Tag: Commerce Clause

It’s Official: Governors Implementing ObamaCare Are Undermining the Lawsuits

By
Michael F. Cannon

Judge Roger Vinson of the U.S. District Court for the Northern District of Florida has just responded to the Obama administration’s “motion to clarify” his prior ruling, which declared ObamaCare unconstitutional and void.  That “motion to clarify” essentially asked Vinson, “Didn’t you really mean that we can keep implementing ObamaCare while we appeal your ruling?”  Today, Vinson answered, “No.”

The attorneys representing the plaintiffs, who include Florida and 25 other states, argued that the administration’s “motion to clarify” was actually a veiled request to have Vinson stay (i.e., set aside) his original order blocking implementation.  Vinson agreed, and therefore treated the Obama administration’s “motion to clarify” as a motion to stay, which he granted.  Vinson made clear, however, that if the administration fails to file a notice of appeal by March 10 or fails to seek an expedited appeal either with the 11th Circuit Court of Appeals or the Supreme Court, then his stay will lift and the administration will (once again) be barred from implementing or enforcing ObamaCare.  In other words, Vinson prevented the Obama administration from treating his stay as an excuse to ignore his ruling while the further entrenching the law.

It would have been better if Vinson had stuck to his original order blocking implementation.  Yet he made clear that one of the reasons he did not is that many of the states asking him to strike down the law are implementing it anyway.  Vinson wrote that the case for blocking implementation:

is undercut by the fact that at least eight of the plaintiff states…have represented that they will continue to implement and fully comply with the Act’s requirements — in an abundance of caution while this case is on appeal — irrespective of my ruling.

As the Obama administration explained to the court:

[S]ince the Court entered its judgment on January 31, at least 24 of the 26 plaintiff states have applied for additional grants authorized or appropriated by the ACA, continued to draw down grant funds previously awarded under the ACA, or otherwise availed themselves of resources made available by the ACA. Indeed, South Carolina has continued to drawn down exchange planning grant funds, even though it has declared the Act “void and unenforceable.” Similarly, Utah has described the declaratory judgment as an “injunction against further implementation” of the Act, but has continued to draw down Pre-existing Condition Insurance Plan (“PCIP”) funds and to request Early Retiree Reinsurance Program (“ERRP”) reimbursements.

Now would be a good time for the South Carolina Gov. Nikki Haley (R), Utah Gov. Gary Herbert (R), and the governors of the other 22 plaintiff states to join Alaska and Florida in refusing to accept any further ObamaCare funds, returning the ObamaCare funds they have already received, and ceasing all implementation activities, including “planning” efforts.

Tea partiers and other conservative groups turned on House Republicans in a dispute over when the House would vote to cut off all ObamaCare spending.  Where’s the outrage over the governors and state legislators that are eagerly pursuing that funding, actively implementing the law, and preventing judges from stopping implementation?

Topics: 
Government and Politics, Health Care

Not Just Breathing: Now the Feds Can Regulate Thinking

By
Ilya Shapiro

I suppose it’s a metaphysical question: Is it more outrageous/scary to argue that Congress can regulate breathing, as Akhil Amar recently argued (prompting my “Every Breath You Take” parody) or that it can regulate thinking, as the latest federal judge to rule on Obamacare opined? 

That is, Judge Gladys Kessler, echoing two other district judges who ruled in the government’s favor, found that the decision not to purchase health insurance was itself an action and so reachable by Congress’s power under the Commerce Clause. The activity/inactivity distinction that we Obamacare opponents have been pushing is mere “semantics,” you see.  Well, as Randy Barnett said in an emailed press statement:

This decision makes crystal clear that the government is seeking the dangerous and unprecedented power to regulate the economic “decisions” of all Americans – including the decision to refrain from engaging in economic activity.  If allowed by the Supreme Court, Americans would be reduced from citizens to the subjects of Congress, which would now have the discretionary power to run their lives.

He’s right, unfortunately.  But take a deep breath or breathe a sigh of relief (while both are still legal) because, at the end of the day, this latest ruling adds nothing to the debate except a new appellate court from which we can expect an opinion later this year.  (It also ran the record on the “taxing power” argument – the one so favored by the academics I’ve debate over the past year – to 0-4, including two judges who otherwise ruled for the government.)

See also Ilya Somin’s reaction.

Look, the arguments on both sides are clear: On the one hand, the federal government cannot require people to engage in economic activity under the guise of regulating commerce. On the other, the decision not to act is itself an action – “mental activity”? – that is subject to regulation. The battle lines are drawn, the armies of lawyers ready. The only remaining question is whether the Supreme Court will ultimately find that there are constitutional limits to federal power.

Topics: 
Health Care, Law and Civil Liberties

President (and Governors) Should Heed Court and Stop Implementing ObamaCare

By
Michael F. Cannon

In yesterday’s Providence Journal, my colleague Ilya Shapiro and I argue that, since a federal court has voided ObamaCare as unconstitutional, the Obama administration should immediately cease all efforts to implement ObamaCare:

Federal courts do not issue advisory opinions. The parties to any lawsuit are bound by any resulting judgment.

At minimum, then, the government lacks authority to implement ObamaCare where the case was decided, in the Northern District of Florida, and the 26 state plaintiffs need take no action to do so. Likewise, members of the National Federation of Independent Business, another plaintiff in the case, may now be entitled to the same protection from Obamacare’s requirements.

Moreover, it is not unreasonable to argue that Vinson’s ruling applies to the nation as a whole. After all, this lawsuit facially attacked the law rather than just challenging its application to particular parties….

In so uncertain a legal context, it is simply reckless for financially strapped federal and state governments to pour resources into changing our health care system when those changes may not ultimately pass constitutional muster.

Governors should follow the example of Florida Gov. Rick Scott (R), who recently told a Cato audience in Naples that Florida will not implement any aspect of ObamaCare.  Listen to excerpts from Scott’s remarks here.  Read the full Cannon-Shapiro oped here.

Topics: 
Cato Publications, Government and Politics, Health Care, Law and Civil Liberties

Obamacare Defenders Grasping at Straw Men

By
Ilya Shapiro

Last week saw a splash of publicity for defenders of Obamacare’s constitutionality.  First, Yale law prof Akhil Amar had a hyperbolic op-ed in the L.A. Times, prompting a thorough fisking by Tim Sandefur, Ilya Somin, and me (among others). Then Harvard law prof Larry Tribe (who has written for the Cato Supreme Court Review) had one in the New York Times.  Here’s an excerpt:

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?

Well, actually, Prof. Tribe, you’re asking and answering the wrong questions, as I say in my letter to the editor that appeared in the Sunday Times:

First, this is indeed a “novel” issue for the Supreme Court: Never before has the federal government asserted the power to require people to engage in economic activity under the guise of regulating commerce.

Second, those challenging the law do not question Congress’s power to regulate the “multitrillion-dollar health insurance industry,” but rather distinguish such regulation from a command for individuals to purchase that industry’s products.

Third, the difference between activity and inactivity is anything but “illusory”; if Congress can regulate mere decisions, then it can tell me, for example, that I shouldn’t spend time writing letters to the editor.

And finally, imagining that Justice Antonin Scalia would support the government here because he previously ratified prohibitions on the production and consumption of marijuana is to remove the very activity-inactivity distinction that he recognized in that earlier opinion.

Most recently, the Times itself editorialized against the views Randy Barnett presented to the Senate Judiciary Committee – and Randy replied here. 

Setting aside the issue of why Congress is only now getting around to holding hearings on the constitutionality of a fundamental piece of legislation it passed nearly a year ago, it’s clear now at least that the proponents of limitless, extra-constitutional government are running scared.  Obamacare delenda est.

Topics: 
Government and Politics, Health Care, Law and Civil Liberties

The Federal Government’s Police Power

By
Ilya Shapiro

Last week, after I responded to Akhil Amar’s op-ed that defended, in an uncharacteristically unthoughtful and ad hominem way, the constitutionality of the individual mandate, a reader suggested that Amar’s argument – particularly that “breathing is an action” that Congress can regulate – reminded him of that Police classic, “Every Breath You Take.”  What’s ironic about this suggestion, perhaps inadvertently, is not only the invocation of “breathing” but that the whole Obamacare battle boils down to competing views of federal power:  Does the government have a general “police” power or is its authority limited to that finite set of powers listed in the Constitution?

And so, without further ado, here’s how the song would look updated for 2011’s favorite constitutional debate (with apologies to Gordon Sumner aka Sting):

Every breath you take
Every move you make, or
Decide not to take
Even when you flake
We’re mandating you

Every single day
Every word you say
Every game you play
Even if you stay
We’re coercing you

O don’t you fuss
You belong to us
How we regulate every step you take

Every move you make
Every vow you break
Every smile you fake
Every claim you stake
We’re mandating you

The Constitution’s lost without a trace
Since ‘37 we go every place
Limits on government you can’t replace
Got rid of those so we’re always in your face
We’re commanding you, no saying please

Every move you make
Every vow you break
Every smile you fake
Every claim you stake
We’re mandating you

Topics: 
Government and Politics, Health Care, Law and Civil Liberties

Responding to Akhil Amar on Obamacare

By
Ilya Shapiro

Yale law professor Akhil Amar, one of the nation’s leading constitutional scholars and a “progressive originalist” of sorts – he joined with Randy Barnett and others on a brief supporting our view of the Privileges or Immunities Clause in the McDonald case – had a fiery op-ed about Judge Vinson’s decision in the Sunday L.A. Times.  More than fiery; I’d say intemperate, uncharacteristically so for the mild-mannered Prof. Amar.

Here’s an excerpt:

There is nothing improper in the means that Obamacare deploys. Laws may properly regulate both actions and inactions, and in any event, Obamacare does not regulate pure inaction. It regulates freeloading. Breathing is an action, and so is going to an emergency room on taxpayers’ nickel when you have trouble breathing.

I was all set to respond when I saw that Tim Sandefur had beat me to the punch on PLF’s blog.  Here’s an excerpt of that:

Instead [of offering a limiting principle to federal power if the individual mandate passes constitutional muster], he resorts to the saddest of rhetorical tricks–accusing the judge of being like Roger Taney in Dred Scott. Lawyers should have their own “Godwin’s Law”: whoever is first to accuse the judge of being like Dred Scott loses the argument. Amar starts out by saying his students know more about the Constitution than Judge Vinson, but what I wonder is whether Amar’s students will, like their teacher, use false analogies, set up straw men, ignore their opponents’ arguments, and resort to the equivalent of childish name-calling.

Good on ya, Tim!  Read the whole thing.  David Bernstein and Ilya Somin have similarly chimed in, and similarly cited Tim.

One thing for which I will commend Amar is his adoption of the term “Obamacare.”  I’ve never understood how this is a pejorative (unless said with a sneer, but by that standard anything can be pejorative). The one semi-accurate criticism I’ve heard is that the law was mostly written by Congress, not the White House – for which the president got plenty of heat.  But that just means it would be better to call it Pelosi-Reid-care, which presumably is no more or less pejorative.  In any event, that ship has sailed: Obamacare this abomination (note I didn’t say “Obamination”) will remain.

Topics: 
Health Care, Law and Civil Liberties

Judge Vinson’s Greatest Hits

By
Ilya Shapiro

It’s hard to get too excited about a district court decision – this is one of several, and will be superseded by circuit and eventual Supreme Court decisions – but this decision in Florida v. U.S. Dept. of Health and Human Services is remarkable.  Most notably, the 78-page ruling is well theorized and engaging (Vinson’s opus is a joy to read compared to most stuff I have to wade through to understand what the courts are doing) and sets the stage for the appellate writings to come.  It puts “facts on the ground,” if you will. 

No higher courts are bound but they are influenced.  Judges, like anyone else, don’t want to reinvent the wheel where they don’t have to.  So the circuit courts and even the Supremes will say all this in their own words but don’t for a second think they ain’t payin’ attention.  I can’t cite you statistics about justices being influenced by district (or even circuit) court opinions, but it would be laughable to think that the outcome before the Court would be the same regardless of how the decisions on the merits before several thoughtful district judges went.

Read on for highlights from Judge Vinson’s magisterial opinion (to which I initially responded here and whose immediate consequences I analyzed here).  Page numbers are in parentheses after each quote.

Setting the stage:

This case is not about whether the Act is wise or unwise legislation, or whether it will solve or exacerbate the myriad problems in our health care system. In fact, it is not really about our health care system at all. It is principally about our federalist system, and it raises very important issues regarding the Constitutional role of the federal government. (2)

On the scope of the Commerce Clause:

Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States.[FN14]

 [FN14]… Here, people have no choice but to buy insurance or be penalized. And their freedom is actually more restricted as they do not even have a choice as to the minimum level or type of insurance to buy because Congress established the floor. A single twenty-year old man or woman who only needs and wants major medical or catastrophic coverage, for example, is precluded from buying such a policy under the Act. (38)

The distinction between activity and inactivity:

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting … that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended. See id. at 592 (quoting Hamilton at the New York Convention that there would be just cause to reject the Constitution if it would allow the federal government to “penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals”) (Thomas, J., concurring). (43)

On the government’s argument that health care is “unique” because nobody can “opt out” of this market:

After all, there are lots of markets — especially if defined broadly enough — that people cannot “opt out” of. For example, everyone must participate in the food market. Instead of attempting to control wheat supply by regulating the acreage and amount of wheat a farmer could grow as in Wickard, under this logic, Congress could more directly raise too low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market. Or, as was discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system. Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile — now partially government-owned — because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business. (46)

Uniqueness is not an adequate limiting principle as every market problem is, at some level and in some respects, unique. (49)

On the government’s argument that the not buying health insurance is an “economic decision” that, in the aggregate, substantially affects interstate commerce:

The problem with this legal rationale, however, is it would essentially have unlimited application. There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort. The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that — when aggregated with similar economic decisions — affect the price of that particular product or service and have a substantial effect on interstate commerce. To be sure, it is not difficult to identify an economic decision that has a cumulatively substantial effect on interstate commerce; rather, the difficult task is to find a decision that does not. (53)

 The important distinction is that “economic decisions” are a much broader and far-reaching category than are “activities that substantially affect interstate commerce.” While the latter necessarily encompasses the first, the reverse is not true. “Economic” cannot be equated to “commerce.” And “decisions” cannot be equated to “activities.” Every person throughout the course of his or her life makes hundreds or even thousands of life decisions that involve the same general sort of thought process that the defendants maintain is “economic activity.” There will be no stopping point if that should be deemed the equivalent of activity for Commerce Clause purposes. (55)

On the Necessary and Proper Clause:

The Necessary and Proper Clause cannot be utilized to “pass laws for the accomplishment of objects” that are not within Congress’ enumerated powers. As the previous analysis of the defendants’ Commerce Clause argument reveals, the individual mandate is neither within the letter nor the spirit of the Constitution. To uphold that provision via application of the Necessary and Proper Clause would authorize Congress to reach and regulate far beyond the currently established “outer limits” of the Commerce Clause and effectively remove all limits on federal power. (62)

Why the entire 2,700-page piece of legislation must fall:

In the final analysis, this Act has been analogized to a finely crafted watch, and that seems to fit. It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. …   The Act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker.  (73-74)

In sum, notwithstanding the fact that many of the provisions in the Act can stand independently without the individual mandate (as a technical and practical matter), it is reasonably “evident,” as I have discussed above, that the individual mandate was an essential and indispensable part of the health reform efforts, and that Congress did not believe other parts of the Act could (or it would want them to) survive independently. I must conclude that the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit. (74)

Concluding thoughts:

Regardless of how laudable its attempts may have been to accomplish these goals in passing the Act, Congress must operate within the bounds established by the Constitution. Again, this case is not about whether the Act is wise or unwise legislation. It is about the Constitutional role of the federal government. (75-76)

[FN 30]  On this point, it should be emphasized that while the individual mandate was clearly “necessary and essential” to the Act as drafted, it is not “necessary and essential” to health care reform in general. It is undisputed that there are various other (Constitutional) ways to accomplish what Congress wanted to do. (76)

The opinion is breathtaking.  I’ve read it three times now and each time come away with the realization that this judge intuitively “gets” what it is that Cato (including myself) have been saying all along.  And this despite our not having filed a brief in this particular court!

Topics: 
Government and Politics, Health Care, Law and Civil Liberties

Pages