• ACA wins in 6th Circuit, 2-1

    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.

    • And the dissenter questioned where the power of the Commerce Clause would end if this were allowed to stand. It would appear to be virtually limitless, whether health related (smoking, obesity, eating your broccoli) or beyond

    • Kevin
      A related question, but something I wonder about.

      Doctors generally dont take offense when patients opt for a second opinion. Its part of our world, and we realize that medicine is an art as much as science, and folks need multiple treatment inputs.

      Change gears, and on the legal front, are judges as objective? Mainly, if they render a judgement–following thoughtful contemplation, are they offended if a circuit court strikes down their decision? Or conversely, is it just a day at the office, and judges are expecting disparate views, and a no harm, no foul permeates their perspective.

      I would imagine that judges and courts x-pollinate, and while the public does not see it, if there are grudges (“you overruled me!”), the world we see as the public, is distinct from the world the judges play in.

      Given the ACA, as it moves up the latter, has “decision of a generation” implications, its easy to imagine that where the courts put their nickel down as legal, as well as personal implications. If so, this has unseen spillover effects.

      File under: attempts to understand inside game.