name. It is not a type of “Medicare” which itself was not named after LBJ, who has a lot more to answer for in respect to obstrusive government legislation. Ironically, some wish it was “Medicare for all.” Obama, unlike for the end of DADT, was not the primary driver of the legislation. It is in fact basically the work of the Senate with small edit from the House. Calling it “Obamacare” implies something it is not — some dictatorial type “Obama” legislation that is like Medicare.

          This makes it different than an economic program which the President or his advisers had a major part in creating leading to “Reaganomics” or “Bush tax cuts,” both also more accurate terms vs. something that is not “Medicare.” And, if other terms are misleading, two wrongs don’t make a right.

          • Richard Urich – 0 Promoted Comments

            Shapiro likely has a goal to influence public opinion, so it only makes sense he would use the term most recognizable to the public at large. Patient Protection and Affordable Care Act or PPACA or ACA is less recognizable to the average person than Obamacare. Regardless of the naming convention used, the merits of the argument remain entirely unchanged.

          • Joe Cocurullo – 0 Promoted Comments

            I don’t want to belabor the point, but “the public” isn’t familiar with “Obamacare” because they single-handedly decided to use that term but because of its use by advocates that tend to lean in one direction. It is duly noted that this is being done by certain people here, but that’s the very point I’m making. And, are legal debates here going to be full with partisan buzzwords or neutral terms?

            As to the merits of the argument not changing, the term implies something, and affects debate there. It does “change” something to talk about being “pro-life” and having neutral parties label you as such as the other side is “anti-life.” The same here. Language affects deciding the merits and again I’m well aware that those who use the term are trying to push their cause doing just that.

  • Tom Goldstein – 0 Promoted Comments

    In this thread, discuss the case from the perspective of federalism.

    • Stephen Presser – 1 Promoted Comment

      The question whether the PPACA is Constitutional is nothing less than the question whether the 10th Amendment still has any validity. Perhaps a strained interpretation of existing Constitutional cases (e.g. Wickard & Raich) could lead to the conclusion that there is nothing wrong with the individual mandate, but that interpretation makes a mockery of the notion that the federal government is one of limited and enumerated powers.

      • Elizabeth Wydra – 1 Promoted Comment

        The Court should uphold the constitutionality of the Affordable Care Act–in fact, constitutional text and history and Court precedent are so clearly in support of Congress’s power to enact the law that the result should be unanimous. The vision of a weak, ineffectual federal government reflected in the challenges to the Act has more to do with the failed Articles of Confederation that our Nation’s founders wisely replaced than with our enduring Constitution. The Constitution gives the federal government the capacity to create national solutions to national problems.

        • Daniel Artz – 1 Promoted Comment

          Just where in the text of the Constitution do you find justification for the power of Congress to mandate that otherwise unwilling individuals must participate in some area of commerce? Certainly not in the text or history of the Commerce Clause. And while certainly the Supreme Court’s Commerce Clause precedent has significantly broadened the authority granted under that clause, starting with Wickard v. Filburn (which I would argue is a wrongly decided case, but is nevertheless controlling precedent), I am unaware of a single case in that arena which grants Conress the authority to mandate participation in commerce. Upholding PPACA, and specifically the individual mandate, on the basis that “Congress must have broad authority to solve national problems” is tantamount to granting Congress a general and plenary police power, something the Founders refused to do in the Constitution, and something which the Supreme Court has explicitly rejected. If PPACA is constitutional, then the 10th Amendment really is a dead letter, repealed by Judicial Fiat, and the notion of our Federal Government being one of “limited and enumerated powers” is nothing more than quaint historical trivia.

    • Tom Jones – 0 Promoted Comments

      The entire structure of U.S.A. and State governments has been mystified since early in the 1800s.

      Each State is a NATION-State.

      1776 DOI, last paragraph.
      1777 Articles of Confederation
      1783 U.S.A. – British Peace Treaty
      1787 Constitution – esp. Art. VII,
      Art. I, Sec. 10, Art. IV and even Art. V.

      The Constitution was mainly an expansion of the U.S.A. executive and judicial branches — to correct the more blatant defects in the 1777 Articles of Confederation.

      Commerce is done between 2 adjacent States or through 1 or more other States to the final consuming State. This ain’t legal atomic physics.

    • Richard Urich – 0 Promoted Comments

      If the federal government is granted the power to force participation in a market, it is also being granted every power that already exists only in a regulated market. The federal government is provided extreme flexibility in regulated markets, even as far as requiring invasive body searches without cause in the case of the air travel market. It would be a perversion of our Constitution to allow violating our rights by simply forcing us to participate in a market where our constitutional rights are not protected, and therefore the Supreme Court should overturn the individual mandate.

  • Tom Goldstein – 0 Promoted Comments

    In this thread, discuss what you think the Court will do.

    • Adam Winkler – 1 Promoted Comment

      Predicting the future is an especially hazardous task. The only reliable things to get from tea leaves is tea. Yet half the fun of being a Supreme Court Watcher is arguing over how the Justices will rule in the latest hot-button case. With the healthcare cases on a certain path to Supreme Court review, our attention turns to sorting out the potential votes. The task, however, is made difficult by the unpredictability of the Justices themselves. Although some of the votes are easy to guess — is there a single person in America who thinks Justice Thomas will vote to uphold the insurance mandate? Or that Ginsburg will vote to invalidate it? — the sad truth is that with judges, like investment advisors, past performance does not guarantee future results. They aren’t reluctant to distinguish away even the most on-point precedent.

      I’d be very surprised if the decision was anything but 5-4. Some constitutional law types I know keep telling me that Roberts is an open vote. Ever since he was nominated, some have been trying convince themselves that he could be a relative moderate. In light of his 6-year record on the most controversial cases, this seems somewhat fanciful to me. Scalia will feel no obligation to follow his Raich concurrence — you remember, Congress has “every power needed to make that regulation effective.” That leaves us with Kennedy, and he’s impervious to tea leaves. A libertarian at heart, he’ll lean towards striking the law down. A believer in the important role of the federal government in solving collective action problems that beset the states, he’ll also bend a bit the other way. So how will he vote in the end? I’d say he’d vote to …..

      Sorry, I switched to coffee.

      • Patrick Cassidy – 0 Promoted Comments

        Why can’t Kennedy have it both ways? Write for himself and four conservative judges striking down mandate; write for himself and four liberals finding the mandate severable.

    • Reuben Lack – 1 Promoted Comment

      Hello! I am a HS Student who has been following the blog and the Court for the past few years.

      I think it is hard to determine exactly what the Court will decide, but I believe speculation that Chief Justice Roberts would side to uphold the law are mistaken. Yes, he did join the opinion in Comstock, but I feel he will compartmentalize his views on these two very different issues. The healthcare mandate seems, it appears to most people as well, a very large exercise of regulation – whether good or not. Whatever the case, I think Roberts will think of the issue in different terms. Thus, I would predict him affirming the 11th Circuit.

  • Tom Goldstein – 0 Promoted Comments

    In this thread, discuss whether the Court should hold that the cases are not ripe because of the Anti-Injunction Act or Tax Injunction Act, and whether it should rule that the plaintiffs lack standing.

    • Mark Hall – 1 Promoted Comment

      Will jurisdictional issues waylay these cases? It’s hard to believe this Court will refuse to recognize standing for states to defend their own sovereign statutes, however political states’ motivations might be. And, the Anti-injunction Act should not bar states since they are not taxpayers. But if states lack standing, the Court will need to confront whether the Anti-injunction Act is “jurisdictional” in the strong sense that precludes the government from waiving it.

      • Reuben Lack – 1 Promoted Comment

        I have a question about the Anti-Injunction Act, as I a bit confused. Doesn’t that procedural issue turn on whether the mandate could be considered a “tax”? And wouldn’t *that* determination mix with the merits question of whether the law could be justified under the Tax Power?

        How have the Courts below dealt with this mixed issue, or am I misunderstanding the Anti-Injunction Act?

        • Kevin Walsh – 1 Promoted Comment

          Good question about the potential for overlap between the federal tax Anti-Injunction Act and the merits determination about Section 5000A as an exercise of the taxing power. It is possible for there to be overlap, but there is no necessary overlap. As Judge Motz explained in her Liberty University opinion (and as the federal government acknowledged), something can be a “penalty” for purposes of the constitutional analysis and yet be a “tax” for the Anti-Injunction Act. Here is a relevant part of the analysis from Jude Motz’s opinion: “In Bailey v. Drexel Furniture, a refund action, the Court held unconstitutional as beyond Congress’s Taxing Power a ‘so-called tax,’ finding it was in truth ‘a mere penalty, with the characteristics of regulation and punishment.’ 259 U.S. at 38. Yet the Court held the very same provision a ‘tax’ for purposes of the AIA and so dismissed a pre-enforcement challenge to the exaction. See Bailey v. George, 259 U.S. at 20. In recent years, the Court has expressly affirmed these holdings, reiterating that the term ‘tax’ in the AIA encompasses penalties that function as mere ‘regulatory measure[s] beyond the taxing power of Congress’ and Article I of the Constitution. Bob Jones, 416 U.S. at 740.”

      • Kevin Walsh – 1 Promoted Comment

        A hallmark of Mark Hall’s careful analyses of the merits issues in the ACA litigation has been close attention to the structure and substance of arguments, elevating the discourse over a “hard to believe this Court” would do something kind of evaluation. His casual dismissal of the problematic nature of the States’ reliance on anti-mandate statutes seems uncharacteristic. For reasons set forth in the Fourth Circuit’s opinion in Virginia v. Sebelius, the amicus brief of federal jurisdiction professors, my amicus brief, and the brief of the federal government in Virginia v. Sebelius, it is not at all “difficult to believe that this Court” would reject the States’ reliance on anti-mandate state laws as the basis for a justiciable State challenge to Section 5000A.

    • Joe Cocurullo – 0 Promoted Comments

      The state plaintiffs should be held to lack standing. The Court should hold the matter isn’t ripe — I honestly do not know how strong the case is under the stated laws, but the Roberts Courts already has been known to prudentially stretch things and it makes little sense in my mind to decide this question before the ‘mandate’ is applied and when before it is any number of things — even a change in the guard — will change HOW it will be.

    • Ashley Batyko – 2 Promoted Comments

      From the perspective of a college student who greatly cares about the Court, I think it would be in their best interest to hold that the cases aren’t “ripe”. The lack of standing argument could be a very good excuse for the Court to put this contentious issue on hold till 2015. Then the Court has time to look at how this legislation is received politically by Americans and then make their next move. I think the Healthcare legislation is very politically “hot” because it’s so new and people are still trying to digest and understand what it all means, as well as what will happen in the future. The tax won’t even happen until 2015. And since it’s such a hot button issue, I think the Court should give itself some time and see where the political winds take this legislation so they don’t end up against public opinion and then in a precarious situation. I believe the Court should use it’s chance to put the issue off for a few years and then review it in a more thoughtful, removed environment.

  • Tom Goldstein – 0 Promoted Comments

    In this thread, discuss the severability issue in the Affordable Care Act.

    • Thorley Winston – 0 Promoted Comments

      Has SCOTUS ever struck down a statute in its entirety because a particular provision was held to be unconstitutional?

      It seems to me that the deliberate exclusion of a severability clause by the drafters of the legislation ought to lead to an “all or nothing” verdict. If SCOTUS finds the individual mandate or another provision to be unconstitutional, the bill in its entirety should be struck down and Congress can go back and do it right.

  • Alan Leiserson – 0 Promoted Comments

    Unless the court overrules many cases, it should uphold the Affordable Care Act. Wickard v. Filburn held that the consumption of wheat on one’s own farm can be regulated under the commerce clause. Gonzales v. Raich held that the production and consumption of marijuana on one’s property could be made criminal under the commerce clause. To make both of these rulings, the court looked at these aspects in the context of everything the Congressional actions did. The argument against the Act relies primarily on the idea of requiring people to buy something. However, in its analysis of the commerce clause cases, the court has not looked only at one provision of the Congressional Act. The parties are not arguing that health care is not a significant economic activity or an item of interstate commerce. The ACA is regulating many aspects of health care and health insurance and Congress made findings as to how the “individual mandate” is key to the system or regulation being viable, based on the experience of states with it and without it.

    If the Court rules that this is not Constitutional, it will be either expressly or impliedly overruling precedents that go back at least to the 1940’s.

  • Steve West – 0 Promoted Comments

    After hearing oral arguments, the Court should request additional briefing and an additional oral argument on some question not at issue in the initial cert grant. That way, the Court can delay deciding until after the 2012 election. No matter how the Court rules before the election, the losing side (half the country) will always believe that the decision was political and was designed to affect the outcome of the presidential election.

  • Randy Barnett – 4 Promoted Comments

    The Supreme Court should remand the Affordable Care Act to Congress for its further consideration.

    The Affordable Care Act (ACA) was a constitutional mistake and a historical accident. In the fall of 2009, 60 Senate Democrats were struggling to pass some type of health care reform, any type of health care reform. There were not 60 votes for “single payer” (i.e. Medicare for Everyone); there were not even 60 votes for a “public option” (i.e. voluntary Medicare for pre-retirement Americans); and there were certainly not 60 votes to do anything that would raise taxes on those making less than $200,000 per year.

    So Democrats went into a closed room — the same room that produced the Cornhusker Kickback and the Louisiana Purchase — and adopted the individual insurance mandate under its Commerce Clause power. It was not as though they weren’t warned. The Congressional Research Service correctly informed them that a mandate that all Americans enter into a contractual relationship with a private company for the rest of their lives was literally unprecedented and of dubious constitutionality. Senate Republicans made a constitutional objection to the individual mandate, which the Democrats defeated on a straight party-line vote the day before passing the Act on Christmas Eve.

    But this bill was likely never intended to become law. It was intended to get the issue out of the Senate with 60 votes in favor of health care reform. The real bill would then be written in conference with the House and voted on later. But then something unexpected happened: Scott Brown was elected Senator from Massachusetts (!) on this issue. Now Democrats had a choice. Approve the constitutionally-suspect Affordable Care Act in the House (over the strenuous objection of many Democratic members), or go back to the drawing board. But with Republicans and millions of Americans now vocally protesting the constitutionality of the bill, for the first time in American history, a sweeping new social welfare scheme was enacted with the votes of only one party over bipartisan opposition.

    Heeding the advice of legal academics, the Democrats wagered that the courts would never strike down so ambitious a social welfare scheme. Then, when this elaborate mechanism eventually failed to deliver on its promises of “bending the cost curve” and “universal coverage” — after private insurance companies had been turned into regulated public utilities — they could then push for their real desire: Single Payer.

    Although Congress is a co-equal branch of government, the Supreme Court need not “defer” to what happened here. Instead, it should refuse to extend to Congress the entirely novel and dangerous power to compel all Americans to do business with whatever private company that Congress happens to have the power and votes to regulate. The Court should send this bill back to Congress so Congress can use its ample powers under existing doctrine to tax and spend, as well as to regulate interstate commerce. Such a ruling would affect no other law that has ever been enacted.

    I predict that the result of such a decision would be major health care legislation that would not only be far better public policy, it would receive the same type of bipartisan support that has previously been enjoyed by every major piece of social-welfare legislation in our history.

    • David Welker – 0 Promoted Comments

      One fact that Randy Barnett fails to mention. The Affordable Care Act passed in the Senate with not only with a mere majority, but with a supermajority.

      Mr. Barnett makes much of the fact that in the House, a few Blue Dog Democrats opposed the bill. This allows him to emphasize that opposition was supposedly “bipartisan.” But if you think about it, the fact that Democrats have a big tent which allows greater dissent while Republicans have a small tent that enforces greater conformity, is more of a reason to criticize Republicans rather than the Affordable Care Act. Mr. Barnett must be aware that the members of the Supreme Court will not so confused as to miss his rhetorical sleights of hand. I don’t think it is very forthright of him to call opposition to the Affordable Care Act “bipartisan” while failing to mention the word “supermajority” regarding the vote in the Senate. But it is very revealing.

      For the Supreme Court to overturn the only truly major legislation to pass after the 2008 elections would be a major act of hubris which would bring major questions concerning the legitimacy of the Supreme Court itself. Indeed, the Affordable Care Act is the only major accomplishment of the entire Obama Presidency. (Dodd-Frank, in comparison, is truly minor; it has far too many loopholes and addresses the core causes of the financial crisis in only a partial manner). Apparently, Randy Barnett thinks that reversing the only meaningful thing to come out of the 2008 election is “no big deal.”

      (Nevermind as well that there surely will be innocent people who pay for the overturning of the Affordable Care Act with their lives when they are denied needed non-emergency healthcare due to lack of health coverage.)

      It also should also be mentioned that many members of Congress sacrificed their careers to pass the Affordable Care Act. If the act is to be overturned, it should be overturned by Congress, not by the Supreme Court.

      A final point. What Randy Barnett is trying to constitutionalize here is nothing less than libertarian political theory itself. Libertarian theory makes a strong distinction between so-called positive and negative liberty. Basically, under libertarian theory, only negative liberty (the right to be left alone) should be protected while positive liberty (the right to, say, food or medicine) should not be. The reason is because negative liberty merely requires inaction from others in society, while positive liberty requires action. But the framers of our Constitution were not libertarians and we do not have a libertarian Constitution. Nonetheless, Randy Barnett is trying to force libertarian theory on the rest of us undemocratically by having the Supreme Court embed the libertarian action/inaction distinction into the Constitution itself.

      But don’t call it judicial activism! Oh, and of course it is “no big deal” to basically reverse the results of the 2008 elections so that it is as if President Obama was never elected and Democrats never took both the House and the Senate with overwhelming majorities.

      That is the attitude of someone for whom democracy itself is just not a “big deal.”

    • Ed Danberg – 0 Promoted Comments

      Exactly where in the Constitution does the Supreme Court have the authority to “remand” anything to Congress for further consideration?

  • Walter Slocombe – 0 Promoted Comments

    The strongest argument (aside from the tax issue) is that some form of mandated contribution is necessary for the federal regulatory scheme set out in the rest of ACA to work. No one, other perhaps than Justice Thomas, seriously disputes that health insurance and health care are “commerce,” and that Congress has power to regulate that commerce, including requiring coverage for pre-existing conditions. No one can reasonably dispute that, if you are going to require such coverage, there is a problem of people waiting until they are sick to buy insurance. Granted that there are a variety of ways to do that, the one Congress has chosen — a fine or tax on non-insurers — is a rational way to meet the problem. Given the applicable precedents (of which Filburn is only one) it’s hard to see how the Court can rationalize holding the ACA provision unconstitutional as not a rational way to make an unchallenged federal regulatory system workable.
    I recognize the emotional power of the argument that “you can’t make people buy things.” But even leaving aside that no one is compelled to buy anything, only to pay a modest penalty (and arguably a tax) for failure to do so, the argument fails. Even if the law did require buying insurance, it would be constitutional as a proper exercise of Congress’ power to impose requirements necessary for a regulatory scheme to work. I think advocates of the constitutionality of the ACA provision are too bashful about pointing to the ancient requirement that all male citizens, as members of the militia, had to have a workable firearm. That is, of course, an affirmative requirement for the bulk of the adult male population to enter into a commercial transaction. It was (and could be today) valid as a measure reasonably necessary for the militia system to work — if you want to rely for defense on a citizen soldiery turning out on short notice, it’s a good thing for them to have their own arms.
    That the firearm requirement was linked to Congress’ power to “provide for the calling out of the Militia” and not the commerce power is irrelevant: The Militia Clause is simply one of many enumerated powers of Congress and no different from the Commerce Clause in this respect. The lesson of the “firearm mandate” is that there is a clear and ancient instance of Congress mandating commercial activity to make workable the measures it has adopted in exercise of its general powers.

  • Michael Hansberry – 0 Promoted Comments

    The question before the Supreme Court ought to be: Are economic decisions “activity” in the CC sense? And the Court should respond with a very firm “No!”

    In PPACA, Congress asserted that economic decisions are within the scope of their CC power. Judge Kessler has agreed (Economic Decision-Making Is an Activity Subject to Congress’s Commerce Clause Power; Mead v. Holder) while other judges have rejected that position. My hope is the the Supreme Court will review Congress’s claim with basic logic in mind.

    If economic decisions are “activity” subject to Congress’s CC power, then(a fortiori) commercial decisions are also subject to Congress’s Commerce Clause power. Conversely, if Commercial decisions are not within Congress’s reach(on this point AG Katyal ought to be taken at his word), then economic decisions must also be beyond the reach of the CC.

    Does Wickard even remotely suggest that persons unwilling to grow wheat could be compelled to do so and to sell their crop to the AAA board? (production for sale being commerce, and a decision whether to produce for sale being a commercial decision)

    Does Heart of Atlanta Motel suggest that a person who does not wish to operate a motel could be compelled to do so?

    Does Rodgers suggest a person who does not wish to grow cotton could be compelled to do so and to sell their crop to the AAA Board?

    The answer is plainly “no” is each case, but there is no need to pile on as the government has admitted the CC does not grant the power to compel commerce(commercial decisions)absent a nexus activity.

    Since Congress’s Commerce Clause power does not reach commercial decisions(absent some nexus activity), neither can it reach economic decisions(absent some nexus activity), and the Mandate must be struck down.

  • Michael Hansberry – 0 Promoted Comments

    As Charles Fried recently recounted “Chief Justice Marshall at the beginning of the Republic made clear that the commerce power is the power to regulate interstate commerce –not persons, but the commerce.”

    However it is evident that the person is the subject of the Mandate. The person is mandated to possess insurance. If he buys, he is subject to the regulation, and if he decides not to buy, he is still regulated. The regulation is on the person, not his actions, and in reality not even his decisions. The person is regulated whether he decides to buy or decides not to buy, so one can hardly say the regulation falls on his decision.

  • Frank Housh – 0 Promoted Comments

    In the article published below, I argue that the Necessary and Proper Clause clearly authorizes the PPACA. Further, the Constitutional challenge is based on political rather than Constitutional considerations.


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