Author: Timothy Sandefur
The Sixth Circuit Court of Appeals has just issued its decision in the Thomas More Law Center case and has upheld the constitutionality of Obamacare. (PLF was not involved in this case.) I have not yet read the opinion, but you can read it at this link. I will have more on this soon.
Update: This decision is NOT a big win for Obamacare. Although the court upholds the Individual Mandate on the theory that the Mandate does not compel activity, but only regulates how people pay for health care services, which they cannot avoid needing at some point, the judges express a lot of discomfort with the idea. Judge Sutton’s separate opinion is particularly interesting. After reviewing the history of commerce clause precedents, he writes,
At one level, past is precedent, and one tilts at hopeless causes in proposing new categorical limits on the commerce power. But there is another way to look at these precedents—that the Court either should stop saying that a meaningful limit on Congress’s commerce powers exists or prove that it is so. The stakes of identifying such a limit are high because the congressional power to regulate is the power to preempt, a power not just to regulate a subject co-extensively with the States but also to wipe out any contrary state laws on the subject. The plaintiffs present a plausible limiting principle, claiming that a mandate to buy medical insurance crosses a line between regulating action and inaction, between regulating those who have entered a market and those who have not, one that the Court and Congress have never crossed before.
Judge Graham’s partial dissent also makes a very important observation:
If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be. What aspect of human activity would escape federal power? The ultimate issue in this case is this: Does the notion of federalism still have vitality? To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit (within boundaries like the First Amendment and Due Process Clause), as long as the regulation concerns an activity or decision that, when aggregated, can be said to have some loose, but-for type of economic connection, which nearly all human activity does. Such a power feels very much like the general police power that the Tenth Amendment reserves to the States and the people. A structural shift of that magnitude can be accomplished legitimately only through constitutional amendment.