Thomas More Law Center v. Obama

CENTER; Jann MORE LAW THOMAS Hyder; Ceci;

DeMars; Steven John Hyder, Plaintiffs-Appellants,

Salina OBAMA, in his official Hussein

Barack

capacity of the United as President Sebelius,

States; in her offi- Kathleen Secretary, capacity United

cial Department of Health and Hu-

States Services; Holder, Jr., in Eric H.

man Attorney capacity as Gen-

his official States; Timothy F.

eral of United

Geithner, capacity as in his official Department

Secretary, United States Defendants-Appellees. Treasury,

No. 10-2388. Appeals, States Court of

Sixth Circuit. 1, 2011.

Argued: June and Filed: June

Decided Muise,

ARGUED: Robert J. Thomas Center, Arbor, More Law Ann Michigan, GRAHAM, D.J., concurred as to Parts I Katyal, Unit- Neal Kumar Appellants. for Justice, Washing- (subject II matter Department (background) ed States BRIEF: D.C., SUTTON, ON ton, Appellees. J., for jurisdiction) and in which Muise, Law Thomas More Cen- J. SUTTON, Robert judgment. concurred J. Arbor, David Yerushal- ter, Michigan, Ann 549-66), opinion delivered the (pp. Yerushalmi, P.C., mi, of David Law Offices (taxing power) Part I of his court as to Arizona, Chandler, Appellants. Neal for GRAHAM, D.J., joins. opinion, in which Stern, Alisa B. Mark B. Katyal, Kumar 566-73), GRAHAM, (pp. delivered a D.J. Klein, States De- Dasgupta, United Anisha opinion concurring part and separate D.C., Justice, Washington, partment dissenting part. White, American Edward L. Appellees. Justice, Arbor, Ann Law and Center OPINION Lechner, M. J. Joel Michigan, Steven Legal Founda- Spector, Mountain States MARTIN, JR., F. Circuit BOYCE Colorado, tion, Lakewood, Ilya Shapiro, Judge. Levy, Rittgers, David H. Cato Robert A. D.C., Institute, Cory L. An- Washington, appeal This is an from the district Foundation, drews, Washington Legal court’s determination that the minimum Willis, D.C., J. Uni- Washington, Steven coverage provision of the Patient Protec- Law, versity College of Florida Gaines- tion and Affordable Act1 is constitu- Care Stetson, ville, Florida, Hogan E. Catherine tionally Among many sound. the Act’s D.C., LLP, Washington, Kris- Lovells US changes to the national markets health Houser, Schroeter, & tin M. Goldmark insurance, delivery care and health the Bender, Seattle, Keith Du- Washington, S. coverage provision requires minimum all Justice, banevieh, Oregon Department to maintain mini- applicable individuals Salem, Dellinger, E. Oregon, Walter coverage mum health insurance essential Millhiser, D.C., Ian R. Center Washington, § pay penalty. or 26 U.S.C. 5000A. D.C., Progress, Washington, American for Suda, K L Longstreth, Molly L. K. & Plaintiffs include Thomas More Law John D.C., LLP, Center, firm, Washington, Rochelle interest law and four public Gates Bobroff, DeMars, Ceci, Citizens Law National Senior John Ste- individuals: Jann D.C., Center, L. Washington, Richard Ro- Hyder.2 Hyder, ven and Salina The indi- LLP, sen, Washington, Arnold & Porter citizens, States plaintiffs vidual are United D.C., Rothfeld, Brown, Mayer A. Charles residents, Michigan taxpayers and federal D.C., Amici Washington, for Curiae. pro- minimum coverage who claim that the unconstitutionally compels them to vision SUTTON, MARTIN and Before: Thomas More purchase health insurance. GRAHAM, District Judges; Circuit any injury to itself as an does not assert Judge.* employer, but rather ob- organization jects to on behalf of its mem- MARTIN, J., provision opinion delivered the SUTTON, J., court, in which and bers. * Graham, Pub.L. No. 111- Senior Reconciliation Act of The Honorable James L. 152, 124 Stat. 1029. Judge States District Southern Ohio, designation. sitting by District Hyder and Steven are mem- Jann DeMars 2. More, (2010), and Thomas while John Ceci 1. Pub.L. No. 124 Stat. bers of Hyder Salina are not. Health Care and Education amended sought escalating care, a declaration that costs of

Plaintiffs health First, authority under the minimize cost-shifting. lacked the Act pass upon existing the minimum builds system Commerce Clause nationwide coverage provision, alternatively employer-based a of health insurance. It penalty declaration that the is an uncon- establishes tax incentives for small busi- purchase stitutional tax. The district court held nesses to health insurance for coverage 45R, § that the minimum provision employees, falls their 26 U.S.C. and re- Congress’s authority quires within under large employers certain to offer principal employees, Commerce Clause two rea- health insurance to their id. (1) provision regulates Second, § economic sons: 4980H. the Act provides for regarding pay state-operated decisions how to for health the creation of “health ben- care that have substantial effects on the exchanges.” exchanges efit These allow (2) market; health interstate care individuals and small businesses to lever- provision is essential larger age buying to the Act’s their collective power to obtain regulation of the interstate market for price-competitive health insurance. Third, health insurance. Because the district U.S.C. the Act expands provision court found the programs be authorized federal poor assist the with Clause, by the Commerce it declined to obtaining health insurance. eligible For address whether it a permissible was tax purchase individuals who under the General through Welfare Clause. The an exchange, the Act offers feder- plaintiffs’ district court denied motion for al tax for payment credits of health insur- preliminary injunction, appeal. 36B, ance premiums, 26 U.S.C. and au- payments thorizes federal help to cover opinion This is divided into several out-of-pocket expenses, § 42 U.S.C. First, parts. provides background on expands The Act also eligibility for Medic- the Affordable Care Act and the minimum 1396a(a)(10)(A)(i)(VIH). § aid. Id. Second, coverage provision. it addresses Fourth, the Act bars practices certain jurisdiction. Third, this Court’s it consid- industry the insurance prevented have ers whether the provision is authorized individuals from obtaining maintaining the Commerce Clause of the Constitution. health guaranteed insurance. The issue Fourth, it declines to address whether the requirement bars companies provision is authorized the General denying from coverage to individuals with Welfare Clause. We find that the mini- conditions, preexisting §§ 300gg-l(a), id. mum coverage provision is a valid exercise 300gg-3(a), and the community rating re- legislative power by Congress under the quirement prohibits insurance companies Commerce Clause and therefore AFFIRM from charging higher rates to individuals the decision of the district court. based on their medical history, id. § 300gg. I. BACKGROUND

Congress found that the minimum Finally, cov- “Requirement the Act’s erage provision cog essential in the Maintain Minimum Coverage,” Essential 5000A, Affordable Care Act’s comprehensive § 26 U.S.C. takes effect in 2014 scheme to reform the national requires every markets “applicable individual” health care delivery and health insurance. to obtain “minimum coverage” essential for The Act contains five essential components each month. The Act directs the Secre- designed improve tary access the health of Health and Human Services markets, care and health insurance reduce Secretary coordination with the of the Treasury required to define the essential II. DOES THIS COURT HAVE JU- benefits, health which must include at least RISDICTION OVER PLAIN- general categories ten services. 42 CLAIM? TIFFS’ 18022(b)(1). § U.S.C. Standing Ripeness A. Applicable individuals who fail to obtain duty minimum Our first coverage essential must is to include determine whether this is a payment controversy” with their annual federal tax “case or meaning within the responsibility payment,” “shared of Article III which is Constitution such that “penalty” judicial calculated based on we household (c). 5000A(b), § to review income. 26 U.S.C. this issue. Nat'l Rifle Ass’n Am. v. exempts penalty Magaw, Act from its 132 F.3d provision (6th Cir.1997). individuals, including justi certain “We review those deemed issues of ciability pursuant hardship respect to suffer a with to Article III to their de novo.” Id. at 278. capability Standing requires obtain coverage. plaintiffs Id. 5000A(e). demonstrate “actual present harm or a significant possibility of future harm.” Id. A number of Congressional findings ac- at 279. presence “[T]he of one party with company coverage the minimum require- standing satisfy is sufficient to Article Ill’s ment. determined that “the case-or-controversy requirement.” Rums significant Federal Government has a role v. Forum Academic & Institution feld insurance,” in regulating health and “[t]he Inc., al Rights, 52 n. requirement is an part essential of this 164 L.Ed.2d 156 An larger regulation activity.” of economic ripe, issue must ready review, be 18091(a)(2)(H). Congress found before “Ripeness we act. requires that without the minimum coverage provi- injury certainly in fact be impending.” sion, Act, provisions other in partic- Am., Nat’l Ass’n 132 F.3d at 280 Rifle guaranteed ular the issue and community (internal quotation marks and citation rating requirements, would increase the omitted). incentives for pur- individuals to “wait to they chase health insurance until needed gives Article III claimants standing 18091(a)(2)(I). § care.” Id. This would to file a lawsuit federal court if they exacerbate the problems current in the injury, causation, establish and redressa markets for health delivery care bility. Lujan Wildlife, 504 Defenders of health insurance. Conversely, See id. 555, 560-61, 2130, U.S. 119 “[b]y found that significantly re- (1992). L.Ed.2d 351 There is little to talk ducing uninsured, the number of the the about with respect to the last require two coverage] requirement, together [minimum ments: The United States caused the al Act, provisions with the other of this will leged injury by enacting the minimum cov lower health premiums.” insurance Id. erage provision, favorable decision 18091(a)(2)(F). Congress concluded that would redress injury by the invalidating the minimum coverage provision “is essen- provision. the There is talk more to about tial to creating effective health insurance respect injury with to the requirement. improved markets which health insur- products guaranteed ance that are issue potential inju- There are two theories of coverage do not exclude of pre-exist- ry present injury and “immi- —“actual” ing conditions can be injury, sold.” Id. nent” future at id. 18091(a)(2)®. plaintiffs satisfy 2130—and both of them.

536 (11th Cir.1989); States United injury, the declarations actual As to cf. Murdock, (6th F.3d Cir. im- v. that the Hyder show and Steven Ceci 2005). insur- buy medical pending requirement changed has market private ance on the Institute, v. Earth Island Summers saving habits. spending present their 173 L.Ed.2d S.Ct. ¶¶ 7-8; Decl. May John Ceci

See There, (2009), matters. change does not ¶ Hyder May 2011 Deck 8. Steven “[ajfter the District Court had entered had judgment, and after the Government Hyder filed these decla- and Steven Ceci appeal, respondents filed its notice of sub- rations, true, plaintiff, after a third additional affidavits to the District mitted DeMars, insurance private obtained Jann Id. at 1150 n. *. The Court did Court.” during appeal. These new declara- consider the affidavits because “re- anything that Ceci do not contradict tions challenge to spondents had not met the Hyder earlier said their and Steven standing judgment their at the time of declarations, nothing excep- and there is remedy could not the defect retroac- [and] tional, surprising, or for that matter about tively.” problem Id. No such arose here. them, largely paral- which the contents case, “met the chal- plaintiffs In this original DeMars declaration. The lel the standing at the time of lenge their original United States concedes judgment,” and indeed the States United injury, DeMars declaration established judgment appeal. on challenge did not Court, Br. to this Gov’t Letter Only purchased after DeMars agree. court concluded and we the district appeal and after the had been filed did objection That leaves the to our consid- States file its motion to dismiss. United declarations that eration of new establishing In addition to during pendency were filed of this present injury, plaintiffs actual have shown however, development, oc- appeal. This injury imminent the threatened in —“that response development curred in to another jury certainly impending.” Friends of during appeal States’s —the Earth, Inc. v. Laidlaw Envtl. Servs. motion to dismiss filed the aftermath (TOC), Inc., 167, 190, 120 that she had obtained DeMars’s disclosure 693, 145 L.Ed.2d 610 Imminence medical Out of an insurance. abundance probability. probabili is a function of And caution, the case to the we could remand by many things, can be in ties measured testimony and permit district court cluding certainty that an event will the contents of cross-examination about pass. uncertainty come to However, the declarations. the United may on pass event will come be based States offers no reason to believe that developments may during gap that occur untrue, in anything the declarations is filing in time between the of lawsuit and any we cannot think of such reason our- injury. a threatened future See 520 S. Appellate selves. The Federal Rules of Devine, Assocs., Mich. Ave. Ltd. 433 of on permit filing Procedure the affidavits (7th Cir.2006) 961, (“Standing F.3d 962 appeal, particularly response to a mo- harm, depends probability on the of not its by opposing party, tion filed an and so do temporal proximity.”). settings court decisions in similar to this 10(e); RApp. 23, 2010, one. P. See Fed. Ouachita On March Jacobs, 1163, League v. 463 F.3d on passed goes Watch a law that into effect Janu (11th Cir.2006); it, 1, ary plaintiffs 1170-71 Cabalceta v. 2014. As the see Co., something them to do requires Standard Fruit 883 F.2d 1554- law

537 prohibits: require laws well before their effective date. the Constitution The minimum buy and maintain a amount challenges go Court has allowed for- plaintiff insurance. When the of medical ward though complaints even were challenged action “there is object years roughly filed almost six three that the action or ordinarily question little years before the laws went into effect. injury.” has caused him inaction States, See New York v. United 505 U.S. Defend- Wildlife, at 112 ers 144, 153-54, 112 S.Ct. 120 L.Ed.2d of S.Ct. 2130. (1992); Sisters, 120 Pierce v. Soc’y 510, 530, 536, U.S. 69 L.Ed. only developments pre- that could (1925); see Village also Bensen- injury occurring vent this from are not Admin., ville v. Fed. Aviation 376 F.3d probable highly and indeed themselves (D.C.Cir.2004) (over 1114, thirteen Plaintiffs, speculative. enough, true could years). point While the does not come up die, country or leave often, as laws have most immediate effec- repeal could the law. But these events are dates, tive these decisions establish that a hardly probable and not the kinds of fu- lawsuit roughly filed three and a half years developments ture that enter into the im- before the effective Massachusetts, date of the law is not inquiry. minence Riva v. (1st Cir.1995) (“The ordinary. out of the 61 F.3d party repeal of a or the of a statute demise Although Pierce and New York always possible any will be case of de- speak justiciability only ripe terms of enforcement, layed yet it is well settled ness, reasoning their applies equally to more, delay, that a time without will not standing context, here. At least this statutory invalidity render a claim of un- only where the Article III question con ripe if application of the statute is plaintiffs’ inju cerns the imminence of the sufficiently probable.”). otherwise ry, standing analysis parallels ripeness buy Plaintiffs also could insurance be- analysis. See Duke Power Co. v. Carolina passage tween the of the law and effec- its Inc., 59, 81, Study Grp., Envtl. speculative, tive date. This is less un- (1978) (“To 2620, 57 L.Ed.2d 595 reality derscored one involve, extent that issues of ripeness plaintiffs purchased individual in part, least of a the existence live ‘Case during year. the last But it makes no Controversy,’ or our appel conclusion that inquiry difference to the imminence be- injury lees will sustain immediate ... and plaintiffs’ cause one of theories is that injury that such would be redressed Congress may buy not force individuals to requested appear relief would satisfy private maintain insurance. (internal requirement.” quotation Plaintiffs also could become exempt omitted)); Seldin, marks Warth v. from requirement because their in- 499 n. fall filing come could below the tax thresh- (1975) (“The L.Ed.2d 343 standing ques them, or a making old disaster could befall ... affinity tion bears close questions eligible hardship exception. them for the ripeness the harm asserted has —whether This, too, is probable, particularly not judicial matured sufficiently to warrant in when it all plain- comes to three individual ...”). tervention. Indeed if a defendant’s tiffs, say nothing to of all of the members “ripeness arguments only” concern the of Thomas More Law Center. “requirement injury that the be imminent one,

In settings Supreme conjectural hypothetical” like this the rather than or permitted plaintiffs Court has challenge analysis to then “it follows that our of [the 1, January ingly day”: concrete “some standing challenge applies defendant’s] 5000A(a). ripeness to its 2014. See 26 U.S.C. interchangeably equally and Corp. Brooklyn Legal Servs. challenge.” v. Federal Election Commis- McConnell (2d 219, 225 Corp., 462 F.3d Legal Servs. sion, 619, Cir.2006). through the viewed Whether (2003), does not undermine L.Ed.2d 491 plain- the standing ripeness, or of lens conclusion. There the Court ruled this requirements the challenge meets tiffs’ plaintiffs that several did not have stand- III, context of a especially the Article challenge provision Biparti- a ing to challenge. facial pre-enforcement Act Campaign san Reform because their “alleged injury virtual ... too remote tem- probability, [was] indeed In view of the 226, 124 coverage pro- porally.” minimum Id. at S.Ct. 619. The that the certainty, plaintiffs on Janu- filed a lawsuit apply plaintiffs to the McConnell vision will F.Supp.2d March standing no function of law is ary (D.D.C.2003), day “the to wait earliest by requiring plaintiffs advanced year the could be affected chal- [the until months or one before [McConnell] six lenged provision days There before the was] to file this lawsuit. is effective date plaintiffs’ Republican primary that situation in 2008.” 540 U.S. at no reason to think Court, however, reason to 619. The change. And there is no S.Ct. will By plaintiffs not know change. permitting think the will could whether law injury years three and one-half would even suffer an six later. this lawsuit to be filed date, years opposed challenged provision the effective as Id. The would affect before date, only if year plaintiffs to before the effective the McConnell the follow- one ing things happened that all three in an election only thing changes is six (1) judiciary years challenger will be able later: ran in the layers of the federal (2) decisions, election; primary plaintiff considered merits creat- reach (e.g., stay) mentioning rushed interim deci- ed an advertisement the chal- opposed to (3) sions, lenger; takes effect. The the advertisement did not iden- before law latter, name; (4) certainly preferable tify plaintiff by former to the setting attempted charge at in the current of this case. broadcasters McCon- least nell more than their lowest unit rate for insufficiently Nor is their claim “con- his ads. Id. at 124 S.Ct. 619. A particularized.” crete and Defenders of (much cannot guarantee candidate less Wildlife, 504 112 S.Ct. 2130. “ prove) person against that another will run day’ While ‘some intentions” travel him years six down the road or that a something might somewhere or to do him a than fa- broadcaster will offer less support law implicate federal “do price, vorable is unknowable what finding injury” of the ‘actual or imminent’ type political advertisements the candi- 564,112 demand, that the id. at S.Ct. cases date will run when the time comes. 2130, plaintiffs’ nearly situations are not so ephemeral. trip plaintiffs problem There is no must be have no similar taken, purchased, proves they no ticket that must this case. The Act itself will be injury required purchase occurs. at 564 n. be insurance and before See id. 2, 112 2130. The claim a maintain it when the time comes. Unlike plaintiffs right plaintiffs, constitutional free of the mini- the McConnell who had not tak- be subject coverage provision, only any mum and the en action that would them to Act, plaintiffs anything it at need not do thing saving point them from That, indeed, subject Act. years two and a half more and an exceed- to become to the

539 key theory by their mere “existence” fore barred the Double Jeopardy —that Clause); Co., requiring Bailey not be a some- v. Drexel basis Furniture should 20, 38, 449, 259 buy private to health on the U.S. 42 66 one S.Ct. L.Ed. 817 (1922) standing bring Congress’s (construing taxing power market. Plaintiffs have I, 8, 1, § claim. under Article cl. this based on “[t]he difference tax a penalty”). between a Anti-Injunction B. Act Congress’s barring choice of litiga- words— tion over in section 7421 “tax[es]” but im- plain The and the United States posing “penalty” a section sug- agree Anti-Injunction now tiffs 5000A— gests that the former does not cover the Yet Act does bar this action. because latter. goes subject limitation this matter courts,

jurisdiction par of the federal provisions Other of the Internal Reve- agreement by permit does not ties’ itself Code, sure, nue to be show that some challenge. to review 26 us U.S.C. “penalties” amount to “taxes” for purposes 7421(a); § see v. Y & H Arbaugh Corp., of the Anti-Injunction Act. Not surprising- 500, 11, & n. 126 515-16 S.Ct. ly, for example, 68 of chapter the Revenue 1235, 163L.Ed.2d 1097 imposes Code “penalties” on individuals who fail to Anti-Injunction says pay Act their “taxes.” 26 that “no U.S.C. § 6651. obviously, of Less but to purpose restraining for the similar ef- suit fect, of any subchapter chapter tax B assessment collection shall be 68 of the Revenue Code other any imposes “penalties” maintained in court.” 26 U.S.C. 7421(a). related to the § “at least enforcement of language as broad traditional See, Act,” § e.g., taxes. 6676 Anti-Injunction (penalty Bob id. Jones refunds); Simon, 725, 7, erroneously claiming § v. 416 732 n. 94 id. 6704 Univ. U.S. 2038, (1974), (penalty for failing keep 40 496 certain S.Ct. L.Ed.2d the De- rec- ords). claratory “any Under section Judgment Act forbids declarato- reference imposed this title to judgment respect ‘tax’ ry actions “with to Fed- this title 2201(a). shall be § deemed also refer to the penal- eral taxes.” 28 U.S.C. ties and provided [subchapter liabilities terminology suggests The relevant B chapter 6201; §§ See also id. 68].” may hear the Anti- we this action. While 6665(a)(2). “penalties” All of these thus Injunction only “tax[es],” applies Act 26 “taxes,” including count as for purposes 7421(a), called the Anti-Injunction Act. See Herring v. a shared-responsibility payment “penalty.” Moore, (5th Cir.1984) 735 798 F.2d contexts, many id. 5000A. In See curiam); (per Mihlbachler, Souther 701 “penalties” treats law “taxes” and as mutu- (10th Cir.1983) curiam); F.2d (per 132 ally See, exclusive. e.g., States v. States, Eng’rs, Inc. v. United 527 Prof'l Reorganized Utah, CF & I Fabricators of Cir.1975). (4th Otherwise, F.2d Inc., 213, 220, U.S. S.Ct. the recalcitrant tax protester could sue to (1996) whether, (determining L.Ed.2d 506 preempt collection of substantial mone 507(a)(7) of under section the Bankruptcy (accumulated tary charge penalties and in Code, particular exaction was “a ‘tax’ terest) but not what will often be a smaller penalty”); Dep’t distinct from a ... [ ]as (the owed). charge tax Ranch, Revenue Kurth Mont. v. 784, 114 None of the shared-responsi- L.Ed.2d this affects (1994) (determining provision bility payment, triggered that a a penalty by fail- penalty labeled a “tax” ure to minimum comply coverage was there- with the 6671(a) 6665(a)(2) and section that section penalty not a 5000A is Section provision. treat Congress intended to the Revenue show is by” chapter 68 of “provided in con- in as “taxes” certain penalty penalties certain placed the Code. loosely to Code, provisions read these and it did texts. To Revenue of the chapter 48 a “tax” would every penalty is treating penalty suggest the a provision not include provision superflu- title, particular it with render each as did “tax” in the as a makes all the more Distinct ous. That conclusion chapter in provided penalties in of the Affordable Care meanings. Congress sense the context have distinct words 6665(a)(2) Act, the Internal Revenue prohibits which thing sections said one customary tools using from 6671(a), something else section Service collecting penalties, taxes and 5000A, respect the differ- available should and we where, Act very Anti-Injunction tools the was so as particularly That ence. Univ., protect. Bob Jones here, creating enacted to See had a reason at 2038. In collect- listed penalties difference: Unlike Internal pay- ing penalty, the health care responsibility chapter the shared may impose not liens on to do with tax enforce- Revenue Service nothing has ment place levies on an Assembly property, an individual’s Republican Mobile ment. Cf. States, pay, bring charges. n. criminal F.3d 5 individual’s (11th Cir.2003) 5000A(g)(2)(B). All that the (holding penalties that “tax 26 U.S.C. may do is one of violations of laws Internal Revenue Service imposed for substantive things. may past-due penal- not It deduct to the tax code” do two directly related Act). refunds, from future tax a form of Anti-Injunction ties implicate the exceedingly unlikely impli- enforcement true, says 5000A(g)(l), Section Anti-Injunction may Act. Or it cate the by provided this section penalty “[t]he action, which most indi- bring collection paid upon notice and demand shall be unlikely preempt viduals would be —in Secretary, ... assessed shall be law- by bringing truth their own invite— in the same manner as and collected all, the minimum suit. Last of because B of penalty subchapter under assessable into ef- coverage provision does not come (em- § 5000A(g)(l) chapter 68.” U.S.C. (and penalty until 2014 could not fect added). penalties The assessable phasis until at least a be assessed or collected subchapter paid B in turn “shall be under later), hardly inter- year this lawsuit will Secretary, notice and demand upon need to assess fere with the “Government’s assessed and collected and shall be possi- as expeditiously and collect taxes as 6671(a). same manner as taxes.” Id. Univ., 416 ble.” Bob Jones pay- shared-responsibility the context of a Here, Anti-Injunction Act S.Ct. 2038. failing to ment to the United States for jurisdiction to consid- does not remove our however, insurance, buy the most medical er this claim. provision is that the reading natural and collection “manner” of assessment III. THE MINIMUM COVERAGE IS 5000A(g)(l) in sections

mentioned A PROVISION CONSTITUTIONAL 6671(a) In- refers to the mechanisms the OF CONGRESS’S EXERCISE employs to enforce ternal Revenue Service COMMERCE POWER? against pre-en- penalties, not to the bar challenges to forcement taxes. squarely presented question coverage the minimum in here is whether provisions The same is true of other is consistent with the Commerce provision taxes. All treating penalties the Code Clause of the Constitution. We review de enact minimum coverage provisions similar plaintiffs’ challenge novo constitutional to to the one in the Affordable Care Act. See the provision. See United States v. Bow- 111M, Mass. Gen. Laws Ann. ch. ers, (6th Cir.2010). 522, (West 2011). However, 594 F.3d At the gov- federal outset, the it is important to note that our police ernment has no power may officials and public hotly elected debat- enact only such a law if it is authorized ed the merits and weaknesses of the Act See, one of its powers. enumerated e.g., voted, Congress before and will undoubt- Lopez, United States v. 514 U.S. edly However, continue to in the future. it (1995). 115 S.Ct. 131 L.Ed.2d 626 pass is not this Court’s role to on the Our task is to review the district court’s See, Congress’s wisdom of choice. e.g., Congress conclusion that properly relied (9 Wheat.) Ogden, v. Gibbons U.S. on its authority under the Commerce (1824) (“The 197, 6 L.Ed. 23 wisdom and Clause to enact the minimum coverage of Congress, discretion their identity provision. people, with the and the influence which Recognizing that uniform regula- federal their constituents possess at elections[] necessary tion is instances, some are ... the sole restraints on which they Commerce Clause of the Constitution relied, to secure them from its grants Congress power regulate “[t]o abuse.”). only We consider whether the commerce foreign Nations, with grants Congress Constitution power States, among several and with the legislation. enact this Indian I, Tribes.” U.S. Const. Art. cl. 3. The Supreme Court has held that Con- The minimum coverage provision, gress authority has broad regulate un- congressional enactments, like all is enti der the Commerce Clause. From 1937 to “presumption tled to a of constitutionali 1994 it did not single invalidate a law as ty,” only and will be invalidated upon a unconstitutional for exceeding the scope of “plain showing that Congress has exceeded Congress’s Commerce Power. The Court its constitutional bounds.” United States explained has that Congress’s Commerce Morrison, 598, 607, Clause encompasses three broad (2000). 146 L.Ed.2d 658 pre (1) spheres: “the use of the channels of sumption that the minimum coverage pro commerce”; (2) interstate “the instrumen- vision is valid is “not a polite gesture. mere commerce, talities of interstate persons or It is a deference due to deliberate judg (3) things commerce”; in interstate majorities ment constitutional “those activities having a substantial rela- two Houses of that an Act is commerce, i.e., tion to interstate ... those delegated within their power....” United substantially activities that affect inter- Devices, v. Five Gambling States state commerce.” Lopez, 514 U.S. at 558- 441, 449, 98 L.Ed. 179

59,115 S.Ct. 1624. Supreme A. The Court’s Commerce Because United States does not con- Jurisprudence Clause tend that the minimum coverage provision system our dual government, falls within either of catego- the first two government ries, federal is limited to its enu- proceed we to consider whether the powers, merated powers while all other provision falls within Congress’s power to are reserved to the people. regulate states or to the activities that substantially affect Const, amend. X. States have authori- interstate Supreme commerce. Current ty general under their police powers to jurisprudence Court that Congress reveals commodity.” market in that the interstate category its Commerce

may use this 18,125 classes of regulate two related Id. Power to First, long it has been estab- activity. in- Despite Supreme Court’s broad may eco- lished Power, terpretation of the Commerce intrastate, if if activity, wholly even nomic emphasized in two that has recent cases com- affects interstate substantially subject to limits. In power this real Raich, v. 545 U.S. See Gonzales merce. Lopez States v. and United States (2005); 2195, 162 1 25, 125 L.Ed.2d S.Ct. Morrison, single- struck v. the Court down 1740; Morrison, at 120 S.Ct. 529 U.S. subject beyond Con- criminal statutes as 1624. at 115 S.Ct. Lopez, 514 U.S. power under gress’s the Commerce Supreme that Clause. The Court held the Second, regu Congress may also cases, at in these the Gun statutes issue activity intrastate late even non-economic Act Free School Zones and the Violence doing larger so is scheme if essential Act, Against Congress’s Women exceeded For ex activity. regulates economic on four Commerce Clause based Filburn, U.S. v. ample, Wickard (1) main the regulated factors: statutes (1942), L.Ed. 122 the 63 S.Ct. non-economic, activity criminal and were the upheld regulations limiting Court part larger regulation not of a of economic grow, of wheat that farmers could amount (2) ju- activity; the statutes no contained Even purposes. for non-commercial even limiting application hook risdictional their home though producing consuming and commerce; (3) any Congres- to interstate grown wheat is non-economic intrastate findings regarding sional the effects of the activity, rationally concluded regulated activity on interstate commerce of regulate that the failure to this class were sufficient to sustain constitution- regu undercut its activities would broader (4) the ality legislation; of the link the market. Id. lation of interstate wheat inter- regulated activity between the 127-28, at S.Ct. 82. This is because state commerce was too attenuated. See own fulfilling individuals would be their Morrison, 601-15, at 120 S.Ct. resorting for demand wheat rather than 1740; Lopez, at market, which would thwart Con found accepting 1624. Court at gress’s prices. efforts to stabilize Id. Congress’s for the stat- proffered reasons 128-29, 63 Similarly, S.Ct. 82. Gonzales would paved way utes for Con- Raich, held that the federal Court gress regulate quintessentially those lo- ap Act Controlled Substances could be cal actions that the Constitution left within prohibit the local plied cultivation Morrison, purview of the states. possession marijuana of authorized under 615-16,120 U.S. S.Ct. 1740. California 545 U.S. at law. home-grown Leaving and home- Coverage B. Whether the Minimum marijuana con consumed outside federal of Provision is Valid Exercise Congress’s trol would undercut broader Lopez, Commerce Power under Mor- activity. regulation interstate economic rison, and Raich Thus, Id. Wickard Raich establish “Congress intra In regulate purely applying jurisprudence, can ‘commercial,’ activity state that is not itself first class of duty our is to determine the sale, produced coverage pro in that it is not if it activities minimum that the See, regulate regulates. e.g., concludes that failure to that class vision Perez v. United States, 146, 153-54, activity regulation would undercut the (1971) 28 L.Ed.2d 686 (directing policy courts to surance self-insuring. determine first whether the class of activi- Through practice of self-insuring, indi- regulated by ties a statute is within the viduals make an assessment of their own Congress’s reach of power). There is de- risk and to what extent must set bate over whether provision regulates aside funds or arrange their affairs to activity in the market health insurance compensate probable future health or in the market of health care. Thus, care needs.3 against set the Act’s literal, sense, most narrow the provision statutory scheme, broader the minimum might be said to conduct coverage provision regu- reveals itself as a health insurance market requiring indi- lation activity on the participating in the viduals to maintain a minimum level of national market for health delivery, care However, coverage. Congress’s intent and and specifically the activity of self-insuring statutory the broader may help scheme to for the cost of these services. illuminate the class of activities that a Plaintiffs challenge the minimum See, provision regulates. e.g., & Co. Swift coverage provision on its face as an uncon States, 375, 398, v. United stitutional exercise of congressional au (1905) (“[C]om S.Ct. 49 L.Ed. 518 thority. They accept the of class activities among merce the states is not a technical provision purports to par reach: legal conception, one, a practical but drawn ticipating in the national market for health business.”); from the course of United care services without maintaining insur Ambert, (11th 1202, 1212 v.

States 561 F.3d ance that meets the minimum coverage Cir.2009) (“Congress did not focus on indi requirement. Unlike the plaintiffs in registration itself, vidual local as an end in Raich, they do not attempt to carve out a part goal but rather as of its to create a subset class of activities deny and to system to track and the move their conduct has substantial effects on ment of jurisdiction sex offenders from one Rather, interstate commerce. another.”). like the The Act considered as a plaintiffs Morrison, in Lopez they and whole makes clear that Congress was con claim that the entire class of activities that cerned that individuals maintain minimum provision itself, attempts beyond to reach coverage not as an end in is but be Congress’s power regulate.4 cause of the economic In implications on the “[fjacial Circuit, broader health Virtually care market. invalidation of a ev statute eryone participates ... is only the market reserved for when there are no delivery, health care they finance set of circumstances in which the statute’s these services either purchasing an in- application would be constitutional.” 3. We use the term self-insurance for ease of in detail only but note that if the minimum note, however, discussion. We that it is actu- constitutional, coverage provision facially ally a misnomer because no insurance is in- then it imagine is difficult to a circumstance volved, might be better described as risk as-applied under which an Commerce Clause retention. challenge provision to the would succeed. See, Maxwell, e.g., United States v. 446 F.3d group plaintiffs brought as-applied If an (11th Cir.2006) ("[Raich] 1215 n. 5 contrast, challenge, they would claim that whether, leaves some doubt as to in the Com- their conduct does not have substantial effects context, as-applied challenge merce Clause commerce, they on interstate either because may long ever be sustained so never access the health care market or be- may constitutionally regulate the broader they fully capable paying any cause are class of activities of which the intrastate activ- health care services that We consume. ity part....”). is a have no occasion to address these situations distribution, Faasse, consumption production, 265 F.3d v. States United ” Cir.2001) (en banc); (6th 25,125 see also commodities.’ Id. at n. 10 Salerno, States Third New Interna- (quoting Webster’s 95 L.Ed.2d 697 (1966)). Consump- Dictionary tional within squarely tion of health care falls of self-insur- practice By regulating economics, delivery, the Raich’s definition of and virtu- of health care for the cost ing facially coverage provision country minimum ally every individual in this con- the Commerce Clause under constitutional must these services. Individuals sumes First, independent reasons. for two by purchas- care finance the cost of health activity that regulates economic provision by self-insuring, ing policy an insurance a rational basis to believe Congress had free cognizant backstop services on interstate com- effects has substantial By requiring law. individuals required addition, had a ra- merce. coverage, to maintain a certain level of the provision believe that tional basis to regulates the coverage provision minimum larger economic to its was essential services, spe- financing of health care reforming the interstate markets scheme cifically self-insuring for the practice insurance. in health care and health activity foregoing cost of care. The attempting to cover health insurance and coverage provision minimum 1. The the cost of health care needs self-insur- activity regulates with a economic activity no economic than the ing is less interstate com- substantial effect on Thus, purchasing plan. an insurance the merce services, spe- financing of health care and Congress may regulate economic cifically self-insuring, is eco- practice the intrastate, that activity, wholly even if sub activity. nomic stantially interstate commerce. affects Raich, 25, 2195; at 125 545 U.S. S.Ct. See Furthermore, Congress had a ra Morrison, 1740; at practice that the tional basis believe at 115 S.Ct. 1624. Lopez, care, self-insuring for the cost of health in Additionally, need not determine “[w]e aggregate, substantially affects inter the activities, in ag taken the [the] whether state commerce. An estimated 18.8% of substantially affect gregate, interstate non-elderly population the United States fact, only in whether a ‘ra commerce but (about people) 50 million had no form of concluding.” tional basis’ exists for so (cit Raich, at health insurance for 2009. U.S. Census 1624). ing Lopez, 514 U.S. at Bureau, Income, Poverty, and Health In Thus, our task is to determine whether Coverage surance in the United States: self-insuring for the cost of health care (2010). Virtually at ev table 8 activity, services is an economic at eryone requires health care services a rational basis to whether had nearly all point, some and unlike other that, in activi aggregate, conclude the industries, gov the health care market .is substantially com ty affects interstate requiring laws erned federal and state merce. provide regardless services institutions (cid:127) ability pay. The unin patient’s of a coverage provision

The minimum sured cannot avoid the need for health regulates activity decidedly that is eco care, Raich, they consume over billion $100 Supreme nomic. In Court ex “ ‘[ejconomics’ annually. health care services Families plained that refers to ‘the USA, Pay substantially Americans health Hidden Health Tax: care affects interstate Premium, commerce. high at cost of a care those who self-

health means insure, class, pay are unable coverage provision 2. The minimum part health care services receive. an essential of a broader eco- regulatory aggregate found that the cost of nomic scheme care to the unin providing uncompensated Alternatively, even if self-insuring billion. 42 sured 2008 was $43 for the cost of care health were not eco 18091(a)(2)(F). Congress also deter activity nomic with a substantial effect on uncompensated mined the cost of care commerce, Congress interstate could still passed providers private on from “to properly regulate practice because the insurers, pass which on cost to fami failure to undercut regula do so would its cost-shifting Id. This inflates lies.” tion of larger interstate markets pay that families must for their premiums health delivery care and health insurance. “by average on health insurance over Raich, Supreme explained Court $1,000 Rising premiums year.” push Id. that Congress regulate can non-commer out more of the health even individuals activity cial if it intrastate concludes that it market, increasing further is necessary larger order health insurance and perpetuating cost-of interstate market. 545 U.S. at cycle. Counting: See Million S.Ct. 2195. The Court found relevant that Why Marketplace the Health Care Is Bro single-subject unlike the criminal statutes Comm, Hearing the S. on ken: Lopez, issue in Morrison the classi Before (Statement Finance, (2008) 110th Cong. 49 marijuana fication of at issue in Raich was Hall). Thus, practice Mark A. “merely many part[s] of of one of ‘essential of a larger self-insuring substantially regulation of economic activity, affects inter in which the scheme regulatory could be un by driving up commerce the cost of state dercut activity unless the intrastate were by shifting care health as well as costs to ” regulated.’ Id. at 125 S.Ct. 2195 parties. third (alteration original) (quoting in Lopez, 514 Self-insuring for the cost of health care 1624). 561, U.S. at The Raich directly affects the interstate market for highlighted aspects Court two of Con delivery health care and health insurance. gress’s power broad under the Commerce These effects are all attenuated not at First, Congress may Clause. aggregate the regulated the links between ac- were activity the effects of non-commercial and Lopez and in tivities interstate commerce assess the overall on the effect interstate Morrison. to the causal rela- and Similar 22, market. Id. at 125 S.Ct. 2195. Sec Wickard, tionship self-insuring individu- ond, applies the rational basis test to Con attempting als are to fulfill their own de- gress’s judgment regulating that intrastate for a rather than commodity mand resort activity non-economic essential to its thereby thwarting to market and are 19, regulatory broader scheme. Id. at 125 Congress’s prices. stabilize efforts to Thus, Congress S.Ct. 2195. where com Therefore, coverage provi- the minimum prehensively regulates interstate economic of sion is valid exercise the Commerce activity, may regulate it non-economic in had a Congress Power because rational activity rationally trastate if it believes that, that, concluding aggregate, in the aggregate, basis in the the failure to do so practice self-insuring of for the would undermine effectiveness of cost of 546 health insurance. delivery care health scheme.5

overlying regulatory that long “Congress been settled It has uphold this applied doctrine haveWe power regulate price of has plainly possession intrastate prohibiting laws through the distributed medium [products] and intrastate transfer pornography child it pos ... [and] of interstate commerce part eco- that are of broader of firearms make every power needed sesses See, e.g., Bow- schemes. regulatory nomic States v. regulation effective.” United (“Raich ers, indicates at 529 594 F.3d Co., Wrightwood Dairy 118- wholly ability has the (1942); L.Ed. 726 see possession manufacture and intrastate v. Under States South-Eastern United regardless of whether pornography, child Ass’n, 533, 552-53, writers for commercial possessed it made or was (1944). doing In 88 L.Ed. 1440 S.Ct. believes, if left rationally purposes, so, may give protec “to decide in the could work aggregate, unregulated purchasers to sellers or both.” regu- tion Congress’s ability to to undermine 1, 11, Wallace, activ- Currin larger interstate commercial late Rose, Act ity.”); States v. 522 F.3d L.Ed. 441 uses Cir.2008) (6th ration- protect had a (“Congress regulate prices this concluding al that the intrastate practices basis for banning certain purchasers its of firearms would undercut transfer prevented that have industry the insurance mar- regulation of the interstate firearms obtaining maintaining from individuals ...”). addition, circuits ket. our sister process coverage. insurance Under upholding applied rationale underwriting,” compa- “medical registration. requiring sex offender laws medical applicant’s nies review each histo- Gould, See, States v. 568 F.3d e.g., United ry eligibili- and health status to determine Cir.2009) (4th (“Requiring all sex ty premium levels. As a result of this register part integral offenders to approximately thirty-six percent practice, regula- Congress’ regulatory effort and the applicants market for individual could unless the tory scheme be undercut coverage, health insurance are denied (inter- activity regulated.” intrastate were premium, a charged substantially higher omitted)); marks quotation nal and citation only coverage or offered limited that ex- Ambert, 1211; at 561 F.3d United States pre-existing Depart- cludes conditions. Cir.2009). (8th Howell, 552 F.3d Services, of Health Human ment Cov- Similarly, Congress had a rational basis erage Denied: How Current Health failing to regulate conclude that those who Behind, System Millions Insurance Leaves regulation self-insure would undermine its practice at 1 Act bans this The care interstate markets in health requirement, through guaranteed issue delivery and health insurance. companies which bars insurance from de- coverage with concede, nying pre- to individuals plaintiffs As conditions; community existing rat- under power has the the Commerce Clause in ing requirement, prohibits markets which regulate interstate challenges larger Lopez, Supreme applied Court to facial as well. See The has Raich, ("[The regulatory only scheme doctrine in S.Ct. 1624 Gun-Free part challenge, as-applied addressed an School Zones is not an essential of a Act] which regulation challenge. larger activity, economic this case involves a facial while However, regulatory regulatory larger which the scheme could be under- because the activity Lopez, regulat- were doctrine was cut unless intrastate scheme articulated ed.”). challenge, applies addressed facial which companies charging higher age from rates to of pre-existing conditions can be sold.” 18091(a)(2)(I). history. § based on their medical individuals Congress had 300gg, 300gg-l(a), 300gg- §§ 42 U.S.C. a rational concluding basis for 3(a). Congress properly No one denies that minimum coverage requirement is essen- part power reforms as of its enacted these tial to its broader reforms to the national the interstate markets delivery markets health care and health delivery care and health Therefore, health insurance. insurance. the minimum cover- age provision is a valid exercise of the Furthermore, Congress had a ra Commerce Clause power. concluding leaving tional basis for those individuals who self-insure for the Coverage C. Whether the Minimum cost of health care outside federal control Impermissibly Regulates Provision overlying reg would undercut its economic Inactivity ulatory scheme. found that argues Thomas More that the minimum without the minimum coverage provision, coverage provision exceeds Congress’s guaranteed community issue and rat power under the Commerce Clause be- ing provisions would existing increase in cause it regulates inactivity. However, the delay centives for individuals to purchasing text of the Commerce Clause does not health insurance until need care. Id. acknowledge a constitutional distinction 18091(a)(2)(I). legislative record activity between inactivity, and neither demonstrated that the seven states that does the Supreme Furthermore, Court. had guaranteed enacted issue reforms far from regulating inactivity, the provi- coverage provisions without minimum suf regulates sion participation active in the fered detrimental effects to their insurance health care market. markets, such escalating costs and in companies exiting surance the market. long As as Congress does not exceed the contrast, Congress found that “[i]n Massa Power, established limits of its Commerce chusetts, a coverage] require [minimum there is no impediment constitutional strengthened ment has private employer- enacting legislation that could be charac- based coverage: despite the economic terized as regulating inactivity. The Su- downturn, the preme number workers offered directly Court has never addressed employer-based coverage actually has in- Congress may whether use its Commerce 18091(a)(2)(D). creased.” Id. It was regulate inactivity, Clause and it reasonable for Congress to activity conclude has not defined inactivity in this failing to regulate However, those who self-insure context. it has eschewed defin- gaping would “leave a hole” in ing the Act. the scope of the by Commerce Power Cf. (hold- Raich, labels, 545 U.S. at 125 S.Ct. 2195 reference to flexible and it consis- ing that Congress had a rational tently basis to Congress’s stresses that authority that failing conclude to legislate intrastate to under grant of is manufacture possession marijuana of by informed “broad principles of economic a gaping would “leave hole” in the practicality.” Lopez, Con- 514 U.S. at Act). Congress J., trolled Substances ration- (Kennedy, S.Ct. 1624 concurring); see ally Wickard, coverage pro- found the minimum at U.S. 63 S.Ct. 82 creating vision “is essential to (explaining effective that Congress’s power cannot health insurance markets in which im- “by be determined any reference to formu- proved products health insurance that are la give which would controlling force to guaranteed issue and do not exclude cover- ‘production’ nomenclature such as ‘in- an evil necessary prevent in order to it is of consideration and foreclose

direct’ embrace more than the to make law activity question of the effects actual [Congress] thing prevented to be commerce”). precise upon interstate States, 274 v. United may do so.” Westfall to also refused has Similarly, this Court 256, 259, 47 71 L.Ed. 1036 U.S. when determin- labels imprecise on focus (1927). majority of individuals The vast falls within Con- whether a statute ing for health care in the market are active example, For Power. gress’s Commerce characteris- delivery unique because of two that the Child argument rejected the we (1) virtually everyone market: tics of this Act is unconstitutional Recovery Support un- health care services some requires failure an individual’s regulates it because (2) re- point; and individuals predictable Instead, we commerce. an item in place to regardless care services ceive health rational basis for had a held ability pay. spouse’s non-custodial that a concluding everyone will need health care Virtually support child court-ordered failure to send including, in the point, at some services substantially lines across state payments those without health insurance. aggregate, Faasse, 265 commerce. affects interstate attempts protect one’s Even dramatic 490-91; States v. accord United F.3d at minimize the need for health health and (7th Cir.1997); Black, 454, 462 125 F.3d successful, always and the care will not be Parker, 108 F.3d States v. United by un- care market characterized health is (3d Cir.1997); Hamp- States for predictable and unavoidable needs Cir.1996). (10th shire, 999, 1004 95 F.3d ubiquity unpredictability care. The economic land- Focusing on the broader medical care is born out the need for un- revealed the scape legislation eighty percent More than the statistics. inexact labels workability relying on nationwide visited a doctor or other adults distinc- principled there was “no because one or more times professional health care to send parent who fails tion between the 2009. Centers for Disease Control and through commerce and any support child National for Health Prevention Center only a fraction of the parent who sends Statistics, Summary Health Statistics Faasse, F.3d at 487 n. amount owed.” Adults: National Health Interview Here, too, constitutionality of the Survey, Additional- table cannot be re- coverage provision minimum receive health care services ly, individuals focus on a malleable myopic solved with a they can afford the regardless of whether a rational label. had basis obligation provide treatment. practice that the of self-insur- concluding ability pay regardless treatment of health care has sub- ing for cost Emergency Medical Treat- imposed commerce, and effect on interstate stantial Act, 42 ment and Active Labor coverage provision minimum that the 1395dd, laws, many institu- state regu- economic part essential of a broader The unavoid- tions’ charitable missions. Thus, provision is con- latory scheme. coupled able need for health care with notwithstanding the fact that it stitutional provide treatment make obligation inactivity. regulating could be labeled as virtually that all individuals will certain Furthermore, regulating inac- care at require far from and receive health some firm, Thus, coverage provision although there is no tivity, point. the minimum are, Congress ag- prohibits in the bar that regulates individuals who constitutional be on what could placing regulations in health care market. from gregate, active the if there were inactivity, as even stated that “when described Supreme Court has case “But impact question respecting this due to the the the it would extent of powers the unique actually granted, care that make all is aspects perpetually health arise, arising, probably in market. and will continue to active this individuals long system as as our shall exist.” Id. THE MINIMUM COVERAGE IV. IS itSo has. 1501 of the Section Patient A PROVISION CONSTITUTIONAL Protection and Affordable Care Act of EXERCISE OF CONGRESS’S requires buy most Americans to a TAXING POWER? and, minimum level of medical insurance if light of the that the mini- not, conclusion pay monetary do to penalty coverage is a valid provision mum exercise Today’s instead. about “question” the “ex- Congress’s the power under Commerce tent powers” granted of the to Congress Clause, necessary it to is not resolve goes primarily power to its commerce the also be provision whether could sus- compel buy something they individuals to Congress’s (medical as a proper insurance) tained exercise do not want part to tax and under the General power spend a regulatory system that a majority of Clause, I, 8,§ Art. cl. (national Welfare U.S. Const. representatives elected do want care). health The claimants’ case. As the claimants

V. CONCLUSION it, see Congress’s authority to “regulate” Congress had a rational basis for con- interstate only “commerce” extends in- that, cluding practice in the aggregate, already dividuals in the stream of the rele- self-insuring for of health the cost care market, vant in commercial this instance substantially affects interstate commerce. health permits insurance. It no more Furthermore, Congress had a rational ba- Congress conscript individual to en- minimum concluding that the cover- sis ter that the buy market on side than it provision to the age is essential Affordable permits Congress require a company larger Act’s to the national Care reforms peddle manufactures cars to health delivery markets health care and health insurance on only the sell side. Not Finally, provision regulates insurance. words of the Commerce Clause undercut participation active health care mar- validity mandate, of the individual so ket, case, in any the Constitution im- Congress too does custom. has never ex- categorical regulating no on in- poses bar power way, ercised its commerce in Thus, activity. minimum coverage nothing suggests this tradition provision Congress’s valid exercise of years reflects 220 If of self-restraint. authority Clause, under the Commerce power commerce permits the decision of district court force individuals to enter whatever mar- AFFIRMED. chooses, kets it any remaining hold on evaporate, national leaving will fu- SUTTON, Judge, concurring Circuit ture of legislative limits to the whims re- part. straint, system of a epitome without restrictions, any The National is “one of Government balance other con- “powers,” power. enumerated” and limited a fea- straints on If does not in passing ture United States Constitution “blank check” war-on- “universally legislation, Rumsfeld, terror v. admitted” McCulloch Hamdi (4 Wheat.) 316, 405, Maryland, 159 L.Ed.2d (2004) accepted opinion), largely today. (plurality L.Ed. and still should not a provide themselves of which do not healthcare passing check have a blank invalidating for the law. cognizable basis power if the commerce Even legislation. greater of time” in favor over has “evolved Raich, power, Gonzales

congressional I. 545 U.S. debate, it refereeing complex this Before (2005), invariably that need L.Ed.2d another whether there is asking is worth federal case, of expansion lest each be it—-whether the insurance way to resolve another, one inference piling beget under a differ- can be sustained mandate onto police power unlimited national of an authority: Congress’s power ent source another. ... pro- Taxes ... lay “To and collect general ... Welfare of the vide for the The is- case. government’s The federal Const, I, 8,§ cl. art. United States.” U.S. government simple, sue is not That would it were so. Would principally changed has responds. What task, easy it a our as envision simplify centuries is commerce. the last two over care, including system of national health and communication means of travel As minimum-essential-coverage one with advanced, any meaningful distinction have the tax- permissibly premised on provision, national commerce has local and between Congress might have raised ing power. and the Court’s essentially disappeared, everyone equivalent in an amount taxes on regulation of lo- congressional tolerance then offered credits penalty, to the current reality as activity cal reflects this modern with minimum essential insurance. to those changeable conception it much as reflects might imposed have a lower tax rate Or power. The minimum- of the commerce insurance than those people on with health mandate fits within the essential-coverage it. But did neither without juris- commerce clause Supreme Court’s things, and that makes difference. these claimants’ accepting Even prudence. regulating of the law as characterization “ taxing power, a ‘tax’ Under the the law still concerns indi- “non-activity,” provide for is an enforced contribution that, aggregated, when vidual decisions support government.” effect on interstate com- have a substantial Franca, 568, 572, v. La 282 U.S. States cannot disclaim the merce. Individuals (1930). 278, 75 L.Ed. 551 The cen S.Ct. pay care for need to obtain health objective tral of a tax is to reve “obtain[ ] it, virtually everyone point will as some Case, nue.” Child Labor Tax In healthcare services. this consume (1922). A 66 L.Ed. 817 sense, it is hard to characterize self-insur- contrast, regulates conduct “penalty,” non-action, one of opposed ance as by establishing wrongdoing “criteria of may actions an individual many possible on imposing principal consequence its determining pay how to for health take its standard.” Id. transgress those who looked at as a mechanism care. Whether one side or the other of placing a law on providing affordable medical care divide, consider “the intent and courts act national unprecedented all or an “the legislature” on meaning of based paternalism, both characterizations Magnano act.” A. Co. v. language of the go policy individual mandate to a debate Hamilton, 40, 46, people repre- that the American and their L.Ed. 1109 had, and will continue to sentatives regu mandate is a have, na- The individual appropriate over the role of the tax, revenue-raising lives, not a latory penalty, the merits government tional our First, proceeds is what to use the word at 17 other reasons. that least for several provision, It the for times in the individual mandate said. called sanction Congress 5000A, § “pen- by rough insurance a see 26 and our obtain medical U.S.C. failing to matter, it a tax. and is count 180 or so the the alty,” not Words times rest of law, parts Congress that knows the Act. In other Congress fair to assume “taxes,” penalty, imposed using a that or so between tax and a word 620 difference powers, respected taxing Congress its and commerce times. the distinction between Act, Congress at words appropriate throughout it to take between the the making in an we. That is all the more true and so should See Russello v. its word. United States, 16, 23, elected officials are not known era when S.Ct. casually discussing, casually much L.Ed.2d 17 less increasing, taxes. When was the last time Fourth, central the function of man- promised for elective office not candidate to date was not raise revenue. It towas “penalties”? raise change by individual behavior all requiring

Second, legislative in the findings qualified Americans to obtain in- medical that its com- Act show invoked surance. As its explained in key power, taxing authority. findings, objective merce not its of the Act is to responsibility require- individual “The broaden the health-insurance pool risk ment,” Congress explained, requiring “is commercial more Americans to participate nature, before, after, substantially and economic and care. need medical ” See, 18091(a)(2)(I). § interstate e.g., affects commerce.... 42 U.S.C. That 18091(a)(1). findings § why generally U.S.C. Other come is the Act unin- requires 18091(a)(2)(A) insurance, § end. buy private to the same See id. sured individuals (“The requirement regulates activity that that requirement will not reve- any raise government. why is commercial economic in nature: nue for the that And is penalty capped economic and financial decisions about how the at an pegged amount for, paid private health care is and when to the of price when health insurance. 5000A(e)(l). § purchased.”); health See 26 penalty U.S.C. The 18091(a)(2)(B) (“Health sure, provision, insurance and to be will raise revenue. part services are a significant credulity say health care But it strains 18091(a)(3) economy.”); § of national the Act proponents will call it a success (“In States v. if South-Eastern Un- the individuals affected the mandate (322 Ass’n simply pay penalties buy pri- derwriters U.S. 533 rather than [64 (1944)), Supreme L.Ed. 1440] vate insurance. in- of the United States ruled that Court out. legislative findings Other bear this subject surance is interstate commerce revenue, They say nothing raising about regulation.”). findings say Federal objective imposing the central taxes. about, of, nothing suggestive or even the They focus on the regulatory instead law’s taxing power. motive—to cov- “achieve[] near-universal Third, Congress throughout erage” by adding showed “millions new consum- Act it understood be- the difference ers to the health insurance market.” 18091(a)(2)(C). using describing these terms and concepts, tween While places “tax” in in oth- eco- “penalty” requirement some “commercial and nature, only statute not af- says substantially ers. The nomic commerce,” failing healthcare consequence fecting] obtain there is no mention “penalty,” “provide leads to a it also of a coverage support but desire to 552 5761(c) Franca, 572, for sales of (penalty § domestic U.S. at La 282

government,” 527(j) § Act, indeed, export); (pen- for seeks to do tobacco labeled The 278. required failure to make election- encourage everyone alty for opposite: the insurance, disclosures), not leaving yet no one sub- that does related carry health (and Congress, no revenue to all into taxes. transform them ject penalty to the boot). rate, for hous- any practical at had reasons in the enforcement of the mandate ing this conclusion. supports law Fifth, case already The IRS has enforcement IRS. a by starting with sub- operates Act The place, under which individuals regime “adoptfs] the crite- provision stantive year, creating a a file returns once must Case, Labor Tax wrongdoing,” ria of Child reports annual ready-made vehicle for which states at S.Ct. 259 U.S. purchased have the about whether shall” every “applicable individual Congress requisite insurance. Whenever 26 U.S.C. health insurance. penalty, it not create a creates a new need 5000A(a). spells out the § The Act then it. agency new federal enforce on those who trans- “principal consequence Case, standard,” Child Labor Tax gress its then, the Act does not treat Even at which is tax, a the IRS prohibits mandate like penalty a on an individual who impose using its most salient enforcement from requirement to meet of’ “fails collecting penalty. The IRS tools 5000A(a), minimum-coverage § giving the property a lien on the of an may place not regulation the “characteristics of mandate comply not with the individual who does punishment,” Dep’t Revenue v. pay penalty. not a mandate and does See Ranch, 767, 779, 114 Kurth S.Ct. § 5000A(g)(2)(B). Not so for individu- id. (1994),not taxation. 128 L.Ed.2d 767 pay als who fail to their taxes. See id. “levy” § may 6321. The IRS not use its contrary several government The offers authority, garnishing it from prohibiting unconvincing. all That arguments, wages seizing property or from individuals will raise minimum-coverage requirement who fail to obtain insurance. See id. fail cov- revenue when individuals to obtain § 5000A(g)(2)(B). Not so for individuals year, pre- a erage rate billion $4 —at § pay who fail to their taxes. See id. government, dicts the U.S. Br. 59-60— may the IRS not initiate a criminal And a tax. penalty does not convert the into prosecution against individuals who fail to Otherwise, every monetary penalty, no buy 5000A(g)(2)(A). See id. insurance. regulatory punitive, matter how would pay for individuals who fail to their Ranch, Not so a tax. Kurth 511 U.S. at be Cf. out, (“Criminal § 7201. As it turns all taxes. See id. fines, civil may penalty the IRS do to enforce the forfeitures, civil and taxes all ... penalties, an individ- revenues, unpaid penalties against set off generate government impose fis- (if one) there is or launch a ual’s refund individuals, cal burdens on and deter cer- behavior.”). against civil action the individual. See id. tain 6402(a), 6502(a), seq. gov- §§ et Congress placed responsibility That traditionally collect taxes ernment does enforcing penalty with IRS does way. in this minimum-coverage provision not make the “comprehensive” has a regulatory enforces other That tax. The IRS see, tax, Br. at e.g., (pen- “plenary” power penalties, that, legislature had used alty mining operators pay who fail to shows if part in this of the Affordable Care premiums); retirement health benefit taxes Act, likely Act would be constitutional. longer is a tenable distinction between But that does not tell us whether Congress’s taxing powers and commerce invoked this or whether the penalty setting, invoking Supreme Court’s I under Article of the Consti- “Tax[ ]” statement it has “abandoned” the not, It tution. did and it is not. between regulatory “distinction[ ] and rev- enue-raising taxes.” Bob Jones Univ. v. That the constitutionality of a law Simon, 725, 12, 741 U.S. n. 94 S.Ct. depend “does not on recitals of the power (1974). 2038, 40 L.Ed.2d 496 But it is exercise,” it which undertakes to v. Woods premature, assuredly and job not the of a Co., Cloyd 138, 144, W. Miller 333 U.S. middle-management judge, to abandon the 421, (1948), changes S.Ct. L.Ed. 596 distinction between taxes and penalties. nothing. cases, In enumerated-power language The from Bob purest Jones is the question there often will be a whether dicta, as the case involved the Anti- Congress powers invoked its under the Act, Injunction taxing not the power, and Clause, § Commerce of5 the Fourteenth was not necessary even to the statutory Amendment, Spending Clause or the holding. taxing-power cases, The it Clause, Taxing and Woods establishes that true, are old. Yet cases a certain age congressional provide recitals sufficient just are likely as to rest on venerable grounds invoking power a but not the principles ones, as stale particularly when doing exclusive means for so. None of this there is a good explanation for their vin- reality alters the that each has dis tage. decisions, All of these as it turns predicates tinct substantive and distinct out, pre-date the expansion Court’s terms, may substantive and the courts not power, commerce which largely “rendered simply something label law it is not. moot” the worry need to about penalty “practical That the in its opera- tax/penalty distinction. Laurence H. tion,” 58, U.S. Br. at shares traits of a tax Tribe, 1 American Constitutional Law 846. opposite and that the is sometimes true— Nonetheless, the line between “revenue occasionally taxes regulatory resemble production and regulation,” mere de- penalties change things either. —do scribed Chief Justice Taft in the Child From an standpoint, economic the line be- Case, 38, Labor Tax 259 U.S. at 42 S.Ct. regulatory penalties tween may and taxes 449, today. retains force Look no further sometimes blur: penalties Taxes and both Ranch, than Kurth a 1994 decision that individuals; money extract from both post-dated Bob Jones and that relied on result; shape behavior as a every tax the Child Labor Tax Case to hold that penalizes people by imposing an “economic what had labeled a tax amounted impediment” person on one compared “as to an penalty unconstitutional under the with others not Sonzinsky taxed.” Double Jeopardy Clause. See 511 States, 506, 513, 300 U.S. 779-83,114 S.Ct. 1937. 554, 81 L.Ed. 772 Many penalties, indeed, might have been enacted giving Before this distinction a prema taxes, form and substance of as indeed burial, moreover, ture it is worth remem could have been the case here. But none bering parallels that it other constitutional penalty of this makes a under “Tax[ ]” inquiries. distinguish Courts must taxes case, I in given Article and it does not from fees construing when the Export make it so here. Clause, see United States v. U.S. Shoe

Pressing point, 367-70, 118 government goes Corp., 360, step one further. It (1998), submits that there no 140 L.Ed.2d 453 implied States’ I, Congress “[t]o taxation, permits cl. 3. And Mas- see from federal

immunity necessary States, shall be make all Laws which v. United sachusetts (1978), into Execution” carrying proper 55 L.Ed.2d Const, I, art. immunity power. U.S. the commerce Government’s National and the grants together, Taken these taxation, States v. cl. 18. see United from state (1) (4th power permit F.2d Huntington, City of {e.g., Cir.1993). of interstate commerce kissing also is a the channels inquiry (2) roads), the instrumentalities frequently rivers and statutory questions cousin {e.g., ships and interstate commerce tax/penalty raised about tax/fee cars) it, Act, things in Anti-Injunction persons well as under distinctions activities, (3) even Assembly v. other economic United those Republican see Mobile (11th activities, 1357, wholly n. that “substan States, 1362 & 5 intrastate F.3d 353 Act, commerce. United Cir.2003), Injunction tially see San affect” interstate Tax Comm’n, 549, 558-59, 115 514 U.S. Lopez, Serv. States v. Tel. v. Pub. Juan Cellular Cir.1992) (1995). (1st 1624, 131 683, (Breyer, L.Ed.2d 967 F.2d Act, J.), Bankruptcy see United and the history of decisions this area A short I Fabricators Reorganized CF & States v. Congress given that the Court has shows 226, Inc., 213, Utah, 518 U.S. commerce, fre- regulating wide berth 2106,135 L.Ed.2d 506 authority limits on that quently adopting them, abandoning just frequently and That the constitutional-avoidance deny Congress that continuing all while to construe stat permits courts doctrine police powers. unlimited national has difficult constitutional sidestep utes to may create a national bank. Congress makes no difference. The questions also that, 1819, In held even Court a court to avoid a does not allow doctrine power authorized though no enumerated by diluting question difficult constitutional bank, a national Congress to create pro of another constitutional meaning gave Necessary Proper and Clause Con- Ar meaning of under vision—the “Taxes” gress implied powers” “incidental [and] only It courts to choose ticle I. allows McCulloch, 406, to do so. a decision with constitutional between Still, admit, as all must ad- “[w]e rul and one without a constitutional ruling mit, powers government that the of the Martinez, ing, see Clark limited, that limits are not to are and its (2005), 716, 160 L.Ed.2d 734 transcended.” Id. at 421. be questions of not between two constitutional difficulty. At the end varying degrees activi- Congress may regulate intrastate day, penalty is not a “Tax[ ]” of the between workers and em- ties—relations Constitution, and under Article I of the have a substantial rela- ployers—that cannot Congress’s taxing power thus sus In interstate commerce. tion to tain it. reg- could the Court held employment intrastate activities

ulate II. “a close and substantial relation that had NLRB v. to interstate commerce.” A. Laughlin Corp., Steel Jones & Still, 1, 37, commerce 57 S.Ct. 615. empowers Congress The Constitution ... “embrace effects so foreign Na- does not regulate Commerce with “[t]o States, to embrace tions, indirect and remote among the several Const, effectually ... obliterate art. them would with the Indian Tribes.” U.S. § 922(q)(2)(A)). between what is national and All distinction ap courts of completely local and create a what peals question to consider the up government.” centralized Id. held the against amended statute com Congress may regulate activities— See, challenges. merce clause e.g., growing wheat con Dorsey, United States v. 418 F.3d for on-the-farm do not sumption pro involve (9th Cir.2005); —that States v. duction, mining Danks, (8th manufacture 221 F.3d Cir. products and materials and that have 1999) curiam). Second, (per only indirect on interstate com effects Court that Congress held could merce. the Court abandoned home-grown and home-consumed mari any distinction between activities juana, even when state prohibited law had “direct” “indirect” effects on Raich, from entering any markets. interstate commerce and “com between 28-29,125 U.S. at S.Ct. 2195. merce,” which regulate, could pro and “commercial activities” such as This abridged history captures the diffi- duction, manufacturing mining, culty level, of the task at At hand. one past Filbum, which it could not. Wickard v. precedent, and one at hopeless tilts 111, 119-20, 124, 317 U.S. 63 S.Ct. 82. causes in proposing categorical new limits Still, deny the Court did not that “[t]he on the power. commerce But there is subject power of federal is ... ‘com another way precedents— look at these to merce’ and not all commerce but com the Court either stop should saying among merce ... the several states.” that meaningful a limit Congress’s on com- Packing Santa Cruz Fruit Co. v. powers merce prove exists or that it is so. NLRB, 453, 466, 656, 303 U.S. 58 S.Ct. The identifying stakes of such a limit are (1938). 82 L.Ed. 954 high because congressional power Congress may regulate not non-econom regulate power is the to preempt, power a possession ic activities — of firearms just subject not a co-extensive- gender-motivated school zones and vio ly with wipe the States but also to any out In lence. 1995 and the Court contrary subject. state laws on the U.S. Congress may “regulate held that Const, VI, art. cl. 2. plaintiffs present The noneconomic ... solely conduct based plausible limiting principle, claiming that on that conduct’s aggregate effect on buy a mandate to medical insurance cross- interstate commerce.” United States v. regulating es a line between action and Morrison, 598, 617, 529 U.S. inaction, between regulating those who (2000); 146 L.Ed.2d 658 see also have entered a market and those who have Lopez, 514 U.S. at 115 S.Ct. 1624. not, one that the Court and But the force of these decisions remains never crossed before. unclear in view of two subsequent devel First, opments. soon after Lopez, Con

gress modified the Gun-Free School B. Act, Zones 922(q), pro my opinion, government has the “knowingly scribe ... possessing] arguments. better of Mindful that we firearm that has moved in other just at the court of appeals are not fallible wise affects interstate ... commerce case, utterly but non-final in this ... let me a school zone.” See Pub.L. No. [in] 104-208, 657, by explaining why existing start prece- Stat. 3009-370 (1996) (codified support government. U.S.C. dents 739, 745, L.Ed.2d (1987). challenge pre-en of this The nature —a underlying values judicial-constraint on the individual facial attack

forcement apply equally to enumerated- this doctrine opposed to settings, its as in all of mandate (like one) individual- power cases govern of them —favors just some (like Salerno). liberty cases The Court cases, the In most constitutional ment. much, noting that this “de- has said as constitutionality of challenges the claimant challenges to manding governs standard” applied” specific parties “as a statute powers exercise of enumerated Congress’s That preferred is “the circumstances. I, § Article 8. Sabri v. United under it confines litigation because route” States, 600, 604-05, factual set to a “discrete judicial review (2004). None 158 L.Ed.2d 891 States, 532 F.3d v. United ting.” Warshak that the distinction makes Cir.2008) (en of this means (6th banc); see 529-30 every respect case or with difference Carhart, 124, 168, 127 Gonzales invalid- every argument. Some theories of S,Ct. 1610, 167L.Ed.2d 480 of a ity necessarily apply applications to all contrast, seek “to challenges, Facial case, not. as shown law. Others do This any standing” prevent nothing leave —to below, in the latter points at various falls no matter the set- of the law application category, plaintiffs’ some of theories of matter circumstances.” ting, “no proposed their ac- invalidity particularly — Warshak, They at 528. are “dis- 532 F.3d congressional limitation on tion/inaction (1) “they raise the risk favored” because: many applications not cover —do interpretation of statutes on premature the mandate. records,” factually barebones the basis of Grange Repub- State Wash. State Wash. 2. 442, 450, 128 S.Ct. Party, lican merits, presents two On the this case (2) (2008); they L.Ed.2d 151 questions: Does the individual distinct principle of undermine “the fundamental the substantial-effects mandate survive restraint,” counsels that judicial which And, so, something if about test? is there anticipate ques- neither “courts should novelty compelling of this law— law in advance of the tion of constitutional of health insurance —that war- purchase necessity deciding it nor formulate a it nonetheless? striking rants down than rule of constitutional law broader question initial is the easier of the precise facts to which it is The required (3) id,.; two, run the breadth of the substantial- as applied,” to be and the nature of modern judicial trespass,” “a which the effects doctrine risk of validity a law “in all of its health care favor the of this law. court strikes down you mar- though legislature No matter how slice the relevant applications even care, paying health as presumed objec- obtaining ket—as prerogative has the them,” care, insuring for health regulate tive to some of Connection for health Holder, inter- care—all of these activities affect Distrib. Go. v. 557 F.3d (6th Cir.2009) (en banc). commerce, way. in a substantial For these rea- state sons, obtaining medical care. Few a facial attack is “the difficult with most Start need to health successfully,” people escape the obtain challenge requiring to mount lives, and most point care at some their to establish “no set of circum- plaintiff explains why That regularly. stances exists under which the Act would need Salerno, amounted to 17.6% spending health-related valid.” States v. be trillion, economy, of the national or substantially self-insured $2.5 affect interstate 18091(a)(2)(B). § Virtu- commerce. ally all of this market interstate affects choosing how regulate group, commerce, many aspects of it—medi- Congress also did not power. exceed its supplies, drugs equipment cal di-—are idea, policy basic for better or worse rectly linked to interstate commerce. Id. (and better), courts must assume is to compel individuals with requisite in- paying then of

What health care or pay come to now rather than later for insuring pay for it? are These two health care. Faced with billion in $43 sides of the same coin. Life is filled with uncompensated care, Congress reasonably risks, having and one of them is not require could all covered individuals pay food, shelter, money pay transporta- for health care now that money so would you tion and health care when need it. be pay available later to for all care as the however, Unlike most of these expenses, need arises. Call this mandate you what the costs of health care can vary substan- will—an affront to autonomy individual tially year year. from The individual an imperative of national health care—it can count on incurring some healthcare meets the requirement regulating activi- year (e.g., costs each an annual check-up, ties that substantially affect interstate diabetic) predict insulin for but cannot commerce. (e.g., diagnosis, others a cancer a serious

accident). why That is most Americans The Court has upheld other federal laws manage having the risk of not the assets to that equally substantial, involved if not pay for health care purchasing medical substantial, more general incursions on the 18091(a)(2)(D). § insurance. See id. The police powers of the States and the autono- medical insurance market large, id. my If, shows, of individuals. as Wickard 18091(a)(2)(D), (J), inextricably and is could the most self-suf- commerce, linked to interstate see id. ficient of individuals—the American farm- 18091(a)(2)(B); United States v. South-E grew er—when he wheat destined for no Ass’n, astern Underwriters farm, location other than family his 541, 1162, 64 S.Ct. 88 L.Ed. 1440 same is true for those who inevitably will seek health care and way who must have a The rub is the other method of paying pay to for it. And if Congress could regu- for medical care: self-insurance. There Angel late Raich grew marijuana when she self-insure, ways both, are two to and property on her for self-consumption, in- when aggregated, substantially affect in- self-medication, Raich, deed for 545 U.S. terstate commerce. option One is to save 2195, at 125 S.Ct. and if it could do so money so that it is there when the need for even when California prohibited law that health care arises. The other is to save marijuana from entering any state or na- nothing rely and to something on else— markets, tional it why is difficult to see good good fortune or the graces of oth- Congress may regulate not the 50 million ers—when the Congress need arises. Americans who self-finance their medical providing found that uncompensated medi- Bureau, Income, care. See U.S. Census cal care to the uninsured in cost billion $43 Poverty, and Health Insurance Coverage that 2008 and these costs were shifted to 2009, in the United States: at 23 tbl. 8. through others higher premiums. See 18091(a)(2)(F). Based on these The individual mandate also steers clear findings, Congress reasonably could con- of the central defect in the laws at issue in clude that the decisions and actions of Lopez and Morrison. Health care and the States, Motel, Inc. v. United “quintessentially lanta for it are paying

means 241, 348, 13 L.Ed.2d 258 guns possessing way in a economic” (1964), power to com- Congress’s sustained schools, 514 U.S. Lopez, see near violence, require Mor- acts—to the owner pel see affirmative and domestic S.Ct. hotel, “inn, rison, any are motel or other establish- upon lodging inference to transient “pile provides must ment which not. No one at to all on non- inference,” lodging to offer Lopez, guests” that the national at recognize discriminatory grounds. Id. to industry, much Act of Rights trillion But the Civil regulation of S.Ct. 348. $2.5 through providers “health insur- al- applies only financed to service of which is regional or market. ready ... national the. interstate ance sold relevant lodging 42 U.S.C. inter- companies,” If covered entities offer health 18091(a)(2)(B), commerce, in nature. them how Congress is economic tells state all limits approach requires process. this remove action in the Nor does to do so and Lopez and power. try policy As to solve this Congress the commerce did on majority open of the Court to suggest, problem by compelling individuals Morrison accept the line between appears' to in the first instance. still inns and non-economic regulating economic and The same is true of Wickard conduct, why general murder which indi- plaintiffs. regulated The laws Raich congressional exceed would assault statute grow who chose to wheat and mari- viduals by these conventional Measured power. by punishing individu- juana on their own— benchmarks, the mini- clause commerce grew product who too much of one als mum-essential-coverage provision passes. (wheat) (marijuana). any and of the other Raich, true, it is the Court Wickard and C. individuals permitted matters, claim. plaintiffs None of buy anything, or sell who did not offer Congress’s pow- commerce However broad merely crops plants their who raised unlimited, be, one limit may it is not er home, who consumed them at home and applies only it on that (Raich) prohibit- were who in one instance already engaged commerce. individuals buying selling product ed from “reg- permits legislature The Clause reality market. Yet confirms any commerce, it. Put not to create ulate” only of the substantial-effects the breadth reg- way, empowers Congress another It not show that doctrine. does “actions,” ulate economic “activities” products may compel buy individuals to in words individu- not inaction—not other they do not want. given a market als who have never entered crossed only Not has the Court never that most American of free- prize and who line, Congress, as the re- this neither has to be left alone. doms: agencies confirm: ports of two federal 1. (1) required government “The has never as a people buy any good in- or service auditioning to arguments Of all the in mandate, residence the Unit- condition of lawful the individual this is validate Memorandum, The Court, one, CBO has ed States.” compelling. most The an Individual type Budgetary Treatment validity of this never considered Insurance, 1at before, Buy Mandate to Health at under the com- of mandate least (Aug.1994); Heart At- power. enough, merce True (2) the individual responsi- Fund v. Pub. Co. Accounting Oversight “[W]hether Bd., bility would requirement -, be constitution- (2010) al under the is a [Commerce Clause] 177 L.Ed.2d 706 (“Perhaps the most challenging question, as it ais novel telling indication of the severe constitu- Congress may issue whether use the problem tional with the PCAOB is the lack require pur- clause to an individual precedent of historical entity.”); for this good Congres- chase a or a service.” States, 898, 905, Printz v. United Service, Requiring sional Research In- (1997) 138 L.Ed.2d 914 (“[I]f dividuals to Obtain Health Insurance: ... earlier Congresses avoided use (Oct. A Analysis, Constitutional at 8-9 highly of this power, attractive we would 2010). have reason to power believe that the was exist.”). thought not to government The efforts of the and its point only amici to counter this serve Congress may confirm it. That conscript military,

individuals to serve in the (1) plaintiffs present thus theory a 453(a), taxes, app. § or to pay see invalidity of constitutional that the Court §§ seq., proves only 26 U.S.C. 7201 et before, (2) hás never considered legisla- may Congress require individuals to un- tive line that has never crossed dertake tasks under other enumerated before, (3) and a theory of commerce pow- powers, power. not under the commerce potential er that has the to succeed where only That the Second re- others by placing have failed: a categorical quired certain individuals to serve cap congressional on power. Why not ac- military (by but to arm themselves as well cept the invitation? ammunition), purchasing gun Second 271, 1,§ Act Militia Stat. comes point The first proves only that the Su- to the same end: It amounts to a neces- preme Court has considerable discretion in sary, proper utterly sensible means of resolving dispute. It does not free implementing Congress’s authority to raise judges lower court duty from the to re- army. argue Congress’s To spect language and direction of the country’s to enlist individuals to defend the precedents, particularly Court’s view proves may borders that it enlist individu- reality that this purpose law has the improve availability als to of medical regulating effect of commerce and gives analogy care a bad name. There is view of the save-before-destroy impera- drafting difference between a citizen to reviewing tives of facial challenges. The join military and forcing him to re- Supreme Court can decide that the legend spond price quote to a from Aetna. outstripped Wickard has the facts of dignifies

One other point plaintiffs’ production only Wickard —that a farmer’s argument. Legislative novelty typically is of more than 200 year bushels of wheat a not a constitutional virtue. substantially More than affected interstate commerce. once, Wickard, quite separation-of-pow- often See 63 S.Ct. 82. cases, ers the Court has said that a A appeals court of Supreme “[l]ack cannot. The precedent of historical can indicate a con- Court can decide that Raich was a case infirmity” stitutional in a congressional only act. about fungibility marijuana, see Stewart, Raich, Va. Prot. Advocacy & at Officefor -, 1632, 1641, 179 not a decision that makes broader and (2011); L.Ed.2d 675 extravagant see also Free Enter. more legislative assertions of individuals have before? Those challenge. A insurance to impervious more power the word any inactive in sense of not been cannot. appeals court to the medical-insurance when it comes claimants, favors the point The second market, Congress yet plaintiffs say The the case. dispose of not it does but them. may regulate not may in- mandate individual novelty of the far, it bridge too but voluntarily it is a have suggest who deed' of individuals What of a example more one may day goes offer the mandate also insurance on the an inven- birth to necessity giving in this policy plaintiffs One of the into effect? constitutional) so- (and congressional insurance, DeMars, yet case, tive now has Jann doctrine The substantial-effects lution. Congress right has no to re- she claims uncon- discourages, invites, than rather It coverage. quire her to maintain laws, making it difficult to draw ventional line what not clear action/inaction to effort legislative from a conclusions an individual setting means in a which into such initiative policy a new shoehorn (and actively) coverage obtains voluntarily power. theory of federal capacious maintain it thereaf- required only and is individuals, why group to this ter. As Does is the critical one: point third them, even under can’t contain Clause the Commerce action/in- long- theory of the case? We no plaintiffs’ congressional that limits dichotomy action on talking imposed a mandate er are about First, several reasons. No—for power? in the mere status of “existence” Unit- does of the Constitution relevant text who have vol- ed States but on individuals the ex- a limitation. To contain such in an untarily purchased medical insurance “commerce,” “necessary” “regulate,” tent market and who must maintain interstate be words of confine- “proper” might mini- buy. At a only what chose ment, not treated them the Court has mum, law is consti- application objects of federal way, long as the as tutional. substantially are economic legislation All three methods of commerce. affect line have How would the action/inaction insurance, (private care paying for medical Might he have to Roscoe Filburn? applied self-insurance) meet

public insurance Adjustment Agricultural to the responded if requirement. And this modest prohibi- that the by claiming Act of 1938 of these may rules for some prescribe more than 11.1 acres of planting tion on plaintiffs seem to payments, methods of him to ac- compelled on his farm wheat why these words it is difficult to see agree, buy in the interstate mar- tion—to wheat for all doing it the same prohibit from of his ani- ket so that he could feed all three. any And more offensive mals? a farmer Second, autonomy prevent by the ac- individual promise offered it comes to being self-sufficient when establishing a from dichotomy tion/inaction —of an indi- feed to his animals than supplying limit on the categorical principled paying for health when it comes to unlikely to deliv- vidual commerce —seems It doubtful that the Wickard care? seems generality Level of is desti- practice. er thought See Wick- would have so. and it remains Court ny interpretive disputes, (acknowl- ard, 63 S.Ct. 82 mean to plaintiffs unclear at what level some farmers edging “forcfed] that the law line of constitu- pitch their action/inaction they could buy wheat into the market to whether a work- authority tional or indeed themselves”). How would apply provide this test able level exists. Does if someone like apply line medical purchased individuals who action/inaction

561 house, marijuana more, premiums). What inaction Angel Raich sold her is action, better, all? sometimes for plants and The Controlled Substances sometimes worse, owner to act for when it comes to financial obligate Act would the new risk. removing plants), see U.S.C. When Buffett tells (by Warren shareholders that money § but it seems doubtful that he could continue to make more “[w]e than sidestep obligation ground snoring this on the that when when active” or that him “[ijnactivity intelligent the law forced to act rather than strikes us as behav- ior,” leaving enjoy him alone to the fruits of Chairman’s Letter to Shareholders ¶¶ (Feb. 28, 1997), 72-73, inaction. available at http://www.berkshirehathaway.com/letters/ linguistic problem There is another with 1996.html, he is not urging the Board of power regu- line. The action/inaction him in place Rip Directors to Van Win- prescribe includes the late stupor year. kle-like for the next He is Case, proscribe. Lottery See that, saying many buy and sell 47 L.Ed. 492 recommendations came across his Legislative prescriptions set forth rules of year, thing desk the best he could conduct, require some of which action. informed, masterful, have done is the even (sex-offender See, e.g., 18 saying inaction of no to all of them. registration); (child-support pay- id. ments); Faasse, see also United States v. No one is deciding inactive when how to (6th Cir.2001) (en care, pay 265 F.3d 486-87 for health as self-insurance and banc). same is true legislative private insurance are two forms of action Take proscriptions. drug addressing laws at issue the same risk. Each re- Raich, choices; in regulated by quires where affirmative one is no less other; prohibiting individuals from possessing active than the and both affect com- drugs. drug-possession case, certain A law in merce. affidavits filed plaintiffs amounts to forced inaction some set- individual all mention the need to (those tings do not drugs changes who have must make current in their spending them), get and forced action in other saving practices to account for the (those settings drugs get pay who have must need to for medical them). buy rid of future. Saving insurance or to self- insure, attest, as these affidavits involves An enforceable line is even more difficult ¶ Deck, E.g., May action. Ceci to discern when it comes to health insur- (“Due pressure to the added financial [of point buying ance and the it: financial mandate], I cut back on discre- having money you risk. Risk is not when tionary spending, such as costs associated way need it. And the mandate is one entertainment, with going like to the mov- that all ensuring money Americans have ies, restaurant, events.”); sporting pay they inevitably for health care when ¶ (same). Deck, Hyder May context, need it. In this the notion that How, self-insuring moreover, buy- amounts to inaction and would action/inaction ing respect insurance amounts to action is not self- line work living with to individuals responsibly, already evident. If done the former pur- States mandate the requires (affirmatively saving more action chase of medical insurance or States that money regular on a managing conceivably might basis and do so the future if the time) (writ- the assets over than the latter mandate is invalidated? One of the cen- ing year premises argument check once or twice a or never tral of the claimants’ that, writing design, one at all if employer regu- withholds under the Framers’ against of individuals whom Con- health insurance er class care and lation of health apply presenting could the law and exclusively, preroga- gress if not primarily, challenge. to a facial why impediment claim- another That is the tive of States. that, when believe presumably ants Third, a on the variation action/inaction power, this have exercise States regulating individuals al- line—between ways try out different to broad discretion and those ready in markets outside why And that is health care. regulate to work, them —does not seem to at least have no constitu- apparently claimants Angel of Raich and Filbum. Raich view to solve objection to seek tional States any Filburn never entered and Roscoe individual mandates or problem this with intrastate, markets, or whether interstate something similar. Yet individuals such yet Congress regulated them nonetheless. entered the already would have States why upholding That is the decisions this market, permitting Con- health-insurance authority far-reaching. regulatory are so them further increas- gress to To the extent both individuals still did coverage already re- ing the minimum marijuana), that something (grew wheat or them quired by requiring state law or line takes us back to the action/inaction comply components to with other problems and the associated with it. strange Act. How Affordable Care Fourth, still another variation on the live in States with man- individuals who purchases line—that forced action/inaction subject regula- to federal dates would be of medical insurance do not amount to not be—with the tion but others would “proper” regulation, means of even if Con- having difference in treatment little to do reasonably gress could find them “neces- with the concerns about federal intrusions sary” not seem to work either. One —does autonomy that led to this on individual Act component of the and one alternative place. strange, How challenge in the first way addressing topic suggest why. too, that, opted if other to enact States requiring Instead of Americans to obtain future, individual mandates fed- insurance, general legislature medical spring commerce would into eral buy just them might required cata- living as to there. existence individuals strophic-care insurance. Here we have not, Strange theory of commerce problem serious illness or accidents— n —a power at a minimum creates a serious people experience directly that most will challenge. If nothing hurdle for a facial indirectly through family themselves or else, it that the minimum-essen- suggests lives, point member at some in them tial-coverage provision is constitutional as virtually one that no one can afford based applied living individuals States with savings. on current income and One fed- mandates, undermining the notion that the law, Emergency eral Medical Treat- mandate is unconstitutional in all of its (EMTALA), Act ment and Active Labor applications. 1395dd, laws, and several state see, 70.170.060; voluntarily pur- e.g., What of individuals who Wash. Rev.Code Co., Walling Mich.App. chased bare-bones insurance before the v. Allstate Ins. (1990), e.g., catastroph- require mandate’s effective N.W.2d date — high-deductible hospitals accept many patients ic-care insurance or insur- of these required by regard capacity pay, ance—but are the minimum- without to their essential-coverage provision compassion hospitals to obtain and a culture of leads many more treat in the insurance? The line and doctors to others action/inaction them, EMTALA, way. Through nothing establishing means anoth- same buy in some of these costs. U.S.C. to future medical insurance order to subsidizes care, 1395cc, present Hospitals family §§ 1395dd. and doctors obtain and a member (if choice) costs, responsible internalize other and share still for the is even less Act, contrast, by raising prices. likely by See id. to do so. The others does 18091(a)(2)(F). regulate § not individuals at a time of crisis. compel buy And it does not individuals to to power regulate If has the insurance or even They use insurance. market, national healthcare as all seem instead, may pay a penalty which in the why it difficult to see it lacks agree, to years Act, first several if not authority regulate unique to a feature of existence, throughout its normally will cost in by requiring pay that market all to now less than medical insurance. See 26 virtually premiums affordable for what 5000A(c). § If U.S.C. one of these laws is of, pay say, none can later in the form it legitimate, so would seem is other. (or more) $100,000 prompt- of medical bills Requiring today requiring and it by emergency. a medical Still more ed point at a future of sale amount policy to to is the idea that the difficult see word kind, degree, differences in not and not the a limitation. “proper” imposes such When policy sort of differences removed from the (by a benefit for all Congress guarantees political by branches “proper” word or care), securing types certain medical for that matter “necessary” “regulate” or may regulate (by requiring that benefit or “commerce.” it). pay component some to for One Act, out, Fifth, plaintiffs target Affordable Care as it turns does the breadth of very thing: It under Congress’s allows those the mandate and decision to insurance, purchase catastrophic-care all of the self-insured together 18022(e); nothing only more. See rather than those who demonstrate an 5000A(f)(l). incapacity pay only 26 U.S.C. This feature of for medical care and congressional responsible the law does exceed those who are for the cost- power, showing spreading free-riding further that the mandate at which the Act applica- They Why is not unconstitutional in all of its takes aim. have a point. apply tions. the law to those who can for health pay paid care and those who have for health Congress also would have acted within Why in past? impose “penalty” care a power opted regu- its commerce had it on those who take care of themselves coverage point late insurance at the financially? physically why And elimi- sale, “proper” and the word would not nate healthcare of one free-riding sort gotten way. legislature compelling free-riding of another sort — in- non-exempt could have said that when those requiring paid who for their health care, they put dividuals obtain health are past care to subsidize the healthcare pay buy to a choice: either for the care or costs others the future? Instead of ap- medical insurance from then on. This eliminating Act free-riding, the seems to proach impose would federal condition it in place. lock (ability pay) consumption on the of a objections, however, up ap- service bound federal commerce These do not (medical care). pear Yet such law would be at to establish constitutional defect. mandate, Congress generally authority least as coercive as the individual has broad arguably An in under the commerce more so. individual choose the care, people regulate, need of acute medical without the class of it wishes to see but Raich, it, apt pay resources to is not to refuse guarantee liberty of individual all of the self-in critical group it to

permitting judicially pre- many structural and they have together, whether sured enforceable' — care, few, powers very serving separation a horizontal medical assets available between, among the branches of the National Gov- particularly since something in Chadha, ernment, v. of the self-in INS U.S. wherewithal the financial 2764, 77 103 S.Ct. L.Ed.2d unlikely stay put. to Individuals sured is (1983), powers jobs, separation the value of and a vertical jobs and lose and obtain down, the National and the goes and mak between Government goes up their assets (if unfair) States, York, 181, 112 New perhaps to U.S. ing appropriate it may it group together. though The S.Ct. 2408. Odd seem regulate this entire scrutiny light history, rights to com of American States’ apply strict courts do not only rights. are individual See Bond legislation require sometimes merce clause States, U.S.-, “fit” v. 131 S.Ct. or “reasonable” be “appropriate” (2011). 2355, 2364, 180 L.Ed.2d 269 Doubt means and ends. United States tween -, Comstock, any prison country it? Go to federal in the U.S. (2010). 1956-57, 176 a Regulat conception to see how broad of the com- L.Ed.2d 878 liberty merce has affected individual together all does not ing self-insured through passage gun-posses- of federal lines. The Commerce Clause cross these drug-possession laws sen- Congress general to make flawed sion and permits izations, tencing mandates. might and that at most is what be the overbreadth of this law. said about plaintiffs But to the extent mean to ar- case, gue that the Tenth Amendment contains But if that were not the even even anti-commandeering principle ap- its own Congress prohibited if the Constitution to plicable individuals to all Con- regulating from all of the self-insured to gress’s enumerated is hard to gether, require powers, that would not a court to square taxing power, regu- with the which invalidate individual mandate in its larly equally commandeers individuals—in entirety. only It would that the law show ways spend money things coercive on may applied be unconstitutional as to some —to they may them, support policies not need and to individuals, not to all of and that they not like. plain- do And to the extent challenge. suffices to defeat a facial Noth mean a argue principle tiffs to such ing prevents bring such individuals from (or reinstates) captures limitations on the ing as-applied challenges the mandate meaning “property]” “regulat[ing]” in- plaintiffs to the down the road. As “commerce,” terstate that takes us back to case, today’s only pre filed already points Congress’s made about challenge, very enforcement facial delegated power in this area. point particulars of which is to make the their situation irrelevant to the constitu Reed, inquiry.

tional Doe v. See intu- brings lingering That me to the -, 2811, 2817, 177 L.Ed.2d 493 Americans, I ition—shared most sus- pect Congress should not be able to —that Sixth, anti-commandeering principle compel buy products they citizens to do If nothing require of the Tenth Amendment adds not want. can Ameri- True, buy today, new to this case. the Tenth Amend- cans to medical insurance what powers delegated compel ment reserves those of tomorrow? Could it individuals buy health care itself in the form of an to the National Government “to the also, check-up annual or for that matter a people.” States” and “to the True membership? require legislative to all American bodies? health-club Could Few to sell medical-insur- computer companies may that the require doubt States individ- open in the market order policies ance insurance, buy medical uals indeed pay pool the asset available to widen at least two of them have. See Mass. Gen. if can do insurance claims? And 2;§ Laws HIM N.J. Stat. Ann. 26:15- field, what of other this in the healthcare goes 2. The same related and famil- products? and other fields of commerce iar mandate of the most States —that purchase but there are adults must car insurance. Yet good questions, These are respects, In most a man- some answers. no court has invalidated these kinds of purchase health insurance does not date mandates under the Due Process Clause settings or markets. parallel these other any liberty-based guarantee other of Regulating pay they how citizens for what the Constitution. That means one of two (health care), quite already receive never things: compelled either purchases of need, they and in the case know when will medical insurance are different from com- emergencies general- illnesses or of severe pelled purchases of goods other and ser- (if afford, ly will not be able to has few vices, States, or the plaintiffs’ even under any) every in modern life. Not parallels case, theory may purchases compel unconstitutionally intrusive law is an intru- insurance, vegetables, cars and so on. powerful sive law. And even the most just an Sometimes intuition is an intuition. meaning about the of the Consti- intuition now, may For whatever else be said tution must with a textual and be matched plaintiffs’ about limits, activity/inactivity theory of theory enforceable of constitutional activity/inactivity dichotomy power, they does commerce have not and the shown respect with to health insurance not work that the individual mandate exceeds that many settings, any in if of them. power applications. in all of its Congress may in apply the mandate at least four very helps force of the intuition also (1) settings: already to individuals who it, why to undo as one is left to wonder purchased voluntarily have Commerce Clause does the work of estab- who want to coverage, maintain but who lishing this limitation. Few doubt that required will be to more insurance obtain Congress equally an coercive pass could in order to minimum- comply with the by taxing power imposing law under its (2) in- essential-coverage requirement; to everyone freeing healthcare tax on they voluntarily them from the tax if health dividuals who obtained cover- purchased (at may If in engage age insurance. but do not wish to forced some be future) type compelling/conscripting/com- same point indeterminate in the to main- mandeering buy products (3) of individuals to it; tain to individuals who live States taxing power, strange under the is it not already require that them to obtain insur- only congressional the broadest of may ance and who have to obtain more out a limit this same powers carves on coverage to the mandate or comply with type regulation? by requirements abide other of the Afford- (4) Act; able Care to individuals under Constitution,

Why construe the more- they no matter where live and no mat- over, place to this limitation —that citizens purchased ter whether health insurance, buy vegeta- cannot be forced before, may satisfy the law bles, care who -solely grant cars and so in a on— only obtaining catastrophic-care coverage. power Congress, opposed as to due process respect application limitations on with The valid of the law these part mandate as using law es of the individual uphold people suffices groups of allowing the legislation, of this national challenge. this facial against representatives, rather peoples’ political the law have challenges to future While primary say judges, than their to have climb, this view of nothing about hills to utility. over its bring- from individuals precludes the case challenges to the mandate as-applied ing GRAHAM, Judge, Senior District it, and implement agencies the relevant dissenting part. concurring part and particular,” taught “lessons as the majority’s opinion as I concur with the Sabri, Act, Anti-Injunction standing and the (or crossed disprove) prove opinion that Judge as well with Sutton’s this un- imposing line a constitutional challenged statute is not exercise Just as courts requirement. precedented sepa- I Congress’s taxing power. write needlessly pre-judging from should refrain disagree Judge I with Mar- rately because invalidity many applications, of a law’s analysis and do not tin’s Commerce Clause doing from the same they should refrain Judge plaintiffs’ share Sutton’s view respect validity. to their with v. challenge is undone United States rejecting Any remaining doubt about Salerno, 739, 745, 107 481 U.S. S.Ct. alleviated challenge this facial (1987). 697 95 L.Ed.2d McCulloch, enduring lesson of which most doctrinal, historical, not a one. authority by remains If exceeded its forty years mandate, in the after No debate enacting the then the mandate is people more country’s birth stirred cannot be valid “legally stillborn” and Sebelius, the federalists than the conflict between Virginia v. 728 any application. (E.D.Va.2010). the role of the and anti-federalists over 774 “There F.Supp.2d to the National Government relation position depends is no which on clearer up no issue more bound States. And was every delegat than that act of a principles, creating than the wisdom of that debate authority, contrary to the tenor of the ed upholding bank. In the consti- exercised, a national it is commission under which bank, tutionality act, therefore, of a second national not legislative void. No con conclusion, foregone Supreme Court trary to the Constitution can be valid.” allowing political (A. Hamilton). erred on the side As The Federalist No. 78 Right to resolve the conflict. branches point, Lopez and Morrison struck cases wrong, presented that decision the chal- facially unconstitutional down statutes as (by uphold- a short-term loss lengers with and did so under the Commerce Clause bank) ing platform and set the reference to Salerno. United without victory (by potential long-term allowing Lopez, v. States argue (1995); them to should 1624, 131 L.Ed.2d 626 again). Morrison, make the same mistake There was States (2000). no third national bank. But see Federal 1740, 146L.Ed.2d 658 Act, ch. Reserve 38 Stat. I.

Today’s the individual debate about presents This case the issue whether just stirring, mandate is no less essen- powers under Congress acted within its appropriate tial to the role of the National leg- it passed the Commerce Clause when capable politi- Government and no less nearly all citizens to assuredly bring requiring Time will islation cal resolution. coverage begin- maintain health insurance light policy strengths and weakness- II. Patient Protection and ning in 2014. See (“ACA”) (codi- § Act Affordable Care evaluating validity, the mandate’s one 5000A(a)). § at 26 Individuals fied U.S.C. identify must what market or it conduct satisfy responsi- fail to the “individual who regulates. argue Plaintiffs that the health monetary bility requirement” pay must subject insurance market is the immediate 5000A(b)(l). § penalty. mandate, of the government while the con- The mandate is a novel exercise of Com- tends that the represents mandate but one power. prior No exercise of merce Clause component regula- broader ACA’s required pur- individuals to has tion of the market for health care services. fact good chase a or service. This alone ques- does not answer the constitutional challenged requirement The statute is a tion, the need for highlight but does to obtain health insurance. The text of judicial scrutiny. courts have the Federal § Congress’s 1501 reflects view that it was duty to construe and enforce the “outer regulating the insurance market when it congressional power. Lopez, limits” of enacted the legislative statute. In the (finding findings, Congress found that the insur Zones Act unconstitu- Gun-Free School requirement ance “substantially is what tional). commerce,” affects interstate ACA The authorizes Con- Commerce Clause 1501(a)(1), specifically and it noted that gress among ... Commerce “[t]o subject “insurance is interstate commerce Const., I, Art. the several States.” U.S. 1501(a)(3) (em regulation.” § Federal Supreme cl. has inter- Court added) phasis (citing United States v. preted power reaching the as three areas: Ass’n, South-Eastem Underwriters (1) commerce, the channels of interstate U.S. 88 L.Ed. 1440 (2) the instrumentalities of interstate com- (1944)). The findings further state that (3) merce, substantially “activities that government the federal significant “has a Lopez, affect interstate commerce.” 558-59,115 insurance,” in regulating U.S. at S.Ct. 1624. role health 1501(a)(2)(F), § and the mandate will regulates Because the mandate decisions serve to “broaden the health insurance purchase not to health insurance —conduct individuals, pool healthy risk to include falling ordinary outside the sense of the (the which will premi- lower health insurance exchange word “commerce” trade or 1501(a)(2)(G). (9 Moreover, § good, Ogden, of a see ums.” Gibbons v. U.S. the Wheat.) (1824)) 1, 72, 6 L.Ed. 23 findings provide requirement that “[t]he —-Con- gress expressly category invoked the third creating essential to effective health insur- power of Commerce Clause as its authori- ance require markets do not under- ty enacting the mandate. See ACA writing and eliminate its associated admin- 1501(a)(1). § inAnd various suits across 1501(a)(2)(H).1 istrative costs.” challenging constitutionality the nation the government attempts The now recast mandate, government the has con- regulating the exercise of as the sistently defended the mandate under market for health care services. The Congress’s power regulate activities provisions ACA’s numerous seek to widen substantially affect interstate com- improve merce. access to health care services and codified, statutory language has since amended the 42 U.S.C. but the legislative findings quoted unchanged. section in which the are above remains conclusion need not be man- if its ultimate The even those services. quality face value. See Hodel v. Vir- accepted at aimed at among provisions itself rests date Mining & Reclamation ginia market. the health insurance reforming Surface Ass’n, Inc., 264, 311, 101 S.Ct. parts of ACA, §§ 1001-1563. Other See (1981) J., (Rehnquist, 69 L.Ed.2d programs changes public Act make (“Moreover, sim- 2001-2955, concurring judgment) Medicaid, §§ enact see like a may conclude that ply because improve quality intended reforms in- substantially affects care, activity §§ particular 3001- efficiency of health see necessarily terstate commerce does not health care work- 3602, strengthen the so.”). in- make it encourage §§ force, see §§ 7001- therapies, see medical novative Third, argument turns government’s argues government 7Í03. The something it is not. The the mandate into regulating one is best viewed mandate that all citizens obtain health requirement the overall health aspect financing—of — depend not on them receiv- insurance does market. care place. care services in the first ing health carry each and viewing Individuals must argument for government’s every regardless month of whether regulating health care mandate as First, actually entered the market many from flaws. general suffers Simply put, the mandate incentive to health services. “Congress perverse gives activity the commercial broadly to the Com- does pursuant legislate regulates It questionable obtaining as- of health care. nestling merce Clause— being uninsured. authority comprehen- into status of its sertions than schemes—rather with regulatory sive Raich, III. Gonzales

precision.” (2005) 162 L.Ed.2d 1 finding that Congress’s legislative J., (O’Connor, dissenting). Within ... requirement responsibility “individual whole, represents the mandate ACA as substantially affects interstate commerce” power. separate congressional exercise of analysis on its head. ACA turns the simply concerns say To that the mandate 1501(a)(1). all question, forcing Without proves care the financing end of health that purchase product a not individuals that the mandate point is insurance —it will everyone purchase would otherwise requires of all citizens. But an on commerce. Con effect justify Second, cannot be tolerated to its government’s argument ig- gress creating of its own sub Congress itself said about the exercise nores what determining whether that the insur- stantial effects. Congress found mandate. satisfied, effects test is particular is what the substantial requirement ance commerce, existing be on the economic interstate focus must substantially affects regulate, not on activity Congress seeks to Supreme ruling a Court and it referenced would have. See industry subject impact regulation to the that the insurance Filburn, 111, 125, 63 As v. 317 U.S. Congress’s powers. Commerce Clause Wickard (1942) 82, (examining above, L.Ed. 122 findings §in 1501 dem- S.Ct. 87 noted other activity,” together “appellee’s on whether sights onstrate that had its similarly situat activities of those with the the health insurance market. When Con- ed, on a economiceffect clearly “exerts substantial gress spoken has so on the basis commerce”); at Lopez, 514 U.S. of interstate attempted power, for its exercise 558-59, (holding that Con- terms, 1624 judged on 115 S.Ct. exercise should be those

569 559-61,115 (finding 1624 activity posses- an that sub- S.Ct. may regulate gress commerce). gun of a in a school zone sion was not an stantially interstate affects Raich, 25, activity); economic 545 at U.S. plaintiffs’ then is whether inquiry The (finding growing 125 S.Ct. 2195 and were, substantially affects “activity,” as it consuming crop “quintessentially a was Much has been commerce. interstate economic”). Congress attempts here the distinction litigation in this of made regulate a class of individuals who have inactivity. The activity and Su- between purchasing refrained from health insur- employed has often the word preme Court being regulated ance. The conduct is the regulatory sub- “activity” to describe decision not to enter the market for insur- over interstate jects Congress’s power bought ance. Plaintiffs have not or sold Wickard, 125, at See 317 U.S. commerce. service, good or nor have manufac- 559, 82; 514 U.S. at 115 Lopez, 63 S.Ct. tured, distributed, consumed a commod- 609-10, 1624; Morrison, at S.Ct. 529 U.S. Raich, 25-26, ity. See 545 U.S. at 125 1740; Raich, at (defining S.Ct. 2195 “economics” as the interpret I those 2195. Yet do S.Ct. distribution, “production, consumption line be- drawing cases as a constitutional commodities”). Rather, they strang- are inactivity. That activity tween distinc- the health ers to insurance market. This failings as tion would suffer from the same readily present differentiates case effects test of the “direct” and “indirect” from government. others cited See jurisprudence. prior Commerce Clause Wickard, 317 U.S. at 63 S.Ct. 82 Laughlin Steel NLRB v. Jones & See (Filburn Raich, wheat); cultivated Corp., 301 U.S. (Raich at U.S. S.Ct. 2195 cultivated (1937) (rejecting L.Ed. direct/indi- Motel, marijuana); Heart Atlanta Inc. stating ques- that the rect distinction States, 241, 243, “necessarily Congress’s authority tion (1964) 13 L.Ed.2d 258 (appellant degree”); Lopez, one of motel). operated Certainly there is an J., (Kennedy, concurring) 115 S.Ct. 1624 insurance, interstate market for health of constitutional law (noting questions but, plaintiffs unlike the in Wickard and susceptible are “not to the mechani- often Raich, plaintiffs here have not entered the lines”). clear application bright cal In no market. other instance has Con- activity/inactivity line could Imposing gress attempted before to force non- hinder future cases from re- participant into a market. moving burdens on commerce that certain virtually government contends that passively classes of individuals have en- every participate American has or will Faasse, 265 abled. See United States the market for health care services. The Cir.2001) (6th (upholding the F.3d 487 timing of the need for health care can be constitutionality Support of the Child Re- unpredictable and the costs substantial. covery rejecting argument Act the insurance, By purchasing not individuals the willful failure to make a court- plaintiffs to like the have made decision ordered, support pay- out-of-state child view, government’s In the accept risk. in- Michigan ment from California to was plaintiffs’ planning financial choices and purposes). sufficient for Commerce Clause position quintessentially on risk are eco- inquiry by considering they inevitably The should start in nature nomic because regulated cost-shifting the “economic nature of the ac- lead to when the uninsured Morrison, tivity.” they 529 at 120 obtain care cannot afford. The man- U.S. 1740; pay a failure to for services Lopez, also 514 at date concerns S.Ct. see U.S. 570 $43,000,000,000 pay To for this

obtained, not a argues government, the cost, providers pass care on the activity. health engage in economic failure to insurers, private pass which on cost deftly switches the focus argument This cost-shifting This the cost to families. non-commercial nature private, from the family by on aver- premiums increases (the unin- decision to be conduct plaintiffs’ $1,000 a age year. By significantly over sured) the economic effects perceived uninsured, reducing the number of the market. from the insurance their absence requirement, together with the other may Certainly, plaintiffs’ conduct be con- Act, will lower health provisions of this conduct aggregate in the with the sidered premiums. insurance individuals, Raich, similarly-situated see 18091(F). brief, 2195; however, 42 an amicus at U.S. 545 point certain economic scholars to other Clause cannot be satisfied the Commerce by activity lacking cost-shifting economic effects caused decisions when activity economic be uninsured. The first relates to adverse first instance.2 “Where commerce, selection, substantially positive affects interstate or the correlation be- regulating activity will be legislation demand for insurance and the risk tween Lopez, 514 at healthy sustained.” U.S. opt of loss. When individuals Morrison, 1624; at insurance, S.Ct. see also U.S. buy pool per- of insured (“[I]n 611, 120 those cases whole, S.Ct. healthy as a sons is smaller less regula- where we have sustained federal Second, raising premiums. pre- thus when activity upon based tion of intrastate viously do obtain in- uninsured individuals activity’s substantial effects on interstate surance, they tend to do so when commerce, activity in has question significant have a medical need and there- endeavor.”); been some sort of economic more and costlier services. consume (Con- Raich, at Lopez rejected and Morrison a view of gress may regulate “purely local activities whereby cost-shifting causation to soci- part that are of an economic ‘class of activ- ety satisfy caused violent conduct can effect on in- ities’ substantial Lopez, the substantial effects test. See commerce”). terstate (rejecting 514 U.S. at 115 S.Ct. 1624 purchase It is true that decisions not to government’s “costs of crime” and loss are some sense economic “national productivity” reasoning); They Morrison, ones. are choices about risk and aggregate, (same). finances. When viewed government fails to show have economic conse- these decisions why cost-shifting by risky a view of caused instance, quences. Congress, has any prob- conduct should fare better. The found that: government’s lem with the line of reason- logical point, that it has no end providing uncompensated ing

The cost of here is precisely and it illustrates Justice Thorn- care uninsured was Judge correctly explained, date. Vinson 2. Justice Scalia has stated that under the Nec- As Clause, essary Proper “Congress may attempted exercise man- —the activity if justified even noneconomic local date—cannot be because it is “neces- regulation necessary part that of a more disruption sary” to cure the economic caused general regulation of interstate commerce.’’ part legislation "guaran- another —the Raich, 37, (Scalia, 545 U.S. at 125 S.Ct. 2195 provision, § teed issue” ACA 1001. See Flori- J., concurring). Dep’t da v. United States Health Human of 1256, 1296-97, Services, F.Supp.2d 780 2011 I do not believe that this view of the Neces- 31, 285683, (N.D.Fla. 2011). sary Proper WL at *31 Jan. Clause would save the man-

571 (1803) (“This the substantial effects L.Ed. of very concerns with 60 es- as’s Morrison, 627, judicial duty.”). at 120 sence of Lopez and Mor- test. See (Thomas, J., concurring) (calling firmly rison establish that the 1740 Commerce S.Ct. malleable”). power “rootless and That Clause is “not without the test effective Morrison, 608, test, paired aggregation with the 529 at when bounds.” U.S. 120 557, manipulation (citing Lopez, invites and S.Ct. 1740 514 at principle, U.S. 1624); “draw[ing] broadly enough the circle to 115 S.Ct. see also Lopez, 514 U.S. that, J., activity an when taken in iso- at 1624 (Kennedy, cover con- (“[T]he lation, curring) would not have substantial effects Court as an institution Lopez, legal system on commerce.” 514 U.S. at and the as a whole (Thomas, J., concurring). stability immense stake in the of our Com- jurisprudence merce Clause as it has insists that a decision government The point.”). evolved to this clearly finan- buy not to insurance is more in nature than the acts of crime at The “hard work for identifying cial courts” is “objective Morrison. But the markers for Lopez confining analy- issue Raich, Lopez down in and Morri- sis in statutes struck Commerce Clause cases.” (O’Connor, impose their criminal 545 at son at least waited to U.S. S.Ct. 2195 J., dissenting). until the commission of the acts penalties dealing When with the cost-shifting. Congress’s outer limits allegedly powers, that caused “first Here, layers principles” must must be Lopez, several of inferences heeded. See government’s for the cost-shift- 514 materialize S.Ct. 1624. The fed- work, reasoning government but the mandate eral is one of ing enumerated Lopez, powers. Congress’s authority none of waits for them. See must have limits, (rejecting as Tenth U.S. at 115 S.Ct. 1624 lest the Amendment’s reser- theory powers too attenuated a substantial effects vation of to the States and the inference”). upon people without “pile[s] meaning. Principles inference be penalty guide The mandate and its are not condi- federalism thus should court’s ex- pay the failure to for health care amination of novel tioned on exercises of Commerce services, or, matter, power. for that conditioned Clause See id. at (“[W]e J., (Kennedy, consumption concurring) on the health care. Con- 1624 gress inquire instead choose a more coercive and must whether the exercise of na- regulation. proper object power tional seeks to intrude an area upon intrusive commerce, concern.”); Raich, Congress’s power is interstate of traditional state J., (O’Connor, private not decisions to refrain from com- U.S. at 125 S.Ct. 2195 dissenting) (noting merce. “fundamental structural concerns about sovereignty dual Congress’s attempt represents The ACA cases”). animate our Commerce Clause problems national in the health to solve Here, problems market. That are in- Congress’s felt exercise people. nationwide does mean trudes on both the States and the try any can them in It an end to brings experimentation to solve fashion state pleases. Congress expressed legislative must choose from the and overrides the will powers granted guaranteed limited to it the Consti- of several states that have tution, duty to and federal courts have a their citizens the freedom to choose not uphold purchase the Constitution when health insurance. See Idaho 39-9003; § authority. Marbury has exceeded its v. Code Ann. Utah Code Ann. (1 Cranch) Madison, 137, 178, 63M-1-2505.5; Ann. Va.Code 38.2- law-abiding says, Congress ment because will not need mandate forces The 3430.1:1. measures as the mandate ex- to resort to such product a purchase to individuals —an very often. again, in- or least thereby no less—and pensive product, an individual’s financial the realm of vades troubling many on lev- This assurance Maryland planning decisions. Cf. hardly and should be heard to come els Wirtz, n. body powers. from a with limited The (1968) (“Neither L.Ed.2d 1020 uniqueness justifies one exercise of in had the Court de- here nor Wickard for next con- power precedent becomes the may relatively use a Congress clared that templated permitting exercise. And the on commerce as an excuse impact trivial path Congress would clear the for mandate general regulation of state or for broad to certain “unique” to cause or contribute activities.”). In the private absence factors, free-riding and adverse such as mandate, right to de- individuals have the selection,3 impose a solution that then expenses. how to finance medical cide to others.4 is ill-fitted right. extinguishes The mandate To the fatalistic view that will may provide incen- course always prevail step and courts should back (in Codes, Bankruptcy tives the Tax and offended, people, speak and let if instance) behavior, may to steer representatives, I through political their requirements prohibi- impose certain say designed that “courts were to be an engage tions once an individual decides to body people intermediate between the See, activity. e.g., order, in a commercial Wick- legislature, among other ard, (Congress impose had to supra power things, to latter within keep the the limits limit harvesting grew a on farmer who assigned authority.” to their The Federal- Motel, wheat); supra (A. Hamilton). Heart Atlanta arena, ist No. In this (Congress impose had anti-dis- “public force” is entrusted requirement crimination on individual who Holmes, courts. Oliver The Path Wendell motel). It matter operated Law, is different Harv. L.Rev. of (1897). “[Wjhere entirely engage to force an individual to legisla- the will of the activity ture, statutes, commercial that he would not oth- declared in its stands in erwise undertake of his own volition. opposition people, to that of the declared Constitution, judges ought in the to be government recites the common re- governed by the latter rather than the frain that the health market is former.” The Federalist No. 78. unique and attributes this to some blend of selection, free-riding, adverse universal This is the work” “hard Justice O’Con- participation, unpredictability as to nor referred to her dissent Raich. It might part place when and how much care be needed. is hard work in because it can court, govern- position choosing This should comfort the federal court in the sion, free-riding problem substantially supply guaranteed 3. The one in that will be creation, Congress's Emergency own see high-risk Though policies individuals. these Act, Medical Treatment and Active reasonable, Labor Congress’s compassion might be (requiring hospitals 1395dd with not allow it to exceed the does limits of its emergency departments provide the care powers. constitutional necessary patients emergency to stabilize with conditions, regard pa- medical to a without Again, the mandate does not wait until an received), ability pay tient's for the care participates individual in the market problem and the adverse selection will be health care. guaranteed provi- exacerbated issue thority competing political ideol- to force individuals to do whatever powerful between (within judg- the risk that the court’s it sees fit like ogies with boundaries the First as We may “political.” Clause), ment be branded Amendment and Due Process as sight of the fact however must not lose long regulation activity as the concerns an interpret ap- we that, that the Constitution aggregated, or decision when can be powerful itself embodies a resolution of ply loose, type said have some but-for political ideologies, including competing connection, nearly economic which all hu- power of the the extent of the federal activity Lopez, man does. See 514 U.S. at government resolution that the States (“[Depending 115 S.Ct. 1624 on the —a people accepted and the the ratification generality, any activity level of can be (J. Federalist No. 45 process. See The commercial.”). upon looked Such Madison) (“The powers delegated power very general feels much like the gov- to the federal proposed Constitution police power that the Tenth Amendment ernment are few and defined. Those reserves to the States and people. A govern- which are to remain the State structural shift of that magnitude can be indefinite.”). ments are numerous and accomplished legitimately only through constitutional amendment. Lopez Supreme recognized Court existing that the direction of its Commerce jurisprudence prin-

Clause threatened the

ciple government of a federal of defined powers, began pro-

and limited and it developing jurisprudence

cess of new with compatible

more the Constitution. Raich, process interrupted by

That was majority where a unwill- Court was Tyrone NOLING, In re Movant. ing expressly overrule a landmark Com- in, Wickard, merce Clause which case had Tyrone Noting, Petitioner-Appellant, sixty been the law of the land for over years. Margaret Bradshaw, Warden, Raich, Notwithstanding I believe the Respondent-Appellee. path Court remains committed to the laid Rehnquist down Justice Chief and Jus- 07-3989, 08-3258, Nos. 10-3884. O’Connor, Scalia, Kennedy, tices United States of Appeals, Court Thomas to establish a framework of mean- Sixth Circuit. ingful congressional on power limitations under the Commerce Clause. The current Argued: March 2011. opportunity prove case is an it so. Decided and Filed: June If the exercise is allowed and upheld, the mandate it is difficult to see Congress’s

what the on limits Commerce authority aspect

Clause would be. What activity human escape would federal

power? The ultimate issue in case is

this: Does the notion of federalism still vitality? approve To the exercise of arm au-

power would with the

Case Details

Case Name: Thomas More Law Center v. Obama

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jun 29, 2011

Citation: 651 F.3d 529

Docket Number: 10-2388

Court Abbreviation: 6th Cir.