posted June 30, 2011 03:45 PM            

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By Ian Millhiser on Jun 29, 2011 at 1:37 pm

The most important part of today’s Sixth Circuit decision upholding the Affordable Care Act isn’t what the court said, although the court’s rejection of this utterly meritless challenge is quite significant. The most important part of today’s decision is who made it.

Judge Jeffrey Sutton is a George W. Bush appointee and a former law clerk to conservative Justice Antonin Scalia. He served as an officer in the conservative Federalist Society’s Federalism and Separation of Powers practice group, and was one of the nation’s leading crusaders for expanding the role of the states at the federal government’s expense. Prior to becoming a judge, Sutton devoted much of his career to preventing people with disabilities, religious minorities, and even children who are illegally deprived of Medicaid coverage from holding states accountable in federal court — even successfully arguing major states’ rights cases in the Supreme Court. So he is exactly the kind of person who would be extremely sympathetic to the conservative claim that the Affordable Care Act exceeds Congress’ lawful authority.

And yet, Sutton’s opinion today said something else entirely:

On the merits, this case presents two distinct questions: Does the individual mandate survive the substantial-effects test? And, if so, is there something about the novelty of this law—compelling the purchase of health insurance—that warrants striking it down nonetheless?

The initial question is the easier of the two, as the breadth of the substantial effects doctrine and the nature of modern health care favor the validity of this law. No matter how you slice the relevant market—as obtaining health care, as paying for health care, as insuring for health care—all of these activities affect interstate commerce, in a substantial way. [...]

Does the Commerce Clause contain an action/inaction dichotomy that limits congressional power? No—for several reasons. First, the relevant text of the Constitution does not contain such a limitation. To the extent “regulate,” “commerce,” “necessary” and “proper” might be words of confinement, the Court has not treated them that way, as long as the objects of federal legislation are economic and substantially affect commerce. [...] Second, the promise offered by the action/inaction dichotomy—of establishing a principled and categorical limit on the commerce power—seems unlikely to deliver in practice. Level of generality is destiny in interpretive disputes, and it remains unclear at what level plaintiffs mean to pitch their action/inaction line of constitutional authority or indeed whether a workable level exists.

To translate a bit, Sutton concluded that the heart of the assault on the Affordable Care Act — the claim that a law encouraging people to buy insurance is unconstitutional because Congress cannot compel people to take this unwanted action — has no basis in the “text of the Constitution,” and it rests on a legal distinction that is utterly incoherent. And this comes from one of the most conservative members of the federal bench.

To be fair, Sutton also rested his decision on something known as the facial/as-applied distinction. The Supreme Court allows two kinds of challenges to a law: “facial” challenges, that claim the law must be effectively striken from the books, and “as applied” challenges, which claim that the law cannot be applied to a particular person or entity. In order to bring a facial challenge, a party must show that “no set of circumstances exists under which the Act would be valid,” and Sutton floated the possibility that someone who has achieved the miraculous task of avoiding the national health care market altogether may be able to exempt themselves from the law through an as-applied challenge brought at a future date. But Sutton’s harsh words for the basic legal theory underlying the plaintiffs’ case is a body blow to these lawsuits.

The case against the Affordable Care Act is so weak that one of the court of appeals’ most conservative judges — a judge who devoted much of his life to shrinking federal power — just rejected it. Now would be a good time for the nation to collectively stop pretending that these lawsuits have any merit whatsoever.

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Because the obstructionism against health care reform effectively negated many benefits, some may say that the bill was watered down to the point of in consequence.
I am not one of those people.
There were three very important inclusions in the bill that were allowed by the obstructionists; that went into effect almost immediately-- The right for kids to stay on a parents policy, the preexisting conditions clause, the coverage gap for Medicare recipients.

posted July 01, 2011 12:26 PM            

Why construe the Constitution, moreover, to place this limitation — that citizens cannot be forced to buy insurance, vegetables, cars and so on — solely in a grant of power to Congress, as opposed to due process limitations on power with respect to all American legislative bodies? Few doubt that the States may require individuals to buy medical insurance, and indeed at least two of them have. The same goes for a related and familiar mandate of the States — that most adults must purchase car insurance. Yet no court has invalidated these kinds of mandates under the Due Process Clause or any other liberty-based guarantee of the Constitution. That means one of two things: either compelled purchases of medical insurance are different from compelled purchases of other goods and services, or the States, even under plaintiffs’ theory of the case, may compel purchases of insurance, vegetables, cars and so on. Sometimes an intuition is just an intuition.
For now, whatever else may be said about plaintiffs’ activity/inactivity theory of commerce power, they have not shown that the individual mandate exceeds that power in all of its applications. Congress may apply the mandate in at least four settings: (1) to individuals who already have purchased insurance voluntarily and who want to maintain coverage, but who will be required to obtain more insurance in order to comply with the minimum-essential-coverage requirement; (2) to individuals who voluntarily obtained coverage but do not wish to be forced (at some indeterminate point in the future) to maintain it; (3) to individuals who live in States that already require them to obtain insurance and who may have to obtain more coverage to comply with the mandate or abide by other requirements of the Affordable Care Act; and (4) to individuals under 30, no matter where they live and no matter whether they have purchased health care before, who may satisfy the law by obtaining only catastrophic-care coverage. The valid application of the law to these groups of people suffices to uphold the law against this facial challenge.

Correction: In the original text of this post, I said that the Fourth Circuit Court of Appeals had also upheld the Affordable Care Act. That’s wrong. We’re still awaiting their ruling, though the composition of the panel — two Obama nominees and one Clinton nominee — and the initial oral arguments were so favorable to the law that it’d be shocking if they didn’t uphold the legislation.

By Ezra Klein | 02:16 PM ET, 06/29/2011
Washingt on Post

One step closer to the Supremes
Jun 29th 2011, 22:11 by R.M. | WASHINGTON, DC

THE latest episode in the battle over health-care reform was overshadowed today by Barack Obama's press conference, where it was revealed that we live in a Bizzaro America in which Republicans and Democrats broadly agree on enormous cuts to the budget, but fail to reach a deal owing to disagreements over comparatively piddling tax breaks for the well-off, and America careens toward default, while the Democrats pine for a president more like Howard Dean. Setting that aside (because, really, what more is there to say?), let's briefly look at today's ruling by the Sixth Circuit Court of Appeals in Michigan, which deemed the Affordable Care Act (ACA) constitutional.

The three-judge panel rejected, by a vote of two to one, the argument that the ACA's mandate is unconstitutional because it strives to regulate inactivity, as opposed to activity, under the commerce clause of the constitution. From the decision:

Virtually everyone will need health care services at some point, including, in the aggregate, those without health insurance. Even dramatic attempts to protect one’s health and minimize the need for health care will not always be successful, and the health care market is characterized by unpredictable and unavoidable needs for care. The ubiquity and unpredictability of the need for medical care is born out by the statistics. More than eighty percent of adults nationwide visited a doctor or other health care professional one or more times in 2009. Centers for Disease Control and Prevention National Center for Health Statistics, Summary Health Statistics for U.S. Adults: National Health Interview Survey, 2009, table 35 (2010). Additionally, individuals receive health care services regardless of whether they can afford the treatment. The obligation to provide treatment regardless of ability to pay is imposed by the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd, state laws, and many institutions’ charitable missions. The unavoidable need for health care coupled with the obligation to provide treatment make it virtually certain that all individuals will require and receive health care at some point. Thus, although there is no firm, constitutional bar that prohibits Congress from placing regulations on what could be described as inactivity, even if there were it would not impact this case due to the unique aspects of health care that make all individuals active in this market.

Because we all get sick and the overwhelming majority of us eventually visit a doctor or hospital, we're all active in the health-care market. At present, one man's inactivity is another man's higher premium. That type of simple reasoning is why the idea of a mandate once had bipartisan support. Speaking of which, today's decision marked the first time a Republican-appointed judge ruled in favour of the ACA's constitutionality.