PPACA: No Way Around Commerce Clause Precedent

Late today, a federal judge in Michigan's Eastern District ruled that the individual mandate is constitutional, and is authorized by the commerce clause. In Thomas Moore Law Center et al. v. Obama (pdf), the plaintiffs seek a preliminary injunction against the enactment of the individual mandate. This is a slightly different issue from the States' claims in FL v. DHHS, but the commerce clause logic should work the same. As a spokesperson for the Department of Justice points out, this is the first time in which the merits of challenges to the Patient Protection and Affordable Care Act have been grounds for a decision.

Plaintiffs, two individuals and a public interest group, have standing. The issue is ripe for judicial decision. The remedy is allowed for under the Anti-Injunction Act. Let's play ball!

Plaintiffs argued that Congress has never had the power to regulate commercial inactivity, whereas the individual mandate seeks to penalize individuals who do not purchase health insurance. The district court finds that the authority of Congress to mandate individual coverage is found in the doctrine stated in US v. Lopez, 514 U.S. 549 558-559 (1995): "Those activities that substantially affect interstate commerce." The court dutifully follows instructions from Gonzales v. Raich 545, U.S. 1, 22 (2005) that it merely should look to whether there is a reasonable basis for the belief that such a relationship between the activity and interstate commerce exists.

The Commerce Clause in Full

Last week I started a rather ambitious project of analyzing the arguments in Florida et al. v. US DHHS, the lawsuit in which 20 states are suing the federal government over the health care reform bill, now law as the Patient Protection and Affordable Care Act.

The most interesting argument that they counselors Rivkin and Casey advance for the plaintiffs is that Congress has exceeded its powers granted to it under the commerce clause in requiring an individual to participate in an economic transaction with a third party. I think there will be lots of novel argumentation on both sides of this issue, ranging from framers' intent to statutory construction and even, if we wish really hard, a natural law discussion. However, before we can delve into this upcoming debate, we have to buckle down and understand the commerce clause as it stands in modern jurisprudence.

The Commerce Clause, Taxing, and the General Welfare

I have in my hot little hands a debate published in the Pennsylvania University Law Review about the Individual Mandate.  No less, the side that argues that te individual mandate is an unlawful power grab is written by the very same David Rivkin and Lee Casey who are arguing the plaintiff's case in Florida et al v. US DHHS: A Healthy Debate. The debate took place before final passage of the PPACA, so there is some uncertainty in the exact language at play.

Rivkin and Casey start out where I would in the Commerce Clause debate, noting that the Supreme Court has held that Congress has the power to pass laws to regulate "activities, [which] taken in the aggregate, substantially affect interstate commerce." Gonzales v. Raich, 545 U.S. 1,22 (2005). This standard was first applied in defense of a law which prevented a farmer from growing, but not selling wheat in Wickard v. Filburn, 317 U.S. 111 (1942).  Because the hoarding of wheat would drive prices down if every farmer did it, Congress could regulate the practice.

Health Care Reform in the Courts

I had intended to provide an omnibus discussion of Florida et al. v United States Department of Health and Human Services, the lawsuit on behalf of twenty states challenging the Patient Protection and Affordable Care Act being argued today in the United States District Court for the Northern District of Florida.

Reading through the plaintiff's complaint (pdf), authored by Florida AG Bill McCollum is proving an interesting exercise. Basically, there are three alleged issues:

1. The PPACA encroaches on individual liberty to choose to engage (or not to engage) in economic transactions with private corporations, exceeding Congressional Article I, sec. 8 authority.
2. The tax on individuals which enforces the mandate is an unlawful capitation under Article I, secs. 2 & 9.
3. Finally, the PPACA in its changes to Medicaid, represents an unlawful encroachment on State Sovereignty.

I will try, as the day goes on and I read more, to outline the debate surrounding this case as well as the analyze the arguments before the Court.  In a sense, I'm liveblogging my reading of the motions, case law, and relevant history.  Stay tuned to this space for an emerging story that I hope will be coherent as this case is important for the future of Commerce Clause authority.