The 6th Circuit opinion is out. Health reform wins 2-1. Highlights:
The plaintiffs have standing to sue (all 3 judges agree; otherwise, no substantive decision)
Anti-injunction act does not apply (all 3 judges agree; the Court reviewed this jurisdictional issue despite agreement from the parties)
From the majority:
- Commerce clause issue – self-insurance as an activity:
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. (Martin, for the Court, at 17; see also Sutton, at 45-49)
- Active participation over a lifetime:
The vast majority of individuals are active in the market for health care delivery because of two unique characteristics of this market: (1) virtually everyone requires health care services at some unpredictable point; and (2) individuals receive health care services regardless of ability to pay. (Martin, for the Court, at 25)
- Economic activity: unlike Morrison & Lopez, health care is clearly an economic activity (Sutton, at 36)
From the dissent (Graham):
- Inactivity
Simply put, the mandate does not regulate the commercial activity of obtaining health care. It regulates the status of being uninsured. (Graham, dissent, at 54)
- Substantial effect on commerce
Lopez and Morrison rejected a view of causation whereby the cost-shifting to society caused by violent conduct can satisfy the substantial effects test. (Graham, dissent, at 60)
- Federalism
Here, Congress’s exercise of power intrudes on both the States and the people. It brings an end to state experimentation and overrides the expressed legislative will of several states that have guaranteed to their citizens the freedom to choose not to purchase health insurance…
A structural shift of that magnitude can be accomplished legitimately only through constitutional amendment. (Graham, dissent, at 62,64)
Update: Excellent coverage, as always, at the ACA Litigation Blog.
