Virginia opposition given standing in federal district court

by Linda Beale
Excerpt from Ataxingmatter

The post in its entirety can be found at Linda’s Ataxingmatter Health Care Reform: the Virginia opposition given standing in federal district court:

The judge states that the “central issue” in the case is Virginia’s interest in upholding it’s “health care freedom act”–a declaration that Viriginia citizens do not have to buy insurance (in spite of the federal mandate). As Jack Balkin so ably comments (see link below), the judge’s acceptance of this argument opens the way for states to challenge anything in the Internal Revenue Code by passing a declaratory resolution indicating that they don’t think it should be treated as constitutional or that conflicts with the particular provision in question.

As for the commerce clause power, the court also treats Wickard v. Fillburn (the Supreme Court case that held that growing wheat for one’s own use is subject to the commerce clause power) as not decisive on this issue. Virginia claims that the decision not to purchase is not an economic act, compared to the decision to purchase or the decision to grow one’s own as a substitute for purchase. That distinction does not appear to have any merit. The decision not to purchase insurance and the decision not to purchase wheat are surely similar decisions to try to avoid the commercial flow by managing on one’s own. Yet surely one’s interaction with the health care system is much more clearly a question of interstate commerce even than one’s ability to grow wheat at home and avoid the purchase of wheat–even people who pretend to provide their own health care at home will at one time or another impinge on the health care system in all likelihood, whether because they are in a transportation accident, an accident outside their home, a work injury or illness, or taking advantage of free medical care such as vaccinations, etc. The judge however, concludes that the precedent is inconclusive and that the government has failed to show that the state has not stated a valid commerce clause claim.

Finally, the judge follows Virginia in conflating the Commerce Clause and Taxation Power arguments. It accepts the idea that if “economic inactivity” (which is a misnomer, since it is clearly economic activity to provide one’s own care, just as imputed income from providing one’s own home is real economic activity) is not accessible under the commerce clause, then it shouldn’t be reachable under the tax power. This is an extraordinarily poorly reasoned section of the opinion.

For a thoughtful and articulate analysis of the standing issues, see Jack Balkin’s blog, Judge Preserves Constitutional Challenge to Individual Mandate (Aug. 2, 2010) [hat tip Ellen Aprill and the Tax Prof discussion group].

Allowing this case to go forward leaves health reform in turmoil. It could take years for the different cases to wend their way through the courts, and ultimately the Supreme Court will likely have to rule.

Linda Beale

Beverly Mann, whose expertise is in certain areas of constitutional law and federal-court jurisdiction at the Annarborist, and who guests at Angry Bear, notes on the same topic (lifted from an e-mail to me):

Yeah. I read Lyle Denniston’s article about that opinion on Scotusblog a couple hours ago, and this sentence really strikes me: “‘While this case raises a host of complex constitutional issues,’ the judge wrote, ‘all seem to distill to the single question of whether or not Congress has the power to regulate — and tax — a citizen’s decision not to participate in interstate commerce’ — that is, a private decision not to buy health insurance.”

Actually, the argument that that part of the legislation is within Congress’s purview under the Commerce Clause is that a citizen’s decision not to participate in interstate commerce—that is, a private decision not to buy health insurance—actually is not a decision not to participate in interstate commerce but instead (for many people at least) a decision to participate in interstate commerce by having others pay their emergency medical bills. If they are, say, injured in a car accident and treated at a hospital and then cannot pay their medical bills, the public pays those bills.

The problem with the judge’s argument is that people do not decide whether to have a serious medical emergency. When they do have one, and they receive major medical treatment, there is a bill for that.