June 29, 2011
Sixth Circuit Upholds Individual Health Insurance Mandate
A three-judge panel of the Sixth Circuit today upheld the individual health insurance mandate in the federal Patient Protection and Affordable Care Act (ACA) under Congress's Commerce Clause authority. The ruling affirmed District Judge Steeh's earlier ruling in the case, Thomas More Law Center v. Obama.
The panel split on a couple issues. Here are the highlights of the opinion:
Commerce Clause Authority: Two of the three judges, Judge Martin and Judge Sutton, agreed that Congress has authority under the Commerce Clause to enact the individual mandate. But they agreed for slightly different reasons--see below. Judge Graham disagreed.
Regulating Action versus Regulating Inaction: Given the play this distinction has received in litigation and in public debates, this is the most important--and most interesting--part of the case. All three judges agreed that there's no constitutional line between activity and inactivity--and that there's therefore no per se restriction on Congress regulating inactivity. While they agreed on this point for slightly different reasons, they all seemed to agree (at least) that the text of the Constitution does not support the distiction. Beyond that, they had just slightly different reasons for rejecting the distinction, mostly focusing on how it doesn't square against the Court's Commerce Clause precedents and how it's unworkable in practice.
Outside the Market: Judges Martin and Sutton agreed, again for different reasons, that those who decline to purchase health insurance are nevertheless part of the market--the market for national health care--because they self-insure for the cost of health care services. Judge Graham disagreed. He wrote that those who self-insure (and again, the "inactivity" didn't give him a constitutional bother), are not a part of the relevant market--the market for health insurance.
Taxing Authority: Judges Sutton and Graham agreed that the tax penalty goes beyond congressional authority under the General Welfare Clause. Judge Sutton wrote at length detailing why. Judge Martin (like Judge Steeh below) didn't reach this issue, because he concluded that the Commerce Clause adequately supported the individual mandate.
In all, the three opinions well reflect the array of arguments in this case (and in other cases, and in the public debate). Between the three, they reflect a spectrum--with Judge Martin ruling most clearly that Congress had authority under the Commerce Clause, Judge Martin ruling the same way but with a shade greater caution, and Judge Sutton ruling against.
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