Legal Theories on the Health Care bill?

[NonTradInSATX]

Liberty U. said basically said that the decision not to purchase health insurance is an activity and therefore it falls under the Commerce Clause.

An interesting view of things, not making a decision to undergo an activity is an activity in and of itself. 

You could argue that some young people without health issues have never needed insurance and never really considered it, therefore it is inactivity and not an active decision to NOT buy insurance.  These people could then face a regulatory penalty or tax on that inactivity.  This would essentially be punishment for NOT doing something.

By the way, the beautiful thing about the South Dakota law is that the legislature is trying to prove that they can't mandate the purchase of a firearm when, as a state government, they probably can.

Interesting point, is there no legal limit on a state to prevent forcing citizens to purchase certain goods/services?

[Burning Sands, Esq.]

And the SCOTUS would be bound by the district courts because....?

 

Right, it would be hard for anybody to argue that the Commerce Clause can require the people to buy something, but that's not exactly the issue in front of us.  The question presented here, rather, is whether the Federal government can create a tax for people who don't have health insurance.  This is where the Tax & Spend Clause will likely come into play.

I think this is really unlikely. Of the four district courts that have looked at this, all of them say that this isn't a tax. It's a regulatory penalty.

[Burning Sands, Esq.]

I agree that no case to date is on point.  Although the proposition of regulating so-called "inactivity" may not be so far fetched as it seems on the surface. 

As the district court in Michigan noted, in Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964), the SCOTUS held that the Commerce Clause allowed Congress to compel those choosing not to engage in commerce to, in fact, engage in commerce.   Of course you could attempt to distinguish that case on the grounds that the hotel owners were already engaged in the commercial activity of running a hotel.  But I suppose if we accept the Michigan court's premise that, as humans who are always in need of medical care, we are already engaged in the commerce of the health care market, then it follows that our decision to buy or not to buy health insurance does have an effect on interstate commerce and is thus subject to regulation under the commerce clause.

What complicates this health care issue is the fact that the SCOTUS has never ruled that the test for whether something can be regulated by Congress under the commerce clause is whether that something is an activity or not. (It's always been assumed that it must be an activity).  Rather, the test of whether something can be regulated by the commerce clause is simply whether it effects interstate commerce. (going back to Heart of Atlanta Motel)

Again, as far as I'm aware, there is no Supreme Court case squarely on point that could settle the issue of whether the "thing" that effects interstate commerce MUST BE an activity as opposed to an omission. 

One thing's for sure though, the SCOTUS has to grant cert here.  There's no way this can be left to the circuits.

Boils down to Lopez in my mind. The test is whether or not this is regulating an activity that substantially affects interstate commerce.

Both Liberty U. and Florida (first one said constitutional, second said not) framed the issue that way. Is not buying health insurance an "activity"? If it is, it probably can be mandated. If it isn't, then it probably can't (under Lopez, anyway).

Liberty U. said basically said that the decision not to purchase health insurance is an activity and therefore it falls under the Commerce Clause.

Florida said that it is, almost by definition, inactivity (not buying insurance) and that Congress's power didn't reach that far.

It's not really Wickard/Gonzales because those cases, while regulating purely intrastate activity, were at least regulating activity (growing and consumption of wheat and marijuana, respectively). This isn't doing that. To play with Wickard a little, it would be more like the government mandating that you grow corn on your land (ignoring any seizure arguments or w/e; let's pretend we're solely in Commerce Clause land). I'm betting on 5-4 against.


By the way, the beautiful thing about the South Dakota law is that the legislature is trying to prove that they can't mandate the purchase of a firearm when, as a state government, they probably can.