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  • Obamacare: Bad 6th Circuit Decision Assures Supreme Court Review in Fall

    Today, the Sixth Circuit Court of Appeals issued a decision upholding Obamacare against a constitutional challenge. While this is disappointing, there are several reasons to believe that this flawed decision is not predictive of how the Supreme Court will rule.

    In recent years, the Sixth Circuit has achieved a growing reputation for not just reversals, but summary reversals at the Supreme Court. In a summary reversal, the Supreme Court unanimously reverses a lower court decision without hearing argument or even having a full merits briefing—because the decision is so clearly wrong. It is a sure sign of an activist court misapplying the law.

    Among the liberal judges who have helped the Sixth Circuit achieve this less-than-stellar reputation is Boyce Martin. When he was the chief judge, he infamously manipulated the panel of an affirmative action case to make sure liberals outnumbered conservatives. He also shifted the timing of the review of an en banc case—he waited until conservative judges had left the court to circulate the petition, so that they would not be on the panel to hear the case. Martin is the author of today’s unfortunate opinion.

    There are several reasons to believe this decision will be an outlier.

    • Health insurance v. health care. First, the court blurs the line on which market is regulated, and the two judges in the majority opinion do so with the plaintiffs’ blessing. Judge Martin’s opinion notes that the plaintiffs “accept the class of activities that the provision purports to reach: participating in the national market for health care services without maintaining insurance that meets the minimum coverage requirement.” This is a massive (and unnecessary) legal concession. The government has sought to characterize the case as about regulating health care rather than health insurance—to avoid the inconvenient truth that it is seeking to force individuals who are not in the health insurance market into the market. By doing so, the government is regulating non-economic inactivity. But by shifting the argument to the health care market with the agreement of the parties, the Court was able to make the next big leap—that “far from regulating inactivity, the minimum coverage provision regulates individuals who are, in the aggregate, active in the health care market.” This mistaken concession made it that much easier for the government, and it is not a mistake that the states or the National Federation of Independent Business (NFIB) have made in their litigation.
    • Challenging precedent. Second, Judge Sutton’s decision concurring in judgment turns in large measure on an interpretation of facial challenges (challenges in which a plaintiff alleges that the statute is invalid under all circumstances) that is inconsistent with the Supreme Court’s interpretation and precedent on that question. Sutton’s view does not comport with leading cases in the Commerce Clause context or with recent decisions by the Supreme Court modifying the standard for facial challenges.
    • Support for argument that mandate is unconstitutional. The dissenting judge, James Graham, called the question correctly when he wrote that “the mandate is a novel exercise of Commerce Clause power” and that Congress has never before “required individuals to purchase a good or service.” He concluded that the individual mandate is unconstitutional and that if this exercise of power is allowed, “it is difficult to see what the limits on Congress’s Commerce Clause authority would be.” Graham asks rhetorically, “What aspect of human activity would escape federal power?” Only through a constitutional amendment could a “structural shift of that magnitude…be accomplished legitimately.”

    This is the first of the circuit court decisions to address the issue, but most court-watchers are fervently awaiting the decisions in cases raised by the states and the NFIB. Again, it is clear that the question of whether Congress has abused its power will ultimately be answered by the Supreme Court. The fact that this decision came down today—in the same week that the Supreme Court ended its current term—just about guarantees that the Court will have the opportunity to review the statute in its fall term.


    Posted in Obamacare [slideshow_deploy]

    19 Responses to Obamacare: Bad 6th Circuit Decision Assures Supreme Court Review in Fall

    1. Frank T. McCarthy says:

      Judge Roger Vinson’s ruling in the Obama Healthcare case contradicted the view of Congress’ enumerated powers set forth in The Federalist. Alexander Hamilton summarized The Federalist view of Congress’ enumerated powers in Federalist 23, “it is both unwise and dangerous to deny the federal government an unconfined authority, as to all those objects which are entrusted to its management.” Vinson tried to confine that authority with his distinction between activity and inactivity. Neither the Constitution nor The Federalist makes any such distinction. The Sixth Circuit Court of Appeals has returned to the reasoning of The Federalist.

      • JAD says:

        Perhaps the reason the Const and the Federalist make no distinction between activity and inactivity is that the regulation of inactivity is so absurd it didn't warrant explanation. Fed 11, Fed 42, and elsewhere concern the commercial activity – not inactivity – between the states. Fed 42 mentions "commercial" and "uncommercial" activity, that States engaging in activity cannot tax States which do not engage in that activity. Fed 23 is primarily concerned with the principle of the supervisory authority, that certain powers should not be split between the Federal and State Governments. Its context is mostly in the realm of defense, and commerce is mentioned as an concurrent example.
        Regardless, the question is whether Congress has the power to impel citizens to purchase a product or service, and fine them if they do not. If this is an enumerated power of the Federal Government, then, yes, Fed 23 applies in that the national government is unconfined. If this is not an enumerated power, then the national government does not have any power over inactivity. That is Vinson's ruling, that the national government does not have this power.

      • Dana says:

        To what limit and to what end? You seem to be advocating a complete and utter control of Congressional behavior modification.

        Does your support rest in the fact that this happens to be an argument that you agree with? What happens when they pick an activity that you disagree with? Are you then going to assert that it is an abuse of authority? How about when Congress decides it is in your best interest to never drive on a Monday because there are more accidents on Mondays and the resulting accidents cost our country, in the aggregate, more money in car insurance costs?

        If not this argument what is the natural limit if any? Meaning you can never make the claim that Congress has gone too far.

      • Patricia says:

        When the Department of Justice filed suit over Arizona’s SB 1070, they violated the Costitution. 1st, the Federal Government has the responsibility to protect the citizens of the United States from invasion from foreign countries. According to the Constitution, Article 1, Section 10, a state has the right to protect itself from “invasion or in such imminent Danger as will not admit of delay.” Arizona was invaded. Some of its citizens have been murdered, and kidnapped by invaders entering the state illegally.
        2. Article III, Section 1 of the Constitution states that in all cases where a State shall be a party, that the Supreme Court shall have jurisdiction. So if the Federal Government feels a need to sue a State, they need to file with the Supreme Court, if I understand the Constitution correctly. Perhaps someone would like to make sure I’m correct.

    2. Gustavo says:

      I didn't realize the Federalist papers held as much weight as the U.S. Constitution. Any proper legal reasoning has to be based on the law and the Constitution, not some quote from an opinion or from tortured reasoning from an activist judge(s).

    3. Steve B says:

      This is just another strong nail in the coffin for those who have been trying to repeal the health reform bill. The vast majority of judicial experts have said all along that this will not be ruled unconsitutional. The large majority of rulings have be in favor of the new health care law and this court that just ruled yesterday has one of the most respected conservative judges ruling in favor of health reform.

      The ruling was 2-1 in favor of the health reform bill and the panel included two Republican nominees, who ended up on opposite ends of the opinion. Jeffrey S. Sutton, a George W. Bush nominee and a former clerk for Justice Antonin Scalia, is the first Republican-nominated judge to rule in favor of upholding the mandate.

      The writing is on the wall – but those of us in support of reforming health care certainly don't mind you wasting all your time and resources on beating a dead horse.

      • David R says:

        That dead horse being what, Steve? America? There is nothing left if this travesty of unchecked power is allowed to stand. You are wrong about the 6th circuit – while Bush may have appointed him, it does NOT mean that he is a conservative. He is on one of the most activist panels in the US, and as stated in the article above (if you had read it) states that many of their decisions are reversed by summary reversal at the Supreme Court.

      • Glenn says:

        So I guess it's "constitutional" for a bunch of politicians and bureaucrats to meddle in an individual's private care and consultations with his/her doctor. So who are these judicial "experts" you tout? The talking heads you watch on CNN? I'm sure if the loony 9th Circuit ruled on Obamacare you would would be lauding them as constitutional "experts" as well. We can't afford it as a nation anyways. Do the debt ceiling talks ring a bell?

        I guess you will call it "reform" until it affects you personally.

    4. Redfray says:

      The words "liberals and conservatives" are not legal words. Both words are names of teams who oppose each other by stretching the imagination or better known as a politician. Judges are appointed, but politicians are elected. Politicians can stretch the imagination, but judges interpret the law for the society. If judges want to change the law for there team's benefit, they need to run for office. When judges over step there limits, the people need to remove them by a courtroom of six graders who can define words by looking them up in a dictionary.

    5. Redfray says:

      The words "liberals and conservatives" are not legal words. Both words are names of teams who oppose each other by stretching the imagination or better known as a politician. Judges are appointed, but politicians are elected. Politicians can stretch the imagination, but judges interpret the law for the society. If judges want to change the law for there team's benefit, they need to run for office. When judges over step there limits, the people need to remove them by a courtroom of six graders who can define words by looking them up in a dictionary.

    6. Bobbie says:

      A judge is a judge and should hold no adjective before it. To judge in America was once respected without bias and always ruled in favor of the law! OF the people, FOR the people, BY the people! Get obamacare and it's mandate off our backs! Unlawful, unethical for the government to impose this corrupt force called health care? on us!

    7. Scot - New Jersey says:

      The Federalist Papers are an invaluable tool to understanding the reasoning and intent behind the Constitution. They were written by the folks that deliberated over our official document and can often provide insight into why the various provisions were written the way they were. They are not the law, but offer additional perspective. Would you prefer Judges to use foreign law as precedent for making decisions as some of our activist Judges have actually done?

    8. Michael says:

      I believe the ruling from the 11th circuit will have more weight at the Supreme Court and with the American people than the ruling from the 6th circuit as 26 states, representing millions of people, are plaintiffs in the former whereas a public interest law firm was the plaintiff in the latter. If the Supreme Court doesn't strike down this law next year, Michele Bachmann can repeal it on her first day in the Oval office.

    9. ROBERT HARKINS says:

      In its imposition of Obama care, the Left has entangled the minds of presumably intelligent Americans in a debate not unlike those medieval Catholic theologists who debated the number of angels might be placed on the head of a pin.

      Heritage, true to form has sought to call the American angels down from the clouds so as to explain carefully and I might add very slowly in short, plain words, the existential laws of cause and effect.

      1. Just as Medicaid and Medicare are swallowing the economy, programs the Left assured Americans would remain small, tight and efficient, so Obama care offered as a panacea to health care cost will increase these costs astronomically even as it destroys a private health care system that works well enough.

      2. Industry as opponents of the bill predicted are dumping employees onto the Obamacare system and paying the 2000 fine rather than the much higher costs of a nearly free health insurance policy. Obama's promise, "that if you like your health care plan you can keep it" is falsehood, a falsehood of which he was well aware during the hundreds of times he repeated it.

      3. There is a death panel; it simply does not use that name. However, the final arbiter of the health care much older Americans will receive, will be based on "bang for the buck" analyses. I have seen this in private practice as a lawyer. Hip replacements for example while generally approved by insurance companies when the claimant is relatively young are denied to the elderly, not because they are elderly of course; there are much more creative ways to base a denial.

      4. There is no money to pay for Obama care unless taxes are drastically increased. The law contains massive increases on capital gains and dividend income.

      5. Thousands of companies have already been granted waivers, based on party affiliation.

      Finally, there is a major flaw that conservatives and liberals ignore apparently because the flaw is popular. Even the conservative Demint subscribes to the idea that one should be able to purchase a policy that will also treat pre-existing conditions. This means that people with all sorts of pre-existing conditions will sign up for insurance, they could have purchased, before developing a pre-existing condition. This, of course, is wealth redistribution. Americans who have paid premiums for a lifetime will not be taxed– in the guise of premium increases– to pay for the treatment of those who purchased the policy, not so as to cover risk– which after all is the fundament premise of insurance– but to sign up for treatment. Who pays for this treatment? Well, I have already addressed that question.


    10. Bobbie says:

      I agree with your analysis 100%. All I want from the government is to fulfill their years of ongoing claim of ability, to reduce costs pertaining to the chronically and terminally ill. All Obamacare is, is entrapment! It's not insurance that keeps health care, it's the individual.

      For the last few years I've witnessed the games being played on health when it comes to government run service putting expenses on those they can, compromising their health for more money because they can. They take special advantage of the vulnerability of the elderly because they can. Seems more about producing revenue then care. It's very frightful…

      I friend of my father's has been in and out of government run hospitals and transitional care facilities for the last 2 months. The back and forth was neglect of the medical staff!

    11. Susan says:

      Government does decide about age and care example: My father-in-law, 84, had his carotid arthery cleaned, day surgery, sent home with a catheter in place, with a diagnosed Alzheimer's wife to care for him. This was done against children's wishes. No medical staff for home care was to be available for two weeks, according to regulations. Catheter was self-removed that night. Children called to put father back under medical care, denied for two days, after all it was the weekend. For the next two months, due to a server infection from the removal of the catheter, my father-in-law was in a rehab setting, hospital, home for a total of six days. On one of those days he suffered a mild heart attack, one day in the hospital for this, daily nursing visits, about 30 minutes. One of the the nights at home he had a stroke, he lasted one week, and passed away.

    12. Hayes says:

      One big problem with your argument is:
      Healthcare is not a Market.
      Disagree? Then try to buy some Open Heart Surgery futures on the NYSE.

    13. Tom says:

      Obama care is a keystone in Obama's (and other socialist-leaning politicians) plan to redistribute wealth (take it away from anyone who has even some of it) in the USA and turn this country into a third world entity, ready for socialism. If Obamacare does not get repealed because of its unconstitutionality, we are all in very deep waters regarding government powers over day to day life here. Time to leave the USA. Unfortunately, there is no place to go. We'd better make a stand and unite against government treachery. Contact your political representatives and speak up. Speaking up here has little impact, but it is very interesting to see what others think. Keep it coming.

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