ObamaCare's Day in Court


The Cato Institute's Ilya Shapiro was in court today in Richmond, Virginia, where the 4th Circuit became the first federal appellate court to hear legal challenges to the Patient Protection and Affordable Care Act. Here's his take on ObamaCare's day in court:

The Fourth Circuit judges—a Clinton appointee and two Obama appointees, in a random selection unfortunate to the challengers—struggled with the idea that Congress could regulate "inactivity."  The government—which has now determined that the challenges are so serious as to send the solicitor general to argue in lower courts—claimed that Congress can do anything it wants relating to anything that in any way affects a national market such as that for health care.  Given that decisions not to buy insurance, or to self-insure, or not to pay for health care until presented with a bill, clearly have a substantial effect on interstate commerce, the argument went, Congress can require people to buy health insurance.  The judges seemed to agree to a certain extent but were still troubled by the textual truism that a power to "regulate" implies an active object or activity that is being regulated.  And indeed, if a "decision" not to buy something or the state of not having acquired something is all that is required to invoke congressional jurisdiction, then the Constitution's enumerations of federal power mean absolutely nothing.

Read the whole thing here. Watch the Reason.tv video U.S. District Judge Henry Hudson cited in his decision striking down the law's individual mandate below:

NEXT: Governments vs. Markets: Julian Morris on Environmental Protection

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. The court may well rule in Obama’s favor, as the gov’t has a track record of compelling us to perform – getting a SSN to participate in the economy, paying the income tax, registering for the draft, among others. I’d love to see the court just up and say “You’re subjects of the king, and will do as you are told”. Just cut the BS and tell the truth. Revolution to follow.

    1. too many fat people for any revolt. wheezing aint the path to success

      1. Time for Sweating with the Statists! Let’s go people!

  2. “then the Constitution’s enumerations of federal power mean absolutely nothing.”

    Does the word “duh” mean anything to you?

  3. Wow, it sounds like these judges are actually behaving better on this than I expected. I still expect them to rule that Congress can regulate inactivity, but it’s a nice surprise to hear them making these noises.

  4. I just assumed that the scope of the case would merit a SCOTUS decision.

    1. It will. Whichever side loses definitely appeal, so it’s a sure thing that SCOTUS will hear the case eventually. The question is what is the state of the case when it goes up to the Supremes.

      1. SCOTUS does not always hear appeals

  5. Change we can force you to believe in!

    1. Barack Obama will require you to work. He is going to demand that you shed your cynicism. That you put down your divisions. That you come out of your isolation, that you move out of your comfort zones. That you push yourselves to be better. And that you engage. Barack will never allow you to go back to your lives as usual, uninvolved, uninformed.
      – Michelle Obama 2008

      Sounds like force was a part of the plan all along.

      1. Yeah, I remember that shit. Can’t say they didn’t warn you.

  6. Unfortunately, previous Court decisions were losses for limiting congressional power under the Commerce Clause to regulating actual interstate commerce (which is to say, transactions that cross state lines).

    Leaving the good guys with nothing but the activity/inactivity distinction. A distinction that is slippery at best – its very difficult to successfully characterize anything as purely passive inactivity.

    You can’t be a functioning member of society without knowing that you may need medical care, that its expensive, and that you can get health insurance to help pay for it. Meaning that not having health insurance is just as much a choice as having it.

    What we are arguing about here is whether the government can regulate people who are self-insured as well as people who have third-party insurance. The Supreme Court, through decades of abrogating its duty, has left only this token shred of the idea that we have limited enumerated powers.

    1. “”The Supreme Court, through decades of abrogating its duty, has left only this token shred of the idea that we have limited enumerated powers.””

      I think that’s going to be a factor too. SCOTUS will probably make a decison based from what the commerce clause means today, not what it meant a long, long, time ago.

      I do believe the mandate would be unconsitutional, but TrickyVic doesn’t get to decide.

      1. I do believe the mandate would be unconsitutional, but TrickyVic doesn’t get to decide.

        On the contrary, you do get to decide – as does everyone else. If enough people decide the law is unconstitutional, the Feds will have hell trying to enforce it.

    2. I find it amazingly stupid that people have to say folks are “self-insured” rather than just saying “They pay for themselves.”

      1. ‘Self-insured’ is a private policy. ‘Cash payment’ is no insurance

  7. This is really some twisted, sad logic by the people in charge. I realize its played out to complain about Big Brother w/o sounding like a nut, but we’ve got a substantial portion of our govt who are fighting their damndest to treat us all like incapable morons. It’s pretty goddamn sad to be an American when your president and congress are fighting to run your lives more than they already should.

    1. Freedom means being free from choice, responsibility and consequence.

      This is achieved by handing control of your life over to the government. Follow the orders of the lawgivers, without question or thought, and you will live a blissful life free from personal responsibility.

      As you hand over the bottom of the hierarchy of needs to the government, you become free to pursue items on the top.

      The less control you have over your life, the freer you become.

      Freedom is slavery.

      1. You know who else said slavery was freedom?

        1. The guy I tied up last night?

  8. Just like copyright is for a “limited time” that congress can vote to perpetually extend bit by bit, I’m sure this court will allow congress to regulate inactivity for only the healthcare market.

    Until congress sees the need to regulate the lack of activity in another market.

    Bit by bit, liberty erodes, until there is none left.

  9. Pfffft, I’m not buying insurance if the “penalty” for not purchasing it is less than 500 dollars. I’ll pay the fine and and go to any hospital that can’t legally reject me when I do get sick.

    Heck, I won’t pay any fine at all, because the government won’t be competent enough to prosecute the millions who will ignore the insurance mandate.

    Taking advantage of something without contributing to it – when will republicans realize its appeal?

    1. The IRS can be quite competent, alas.

  10. SCOTUS will probably make a decison based from what the commerce clause means today, not what it meant a long, long, time ago.

    The Commerce Clause today means exactly what it meant when ratified. The words on the page haven’t changed, and neither has their meaning.

    What the Supreme Court will do is give the Commerce Clause a fond pat on the head, like a beloved elderly dog that is regrettably incontinent, and write a decision based on their prior cases. Which are not to be confused with the Commerce Clause itself, not since the New Deal, anyway.

    1. ^HEAR HIM^ uh, I mean, read him.

      1. Ya, he’s never wrong cause he’s a lawyer.

        How the fuck do you think all this shit started?

    2. “”The Commerce Clause today means exactly what it meant when ratified. The words on the page haven’t changed, and neither has their meaning.””

      Case law will guide the court more than what was written in the Constitution. You can pretend that the actual words still hold meaning, and I’ll point out that SCOTUS can’t even understand the meaning of the word “infringed” in the Second Amendment. I’ll agree that words have meaning, and in a purist form you are correct. But in the real world, the purist meaning of the Commerce Clause has become meaningless.

  11. If the mandate penalty/tax/contribution/fee/schwangdoodle is applied to those who make a decision not to purchase health insurance, does that mean that I can get out of it by arguing I always intended to buy health insurance but never got around to doing it? I don’t see any act or decision that is being regulated in that scenario.

    1. If you choose not to decide, you still have made a choice.

      1. I will choose…freewill!

      2. In this scenario I did make a decision, I just never followed through on it.

  12. That vegetarians refuse to buy beef affects the price of beef in every market in the U.S.

    Therefore Congress can force Vegetarians to buy beef or to pay fine for not buying beef.

    That’s the argument the Obamaheads are making regarding mandatory health insurance.

    1. Strangely, that case was heard:
      201 F.3d 680: Texas Beef Group; et Al, Plaintiffs,cactus Growers Inc.,plaintiff-appellant, v. Oprah Winfrey


      1. Except the case that you reference, Texas Beef Group; et Al, v. Oprah Winfrey; et Al

        Was a civil suit brought forth by private parties against private parties over a question of purported libel.

        Specifically at issue was whether The Oprah Winfrey Show and one of its guests lied through media that American beef as unsafe to get others to not buy beef.

        The case has nothing in common with what the Obama administration is arguing, which is parallel to what I wrote:

        [1] That vegetarians don’t buy meat affects the total demand for meat, hence the price of meat

        [2] Since the non-action of vegetarians is screwing up the price of meat, hence markets everywhere, government believes it can fine vegetarians for their consumer preferences.

        1. IIRC, the argument was Oprah’s fame and her announcement that she personally gave up eating beef was the crux of the case. The other parties were ‘collateral damage’

Please to post comments

Comments are closed.