DC Circuit Judge Acknowledges “Discomfort” With ObamaCare’s Individual Mandate, Rules in its Favor Anyway

A D.C. Circuit Court of Appeals ruled 2-1 in favor of ObamaCare’s individual mandate to purchase health insurance despite acknowledging “discomfort” with the government’s inability to suggest meaningful limits on congressional power under its interpretation of the Commerce Clause. The decision, written by Reagan appointee Lawrence Silberman, admits that any limits on congressional power to control or compel commerce are not apparent to members of the court’s majority, either.

From the ruling:

The Government concedes the novelty of the mandate and the lack of any doctrinal limiting principles; indeed, at oral argument, the Government could not identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional, at least under the Commerce Clause.  But the Government does stress that the health care market is factually unique; there are few other markets, it says, where participation is a virtual certainty, or where declining to buy a product disproportionately causes a national economic problem.

...We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation.  

The key question is this: If ObamaCare’s mandate to purchase health insurance is constitutional, are there any limits on congressional power under the Constitution’s Commerce Clause? So far, the administration’s response has been something to the effect of, “Um. Well. But. Um...the market for health care is unique.” Which doesn’t really answer the question. As the Cato Institute’s Ilya Shapiro notes, despite numerous opportunities, the government’s legal team has yet to articulate to any court “what it cannot do under the guise of regulating interstate commerce.” 

In some ways, today’s decision changes very little about the path forward for the various constitutional challenges to ObamaCare. As soon as two appeals courts split on their rulings, the Supreme Court was virtually certain to take up the case; that’s still true today.

But as Adam Serwer points out at Mother Jones, the ruling highlights the government’s inability to satisfyingly articulate limits on congressional power on the commerce clause, which may help tip Supreme Court votes against the mandate. Serwer points to UCLA law professor Adam Winkler’s argument that asking the government to define such limits amounts to a "gotcha question" designed to steer judges away from considering precedent. On the contrary, for many critics of the mandate, congressional power—and its limits (or lack thereof)—are the heart of the matter.

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  • Sparky||

    Because "Fuck you!". that's why.

  • Amicus Curiae ||

    Well said.

  • ||

    "where declining to buy a product disproportionately causes a national economic problem"

    So, then, all the govt must do is start a program to pay for something and now they can force you to buy it? WTF that is ridiculous standard.

  • Righty Rew||

    all the govt must do is start a program to pay for something and now they can force you to buy it

    Um, isn't this taxation in general?

  • ||

    Not exactly. "Declining to buy a product" can only cause a "national economic problem" once it becomes a public budgetary item.

    Taxation is just theft, pure and simple. A mandate is the device of a tyranny and can force you to do any number of things.

    Too many professors out of work? This is a "national economic problem" and we must force people to attend college now.

    Las Vegas in a slump? You are now forced to play slots on the weekends.

    Tobacco growers not surviving on their subsidies? Everyone light up! It's a "national economic problem" so you it's constitutional to force you to smoke.

    You have to be insane, AND an asshole to argue for the concept of a mandate and be earnest.

  • shorter MNG||

    You have to be insane, AND an asshole to argue for the concept of a mandate and be earnest.

    Present!

  • Fist of Etiquette||

    Tobacco growers not surviving on their subsidies? Everyone light up!

    Do I have to smoke them or can I just buy the $40 carton of cigarettes and toss it out? Can I pay a bum to smoke them for me? Your proposal is too vague.

  • Xenocles||

    You have to smoke them under an unrelated mandate to reduce life expectancy and cut pension costs.

  • Righty Rew||

    "Declining to buy a product" can only cause a "national economic problem" once it becomes a public budgetary item.

    It seems to me that this confirms my point. Isn't everything the government does a "public budgetary item"?

  • ||

    Now every-time I go to the doctor I have to wonder if the diagnosis is accurate or merely cost effective.

    Well America was great while she lasted...

  • Zeb||

    You probably should have thought about that before too. And the incentive for doctors is still to over-diagnose, if anything.

  • Gojira||

    I blame the founders. Obviously they didn't go through all the trouble of setting up the framework of a limited government, just to insert a single sentence granting that gov't unlimited economic power.

    But they sure as fuck went out of their way to word everything as vaguely and open to wild interpretation as humanly fucking possible.

  • teh rael o2||

    referring to original meaning, original interpretation, &/or original application ?

  • fish||

    Oral...the government is coming over to fuck you in the ass....it's for your benefit. I'm sure you'll understand.

  • o2||

    U bben spoofed

    Don't do anal any more

  • sarcasmic||

    The abridged Constitution:

    "General Welfare... regulate commerce... necessary and proper"

    There you go. Seven words. That's all the government needs.
    The rest of the document might as well not exist, for those seven words give the government unlimited power.

  • ||

    Except over abortion, of course. 'Cause that's different.

  • Live Free or Diet||

    Because personal medical decisions are far too private for the state to intrude.

    Oh, oops...

  • sarcasmic||

    Not anymore.
    Like I said in a previous thread - I figure at some point the "solution" to preventable diseases will be to make it a felony to disobey your doctor.
    And it will work just as well as drug prohibition, the war on poverty, throwing ever increasing amounts of money at education, and all the other stupid shit our enlightened leaders do.

  • Live Free or Diet||

    So ObamaCare trumps Roe v Wade. Huh. Wonder how long it'll be before someone figures out how to make that into a case, and then how long the statists will stand for it.

  • Zeb||

    Well, abortions save money on health care, so I don't think the new interpretation would change anything there.

  • ||

    With the unrestricted unconstitutional comerce clause even Roe v Wade is easy. Just argue it is causing undue hardship for the condom manufacturers!

  • MJ||

    What can a person do when the single payer refuses to pay for a class of medical procedures as they are medically unecessary?

  • Another Phil||

    If you believe there is some kind of implied contract that gives a fetus a "right" to a human host, then please shut the fuck up when it comes to the equally imaginary liberal social contract horseshit. (That is, if you want to claim consistency.)

  • ||

    If you believe there is some kind of implied contract that gives a fetus a "right" to a human host,

    By engaging in consensual sex, a woman accepts the risk that she will become pregnant, and effectively consents to "hosting" a fetus. Personal responsibility requires that you live with the consequences of your actions, after all.

    There, that wasn't so hard, was it?

  • ||

    The sluts should shut up and be incubators.

  • ||

    If taking responsibility for the foreseeable results of your actions means being an incubator, then, sure.

  • ||

    Only men get "fire and forget" sex, bitches. It's the way Jesus wanted it.

  • ||

    Nah. The mens accept the risk of 18 years of child support.

    See? Everybody loses!

  • ||

    Er, I was being sarcastic. My intent was to point out the inconsistency of the "Commerce Clause trumps everything" crowd.

    I suppose I shouldn't do that.

  • ||

    If you believe there is some kind of implied contract that gives a fetus newborn baby a "right" to a human host...

  • Tony||

    Isn't it?

  • Gojira||

    The gov't blew it's case with the cig labels by not going this route.

    Instead of a "narrowly defined compelling interest" to objectively educate the public, they should have just admitted up front that hell yes, we're trying to influence cig sales. This law is necessary and proper, in order to regulate the interstate commerce in tobacco, as is our constitutional right.

  • ||

    This law is necessary and proper, in order to ... yada yada yada..., as is our constitutional right.

    this could be a new game.

  • anonymous commenter some guy||

    It's like 6 degrees of Kevin Bacon. How many logical leaps does it take to link a power Congress has taken to a responsibility Congress was given?

  • ||

    that does sound like a more engaging game.

  • ||

    Er, First Amendment trumps the commerce clause. That wouldn't work.

  • teh rael o2||

    "If ObamaCare’s mandate to purchase health insurance is constitutional, are there any limits on congressional power under the Constitution’s Commerce Clause"
    _

    the relevant practical question is will SCOTUS invalidate the employer mandate as well ?

  • Live Free or Diet||

    there are few other markets, it says, where participation is a virtual certainty

    Really? I'm trying to think of something --anything-- every adult around me hasn't bought also.

    Investments. Real estate. Pets. I know one guy who doesn't own a car.

    OK, if I decide not to get health insurance how does that disproportionately cause a national economic problem that wasn't caused by their supposed solution?

  • ||

    Food. No one mandates I buy food. I need it as does everyone else. Yet no mandate. Maybe because if people want it, they buy it. Healthcare on the other hand could conceivably not be purchased by many people, everyone actually if they made that choice. If there were no doctors or nurses, no one would be in the healthcare market. This bill is fucktarded on a thousand levels. It's argument for it patently false and stupid. It's arguments against, and there are many, are obvious. I expect SCOTUS upholds the stupid thing on that alone.

  • Live Free or Diet||

    I think you're reading me reversed. Virtually everyone participates in virtually every market, as defined by product type. Food & water, shelter, fuel/power, communication, transportation, medicine, entertainment, etc.

    Far from a unique economic situation, it sits in the common situation.

  • ||

    there are few other markets, it says, where participation is a virtual certainty

    This is actually an easy one, although the giant throbbing brains at the Solicitor General's office haven't figured it out yet.

    Under current Commerce Clause jurisprudence, the feds have the authority to regulate health insurance. Health insurance is the business of funding risk pools.

    At a societal level, everyone is in the risk pool, and there is no way to opt out.

    Thus, every person in the country affects interstate commerce because they participate in the national risk pool. Ergo, they are all subject to the Commerce Clause authority to order persons who affect interstate commerce to buy goods and services.

  • Doctor Whom||

    La Constitution, c'est moi.

  • tarran||

    It's actually kind of fascinating watching the government law monopoly kill the host.

    Here in Massachusetts, they've made health insurance mandatory, while directing health insurance companies to offer all sorts of required features in products. The end result, prices are through the roof, businesses are not hiring because of this bizarre requirement that they subsidize employee health care.

    And people in this state keep blaming Republican deregulation for the moribund economy.

  • ||

    I keep blaming Bush Deregulation, because I just like saying "bush deregulation."

  • Auric Demonocles||

    My metrowest company is hiring another 400 employees this year. I've got the rest of the week off from my normal work to interview engineers.

  • Pip||

    What's this https://plusone.google.com/u/0/_/+1/fas bulshit link that inserts itself between the main H&R page and articles?

  • Liberty||

    I love Suderman.

    Repealing Obamacare suffers a crushing blow as Obamacare is upheld, strongly, by a strict constitutionalist/Republican judge... which is, of course, great news for the repealing of Obamacare.

    Because it always, always is.

  • ||

    Deference. Congress passed it, so it must be Constitutional!

  • Congress||

    We deem it both passed and Constitutional!

  • Tony||

    Whatever you think of the government's position, nobody has offered a very convincing explanation for why it's unconstitutional.

  • ||

    Its unconstitutional because little, if any, health care or health insurance is provided across state lines. Ergo, health care and health insurance are not provided in interstate commerce, and thus are not subject to Congress's Commerce Clause authority.

    Pretty easy, huh?

  • Tony||

    That's not consistent with commerce clause precedent, which defines it pretty broadly and certainly includes this.

  • Auric Demonocles||

    What does commerce clause precedent have to do with being constitutional?

  • cynical||

    But commerce clause is not consistent with the Constitution, which doesn't contain an unqualified "commerce clause" at any rate.

  • cynical||

    But commerce clause *precedent*

  • ||

    Ever stretch a rubber band until it breaks? That's why.

  • J_L_B||

    Because of the inconsistencies inherent in our ridiculous left-wing-inspired jurisprudence. Why should some decisions I make be completely subject to government review and overruling, and others completely beyond the reach of government reproach?

  • Tony||

    The government can jail you and kill you. Extracting a tax fee if you don't buy insurance is hardly beyond the pale.

  • ||

    Ever heard of due process, Tony?

  • MJ||

    Under that gem of logic, is there anything that is beyond the pale? For what reason?

  • ||

    If it's not constitutional it's unconstitutional.

  • Auric Demonocles||

    This.

  • ||

    Silberman is just worried that some of his beltway friends will accuse him of judicial activism if he dared to rule against the mandate. Constitutionality be damned.

  • ||

    Being a Federal judge his health care is already taken care of for life. He is probably more concerned that he won't be invited to anymore cocktail parties.

  • A Serious Man||

    It's really simple: the Founding Fathers NEVER intended for the court systems to have the power of judicial review. It's found nowhere in the Constitution.

    Thus to go to such great lengths to explicitly define what the government can do (and make it equally explicit that anything it isn't authorized to do should be left to the states) only to put in weasel words like "General welfare" and "regulate Commerce" makes zero sense. Either the Framers thought that the Congress and Federal government would know its limits and not exceed them, or Hamilton and Madison were screwing with Jefferson when they agreed to the Bill of Rights.

  • ||

    I'd ask Tony which government position? the position that it is a tax, or that the commerce clause allows it? But I don't feed any trolls, not even the benign ones.

  • ||

    Well played.

  • ||

    Because failure to act is NOT an act of commerce, and the commerce clause, as badly deformed as it has become, only allows the feds to regulate commerce. Calling "non-commerce" commerce is newspeak.

  • ||

    Check my post above on risk pools, Californian.

    Current Commerce Clause jurisprudence is that by affecting Interstate Commerce, directly or indirectly, you are subject to the Commerce Clause.

    Just by being here, everyone affects interstate commerce in funding health care. And, it is a routine exercise of Commerce Clause authority to require someone who affects interstate commerce to buy goods and services.

  • ||

    So, I would ask then, what is the limit of the commerce clause?

  • o2||

    No limitz bc it allows congeress to do there job

  • ||

    Excellent! Please report to the commerce-clause approved re-education camp tomorrow comrade!

  • ||

    So, I would ask then, what is the limit of the commerce clause?

    Under current SCOTUS rulings, Congress has unlimited power over anything that has a direct or indirect economic effect, subject only to a very deferential requirement that Congress not just totally insult the Court's intelligence.

    As drafted? Its actually quite narrow, allowing Congress to regulate only trade ("commerce") which crosses state lines. It doesn't give Congress the authority to govern manufacturing, service industries, etc., but only trade.

  • ||

    So Congress has no authority to regulate air travel between states?

    How about IT companies that install their systems on site, but the installers travel from state to state. Is that interstate commerce?

  • ||

    One of the very first commerce clause cases ruled NO. Interstate travel is cannot be regulated. this was actually the case the paved the way for Cornelius Vanderbilt.

  • yogi||

    The flapping of a butterfly's wing is Interstate Commerce.

    http://en.wikipedia.org/wiki/Butterfly_effect

  • ||

    And, it is a routine exercise of Commerce Clause authority to require someone who affects interstate commerce to buy goods and services.

    Not sure which definition of "routine" you're using if it includes something that's never been done before.

  • Auric Demonocles||

    I think his argument is stuff like requiring manufacturers to buy pollution scrubbers if they want to manufacture stuff.

  • Brett L||

    Ah, so government overreach is like pornography, judges can't define it, but they'll know it when they see it.

  • ||

    more similarities between Government Overreach and Pornography:

    -unlimited supply
    -available for free
    -better with lubrication

  • ||

    Didn't Alan Turing prove something about this?

  • yogi||

    But the Government does stress that the health care market is factually unique; there are few other markets, it says, where participation is a virtual certainty

    Ummm, let me think for a second. Are there any other markets in which you are certain to participate?

    Food, clothing, and shelter come to mind.

  • O'Brien||

    Food, clothing, and shelter come to mind.

    Don't forget information.

    BWAHAHAHAA!!

  • ||

    Undertakers.

  • ||

    It would be better, I think, if judges would reject expansion of government power as a default position, only allowing it when fully and clearly justified under the Constitution. If something needs doing that isn't allowed under the Constitution, there's a process for that: Constitutional amendments.

    It amazes me that people want to expand government power insanely in some ways, while thinking they can somehow keep it in check in other ways. That's like freeing King Kong in New York and being surprised when he destroys half the city.

  • ||

    The definition of "needs doing" is the crux here.

  • ||

    Not really. If it can get through the amendment process, then it's part of the Constitution. That's even an original meaning position.

    Of course, this means some really awful but popular stuff could, in theory, make it into the Constitution.

  • yogi||

    I oppose amending the Constitution. Not in principle, but in practice, with the way things are now. I really don't think modern Americans are capable of fucking with this document in a productive way.

  • ||

    I agree. In fact, that's the main reason I fear the possibility of a Constitutional Convention. Popular amendments have done some real damage to the republic, especially the ones during the Progressive Era.

    However, the amendment process is difficult enough that it beats the heck out of some judge(s) rubber-stamping the unconstitutional power grabs of the rest of the government.

  • 0x90||

    Well, unless those who fought for independence did so on the premise of replacing one king with millions of them, that was already the default position, i.e. that men own themselves, that the act of government is to intrude on that ownership, and that a contract outlining in which circumstances such intrusion could be deemed acceptable was in order.

    Current thought contends just the opposite: that certain rights are vested in the government, to be doled out to the people as it sees fit, and it's that certain that differentiates one party from another. In both cases, it is primarily the the assertion of one form or another of self-ownership which is denied; this is the case both with the left (econo-moral totalitarian), and the right (relio-moral totalitarian).

  • ||

    Before 1937 that's pretty much the attitude they took (toward federal activity at least).

  • Anonymous Lawyer||

    It will be upheld. Scalia can't renege on his Raich concurrence without looking like a complete imbecile, and there aren't enough votes to overturn it without him. I think 7-2 with probably three or four separate concurrences.

  • NL_||

    It's also possible that Scalia only came up with his N&P argument in Raich so he could defend the drug war.

    It's easier if you try to find a way for Scalia to reasonably come to the conservative position on an issue, rather than trying to find the best legal argument. That's why he defected in Raich and that's why he accepted substantive due process in McDonald even though he's always been opposed to it before.

    He finds a way to get to the appropriate conservative conclusion. Thomas will vote against the mandate because he's pretty strongly against all these things. Kennedy is probably a good bet for maintaining some kind of check against the Congress. I'd be worried about Alito, given his propensity for deferring to government.

  • ||

    Alito has a massive grudge against Obama though.

    Roberts & Kennedy are the ones I'm worried about.

  • ||

    "It's also possible that Scalia only came up with his N&P argument in Raich so he could defend the drug war."

    not just possible, but that is EXACTLY what he was doing.

    Thomas is the only principled judge on the court right now, with the exception of Sotomayor who is clearly a principled tyrant/communist.

  • NL_||

    If there's no mandate beyond the power of Congress, then the Supreme Court becomes officially irrelevant in those cases. It goes against a judge's nature and instinct to render the judiciary entirely superfluous. They prefer to retain some sort of oversight for extreme situations.

    In other areas, like say Chevron deference or the non-delegation doctrine or the Commerce Clause itself since the New Deal, the court gets around this problem by giving the Congress power that is nearly unquestionable, while retaining for itself the ability to strike down certain cases. So even though non-delegation is nearly dead letter and Chevron deference basically assumes that government regulations are proper, there's still room for judges to step in if Congress really goes too far. If the US can't come up with some sort of nominal role for the Court, then the justices might have to strike the mandate down. They don't need to actually block congressional action, they just need some situation that would go too far.

  • ||

    But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation.

    This language is astounding. Not only is it a fucking and outstanding bald bald faced lie, but it also manages, IMHO, to overturn Maybury.vs. Madison. Why the fuck do we even need a federal judiciary if all these spineless pussies are going to abdicate their role as a check on legislative and executive tyranny.

  • sasob||

    Excellent point!

  • ||

    Serwer points to UCLA law professor Adam Winkler’s argument that asking the government to define such limits amounts to a "gotcha question" designed to steer judges away from considering precedent.

    It's not a gotcha question, it's a reductio ad absurdum. If you can't name a single piece of legislation that wouldn't fall under the commerce clause's power grant, then you must think that the Framers were getting paid by the word when they wrote Article I Section 8, since they may as well have just written that Congress can do whatever it wants.

    A gotcha question is one for which any possible answer is going to get you in trouble. The only way this is a gotcha question is if fencing off some area of imaginable legislation is harmful to the Obama administration's future plans.

  • Auric Demonocles||

    Yeah, as soon as I saw that term used for that question I knew Winkler's views were gonna be idiotic.

  • chris||

    So ObamaCare trumps Roe v Wade. Huh. Wonder how long it'll be before someone figures out how to make that into a case, and then how long the statists will stand for it.

    The courts were never serious about the underlying privacy argument in Roe v Wade, as the application of that argument else where has been extremely rare. Purely, this is the outcome we want, and this is the argument that gets us there. Never mind if it contradicts all of our other rulings.

  • sasob||

    As the Cato Institute’s Ilya Shapiro notes, despite numerous opportunities, the government’s legal team has yet to articulate to any court “what it cannot do under the guise of regulating interstate commerce.”

    That's because - when you get right down to it - they don't really believe there is anything the government can't do. They don't want a government of limited powers - they never have - that was just some bs fed to the masses to get them to go along with it all. You could see that way back when Adams started with the Alien and Sedition Acts.

  • MJ||

    "Serwer points to UCLA law professor Adam Winkler’s argument that asking the government to define such limits amounts to a "gotcha question" designed to steer judges away from considering precedent."

    That's good, because the court considering precedent is an attempt to steer the judges away from thinking.

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