The Commerce Clause and the individual mandate

The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, ... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes ... [and] [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers ...

— United States Constitution, Article I, Section 8

I see our friend conservative law professor Rick Esenberg is fretting again (or is fretting still and forever, I suppose) over his bugaboo Barack H. Obama's inexorable march to socialism, so I thought I'd pull up some comments I left at his blog several months ago, on the subject of the constitutionality of the so-called "individual mandate."

It began when Prof. Esenberg's "nonpartisan" pal Charlie Sykes mocked Speaker Nancy Pelosi for stating an obvious truth: that Congress's power to regulate interstate commerce, including, obviously, that related to health care, is "essentially unlimited." Prof. Esenberg, as is his wont, leaped quickly to Charlie Sykes's defense.

It was essentially unlimited then, and it is today.

Anyway ...

Esenberg: So it is incorrect to say that nobody has suggested the Commerce power as justification for a mandate.

[The initial point, which still stands, is that Speaker Pelosi hadn't suggested it. And Charlie Sykes remains a partisan buffoon.]

Okay, you got me. Mark Hall did suggest it, although he too emphasizes primarily the tax power — my point, again.

But his Commerce Clause argument is secondary and lacks the required force and finally amounts to little more than an assertion plus an unconvincing appeal to the Necessary and Proper Clause (which should be renamed the Necessary Necessary and Proper Clause because it's always necessary when your claim of Commerce Clause reach is ... reaching).

It may be that the courts will devise a rationale for approving a federally mandated commercial purchase based on those courts' own prior holdings, but it would be in effect the fabrication of a power not expressly delegated to Congress by the Constitution.

(Indeed, the courts are more legitimately imbued with the power to consecrate an unconstitutional Act of Congress than is Congress to make that particular Act in the first place, but that's still no reason to accept as axiomatic that the courts' decisions are correct.)

As Prof. Hall puts it, the question of Congress's power to regulate the commercial aspects of health care is a trivial one easily disposed in favor of Congress but for one provision: the individual mandate. And Hall indicates "the only plausible objection is that mandating the purchase of insurance is not the same as regulating its purchase."

But he doesn't engage this objection, which he just allowed was crucial; rather, he proceeds instead to address his opponents' distinguishing regulating insurers from regulating people, but that is not the proper distinction. Prof. Hall thus glides past his own crucial distinction without so much as a how-do-you-do.

Objects that are "in" commerce

The most forceful statement of Prof. Hall's argument is that the individual mandate "directly affects interstate commerce," not that it is interstate commerce, which might be enough to satisfy some of the second- or fourth-generation interpretive case law, but I don't think it survives the level of scrutiny that must be applied when one is determining whether an Article I enumerated power even exists and in particular one so coercive on the part of the federal government (Super Duper Strict Scrutiny, h/t Arlen Specter).

In any event, the distinction is not between "what" and "who" but rather between what is "in" commerce and what is not. That is, the permissible objects of regulation are only those which are "in" commerce (or so the Court has taught since Chief Justice John Marshall, a contemporary of the Framers, presided).

Before the mandated purchase takes place, there is no commerce — and therefore nothing in commerce to regulate. It is only by Congress mandating individuals to make commercial transactions that there becomes something in commerce.

So the question presents as, 'Can Congress force a private party to initiate the transaction that will bring into existence the commerce Congress may regulate.' If the answer is yes, then it's not on account of anything the Commerce Clause says.

An analogy, not perfect, but illustrative: Biology makes no claim to the origin of life; it assumes life, and that is where its study begins, and not before.

Both necessary and proper

Although it may be necessary under certain circumstances for Congress to somehow initiate the commerce it wishes to then regulate (which it can do by taxing and spending), it has avenues other than forcing — on penalty — private commercial transactions. If there are other ways to accomplish the objective, then this one is by definition not necessary.

For example, Congress can initiate those transactions itself, which is how I suggested that single-payer, universal health care would more comfortably conform with constitutional requirements (not to mention satisfy the aspirational goals described in the Preamble).

But even if the individual mandate mechanism was deemed "necessary" according to some necessarily circular reasoning, it also needs to be "proper" and I'm finding it difficult to apply that adjective, in the constitutional context, to the creation of a brand new, clearly unenumerated power of Congress (or at the least, unenumerated within the Commerce Clause).

So did I pass the Federalist Society entrance exam? (I hope not.)

Court suggests ways to avoid individual mandate

Leave the country or die:

Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive.

State of Florida v. DHHS (.pdf; 65 pgs.)

The court utterly rejected the federal government's argument* that the individual mandate is a tax in furtherance of the general welfare rather than an exercise of Congress's interstate commerce power.

"If [the individual mandate] is to be sustained," the district court declared today, "it must be sustained as a penalty imposed in aid of an enumerated power, to wit, the Commerce Clause power."

That won't be easy, given that the law seeks to regulate inactivity.

Somewhere, J.B. Van Hollen is gloating.

* Which the court essentially accused the feds of disingenuously cobbling together after the fact, as this here blog had predicted.

eta: "Based on the reporting we've done, it looks like the Commerce Clause argument is the best shot the [plaintiff] attorneys general have — but it was still considered a long shot." — David Kurtz, J.D.

It was? By whom? Not by anybody I know.

No point to Van Hollen joining HCR suits now

Sort-of-newsy item:

Wisconsin governor-elect Scott Walker has said he would let AG Van Hollen go ahead with the health care challenge.

The current governor should have let Van Hollen go ahead months ago but at this juncture, Van Hollen's joining one or more of the suits is largely shambolic, as much of the work has already been done.

The most important of the challenges, State of Florida v. DHHS, is shortly headed for the 11th Circuit Court of Appeals in Atlanta.

It's important because the district court resoundingly rejected the federal government's ex post facto rationalization that the so-called individual insurance mandate is authorized by Congress's power to tax. It seems to me not unfair to speculate that the feds devised the argument because there is such scant legal support for the proposition that the Interstate Commerce Clause — which empowers Congress to "regulate Commerce ... among the several States" — authorizes Congress to compel by coercive penalty the bringing into existence of the very commerce Congress might then regulate.

That tactic appears precluded by the plain text of the Constitution.

If the district court's ruling invalidating the tax power argument survives its appeal, then the individual mandate is in serious trouble. And even if the 11th Circuit does reinstate the validity of the federal government's power-to-tax argument, the Supreme Court as currently comprised — where this case is inevitably destined — will not be sympathetic to either the taxing or commerce power justifications.

Suspicion

Another significant challenge is contained in Virginia v. Sebelius, whose litigation is similarly well underway. The plaintiff's principal lawyer, Virginia AG Ken Cuccinelli, was recently observed dictating to Fox News's Greta Van Susteren what sounded suspiciously like a verbatim rehearsal of a blog post that appeared at this location nearly one year ago, so I have a hard time disagreeing with him.

So far the only court that has provided a positive result for defenders of the individual insurance mandate is one in Michigan, but that decision relied on an untenably selective reading of Gonzales v. Raich, the Supreme Court's most recent set of pronouncements on the (yes, "evolving") meaning of the Interstate Commerce Clause.

While it will be argued that Raich defines the Commerce Clause so broadly such that it leads in the direction required to support the validity of the individual mandate, at least in that case there was commerce already in existence — marijuana plants growing in a Californian's apartment, which are presumed to have value in commerce — over which the federal regulatory powers extended, no matter how attenuated was the regulated object from the regulation.

So I wouldn't expect the Michigan decision to stand.

Notorious

And if Scalia gets a crack at its interpretation of Raich — whose majority opinion Scalia did not join but rather wrote separately to agree with its result according to what he claimed was his "more nuanced" understanding — I would expect him to react violently.

And then there is the rejuvenatedly notorious Clarence Thomas, who will take the opportunity to reverse nearly every Commerce Clause decision since and including 1819's McCullough v. Maryland.*

Whatever the ultimate disposition in the ongoing set of cases, Van Hollen's ceremonial participation will have little effect either way.

Attorney General Van Hollen's energies will be better spent joining Obama and his press secretary in defending Congress's enumerated power to order the president to declare a "national day of prayer" annually in America because clearly, that legislative authorization is discoverable throughout Article I, Section 8 of the Constitution.

Besides, it's an actual State of Wisconsin case and we're still waiting for the 7th Circuit Court of Appeals to schedule the oral arguments.

* Justice Thomas wouldn't care much for this Beloit high schooler's t-shirt either, and moreover would likely condone the local authorities' taking the young man out back and having him birched.

See also: Liberals in denial.

Obama acknowledges the inevitable

Reuters reports that the President has acknowledged what for many others has appeared inevitable for more than a year-and-a-half:

"If the Supreme Court follows existing precedent, existing law, [the PPACA individual insurance mandate] should be upheld without a problem," Obama said in Minnesota during a town hall discussion. "If the Supreme Court does not follow existing law and precedent, then we'll have to manage that when it happens."

Hopefully "managing that" will not include accusing the Supreme Court of not following existing law and precedent, as those accusations would be wildly incorrect. In any case the Supreme Court is not bound to follow existing law or precedent, the former if it's unconstitutional and the latter because it just doesn't have to. What it is bound to follow is the text of the Constitution, where Obama apparently believes "regulat[ing] commerce ... among the several States" means regulating the behavior of individual citizens who aren't even participating in the commerce.*

The mandate is good policy and makes perfect economic and rational sense. Unfortunately it's bad law and exceeds Congress's regulatory authority. Not to mention violating a first principle of American constitutional government: that the federal legislative department is designed with cognizable limits. It was a big mistake to rely on the Interstate Commerce Clause to justify this policy. But somehow somebody or other decided this was a gamble with decent odds.

The scenario unfolding toward the conclusion of the U.S. Supreme Court's next term in late June, 2012 — which more and more people are beginning to perceive, including even some liberals — presents Obama's worst nightmare, of which he has owned the majority share of credit:

Obama has championed the individual mandate as a major accomplishment of his presidency.

He might want to stop doing that if he hasn't already.

Meanwhile, liberal denial remains firmly entrenched:

Orin Kerr, a George Washington University law professor, predicted Chief Justice Roberts and Justice Kennedy both would likely end up voting to uphold the individual insurance mandate.

And he's got to be hallucinating.

* All it takes is "mental activity," according to this court.

Liberals in denial: The Orin Kerr Affair

"[I]t is intercourse." — Chief Justice John Marshall

Yesterday liberals went bananas, pursuant to a post by Prof. Orin Kerr at the Volokh Conspiracy, in which Kerr accused U.S. District Judge Henry E. Hudson, the author of Monday's PPACA opinion, of making a "significant error." Brian Beutler at TPM therefore called Hudson an "amateur," and MSNBC's Keith Olbermann made Hudson his "worst person in the world." Many others bowed to Kerr's apparent authority, including the inexplicably popular Madison blogger Ann Althouse.

None of them bothered to check Kerr's work before pounding out their screeds. But what should have been immediately obvious to anyone who had read the opinion — including Kerr — was that the passage Kerr was criticizing was not part of the judge's "ruling" but rather that portion of the opinion that was reiterating the arguments of the two parties, in this instance a claim made by VA's AG Ken Cuccinelli.

The following comment appears below this excellent rebuttal to Kerr:

Hudson got it right and Kerr got it wrong, and embarrassingly so for a law professor. The [necessary and proper] clause does not establish [its own] substantive legislative authority. The substantive constitutional hook must come from a separate constitutional authority, in this case the interstate commerce clause. This much Kerr seems to get right.

Kerr’s analysis seems to imply that the N&P clause can render constitutional a specific statutory section that is otherwise unconstitutional because the section is part of a larger legislative scheme. This is incorrect.

In this case, the challenge is specifically that the individual mandate provision of Obamacare is unconstitutional. The S.Ct.'s analysis in Gonzales, Lopez, and Morrison* demonstrates that the specific statutory provision(s) being challenged are subject to scrutiny by the Court. The mere fact that a specific statutory section is part of a larger legislative framework is not sufficient to support the constitutionality of that specific provision.

In layman's terms, the mere fact that Congress possesses the power to regulate the broad field of health care under the commerce clause is not sufficient to rebut a challenge to the specific statutory section that requires individuals to obtain insurance. Congress must establish that it has authority to legislate the specific provision.

The absence of economic activity cannot be regulated by Congress under the [interstate commerce clause], regardless of whether the absence of economic activity is part of a larger legislative scheme. It is unconstitutional for Congress to impose an individual mandate to purchase insurance or otherwise engage in economic activity. Unconstitutional acts of Congress cannot be rendered constitutional by virtue of the N&P clause.

Hudson's opinion could perhaps have been more explicit on this point, but it is hardly necessary.

Comment by Aged Attorney — 12/14/2010 @ 5:38 pm

Good stuff.

* Gonzales v. Raich (at issue: growing medical marijuana) stands for an expansive view of Congress's interstate commerce power, while U.S. v. Lopez (gun-free school zones) and U.S. v. Morrison (1994's Violence Against Women Act) both stand for a more restrictive application. These three Supreme Court cases (and a handful of others) provide much of the doctrinal grist for both supporters and opponents of the PPACA's individual insurance mandate.

All three cases, however, are addressed to deliberate activities.

eta: Think Progress issues a thoroughly ad hominem objection.

We're aware Henry Hudson is a Republican. As is John E. Jones III.

Liberals in denial: The law professors

Prof. Akhil Reed Amar, who has written two superb books on the Constitution, compares Florida Judge Clyde Roger Vinson to the 19th-century Supreme Court Chief Justice Roger Taney, the author of Dred Scott v. Sanford, which affirmed the notion of his fellow human beings as property and arguably precipitated the U.S. Civil War.

Strictly speaking, Obamacare does not mandate the purchase of insurance. It says that those who remain uninsured must pay a tax. Vinson says this mandate cannot be upheld under Congress' sweeping tax powers.

Except Judge Vinson's most recent order is confined to the narrow question of whether Congress is properly exercising its powers under the Interstate Commerce Clause. The administration had previously argued that the mandate was a tax, and in fact Judge Vinson rejected that argument back in October,* as have even those district courts which have otherwise sided with the Obama administration.

Prof. Amar — and, indeed, the administration — might wish to resuscitate it, but doing so doesn't address the Commerce Clause question, as the latter is not where Congress's power to impose taxes resides. So this is some goalpost-shifting by Prof. Amar and therefore not an appropriate ground to attack Judge Vinson's ruling.

And, in the New York Review of Books, Georgetown's David Cole refers to the Necessary and Proper Clause as "[t]hat catch-all provision" which "authorizes Congress to enact laws that, while not expressly authorized by the Constitution’s specific enumerated powers, are 'necessary and proper' to the exercise of those powers."

First of all, if the Necessary and Proper Clause really is a "catch-all provision" — emphasis on "all" — then Judge Vinson is exactly correct, in that viewing it as such would render Congress's legislative powers not just "virtually" unlimited, but actually unlimited in practice.

But obviously there are limits to Congress's authority — see, for further evidence of those limits, the Bill of Rights — and bold assertions of the said "catch-all provision" do not alter that fact.

Secondly, Congress's authority to impose the mandate must first be discovered within Congress's enumerated powers before any other necessary and proper acts may be justified to carry it into execution. The N&P Clause is not a separate grant of legislative power, but rather is present to facilitate bringing those enumerated powers to effect: if there's no enumerated power, then there's no propriety.**

Prof. Cole also "goes there," observing of a prior decision issuing from a federal district court in Virginia that similarly found the insurance mandate to be beyond Congress's authority:

Judge Hudson and the Virginia attorney-general are situated squarely within a tradition—but it’s an ugly tradition. Proponents of slavery and segregation, and opponents of progressive labor and consumer laws, similarly invoked States' rights not because they cared about the rights of States, but as an instrumental legal cover for what they really sought to defend—the rights to own slaves, to subordinate African-Americans, and to exploit workers and consumers.

Jeez, Louise. He sounds a lot like the Madison Capital Times.

Anyway, even the staunchest admirers of Judge Vinson's handiwork shouldn't get too excited about these recent rulings, as the Supreme Court engages the relevant questions presented to it de novo ("anew, afresh") which means the SCOTUS needn't pay any heed to those lower courts' holdings while it conducts its own independent review.

Likewise, Vinson's and Hudson's detractors should keep their powder dry as well, particularly when they're accusing federal judges and State attorneys-general of behaving like slaveowners, as it detracts considerably from whatever legitimate objections they may have.

(Or, as I'm inclined to suspect, substitutes for the lack thereof.)

Special Series: Liberals in denial

* "My earlier ruling [dismissing] the defendants' tax argument is incorporated into this order and, significantly, has the effect of focusing the issue of the individual mandate on whether it is authorized by the Commerce Clause." — Vinson, Jan. 31, footnote 4.

The dismissal of that argument was the most problematic blow to Obamacare thus far, in your correspondent's own humble estimation.

** Even where there's necessity.

Statement of Wisconsin Governor Jim Doyle

Dear Attorney General Van Hollen:

I have received your request for permission to file an action to contest national health insurance reform. I am denying that request. This law is an act of Congress, signed by the President of the United States. The lawsuit you suggest is a frivolous and political attempt to thwart the actions of Congress and the law of the country.

Dude, harsh.

This may not be one of them, but presidents have signed plenty of unconstitutional acts of Congress before.

While the Republican J.B. Van Hollen by all appearances is pandering, any right-wing political warmth enveloping him as a result of his request to the governor is just convenient, delicious gravy. Because underneath is a perfectly defensible legal decision to go after the constitutionality of the so-called individual mandate.

In his official role, AG Van Hollen has a duty to assess federal legislation and its potential effect on Wisconsin sovereignty. I don't expect the present challenge to be successful, but far, far brighter bulbs than I have found its premises to be strongly compelling.

[By the way, stop calling them "Tenthers." The attempt to equate reasonable attention to the language of the Constitution with some crazy lawyer in California's ravings is frankly offensive. Also, conjuring the strains of Ashokan Farewell isn't much help either.]

At a listening session in hostile territory recently (Washington or Waukesha County, I forget which), U.S. Senator Russ Feingold, who supported the federal bill, was challenged on this very point.

Feingold replied that he couldn't say with any assuredness whether the individual mandate was constitutional or not, and suggested that it was the role of the courts to make that determination.

And not just as a general principle, but in this case.

Moreover, the courts cannot undertake to reach that determination until somebody asks them to, another point Feingold stressed in his response to the listening session queries.

Senator Feingold likely won't join Florida Attorney General Bob McCollum's lawsuit,* but I bet he doesn't find the question entirely without serious merit and purely political.

* As opposed to the one he joined seeking the extension of individual Second Amendment guarantees to the citizens of Wisconsin.

The continuing saga of liberals in denial

Latest in a series.

Federal lawyers are bracing themselves, it says here, for adverse rulings in several courts over the controversial individual insurance mandate provision contained in 2010's health care reform act.

It seems to me they are well advised to be so braced.

While many newly empowered Republican lawmakers have vowed to repeal the health care law in Congress, a more immediate threat may rest in the federal courts in cases brought by Republican officials in dozens of states.

Been saying that for more than a year now.

An earlier version of the legislation, which passed the House last November, included severability language. But that clause did not make it into the Senate version, which ultimately became law. A Democratic aide who helped write the bill characterized the omission as an oversight.

Ye gods.

Without that language — which leads ultimately to a determination of whether the entire Act might survive once a single provision as operationally crucial as the individual insurance mandate is found unconstitutional — it's left for the courts to decide. Although any judicial orders of the trial level court — which is where the legal challenges are now ensconced — barring the enforcement of the law will most likely be postponed pending a higher court's decision.

And that higher court will most probably be the U.S. Supreme Court, and that Court is not likely to rule until such time as smack dab in the middle of the 2012 presidential and Congressional campaigns.

Woe betide somebody (See, e.g., "Obamacare" vs. "Romneycare").

A worse oversight than the lack of that specific language obtains from Congress's failure to convincingly articulate that its authority to enact the insurance mandate derives from something other than its power to "regulate Commerce ... among the several States."

As noted at this space earlier, the federales sustained a body blow when a district court in Florida, decidedly unimpressed by arguments that the mandate was not a regulation of interstate commerce but rather a tax, criticized the administration for cobbling together an ex post facto defense of the law, one which the law itself doesn't appear to have contemplated. So long as the legal challenges remain focused on the Commerce Clause, which is where its critics prefer the focus to remain, the mandate is in much greater danger of invalidation.

A White House official said that in the meantime "the litigation is really not having an impact" on the pace of putting the law into effect: "I talk weekly to officials in States that have sued us, and in States that have not. I cannot tell the difference between them."

If one of them is Wisconsin's attorney general J.B. Van Hollen, it's no wonder you can't tell the difference, because both Van Hollen and the governor-elect have been chomping at the bit to join the litigation.

Doubtless there is skepticism even within those States which will not join the litigation. There has to be, given both the unprecedented interpretation of the Commerce Clause that will be required to sustain the mandate's viability and the current make-up of the Court.

Assuredly, Congress and the president would have been on firmer ground implementing wholesale a single-payer system. A nightmare Supreme Court ruling may be what "compromise" gets them instead.

Liberals in denial, continued again

The most common argument against the mandate is that in giving Congress the power to regulate interstate commerce, the founders didn't create the authority for the federal government to regulate inaction. In other words, they say citizens can't be compelled to participate in interstate commerce, such as buying health insurance. Most legal scholars disagree with this interpretation ... — TPM

Sounds suspiciously like wishful thinking* to me.

* Perhaps even magical thinking.

Incidentally, here is Georgetown law professor Randy Barnett's very recent paper (h/t David Ziemer) on the individual mandate, Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional. It's comprehensive, fairly devastating, and has already been cited approvingly by the district court in Florida by way of rejecting the federal government's taxing power argument.

Read it and weep, I'm afraid.

Paper disappointed by candidates it endorsed

The Milwaukee Journal-Sentinel wishes the two candidates it recently endorsed for election — attorney general J.B. Van Hollen and governor-elect Scott Walker — would drop their "political charade" of opposition to the federal health care reform act. But the paper could have easily seen this coming, so its offended posture is a bit silly.

The paper is half right about one thing: The longer Wisconsin waits to join — or file a friendly brief alongside — one of the existing lawsuits, the more Van Hollen's involvement appears purely political.

But this much was apparent more than a month ago.

Truth be told, the incumbent governor James Doyle assumed much of the blame for politicizing the State's official response to the health care act. Recall that back in March, when Van Hollen expressed his desire to protect Wisconsin's position in the constitutional scheme, Doyle denounced the AG's plan as a "frivolous and political attempt to thwart the actions of Congress and the law of the country."

That's ridiculous. I submit it was Van Hollen's duty, whatever the ultimate meritoriousness of Congress's defensive arguments.

There's a legitimate question here, whether Congress has the power to coerce into existence, on threat of penalty, the commerce it is empowered to regulate. It's something that Congress has never attempted before and, despite the U.S. Supreme Court's approving on several occasions mighty dubious reaches of the interstate commerce power, there is no clear guidance as to this situation.

Except, of course, the text of the Constitution, which seems to me — and plenty of others far more knowledgeable — not to contemplate something like the insurance mandate that drives health care reform.

(But we don't read the Constitution much anymore; we tend to dwell instead on the interpretations of federal courts. That's a problem.)

Meanwhile the Journal-Sentinel accuses the mandate's legal challengers of "rely[ing] on faulty reasoning," and then the paper immediately frames the central inquiry as follows: "Is the purchase of health insurance an economic activity?" Obviously the answer to that question is 'Yes,' except unfortunately that isn't the question.

The problem is, there is no commerce — interstate or otherwise — to regulate at all until Congress forces it into existence on threat of penalty through the individual insurance mandate. That the federal government is one of limited, enumerated powers is not a Tea Party cliché, it's an historical fact plain to any cursory student of politics.*

And that the J-S compares a federal mandate to a State mandate, where States possess plenary as opposed to enumerated powers, belies either the paper's desperation or its ignorance. There simply is no such comparison and in short, it's incumbent on any of the State AGs to ensure those plenary powers are not about to be usurped by a seriously questionable exercise of otherwise limited federal power.

Talk about your faulty reasoning.

"It is absolutely essential to have a mandate," declares the J-S, in spite of the constitutional roadblocks its editorial utterly fails to engage. It may be good policy, and it may save hundreds of millions of dollars eventually, but you don't have to be an Idaho militiaman to be wary of judicial precedent that authorizes the federal government to force citizens into commercial transactions against their will.

* It's why Madison thought an attached bill of rights redundant.

h/t folkbum.

Liberals in denial

Professor Timothy Jost of Washington and Lee University stressed that already the judge has thrown out the plaintiff's claim that the mandate is an unconstitutional tax (the judge ruled that it's not a tax at all) ...

TPM

That was a defense of the individual mandate that the court threw out, and a pretty significant one at that. I like this headline too:

Parts of healthcare suit may proceed — UPI

Understatement of the year.

And you can barely even locate the story at the New York Times.

Ohio health care reform challenge moving ahead

From a district court in Ohio, which granted all of the federal government's motion to dismiss a lawsuit against the health care reform act except for as it relates to the Commerce Clause question:

The defendants' [Secretary of Health and Human Services Kathleen Sebelius, et al] motion to dismiss contends that the individual mandate requiring the purchase of health insurance as set forth in Section 1501 under the title of "Requirement to Maintain Minimum Essential Coverage" is a proper congressional exercise under the Commerce Clause. Secondly, the defendants contend that the passage of Section 1501 of the Act is a valid exercise of Congress's independent power under the general welfare clause. Defendants argue that Count 1 of plaintiffs' second amended complaint* should be dismissed pursuant to 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can granted based on the recent teachings of the Supreme Court of the United States in Bell Atlantic Corp. v. Twombly, 550 U.S. 554, (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009).

At this stage of the proceedings, when considering the defendants' motion to dismiss, the issues before the Court regarding the commerce and the necessary and proper clauses constitute the primary issues before the Court with respect to the validity of the challenged Act. The Court finds that the allegations advanced by plaintiffs in Count One of the second amended complaint at this point pass the "plausibility" teachings of Twombly and Iqbal, supra.

It is the Court's view in this case that plaintiffs' Commerce Clause claim is not subject to a final resolution based on a motion to dismiss, but requires additional consideration by the Court in further proceedings.

U.S. Citizens Assoc. v. Sebelius (.pdf; 12 pgs.)

* "Specifically, plaintiffs claim that the Act violates the Commerce Clause in Article I of the United States Constitution."

Liberals in denial, continued

Van Hollen also was wrong to seek to join other attorneys general in a lawsuit over the individual mandate in the new federal health care law. Van Hollen claims the legislation "was a clear case of federal overreach" for requiring citizens to buy health insurance. We'd say it's Van Hollen who is overreaching.

— Milwaukee Journal-Sentinel editorial.

The truth is, Van Hollen's been spot on the money so far. And the AG can expect more vindication forthcoming from Virginia by year's end.

HCR is in trouble, and not from Ron Johnson's silly cries of "repeal." Congress may regulate commerce, but it seems doubtful Congress may coerce into existence the commerce it's empowered to regulate.

And if the federales' taxing power argument keeps failing as hard as it did in Florida, then that coercion into existence is all it's got left.

It may be necessary, but is it proper? It's got to be both.

Liberals in denial ongoing some more

Greg Sargent reports on negative reaction to a friend of the court brief filed by a number of U.S. Senators in State of Florida v. DHHS:

Under the [Wickard v. Filburn] decision, Seidman points out, Congress was allowed to compel people to stop producing their own wheat and buy it on the interstate market. Seidman argues that under this precedent, the individual mandate is constitutional, because health reform does the same.

Compelling to stop is distinguishable from compelling to start. Stopping something assumes there was some thing happening that needed to be stopped, whereas compelling to start something acknowledges that there was no thing happening to begin with.

This remains at the crux of the argument: activity vs. inactivity, and Wickard v. Filburn offers no such obvious solution to that dilemma, whether the Commerce Clause empowers the regulation of inactivity.

Seidman points to Medicare Advantage, and notes that it's supported by taxation which, of course, is compelled by the Federal government. Under Medicare Advantage, this money is used by the Federal government to purchase health insurance. "We require people to give money to the Federal government, which then gives it to insurance companies," he says.

The taxing power argument already failed in the district court.*

Next!

* Seidman's example would work in support of a single-payer system.

Health care reform legal challenges round-up

Very good article here:

Peter Leibold told HRW that the Commerce Clause argument against the individual mandate is stronger than the States' rights argument against Medicaid expansion, which was made by Florida Attorney General Bill McCollum (R). That is because the federal government is "effectively requiring the purchase of a product in the commercial stream, and the Commerce Clause has not been pushed that far" previously, he said.

Yep.

Elect Scott Walker and count on more nonsense

Warns the Milwaukee Journal-Sentinel.

On the other hand, if you're going to call a lawsuit "frivolous," you should have to explain why. Just because the J-S editorial board thinks the suit is a loser doesn't mean it's utterly lacking in merit.

Where a novel constitutional question is presented, as is the case with the health care reform bill's "individual mandate," there exists practically a duty to challenge it. Simply insisting such challenges are pure politics and "frivolous" doesn't make the question go away.

But at least they got the "count on more nonsense" part right.

Health care reform quote of the day

"I taught Randy Barnett torts, not constitutional law."

— Charles Fried

Prof. Barnett is an adamant opponent* of the individual insurance mandate whereas Prof. Fried is convinced of its constitutionality.

Later in this morning's hearing, Prof. Barnett claimed Prof. Fried acknowledges that the government can make you buy green leafy vegetables, but not that the government can make you eat them.

Also at today's hearing, the newest Democratic member of the Judiciary Committee, Senator Richard Blumenthal of Connecticut, said the suits against the law are "without merit" (a.k.a. "frivolous") which is obviously false. He went on to say that the reason he did not join the actions against the PPACA when he was Connecticut's attorney general was not because they were "without merit" but because he believed the law would save his State millions of dollars.

The latter is a policy consideration, not a legal justification for whether the mandate survives constitutional scrutiny. If Senator Blumenthal expects the courts to reason similarly, he is depending on a highly inappropriate exercise of the federal judicial power.

* So adamant he advised the Senate today to repeal the law.

A deep strain of Republican madness

Steve Benen:

Taken together, over the last five days, we’ve learned that the way to impress Republican voters, at least the ones who show up for events like these, is to support letting the uninsured die, accusing the Fed of treason for trying to improve the economy, and executing lots of people.

And booing when somebody (the Texan libertarian-of-convenience Ron Paul) tries to tell you that not all Muslims are homicidal terrorists.

There’s a deep strain of madness running through Republican politics in 2011, and it appears to be getting worse. Those wondering why the GOP presidential field appears weak, insipid, and shallow need look no further than the voters they choose to pander to.

More interesting to me is that Michele Bachmann, who claims to be the bona fide Tea Party Republican — and who reportedly has a degree in law — doesn't even understand how federalism, the motivating principle of American government, works. Last night she asserted that it's unconstitutional for a State to impose what's known in the federal Affordable Care Act as the individual insurance mandate. But the whole point of the Constitutional Convention was and is to limit federal power in order to preserve the States' powers to do whatever they need to do.

So of course States may impose such a mandate.

Not only does the Constitution not forbid it, the Framers devised the 10th Amendment, for which Tea Party Republicans otherwise profess their undying fealty, to affirmatively reiterate that motivating principle.

It's nice that the Tea Partyers have reminded us there is a Constitution.

Now if they would actually take the time to read the damn thing, we might be getting somewhere. Here in Wisconsin, the alleged Tea Party Senator Ron Johnson can't read it and nor, for that matter, can these seven Federalist Society attorneys, led by none other than Governor Scott Walker's choice to head up his judicial appointment committee.

Yet few seem even to care about those jarring dissonances.

More broadly speaking — and being the deepest of ironies — the Tea Party Republicans yapping and clapping at these candidate debates are precisely indicative of the irrational mentality that the Framers distrusted to make political decisions, and why the latter limited their political participation to electing only the House of Representatives, itself limited to two-year terms to keep its damages to a minimum.

In that oft-forgotten sense, the Tea Party Republicans have nothing to do with the Constitution at all, being exactly the mob upon which the Framers' jaundiced eyes were fixed. So when the Tea Party Republicans complain about so-called liberal politicians presuming to know what's best for them while at the same time pledging their devotion to an alleged originalist constitutionalism, tell them they cannot have it both ways.

That oughta flip their ersatz tricornes.

Neumann and Walker entertain the lefties

Republican candidate for Wisconsin governor Mark Neumann* is pretty clever if he predicted his YouTubes attack ad lampooning Milwaukee County Executive and GOP rival Scott Walker would immediately turn up on every liberal website in the State.

Then Walker was barraged with negative comments on Facebook. Just 48 hours later, Walker flipped.

According to Neumann, Walker went from being a "surprisingly tough" critic of a recently notorious Arizona immigration law, to whimpering like a baby at the mutiny of his Facebook BFFs,** to asserting he'd be "comfortable" signing the Arizona bill into law (whose own governor might be less comfortable with a Milwaukee county government functionary elbowing onto her desk and stealing her pen).

Which is intriguing because a few weeks ago Scott Walker announced he'd authorize his prospective attorney general to join a Florida lawsuit challenging the constitutionality of a certain provision in the federal health care reform statutes.

Walker and his cohorts insist the latter's so-called individual insurance mandate exceeds Congress's power under the U.S. Constitution's Interstate Commerce Clause (even though the federal government will primarily defend the mandate as a tax).

Yet the power to "establish an uniform Rule of Naturalization" is specifically enumerated to Congress and not Arizona nor even Wisconsin. So to the extent that Arizona encroaches on Congress's enumerated power to legislate on immigration matters, the Grand Canyon State's initiative is a constitutional dead letter.

That is, among the scholarly set at least, it inspires little "comfort."

And that concern is entirely separate from the projected glut of unreasonable searches and seizures attached to attempts at enforcing the Arizona law (which some court's injunction is likely to prevent anyway, another reason not to get too "comfortable").

On the other hand, Congress's ability to impose a tax in the form of buying into a federally regulated health insurance system (there's no dispute that health care runs on interstate commerce, the regulation of which is also clearly federal domain) is a far more open question.

Fortunately Scott Walker isn't running for the Supreme Court, because evidently his "judicial philosophy" is lacking in consistency.

Meanwhile, F. James Sensenbrenner is still soliciting activist judges.

* Neumann has gone rogue, spurning the Party faithful at this weekend's State Republican debauch in Milwaukee, which culminates in Scott Walker's allegedly triumphant return from his Apology Tour of President Obama's investments in Wisconsin schools and families.

** We don't know which ones waited until they got off work.

No, corporations are not people

A well regulated militia, being necessary to the security of a free state, the right of the corporations to keep and bear arms, shall not be infringed. — The Second Mitt Romneyment

Even Ezra Klein was duped by Mitt Romney.

For some limited purposes, corporations are "persons," according to the federal courts, but corporations are not people. Outside of legal jargon it may sound the same but it can't be the same because the U.S. Constitution refers to both "persons" and to "people" in different places throughout the document. Unless, of course, you're really, really cynical:

The House of Representatives shall be composed of Members chosen every second Year by the Corporations of the several States ...

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the corporations.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the corporations.*

The Senate of the United States shall be composed of two Senators from each State, elected by the corporations thereof ...

Well okay, maybe not cynical, just realistic.

* This, by the way (the Tenth Amendment), is the easiest defense to ill-formed comparisons between "Obamacare" and "Romneycare."

Just because Congress can't force the PPACA's individual insurance mandate that doesn't mean Massachusetts can't. But when even Chris Wallace, the Fox "News" Network's top "newsman" doesn't understand federalism, the fundamental American constitutional principle, I wouldn't expect the "Obamneycare" comparisons to melt away any time soon.