Tag: sixth circuit

Plaintiffs Should Be Cautiously Optimistic about Latest Obamacare Appeal

CINCINNATI – Now for something completely different, and not just because the spirited Sixth Circuit judges were much more skeptical of the government’s position than the Fourth Circuit was last month. Unlike the panel in Richmond – Virginia Attorney General Ken Cuccinelli probably started outlining his cert petition as soon as court adjourned – here there will be at least one vote to strike down the individual mandate, and maybe even all three. And this panel should produce one or more opinions in which there will be much for the Supreme Court to grapple with.

The appellate argument didn’t even begin until after a skirmish over standing provoked by the motion to dismiss the government filed last week. That mini-argument – what Judge Martin likened to his time in Jefferson County (KY) circuit court – will likely not prove decisive. Nor will the Anti-Injunction Act, the tax statute on which the court requested supplemental briefing but which the government conceded didn’t apply.

Not surprisingly, this case, brought by the Thomas More Legal Center, will almost certainly be decided on the issue of whether the federal government can compel people to engage in commerce – “regulate inactivity.” The government’s theory that “health care is unique” came under harsh attack from Judges Graham and Sutton because it didn’t seem to offer a constitutional (as opposed to factual) limiting principle for federal power. Judge Martin was more circumspect, but he’s considered among the most liberal circuit judges in the country, so all things being equal would probably try to uphold the law (or find a way to decide the case on procedural grounds so as to avoid losing on the merits). Judge Sutton – one of the more conservative jurists nationwide – was also scrupulously neutral, picking at weaknesses in both sides’ presentation and appearing open to a narrow technical decision.

All in all, it was a fascinating day in court that proved again that no matter how much one studies the Obamacare challenges, there’s always something new to learn. Be sure to read Cato’s amicus brief in this case for more background.

Obamacare Reaches Its First Appellate Court

The legal battle against Obamacare has hit the appellate court level.  In October, a district court in Detroit granted the government’s motion to dismiss a lawsuit brought by the Thomas More Law Center and four individuals.  The judge there endorsed the government’s theory that federal power under the Commerce Clause could reach the decision not to buy health insurance because that decision had a substantial effect on interstate commerce.  The plaintiffs have appealed that ruling to the U.S. Court of Appeals for the Sixth Circuit, and Cato, joined by Georgetown law professor (and Cato senior fellow) Randy Barnett, filed a brief supporting that appeal.

We argue that the outermost bounds of existing Commerce Clause jurisprudence – the “substantial effects doctrine” – prevent Congress from reaching intrastate non-economic activity regardless of whether it substantially affects interstate commerce. Nor under existing law can Congress reach inactivity even if it purports to act pursuant to a broader regulatory scheme. Even the district court recognized that “in every Commerce Clause case presented thus far, there has been some sort of activity. In this regard, the Health Care Reform Act arguably presents an issue of first impression.” What Congress is attempting to do here is quite literally unprecedented. “The government has never required people to buy any good or service as a condition of lawful residence in the United States.” Cong. Budget Office, The Budgetary Treatment of an Individual Mandate to Buy Health Insurance 1 (1994).

Nor has it ever said that people face civil penalties for declining to participate in the marketplace. Even in the seminal New Deal case of Wickard v. Filburn, the federal government claimed “merely” the power to regulate what farmers grew, not to mandate that people become farmers, much less to force people to purchase farm products. Finally, even if not purchasing health insurance is considered an “economic activity” – which of course would mean that every aspect of human life is economic activity – there is no legal basis for Congress to require individuals to enter the marketplace to buy a particular good or service. It is no more “proper” under the Necessary and Proper Clause for the federal government to “commandeer” individuals than to “commandeer” state officials.

Just consider our brief an early Christmas present to liberty.