Editore"s Note
Tilting at Windmills

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October 8, 2010

THE FIRST OF SEVERAL LIKELY ACA COURT VICTORIES.... No matter what happens in the midterm elections, opponents of the Affordable Care Act will struggle to repeal the law through legislative means. They're better off, at least marginally, taking their case to the courts, where there are currently over a dozen challenges to various provisions of the health care law, most notably the individual mandate.

There were a couple of procedural rulings over the summer, but none dealt with the law on the merits. That changed yesterday, when a federal judge found the law constitutional, ruling that the mandate is legal through the Commerce Clause.

Judge George C. Steeh of Federal District Court in Detroit ruled that choosing not to obtain insurance qualified as an example of "activities that substantially affect interstate commerce." That is the standard set by the Supreme Court for Congress's compliance with the Commerce Clause.

Judge Steeh, who was appointed by President Bill Clinton, agreed with the federal government that not obtaining health coverage is effectively an active decision to pay for medical care out of pocket. "These decisions, viewed in the aggregate," Judge Steeh wrote, "have clear and direct impacts on health care providers, taxpayers and the insured population who ultimately pay for the care provided to those who go without insurance."

The case was brought by a conservative legal outfit called the Thomas More Law Center, which insisted the public couldn't be compelled to purchase insurance. The Justice Department responded, pointing not only to the Constitution's Commerce Clause, but also to the "congressional power to tax and spend to provide for the general welfare." Judge Steeh agreed with the Obama administration on both.

Jonathan Cohn added that the ruling is "pretty much a wholesale win for reform," and that "the future of health care reform just became a little more secure."

[T]he premise of Steeh's legal argument seems to be a notion about policy -- that it's not possible to regulate the insurance industry, in a way that would make coverage available to all people, without compelling every person to get coverage. On that count, I would argue, Steeh is correct.

So what does this mean for the repeal movement? My limited understanding, informed by a few casual conversations with some law professors, is that Steeh's decision is consistent with the traditional understanding of the Commerce Clause -- that the only way to throw out the mandate would be to reexamine conventional assumptions about the Commerce Clause. That would be a fairly radical move.


That's the good news. There are, however, plenty of rulings yet to come, and yesterday's decision will be appealed to the 6th Circuit, which is one of the nation's most conservative and might be inclined to make a "fairly radical move."

Still, yesterday was a heartening win, and will likely be the first of many.

Steve Benen 8:00 AM Permalink | Trackbacks | Comments (16)

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Comments

A judge appointed by Clinton merely upholding the traditional interpretation of the Commerce clause through Supreme Court precedents will still be labeled a liberal activist judge and will likely very soon be receiving death threats from the Tea Baggers.

Posted by: Steve on October 8, 2010 at 8:06 AM | PERMALINK

Somewhat OT, but it's pretty pathetic that when there is a story on a federal court decision, one of the first pieces of information provided is which President appointed the judge...the politicization of the judicial process is ridiculous.

Posted by: Mike Lamb on October 8, 2010 at 8:16 AM | PERMALINK

A man's house was allowed to burn to the ground, because he didn't pay the $75 annual 'fee' to the local fire department. I'm sure you've seen it on the cable shows.

One wonders what the outcome will be if someone refuses to participate in the ACA mandate. EMS personnel idly watching an accident victim die- to the cheers of a Teabagger crowd?

Posted by: DAY on October 8, 2010 at 8:39 AM | PERMALINK

Steve, Thomas More Law Center is far more than a "conservative legal outfit". It is a bastion for the Christian Conservatives who believe strongly that they are engaged in a cultural war. They did not take the name from Sir Thomas More on a whim. They, truly, believe they are fighting the descendants and lack of morals and integrity of Henry VIII. This Ann Arbor group believes they are fighting a "Holy War".

Posted by: berttheclock on October 8, 2010 at 9:22 AM | PERMALINK

Yes, Mike Lamb, but, find me one recent article about any decision by a Federal Court Judge, which does not include which President had appointed the judge. No different than the recent story about the Federal Judge in Georgia being arrested on a drugs and weapons charges. Yes, indeed, it was noted he was a Bush appointee.

Posted by: berttheclock on October 8, 2010 at 9:26 AM | PERMALINK

Wasn't the Thomas More Law Center founded by Domino's Pizza magnate Tom Monahan to promote Catholic values in our legal system? I was brought up in a Catholic household to understand the importance of helping the poor. The individual mandate unconstitutional? Give me a break. Their involvement in this case is a sheer perversion of Catholic doctrine. But why should anyone be surprised? Reactionaries like to wrap themselves in religion almost as much as the flag.

Posted by: Rasputin22 on October 8, 2010 at 9:55 AM | PERMALINK

As Justice Thomas anticipates eventually writing an opinion on this matter, the political activism arm of his seat on the Court swings into action. Yes, Virginia, there is a sitting Supreme Court Justice who uses you to engage in politics contrary to the role of the Court. Now that's an angry Black man with a grudge. I'm not sure the status quo interpretation of the commerce clause will stand up to the judicial activism of the Supremes.

Posted by: Diane Rodriguez on October 8, 2010 at 10:20 AM | PERMALINK

As Justice Thomas anticipates eventually writing an opinion on this matter, the political activism arm of his seat on the Court swings into action. Yes, Virginia, there is a sitting Supreme Court Justice who uses you to engage in politics contrary to the role of the Court. Now that's an angry Black man with a grudge. I'm not sure the status quo interpretation of the commerce clause will stand up to the judicial activism of the Supremes.

Posted by: Diane Rodriguez on October 8, 2010 at 10:22 AM | PERMALINK

How can you call a court with a history of "radical" decisions a "conservative" court? Stop using right-wing framing and call these courts (and congressional members) what they truly are: EXTREMISTS.

Posted by: G.Kerby on October 8, 2010 at 10:54 AM | PERMALINK

What I wish more people would realize, and emphasize, is that one section of the HCR Act allows any state to exempt its citizens from the individual mandate -- all the state needs to do is provide an alternative method of covering all its citizens. Of course, none of the states now suing the US have even thought about doing that, but this provision is there and offers an option.

Ed

Posted by: ed drone on October 8, 2010 at 12:17 PM | PERMALINK

Over at Balloon Juice, contributor Kay links to an item by Sen. Ron Wyden (D-OR) where he writes: "...in both the Healthy Americans Act and in the current health reform law, I included a provision that would allow states to gain an exemption from certain federal requirements—such as the individual mandate, the employer penalty and the exact standards for designing the exchanges, subsidies and basic health insurance policies—if they could find a way to do a better job of covering their state’s citizens."

Senator Wyden has some good questions for those who are filing lawsuits against the law: “Why don’t you use the waiver provision to let you go set up your own plan? Why would you just say you are going to sue everybody, when this bill gives you the authority and the legal counsel is on record as saying you can do it without an individual mandate?”

I think we know the answer to these questions: the right wing doesn't give a damn about making policy, they just want to tear apart the health care law and let us devolve into a system that is every person for themselves.

Posted by: meander on October 8, 2010 at 12:22 PM | PERMALINK

Berttheclock...I'm not being critical of Steve or that it was a Clinton appointee. It's just that there used to be a time where the focus of a federal court decision was on the legal merits/reasoning of the decision and not on whether the judge was appointed by a Democrat or Republican. I place this shift largely at the feet of the GOP with the bullshit "activist judge" meme.

Posted by: Mike Lamb on October 8, 2010 at 12:22 PM | PERMALINK

Here's the ruling... It's pretty interesting (skip to page 11 though, the first 11 pages are just about standing and not of much interest).

http://www.mied.uscourts.gov/News/Docs/09714485866.pdf

Posted by: mcc on October 8, 2010 at 12:25 PM | PERMALINK

The Thomas More Law Center is the outfit that got blown out of the water defending the Dover PA School Board that was trying to insert Intelligent Design into the high school biology curriculum. Most of their "expert" witnesses chose to be somewhere else on testimony day, and Michael Behe, who did appear, was badly roughed up in cross-examination.

But they keep plugging away.

Posted by: tamiasmin on October 8, 2010 at 3:50 PM | PERMALINK

What complete and utter horseshit.

Congress has NO authority to dictate how you spend your disposable income. Its commerce authority gives Congress jurisdiction over commercial transactions, but no authority to force citizens into commercial transactions. Congress has the authority to tax you and to spend your tax dollars.

It has NO authority, jurisdiction, provenance, governance or control over your disposable income.

Next up:

Federal mandate to put what remains of your money into the stock market

Federal mandate to buy a car

Federal mandate to shop at Wal Mart if you are in a certain income bracket.

Give this a few years and you won't be able to tell the fucking US goddamn government from the company store of yore.

Wait and see.

Posted by: getaclue on October 8, 2010 at 10:41 PM | PERMALINK

getaclue: "Congress has the authority to tax you and to spend your tax dollars."

Yes, and that was part of the judge's decision. Perhaps you should read it (and thereby live up to your moniker).

"Its commerce authority gives Congress jurisdiction over commercial transactions, but no authority to force citizens into commercial transactions."

I'm a renter, and I'm penalized by the tax code every day because I don't have mortgage interest to write off. I see no substantive difference between rewarding people for undertaking some commercial transaction and penalizing others for not doing so.

And no one is "forced into commercial transactions." You just have to pay a tax. That's not being "forced."

Posted by: dsimon on October 9, 2010 at 12:29 AM | PERMALINK




 

 

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