Individual Mandate

[jennem.livejournal.com]

The Sixth Circuit issued an opinion upholding the individual mandate earlier today.

Of particular interest is Judge Sutton's opinion concurring in part and delivering the opinion of the court in part, which begins on p. 27. (Judge Sutton is a well-respected "conservative" jurist. He clerked for Scalia and worked as Ohio's Solicitor General for a brief time. I met him a few years ago, when he presented at a conference I attended. He is, in my estimation, very smart and well-versed in issues impacting the field of constitutional law.)

Sutton declined to uphold the individual mandate on the basis of Congress's power to "lay and collect Taxes . . . to provide for the . . . general Welfare of the United States," not because Congress can't exercise such power--indeed, Sutton's opinion implies that Congress does have such power--but because Congress simply failed to exercise that power in this case.

TRANSLATION OF SUTTON'S MESSAGE TO CONGRESS: "UR DOIN' IT WRONG!"

Then, interestingly, he provides a framework for how to correctly pass such a law.

Also of interest the section of his opinion where he concurs with the decision to uphold the law using the commerce clause. Although he appears to believe that the law uses the commerce clause in a new, unprecedented way, he upholds it not just on the basis of precedent, but because the Commerce Clause does not contain an action/inaction dichotomy that limits Congress's power.

Overall, the opinion makes for a very interesting read. And given the amount of respect he garners, could ultimately impact SCOTUS's decision in the inevitable Supreme Court showdown.

(More thoughts later when I'm not typing this on an iPhone.)

Comments

[kylinrouge.livejournal.com]

Can you put a description of the case itself? You're making a reference to something but not describing what the reference is, even though it's necessary to understand your reference.

[reflaxion.livejournal.com]

The initial use of the word "opinion" links to the source material.

[jennem.livejournal.com]

Also, I thought the "upheld the individual mandate" was pretty self explanatory? I'll edit to include "health insurance" language when I get home from work.

[kylinrouge.livejournal.com]

So, they're talking about the individual mandate in the context of the affordable care act?

[existentme.livejournal.com]

Yes.

[telemann.livejournal.com]

Of course Justice Thomas should recuse himself from the ultimate appeal to the Supreme Court, since his wife works for organizations dedicated to overturning the mandate (well hell, overturning the entire Health Care Reform act).

[badlydrawnjeff.livejournal.com]

And Justice Kagan should recuse herself since she was involved in the crafting of the bill, right?

(You realize that the faux conflict you speak of would, in theory, push Thomas to rule for the bill, right?)

[telemann.livejournal.com]

I know she's recused herself from dozens of cases since becoming a justice. I think nearly 100, isn't it?

[badlydrawnjeff.livejournal.com]

I'm not sure of the exact number, but I'm curious specifically about your thoughts of her recusal on the health care bill when it invariably shows up.

[telemann.livejournal.com]

Since she never worked on the Affordable Care Act while as solicitor general, nor defended the law in any court case, no. She was also asked specifically about this in her confirmation hearings:

Kagan addressed the issue of recusing herself from the health care law decision during her confirmation hearing before the Senate Judiciary Committee, as GOP senators pressed her on how much involvement she had in the White House’s push for the legislation.

Kagan said she was never asked for her opinion on the merits of litigation challenging the law.

“I attended at least one meeting where the existence of the litigation was briefly mentioned,” Kagan said, “but none where any substantive discussion of the litigation occurred.”

Given her willingness to step aside in dozens of previous cases where she had very direct contact with the cases: it's very clear she's trying to be extremely objective. And since Justice Kagen didn't recuse herself in the original fast-track request to overturn the Affordable Health Care Act, it's a safe bet she'll not do so again when the case works it way up through the appellate courts.

[a-new-machine.livejournal.com]

Those were all for cases that she worked on in their legal capacity as solicitor general, though. Quite different from a law she might have helped to partially design.

[hey-its-michael.livejournal.com]

How was she involved in crafting the bill?

[badlydrawnjeff.livejournal.com]

Legal arguments for it, specifically.

[blorky.livejournal.com]

What do you suppose his opinion is likely to be if the case reaches the SCOTUS?

[telemann.livejournal.com]

He'll throw out the mandate.

[blorky.livejournal.com]

I'm sorry - my question was leading and pointlessly coy.

Do you think his opinion was informed by her activities or by his pre-existing judicial philosophy? I don't think that her lobbying efforts amount to making him any less unfair and impartial than he would be otherwise.

Admittedly, I'm going by http://en.wikipedia.org/wiki/Judicial_disqualification, but I don't think this meets any of the standards that would compel recusion.

[johnny9fingers.livejournal.com]

Egads!

Now I reckon Congress can fudge it up again now that they know what not to do, if you'l excuse the unnatural emphasis on negatives.

[badlydrawnjeff.livejournal.com]

At this point, we're all still waiting for the Supreme Court to end this, really.

What's funny, though, is that the concurring opinion, you believe, gives a path for legality. Congress justifying a move with one power does not stop it from being unconstitutional under the abuse of another.

[a-new-machine.livejournal.com]

Well, sorta. I mean, it's not like all of their actions to raise and support armies also must implicate commerce. They're overlapping powers, not ones that all need to be valid and satisfied for a Congressional action to be constitutional. The taxation power would pretty quickly end the debate if they had had the cojones to come out and say "This is a tax," and I really don't think there's any credible argument against that. Non-homeowners pay more taxes on their total income than people paying mortgages (due to the mortgage interest exception). That's functionally identical to the individual mandate - purchase X or pay higher taxes - and nobody trots out the Tenth for that. But Congress, in its infinite capacity to be scared shitless of Blue Dogs, decided to not call it a tax. That's honestly the only real problem with the taxation argument.

[badlydrawnjeff.livejournal.com]

The taxation point is meaningless because the problem isn't so much the tax/penalty but the mandate.

I'm just amused that this guy thinks that, if Congress just justified it under a different clause, it would magically become Constitutional.

[a-new-machine.livejournal.com]

But then it wouldn't be a mandate. It wouldn't be "you must purchase health care." It would be "If you do not purchase health care, you pay this tax." Just like "If you do not pay mortgage interest, you pay higher taxes."

Also, I think you fundamentally misunderstand how the Constitution works. The only credible argument anyone has made is that Congress lacks the power it claims. They have not claimed that the power Congress wants is barred to them anywhere in the Constitution, just that it's not granted. So if they could find a clause to justify it, and nobody is arguing that there's a clause to bar it, then yeah, it'd be constitutional.

[kylinrouge.livejournal.com]

My problem with the individual mandate, and I'm not sure that's expressed in the opinion, but my take is that we're requiring people to get insurance, but still not actually providing an affordable way to get insurance. It's sort of silly.

[a-new-machine.livejournal.com]

It's not expressed in the opinion because whether the policy is good or not has nothing to do with its constitutionality. You're criticizing the policy, they're examining the law.

[kylinrouge.livejournal.com]

If mandated car insurance is legal (and other forms of mandated coverage), this should be as well. Some bring up the argument that cars aren't a necessity, but I'd like to hear them try that theory out in an area without good mass transit (most of America).

[a-new-machine.livejournal.com]

Congress isn't the one mandating car insurance though, that's the states. And not all states do it (New Hampshire, for instance, doesn't require insurance until after you've been found at fault for an accident, or engaged in certain kinds of moving violations). Congressional exercises of power are fundamentally different, in that the only real restrictions on state power are the Bill of Rights and the Civil War Amendments (13th, 14th, and 15th). None of which are implicated by the car insurance mandate.