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.
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.
Virginia and the 4th Circuit are filled with Reagan and Bush appointments with good Federalist Society credentials. As Chief Justice Roberts has demonstrated, these guys have little trouble dumping case precedents that stand in the way of the Corporatist Agenda.
Is there ANY limit to the Commerce Clause?
And I also think its paticularly important to point out that the Federal Government Lawyers are defending this by calling it a tax. Something, I believe, Obama pointedly said it wasn’t. Not really germaine to how this comes out, but illuminating.
BTW, could Bill Gates opt out since he could fully pay for any concievable emergency anywhere? (i.e he could write a check for his pocket change to have a Hospital built, in Antiartica, to service his need to have a hangnail fixed there).
Why again do we have state governments?
The tax/not a tax thing is a red herring. When Obama promised not to increase taxes on the middle class both he and his listeners understood that to mean income tax. Only idiots could have concluded that his call for universal coverage would really come free to everyone currently without health insurance
As to the Commerce Clause. Historically much of the abuse was the result of an extremely conservative Court in the late 19th and early 20th century using it to strike down any and all attempts by the States to regulate work hours and conditions on the grounds that such regulations would inevitably effect interstate commerce even when it clearly wouldn’t. I believe there was a famous case where they struck down New Yorks attempts to establish a maximum work week for bakers, in the era before preservatives the quintessential local product. The logical conclusion of this was that if States were barred from such regulations that they fell to the federal government.
Anyway the whole argument is ridiculous, I don’t think there is anyone out there that doesn’t believe the federal government can establish a true single payer system based on mandatory taxes. In order to keep the current hybrid public/private system it was necessary to buy off the insurance companies with an Individual Mandate, which buy off is why this was a Republican proposal to begin with, they wanted to avoid the free-rider problem otherwise inevitable in Guaranteed Enrollment/No Recission. Which is the real irony, the Tea Partiers and their AG friends are looking to gut the only part of HCR which the private insurers like. If you want to put this country right onto the road to Socialized Single Payer Health Care, then having this challenge be upheld and thereby driving private insurers out of the market is a fine way to do it.
Which is why the assumption from both the Teapartiers and the Firebaggers that this is a slam dunk for the Roberts Court is to me off base. In this case the interests of the Populist/Libertarian wing of the Republican Party are not aligned with those of the Corporate Wing. And based on what I have seen the Roberts Court is a lot more attentive to the latter than the former.
“BTW, could Bill Gates opt out since he could fully pay for any concievable emergency anywhere?”
Probably, there are provisions for proving “Other Acceptable Coverage”. But in reality the number of multi-millionaires or billionaires that are not covered through one or another of their corporate entities must be vanishingly small.
Buffpilot: After they have mandatory purchase of healthcare down they will move on to forcing every adult over 18 to purchase services of a hooker at least once a month.
The only reason Bruce claims that the Commerce clause was mostly abused by the Republicans, is because he defines the Commerce clause to mean exactly what the democrats use the Commerce clause for. His is a statement of ideology, not fact. Like I said above, Bruce would not object if he was forced by the government, under the Commerce clause, to pay for a hooker’s services every once in a while. Just so long as the poor get subsidized.
I meant “mandatory purchase of health insurance”. What that insurance will buy you? Well we have to pass a bill to see what is in it. As opposed to actually reading it and rationalizing the effects.
Jay–Nope, prostitution is illegal in every state but Nevada. Think of a better example. NO
OT, but not too much so. How much more will his staff take? Romer has announced her resignation. One source can be found here: http://politicalticker.blogs.cnn.com/2010/08/05/romer-resigns-white-house-post/
Some had speculated that she would be one of trhe first on the economics side of the house to leave due to her growing disillusionment.
Yup. Can’t trade sex for cash. You can trade sex for certain non-monetary goods/services though (see marital sex).
Just another instance where idiots on the left and right prove they know nothing about economics.
The relevant market for purposes of the “interstate commerce” clause isn’t “health insurance”, it is “healthcare”, which certainly is interstate commerce. Health insurance is merely the means for paying for the services obtained in the interstate healthcare market, and Congress certainly has the power to regulate the manner of payment used in interstate commerce.
accurate observation about the Fourth Circuit–there was good reason that the Bush Administration wanted its enemy combatant issues brought there rather than, say, the Second or Ninth Circuits…
There are limits to the Commerce Clause, but I doubt if many feel confident that they can set them out in a brief catchy phrase. The Clause is extraordinarily broad in reach. If it can reach growing a commercial product for one’s own use, than it can clearly reach deciding whether or not to pay for private insurance that will be used to pay (or not) for the times that you will need access to health care beyond what you can provide for yourself in your own home. Think about the way markets are defined, and the way market fundamentalists view almost any human activity as part of “the markets”–that breadth is similar to the breadth of the reach of the Commerce Clause–anything that forms part of the interconnected economic system that operates across state boundaries.
I think this case was about as poorly decided as the relatively recent one on section 104 (Murphy), which the three-judge panel decided to rehear itself (and changed its decision) after the scathing criticism for the inadequacy of the legal reasoning. I’ll be surprised if the legal logic stands up on appeal.