Last week the Sixth Circuit Court of Appeals heard oral arguments in the ObamaCare challenge Thomas More Law Center v. Obama. The audio for this is available at the Sixth Circuit’s website. (Downloading the file takes a while and streaming the audio is nearly impossible unless you enjoy substantial lagging.) After the argument last month at the Fourth Circuit (which I blogged about here), the tables were turned on the federal government: acting Solicitor General Neal Katyal faced much more difficult questions from the Sixth Circuit panel—particularly Judge Jeffrey Sutton—than he did from the Fourth Circuit panel. However, Katyal had the advantage of having already argued almost the same case a month ago, and will go into future arguments even more prepared.
Robert Muise of the Thomas More Law Center made an excellent presentation against ObamaCare’s individual mandate (the requirement under the law to purchase health insurance) and made a few points that did not come up or were not discussed at length in the Fourth Circuit arguments. First, Muise conceded that Congress has power to tax and spend, and could have gone so far as to introduce a federal single payer system. They did not do this because of the political ramifications, and Congress cannot circumvent the Constitution simply for political palatability. One judge asked if the states had the power to—like Massachusetts—pass laws like the individual mandate. Muise answered in the affirmative and connected this to the Tenth Amendment, arguing that this is the very nature of the power reserved to the states under the Constitution. States should serve as laboratories of democracy; people may move to Massachusetts if they like its health care system, or may stay put if they’d prefer a less invasive regime. The more uniformity that is imposed by federal overreach, the less opportunity there is for states to experiment with public policy.
Muise argued—as all the ObamaCare challenges do—that there is no limiting principle to the Commerce Clause if the line is not drawn distinguishing activity from inactivity (that is, regulating the purchase of insurance (activity) versus penalizing the decision not to purchase insurance (inactivity)). Katyal was confident and streamlined in his response to this, arguing that Congress must be given substantial deference to enact a comprehensive scheme that addresses a problem that substantially affects interstate commerce. Ultimately, Katyal fails to convince.
The panel turned to the broccoli example brought up at the Fourth Circuit, and Katyal responded that because hospitals cannot turn people away for treatment, the situation is different (grocery stores do not have to give people broccoli if they do not have the money to pay for it). How one congressionally-created obligation (hospitals must treat everyone) makes another obligation (buying insurance) constitutionally permissible went unaddressed. The question then arose that because every action has some effect on interstate commerce, could not any action be aggregated to conclude any activity substantially affects interstate commerce? Katyal turned to the cases Lopez and Morrison as the limiting cases, but these actually concede the point: though both cases overruled situations where Congress was regulating activity with tenuous connections to interstate commerce, the fallout of those decisions (as clarified in the more recent case Gonzales v. Raich) is basically that any activity involving money is reachable (many constitutional law professors tell their students to just think of a cash register- if the activity involves money in any way, it’s permissible). It is, of course, an even darker turn that commerce can now be regulated before it’s even triggered.
Given the impression of the Fourth Circuit, which seems it will uphold the individual mandate, and the now the Sixth Circuit, which appears likely to strike it down, a circuit split is in the making. This further guarantees that the Supreme Court will address the issue in the coming year (though, honestly, it was already very unlikely that they would not take the case).
But we’re not there yet, and tomorrow what I call “The Big Show” will be heard before the Eleventh Circuit Court of Appeals: this lawsuit includes 26 states as plaintiffs, and Wyoming is one of them. Like the Fourth Circuit case, this case has a very favorable ruling behind it at the District Court. Judge Vinson’s ruling even went so far as to rule that the individual mandate is non-severable, and its unconstitutionality overturns the entire Patient Protection and Affordable Care Act. This suit has the most organization and money behind it along with some of the sharpest liberty-minded attorneys; we’ll see if their oral arguments are as strong as their presentation so far. Unfortunately, the Eleventh Circuit does not make audio of its arguments online, so here’s hoping it finds its way into cyberspace some other way!