Individual mandate’s constitutionality upheld in district court
District Court Judge George C. Steeh has upheld the government’s right to force people to buy health insurance or face a hefty fine. But, as Randy Barnett writes at Volokh, this is just the first step on a long road that will probably (although not certainly) end with the Supreme Court. Barnett also makes some predictions:
First, that some, perhaps all, federal district judges considering these challenges would uphold the statute was foreseeable. When these challenges were brought, no one believed that all constitutional challenges would be upheld by every district court judges who would consider them. Few believed that any district court judge would have the fortitude to strike down the mandate, regardless of how the Supreme Court might ultimately rule. Heck, many doubt that the Supreme Court has the fortitude to strike down so major a piece of legislation…
[A future] circuit split [would make] a Supreme Court decision far more likely. Indeed, because one circuit would have had to strike down the Act, a circuit split guarantees a Supreme Court decision doesn’t it? However, given the high profile of this Act among the American people, I think it would be hard for the Court to duck the issue even if the Courts of Appeals all uphold the act. If the act continues to be unpopular, would that not be widely perceived by the public as an abrogation of the Court’s responsibility? Indeed, would the Justices not reasonably fear that it would undermine the popular legitimacy of the “Supreme” Court to refuse to decide so highly publicized a constitutional controversy about which so much depends?
Judge Steeh ruled essentially that Congress can do whatever it wants as long as there is some connection to commerce. This seems to be an excessively steep and slippery slope. According to Steeh’s ruling, the individual mandate:
…qualifies as an example of “activities that substantially affect interstate commerce”—the standard that the U.S. Supreme Court set for Congress’ compliance with the Commerce Clause, the New York Times reports (Sack, New York Times, 10/7).
“Far from inactivity, by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars, $43 billion in 2008, onto other market participants,” Steeh wrote.
I am hard-pressed to think of a personal economic decision that doesn’t affect interstate commerce, according to this ruling. That’s some penumbra.
Unfortunately, we lost in 1942.
Wickard v. Filburn, 317 U.S. 111 (1942), was a U.S. Supreme Court decision that dramatically increased the power of the federal government to regulate economic activity. A farmer, Roscoe Filburn, was growing wheat to feed his chickens. The U.S. government had imposed limits on wheat production based on acreage owned by a farmer, in order to drive up wheat prices during the Great Depression, and Filburn was growing more than the limits permitted. Filburn was ordered to destroy his crops and pay a fine, even though he was producing the excess wheat for his own use and had no intention of selling it.
The Supreme Court, interpreting the United States Constitution’s Commerce Clause under Article 1 Section 8 (which permits the United States Congress “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”) decided that, because Filburn’s wheat growing activities reduced the amount of wheat he would buy for chicken feed on the open market, and because wheat was traded nationally, Filburn’s production of more wheat than he was allotted was affecting interstate commerce, and so could be regulated by the federal government.
“Far from inactivity, by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars, $43 billion in 2008, onto other market participants,” Steeh wrote
Yes, by that reasoning those who opt to rent rather than buy a house now are causing increased costs for those who do buy because the market is uncertain. We can’t have that now, can we?
Those who opt to buy an auto for transportation are foisting costs off on walkers and bicyclers who have to help pay for the roads they may not use. There is a cost in that “risky behavior!” We certainly can’t have that!
There are probably better examples, but this judge, (PBUH) has unfurled his progressive banner for all to see.
J.J.: and those who smoke, or who eat at McDonald’s, increase their health care costs and therefore burden all of us. Can’t have that, either, can we?
nice point evilDave..
Any one remember:
Agricultural Adjustment Act of 1933
it was considered unconstitutional, and replaced with.
Agricultural Adjustment Act of 1938
This is the act that they took filburn to task on.
yes?
The Federal District Court ruled in favor of Filburn.
they then went after the idea using the Interstate Commerce Clause to validate the act.
right now they are using it to argue points as to marijuana growers…
and the last court case relating to it had to do with a kid carrying a gun into school.
“Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. Gonzales v. Raich
the gun case was United States v. Lopez…
The law had been superseded by the Farm Security and Rural Investment Act of 2002…
which was superseded by
Food, Conservation, and Energy Act of 2008
and what a mess…
thomas.loc.gov/cgi-bin/query/F?c110:3:./temp/~c1105mQ4ts:e1053:
Don’t Federal judicial rulings and Presidential decisions substantially affect interstate commerce? Can Congress therefore legislate them too? Just how many activities do not have a substantial effect on interstate commerce, if you’re willing to torture logic enough?
(I had just typed out the point about those with unhealthy lifestyles when I scrolled down to see neo’s comment to the same effect. Great minds and all that!)
A long time ago (not here) i wrote a long piece (of course) that pointed to the fallacy that is “increase their health care costs and therefore burden all of us” and similar such arguments…
when that became norm, i knew that we were no longer free and there was only details to close up.
well, unless the state feels that it has to get a certain amount of productive output from a person, the state and we, do not lose anything either way!!!
only if we are owned, and they are administrators, does this report math of bureaucracy work.
i am not owned by the state or my fellow man. especially when i can leave, go to another country, turn my passport in, and so forth.
if i smoke, the only one i hurt is me physically and those that care about me emotionally (if they choose to care and not understand the costs of self determination).
the idea that if i didnt smoke the US would save X dollars that could go someplace else more useful is a crock farce… (especally since selling medical equipment and medicines around the world that come from such opportunities and self determined ginea pigs).
as far as the fed is concerned, it matters not whether the economy shifts money at the time to here or there, UNLESS they have an ulterior agenda…
this is the whole road to hell point…
in for a penny in for a pound…
either you go back to god and circumstances and self planning and family and all that, and we dont treat people who smoke and cant pay..
OR
you accept that we are slaves and are no longer free, and that any point is only one of choice of the leaders and whether they want to bother dealing with the problems that come from not applying their missives too fast. and if you think that doesnt apply to farmers, you never had to change a farm around with a lot of animals and make it all strange to them… (or at least understand it)
there is no middle ground… is there?
either i self determine and i accept the results of my judgments and plans..
or, we pay for everyone that is sick, and that we no longer are free as we are cattle in which the state then decides who dies or not as a result of THEIR plans… (regardless of your choices or efforts).
they dont own us, so they cant lay claim to labor value which is not theirs…
but we are so used to that argument, we blindly accept what it implies… kind of like arguing backwards… you present the conclusion as the argument so that its accepted, and the premises and other things that have to be accepted in terms of that conclusion are not examined consciously, but subconsciously, you do know, and your brain accepts as it accepted the conclusion.
so by arguing a false economic premise in a free state, and which only applies to communism (as its tracking the means of production and controlling it), and cattle farming, you get the people to accept the latter as normal or be conflicted and dissonant..
mind games are the order of the day now that merit is a thing of ancient catechism…
by the way, i forgot to add that its also a temporal trick too… in that all the arguments happen in hindsight… and looking forward the ideas dont work other than in generalities… so what you get is totalitarianism as a fix (total solutions not just total coverage), because going forward you cant just select the specific problems and leave the rest alone.
to argue all guns should go is a totalitarin solution that does not make any distinctions. and its shorn up by a hind sight argument that then justifies the fallacy of wanting to change the result, but not being able to be selective about a solution.
so you look back in hindsight and you see suffering of cigarettes, or fat kids, etc… and you want to fix history and change history, so you have to change the future… but looking the other way, you cant tell who will get cancer, and who wont. who would get it but dies of some other thing first and so on. so the only answer to fixing history, is to take it all away. right? put it all under control, right?
why? because we just cant bear to look at the history. an expanse of pain so large that when put down on paper it takes up our present and we can live swaths as long as mans history, and as wide as the world…
its a metaphysical mind game…
As the past is not real, and only the future matters.
But if your future is an attempt to correct the past before it happens and you see it, then what?
you spend all your time erasing the future…
this game works with everything, especially if you can remold the history and make it have more punch and direction to get those caught in this loop work harder.
it has even more usefulness if you don’t stop at just fixing the future…
but you try to fix the future while making recompense for the past by tit for tat eye for an eye from people who didn’t experience the harm (but are angry about past abuse that they may not even be connected to other than they think so), on people who didn’t do the crime (and who may not have benefited or even come from places having any bearing), and who are innocent.
Our Constitution relies on the Declaration which relies on Natural Law which ultimately relies on Scripture and a certain agreement about its interpretration regarding fundamentals such as the perfectibility of man.
The founders of our system distanced our Constitution as far as possible from its most primary source and allowed other sources at succeeding levels to speak. Consider the result a happy coincidence of revelation and reason, theology and philosophy; experience and common sense; but above all not a modern result because it presupposes an absolute source and truth even if such is only partially knowable. Abraham Lincoln referred to this in a July 10, 1958 speech when he stated that is was impossible to do but nonetheless sets the proper standard that men should be perfect even as their Father in heaven is perfect.
It is a metaphysical mind game to govern the whole situation. Man is not equal to it. Such a task is God’s task and He has set forth His laws. However, man is not left a passive agent but has a realm of dominion albeit a realm that is a subset of the whole situation.
It was understood (but not usually overtly expressed) that ultimate Law is Scripture and government should not transgress its boundaries. The modern mind lacking this understanding sees no boundaries; indeed, sees the opposite: necessity.
To put it another way it comes down to who you trust to perfect man.
To put it another way it comes down to who you trust to perfect man.
Me? No one.
“Perhaps more productive is to plant the seed of doubt/thought between their ears, and let it go at that.”
One clause in a document the purpose of which was to limit the authority of the federal government has been “interpreted” for nearly 3/4ths of a century to continually expand the authority of the federal government.
People with a lick of common sense can see immediately that such an interpretation cannot be correct. It simply cannot be correct.
One clause in Article 1 Section 8 has, effectively, replaced the rest of the constitution. Meanwhile, the entire federal establishment acts, and has done so for generations, as if the Ninth and Tenth Amendments do not exist.
Unfortunately, I am afraid we are rapidly approaching the time when legal, political means will be able to turn the country back to the constitution.
Unable.
Damn. Really wish we had the preview.
artfldgr said:
“if i smoke, the only one i hurt is me physically and those that care about me emotionally (if they choose to care and not understand the costs of self determination).”
Very true if……..Medicare, Medicaid, and obligatory treatment of all patients by Emergency Rooms had never been enacted and you have the bucks to pay for the extra medical costs that might ensue.
However, Medicare is, essentially, universal healthcare for those over 65. Medicaid is universal healthcare for those who fall below a certain income level. ERs are legally bound to treat all, regardless of ability to pay. What we have then is a system fraught with unintended consequences. One of the biggest is………. who will pay for all the treatment received in ERs and under Medicare/Medicaid? Because of that there is cost shifting between regular health insurance, those with means to pay out of pocket, and the government (taxpayers). It has become a serpentine monster that seems to gobble more and more of our income and taxes every year. Everyone is looking for ways to reduce the costs. Regulating unhealthy behaviors seems to be low hanging fruit to progressives. But, you’re right, it destroys liberty. And yet, it beats the heck out of what they have in Canada or the UK.
There are things that can be done to make it less of an unseemly, inefficient race for the buck. Unfortunately, Obama’s huge and hugely expensive, poorly thought out plan only made things worse. My suggestion would be that we can make it better and more market oriented, but in small increments (because of unintended consequences) trying to move toward a more market based solution.
In the meantime, if you buy health insurance and the insurance company knows that you smoke, or use dope, or sky dive, or ride a motorcycle, etc. the insurance company is justified in charging you a higher premium. Freedom comes with a price.
JJ:
Would that you should be correct about Obamacare being poorly thought out. Takes us back to the fool v. knave discussions we’ve had here earlier.
I come down on the knave side for the entire coterie of Congressional Dems. Medicare will be cut by $500 billion over the next ten years while enrollment will increase by 37% due to the BBoomers ageing. Cannot put that down to poor thinking; the malevolence is obvious. And the unconstitutional individual mandate, the 1099s, the cost-benefit “independent” panels?
Nope. That is not poor thinking. The consequences are intended. That’s what their lying is about.
Tom,
You may well be correct. My choice of terminology was unfortunate.
Since we’re essentially talking about the corruption of the judiciary here, the following link is at least tangentially related.
Check out Dr. Hal Lewis’ letter of resignation from the American Physical Society over AGW and the corruption of science.
The meaning of the Commerce Clause is simple. A reading of James Madison’s Federalist Papers #42 clearly explains the intent of the Commerce Clause. Not every state could import goods directly from a foreign country because they had no seaport, and every state could not produce all goods that the citizens of that state wanted. The intention of the Commerce Clause was to prohibit tariffs on such imported goods by states through which those goods transited.
@ Ray Oct. 9th 12:53 pm. The intention of the Commerce Clause was to prohibit tariffs on such imported goods by states through which those goods transited. More precisely, the clause gave that taxing authority to the federal government. The prohibitions you mention were actually put into place by Article 1, Section 9, Clause 6 and Article 1, Section 10, Clause 2.
This is only the first case to be decided in court.
The beginning does not necessarily indicate what the end result will be.
For example, I believe in Heller the first run at the court system resulted in the lawsuit by Heller (and others) being dismissed.
It was only upon successful appeal that the case attained enough momentum in the judiciary to make it to the US Supreme Court.
It is also important to note that it is not unusual for different federal districts to come to different conclusions on the same legal question.
Such contradictory rulings between the federal court districts actually improve the probability of a case making it’s way to the Supreme Court and being accepted for review.
The court is obligated (whether they live up to their obligations or not) to reconcile the differing views on specific legal questions as ruled on within the various federal court districts – you just aren’t supposed to have contradictory rulings in the federal court system as it leads to chaos.
So, in this case you have individuals having their claims shot down on the individual rights argument, but in the other cases you have states themselves asserting the law is unconstitutional as it violates state’s rights.
Those cases have not been decided yet.
It could be that the courts reject individuals making the argument, but accept states asserting the argument, that the federal government can’t implement an individual mandate like this.
The reasoning could be different, but the ultimate outcome the same.
If so, it could stop there – or the case could be appealed by the federal government (likely), at which point the case would have standing to be argued before the Supreme Court.
At that point, I’m left wondering what will happen. You have 4 solid votes against (I think) and 4 solid votes for (I think) the individual mandate.
That would follow along the lines of the Kelo case. I draw that comparison because it does reflect how the justices view the freedoms of the individual in relation to the powers of state and federal governments.
While the Kelo case unfortunately went the wrong way, in considering the backlash against Kelo that occurred the Supreme Court could shift ever so slightly the right way in this case.
That means Kennedy is the swing vote – and who the hell knows how he’ll vote on any given day – but he does seem to have shifted ever so slightly to the individual rights side of arguments in recent history.
Perhaps it has something to do with Obanger *calling out* the court as they sat in on the state of the union speech he delivered, or perhaps it has to do with some late life enlightenment he’s experienced.
Either way, I’m hoping Kennedy will lean towards the individual rights/freedoms argument.
Oh, I did forget to note that there is also the distinct possibility that two different federal districts could rule differently on the individual rights argument.
Even though this case went against the individual, it appears there were substantial flaws in the reasoning behind the ruling.
It could very well be that a different judge, in a different federal court, in a different federal court district, hearing a different argument on the same question, could rule completely opposite on the same question, shooting down the federal government’s assertion that they could impose an individual mandate.
At that point, comments judges make explaining their rulings (dicta) can become crucial to the validity of the arguments being made before appeals courts in explaining why different courts ruled differently.
You can also have the odd situation of the court ruling against the individual, but providing extensive information in the form of dicta that undermines the very law in question, such as happened in US vs Emerson.
Emerson didn’t make the Heller decision a foregone conclusion by a long shot – but indirectly it helped set the stage for Heller to be successfully argued.
At that point, the better argument carries a lot of weight.
Simply stating a belief on the part of a judge that the mandate is for the greater social good can take a back seat to a better argument that the federal government was never given constitutional authority to impose such a mandate in the first place.
Such a situation again creates the very environment that would lead to the Supreme Court reviewing the contradictory decisions.
At that point, we’re right back to guessing how the Supreme Court will rule – and I think we’re back once more to guessing what the heck Kennedy will say on the matter.