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The legal argument from the Obama administration in support of the Affordable Care Act has always been straightforward: the Commerce Clause empowers the federal government to regulate interstate commerce; the American health care system is interstate commerce; and the Affordable Care Act regulates the health care system. Ergo, the ACA fits comfortably within the confines of the Commerce Clause.
The right, narrowing in on the individual mandate, says this is all wrong. The government has the power to regulate interstate commercial activity, including health insurance, conservatives argue, but those who choose not to buy coverage aren’t engaging in an activity; they’re engaging in inactivity. Therefore they fall outside the law’s reach, and the mandate is unconstitutional.
This has always been a very poor argument. When the 6th Circuit announced today that the health care is perfectly constitutional, the three-judge panel had no use for the right’s activity/inactivity argument. Adam Serwer explained:
Martin rejected the notion that going without health insurance constitutes an “inactivity” that can’t be regulated under the Commerce Clause, noting that, “The uninsured cannot avoid the need for health care, and they consume over $100 billion in health care services annually.” Martin adds that “Self-insuring for the cost of health care directly affects the interstate market for health care delivery and health insurance. These effects are not at all attenuated as were the links between the regulated activities and interstate commerce in Lopez and Morrison.”
That last point is key, because Republican appointees, conscious of the fact that Justice Antonin Scalia’s opinion in Raich stands as a substantial obstacle to arguments against the idea that the individual mandate is unconstitutional, concocted the “inactivity/activity” distinction as a rhetorical loophole that would allow Scalia to avoid the implications of his argument that “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
Keep in mind, all three judges on the 6th Circuit panel agreed on this point. Two of the three were put on the bench by Republican presidents, and one is very conservative.
In other words, this was a no-brainer.
As it should be. Yes, there may be folks who don’t want to buy insurance, and they would be penalized under the law. But under our system, those folks still get sick, still go to the hospital with medical emergencies, and — here’s the kicker — still get care. As you may have noticed, for quite a while, it’s been one of the right’s favorite arguments: the uninsured can always just go the emergency room and receive treatment, whether they have insurance or not.
Of course, when the uninsured get this care, and can’t pay for it, the costs are passed on to the rest of us — it makes the entire system more expensive, with hospitals and medical professionals providing care without compensation from the patient. As a consequence, those who would choose not to get coverage have a significant impact on the larger health care system, which is precisely why the notion of a mandate enjoyed broad, bipartisan support up until late 2009. There was never any doubt as to its constitutionality.
Obviously, the matter will eventually be resolved by the U.S. Supreme Court, but conservatives expected to do well at the 6th Circuit. Today’s ruling should undermine the right’s confidence a great deal.
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bleh on June 29, 2011 2:51 PM:
Obviously, the matter will eventually be resolved by the U.S. Supreme Court...
Really? If no appellate courts disagree, why would they even agree to hear it?
The crazies are 0 for 1, and this was a home court advantage...
DAY on June 29, 2011 2:59 PM:
In the "Real World" (Europe, for example) everybody has health care, and nobody talks about it.
jdog on June 29, 2011 3:00 PM:
I am not convinced this will be resolved the the Supreme Court. I think it depends on whether or not there will be a circuit split. If all appeals courts that hear these cases rule in favor of the law, it is at least conceivable the Supremes will deny Certiorari. If there is a circuit split, such that some rule it unconstitutional, they will almost certainly take it (now that the 6th Circuit has ruled, it is not possible to have all Circuits rule against the law).
jdog on June 29, 2011 3:02 PM:
I am not convinced this will be resolved by the Supreme Court. I think it depends on whether or not there will be a circuit split. If all appeals courts that hear these cases rule in favor of the law, it is at least conceivable the Supremes will deny Certiorari. If there is a circuit split, such that some rule it unconstitutional, they will almost certainly take it (now that the 6th Circuit has ruled, it is not possible to have all Circuits rule against the law).
Shelly on June 29, 2011 3:37 PM:
The argument that the uninsured can go to the emergency room for medical care has not been my experience. My daughter's father was in dire need of care and was turned away from two hospitals because he didn't have insurance. He was in so much pain that he was trembling and gray, and he was pi$$ing pure blood. It wasn't until a friend of his who worked in a doctor's office got him a referral that he was admitted. Hospitals can, will, and do turn away people who need care but who don't have insurance.
He is a kidney cancer survivor, but not because hospitals treat all comers.
retr2327 on June 29, 2011 3:44 PM:
"Keep in mind, all three judges on the 6th Circuit panel agreed on this point."
Having just read the decision, I'm pretty sure that's just wrong: the 3d judge is dissenting in part, and he's dissenting specifically with respect to the constitutionality of the mandate, largely because he buys into the activity/inactivity distinction.
On the other hand, Judge Sutton's concurrence does an outstanding job of demolishing the activity/inactivity distinction, and he's a leading light in conservative/Federalist circles. So that's probably more significant than a unanimous decision by 3 liberal judges would have been.
beejeez on June 29, 2011 3:45 PM:
Those darned activist courts. How dare they defend our right to improve health care?
zeitgeist on June 29, 2011 4:15 PM:
retr2327 -- i wouldn't say its "just wrong." Steve gets support at p. 58, where Graham says:
Yet I do not interpret those cases as drawing a constitutional line between activity and inactivity. That distinction would suffer from the same failings as
the �direct� and �indirect� effects test of prior Commerce Clause jurisprudence.
Graham, as you suggest, then goes on to sound very much like he is ignoring his own preface. Still, there is support for Steve's summary in the opinion.
Danny on June 29, 2011 4:17 PM:
Of course, when the uninsured get this care, and can’t pay for it, the costs are passed on to the rest of us — it makes the entire system more expensive, with hospitals and medical professionals providing care without compensation from the patient.
But lest we forget, the ACA not only mandates that people get insurance, it also makes it affordable. Everyone up to 150% of the poverty line gets covered under medicaid. Everyone making up to 44K/yr or households making up to 88K/yr gets subsidies to buy through the exchanges. Worth mentioning..
Alex on June 29, 2011 4:38 PM:
IF it does make it to the Supreme Court, how can we trust it will be looked at properly through from a Constitutional POV, instead of just drawing partisan rulings?
I've lost all faith in Republicans, at any level (the NY GOP saved some face on the gay marriage vote, but still) it's impossible to feel like any of them are objective anymore.
Bill on June 29, 2011 5:03 PM:
Kate Pickert also points out that the panel hhot down the Administration claim that the penalty to be applied to those not purchasing is actually a tax. But my understanding is that this was deemed a long shot anyway. The fact that a GW Bush appointed, Scalia clerked judge supported the Admin position on the mandate is much more important.
retr2327 on June 29, 2011 5:50 PM:
zeitgeist, you're right. I guess I skimmed over the dissent a bit too quickly, since I found it unpersuasive and poorly organized. But he does, remarkably enough, reject the inactivity/activity distinction as you say, only to conclude (as far as I can tell; he's not all that clear on the exact rationale) that there must be some limits on congressional power under the commerce clause, and therefore (?), this act exceeds those limits.
This seems a bit like the judicial version of the underpants gnome business model:
1) there must be some limits;
2) . . . .
3) this act exceeds them.
1)
zeitgeist on June 29, 2011 7:33 PM:
I'm not sure he's clear on the exact rationale. The dissent read like he'd used a bunch of e-mailed Club for Growth bullet-points against "Obamacare" as his starting point and just edited to try and make it flow in complete sentences.