Divided Sixth Circuit upholds ObamaCare’s individual mandate
Says Jonathan Adler:
A divided panel of the U.S. Court of Appeals for the Sixth Circuit, in an opinion by Judge Martin, has upheld the individual mandate against a Commerce Clause challenge. The same panel, in an opinion by Judge Sutton, rejected the argument that the mandate can be sustained as an exercise of the federal government’s taxing power (which means, to date, no court has accepted the taxing power argument).
Here’s the decision, and Ed Morrissey has more over at Hot Air. This ruling doesn’t concern the massive multi-state case against ObamaCare, which is important to keep in mind. Today’s ruling deals with the Thomas More Law Center’s case. This will all end up at the Supreme Court in any regard, so let’s pray that Anthony Kennedy wakes up on the Right side of the bed they day they hand down their ruling.
A summary of the dissent -
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. See Lopez, 514 U.S. at 565 (“[D]epending on the level of generality, any activity can be looked
upon as commercial.”). 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.
