Bench Memos

Sixth Circuit Upholds Obamacare by Blurring Its Logic

Those watching the Obamacare litigation have been hoping that the Sixth Circuit panel might render a favorable first appellate result for challengers of the law because, despite some weaknesses in the case, the panel of judges seemed inclined to overturn the law. Instead, the Sixth Circuit today upheld the law in a decision that erred as a matter of both law and logic.

The decision begins with an inaccurate premise and goes downhill from there. It describes the “class of activities” regulated by Obamacare as “participating in the national market for health-care services without maintaining insurance that meets the minimum coverage requirement.” 

This is, quite simply, false. 

Much was made in the Eleventh Circuit arguments earlier this month of those plaintiffs’ agreement that the federal government could regulate the form of health-care payment at the point of sale, which resulted in the government making overblown accusations that plaintiffs wanted to turn pregnant women and gunshot victims away at the emergency-room doors. On the contrary, plaintiffs in that case were simply making a point overlooked by the Sixth Circuit: Whatever the policy arguments about such a law (no one, I suspect, thinks it would be a good idea), it at least would be constitutional, because it regulates activity that an individual is choosing to engage in. 

Under Obamacare, Americans are regulated regardless of whether they do “participat[e] in the national health-care market” on the assumption that they will do so. Today’s opinion admits that this participation is not universal by saying that “virtually” everyone will participate at some point. But, as attorney Mike Carvin argued to the Eleventh Circuit, we can’t just say “good enough for government work” when it comes to the Constitution. 

Unfortunately, it seems that plaintiffs in this case gave away the farm by accepting the government’s definition of the regulated activity, although Judge James Graham’s excellent dissent clarifies that, “simply put, the mandate does not regulate the commercial activity of obtaining health care. It regulates the status of being uninsured.”

The court’s elision of the logical distinction between actual and likely market participation resurfaced in its discussion of inactivity vs. activity and exhibited a surprising disdain for clear, logical argument. 

The court states that “far from regulating inactivity, the provision regulates active participation in the health-care market.” But the opinion does not deliver on the promised bombshell conclusion that an individual neither purchasing health care nor carrying health insurance is nonetheless an “active participant” in the market. It simply includes the more accurate statement three paragraphs later: “Far from regulating inactivity, the minimum coverage provision regulates individuals who are, in the aggregate, active in the health-care market.”  (Emphasis added.)  Could this be a typo on the part of an overworked law clerk?  No, throughout the discussion of activity vs. inactivity, the court uses phrases like “in the aggregate,” “the vast majority of individuals,” and “virtually everyone,” intermingling them with blanket statements that “all individuals” are “active in this market.”

This rounding-up from likely to certain participation should be constitutionally — if not logically — offensive to the judges in this case. Instead they have the chutzpah to scold plaintiffs for a “focus on imprecise labels.” If there is anything imprecise about this case, it is the court’s shifting description of the individuals affected by the health-care bill. Perhaps the court is correct that plaintiffs have trained their “myopic focus on a malleable label,” but that label is malleable only in the hands of those who, like the court in this case, play fast and loose with language. 

The Sixth Circuit’s disapproval of labels can be traced to an over-reading of Justice Kennedy’s concurrence in the landmark Lopez case. The government relies on this concurrence heavily while also misreading it to contradict the majority opinion in Lopez (which Kennedy also joined) that emphasized the limits on the Commerce Clause power.  (The Judicial Crisis Network’s amicus brief in the Eleventh Circuit on behalf of 44 U.S. senators makes this point.)  

But the court’s conclusions in this case are so broad that they need not rely on plaintiffs’ monumental concession or on calculated imprecision. The Sixth Circuit read Gonzales v. Raich so expansively that it determined that Congress is permitted to force participation in a market as long as that is “essential to broader reforms” of the market. It is unclear exactly how far the court is reading Raich — at one point it seems to suggest that anything is fair game as long as it is “essential” to a broader reform, but that is a recipe for the end of limited government as we know it. This over-reading of Raich has plagued this case since the district-court level, and, one hopes, will result in clarification once it reaches the Supreme Court.   

For those who — like me — are disappointed by the ruling, this should serve as a reminder that opponents of Obamacare cannot place all their eggs in the judicial basket. While I believe wholeheartedly that the law is unconstitutional, relying on five justices to singlehandely stem the present tide of government overreach is hardly prudent. We need legislators, judges, and a president who will respect the constitutional boundaries of their roles if we want our limited government to endure.


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