6th Circuit finds health care mandate constitutional

The Sixth Circuit affirmed the U.S. District Court judge’s finding that the health care mandate of the Patient Protection and Affordable Care Act is constitutional under the Commerce Clause.

U.S. District Court judge George Steeh had found the mandate falls within the Commerce Clause because:

(1) the provision regulates economic decisions regarding how to pay for health care that have substantial effects on the interstate health care market; and (2) the provision is essential to the Act’s larger regulation of the interstate market for health insurance.  Because the district court found the provision to be authorized by the Commerce Clause, it declined to address whether it was a permissible tax under the General Welfare Clause.

In Thomas More Law Center v Obama, a 6th Circuit panel consisting of Judges Boyce Martin, Jeffrey Sutton and U.S. District Court Judge James Graham (Ohio) agreed.

Writing for the majority opinion, Martin said the law falls within the Commerce Clause because it

There is debate over whether the provision regulates activity in the market of health insurance or in the market of health care.  In the most literal, narrow sense, the provision might be said to regulate conduct in the health insurance market by requiring individuals to maintain a minimum level of coverage.  However, Congress’s intent and the broader statutory scheme may help to illuminate the class of activities that a provision regulates.  The Act considered as a whole makes clear that Congress was concerned that individuals maintain minimum coverage not as an end in itself, but because of the economic implications on the broader health care market.  Virtually everyone participates in the market for health care delivery, and they finance these services by either purchasing an insurance policy or by self-insuring.  Through the practice of self-insuring, individuals make an assessment of their own risk and to what extent they must set aside funds or arrange their affairs to compensate for probable future health care needs.
Thus, set against the Act’s broader statutory scheme, the minimum coverage provision reveals itself as a regulation on the activity of participating in the national market for health care delivery, and specifically the activity of self-insuring for the cost of these services. 

By regulating the practice of self-insuring for the cost of health care delivery, the minimum coverage provision is facially constitutional under the Commerce Clause for two independent reasons.  First, the provision regulates economic activity that Congress had a rational basis to believe has substantial effects on interstate commerce.  In addition, Congress had a rational basis to believe that the provision was essential to its larger economic scheme reforming the interstate markets in health care and health insurance.

Martin also said that, even if the mandate wasn’t economic activity under the Commerce Clause, it would still be constitutional because it’s part of a larger regulatory scheme for interstate health insurance markets.

Martin also shot down the challenge based on the idea that Congress can’t regulate inactivity by fining those that choose not to buy insurance:

Similarly, this Court has also refused to focus on imprecise labels when determining whether a statute falls within Congress’s Commerce Power.  For example, we rejected the argument that the Child Support Recovery Act is unconstitutional because it regulates an individual’s failure to place an item in commerce.  Instead, we held that Congress had a rational basis for concluding that a non-custodial spouse’s failure to send court-ordered child support payments across state lines substantially affects interstate commerce. Here, too, the constitutionality of the minimum coverage provision cannot be resolved with a myopic focus on a malleable
label.  Congress had a rational basis for concluding that the practice of self-insuring for the cost of health care has a substantial effect on interstate commerce, and that the minimum coverage provision is an essential part of a broader economic scheme.  Thus, the provision is constitutional notwithstanding the fact that it could be
labeled as regulating inactivity.

Graham dissented from Martin’s Commerce Clause analysis, arguing the law doesn’t regulate “the commercial activity of obtaining health care,” but “the status of remaining uninsured.” His dissent ends like many do, with the slippery slope argument.

If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be.  What aspect of human activity would escape federal power?  The ultimate issue in this case is this: Does the notion of federalism still have vitality?  To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit (within boundaries like the First Amendment and Due Process Clause), as long as the regulation concerns an activity or decision that, when aggregated, can be said to have some loose, but-for type of economic connection, which nearly all human activity does. …  Such a power feels very much like the general police power that the Tenth Amendment reserves to the States and the people.  A structural shift of that magnitude can be accomplished legitimately only through constitutional amendment.


6th Cir: Virtually all child porn activity falls under Commerce Clause

In United States v Bowers, the Sixth U.S. Circuit Court of Appeals overturned its 2001 decision in U.S. v Corp, holding that prosecutors do not need to show that child porn activity “substantially affects interstate commerce.”

The defendant maintained a scrapbook of naked photos that he took of his daughters 11-12 year old friends. Some of the photos were of naked adult women with the children’s faces pasted on heads. Bowers himself was naked in some of the photos.

Bowers argued that he could not be prosecuted under federal law because his activities were solely intrastate and he did not distribute the photos commercially. He relied upon the Corp decision, which held that the government must show that defendant’s activity substantially affects interstate commerce.

However, the unanimous panel held that the U.S. Supreme Court’s decision in Gonzalez v Raich. The Raich court held:

“Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced
for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.” Id. at 18. When the larger
“general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.” Id. at 17 (internal quotation marks omitted).

[Bowers, page 7].

The court held that the Raich decision effectively nullified the Corp decision, essentially gives the federal government jurisdiction over all child porn cases.

Bowers’s argument is misplaced, and we take this opportunity to make clear that, after Raich, this court’s decision in Corp is no longer good law.

Moreover, as outlined above, given Congress’s broad regulatory power in the child pornography arena, as well as its rational belief that wholly intrastate, non-commercial activity affects the larger interstate commercial market, a case-by-case analysis as
conducted in Corp would completely contradict the Supreme Court’s emphasis in Raich that where Congress has the federal power to regulate a class of activities, “the courts have no power to excise, as trivial, individual instances of the class,” Raich, 545 U.S. at 23 (internal quotation marks omitted), and the “de minimis character of individual instances arising under that statute is of no consequence,” id. at 17 (internal quotation marks omitted). We cannot envision, after Raich, a circumstance under which an as-applied Commerce Clause challenge to a charge of child-pornography possession or production would be successful.

[Bowers at 10, emphasis added).