Slippery Slope Watch: ObamaCare Upheld on Dangerous Grounds

 

Yesterday, a federal judge in Michigan dismissed a lawsuit challenging the constitutionality of ObamaCare. You can read the decision by Clinton-appointee Judge George Steeh here.

Take heart, this isn’t the end of the story. As Professor Randy Barnett argues over at Volokh, the “remarkably thin” opinion highlights the flimsy reasoning behind ObamaCare, and the “revolutionary” implications of upholding the law. As many of us have argued, if the Constitution’s Commerce Clause is about anything, it’s about economic activity; whereas ObamaCare’s “individual mandate” is all about regulating inactivity, i.e., the failure of certain people to purchase health insurance.

In just a few perfunctory pages, Judge Steeh dismisses this argument on the theory that the Commerce Clause allows Congress to regulate economic decisions, and not just economic activity. Thus, the decision not to purchase health insurance is ripe for regulation. As Professor Barnett points out, “Judge Steeh offers no limiting principle to the “economic decisions” theory,” and does not even acknowledge the profound implications of government regulation of all “decisions” that might in some way affect economic activity.

But wait, it gets worse! The plaintiffs also argued that the individual mandate’s “tax” (that’s what the administration calls it) is an unconstitutional tax. As I argued right here the other day, the Constitution allows the federal government to impose certain types of taxation, and the individual mandate doesn’t fall into any of them. According to Judge Steeh, those constitutional limitations on taxation apply only to taxation “for the purposes of raising revenue.”

The upshot of Judge Steeh’s decision: (1) the federal government can mandate absolutely anything it wants as a means of regulating “economic decisions,” and (2) the federal government can impose absolutely any tax it likes, provided that it pretends that the purpose of the tax isn’t really to raise revenue but, rather, to encourage certain behavior.

Get me to a Tea Party — quick!

There are 10 comments.

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  1. Profile Photo Contributor
    @Midge
    Adam Freedman:

    The upshot of Judge Steeh’s decision: (1) the federal government can mandate absolutely anything it wants as a means of regulating “economic decisions,” and (2) the federal government can impose absolutely any tax it likes, provided that it pretends that the purpose of the tax isn’t really to raise revenue but, rather, to encourage certain behavior.

    !!!

    • #1
  2. Profile Photo Coolidge
    @Pilgrim
    Adam Freedman:

    Get me to a Tea Party — quick! ·

    … or a Constitutional convention.

    P.S. a Con-con post might be very interesting

    • #2
  3. Profile Photo Inactive
    @MelFoil

    What if I owned a for-profit menswear store, with suppliers in several states, but for purely personal or religious reasons, I decided to convert my store to a non-profit thrift store, that sells secondhand clothes to the poor? Can the federal government prevent me from making that “economic decision,” that to some extent will adversely affect businesses in other states? By this reasoning, it sounds like they can.

    • #3
  4. Profile Photo Inactive
    @KennedySmith

    What’s the state of play on this? Seems like we’ve had more than one decision, and they varied. (Supreme Court, here we come!)

    Also, what effect will this Michigan decision have on other AG’s? I’m assuming Granholm isn’t suing, so the guy must have multi-state jurisdiction.

    • #4
  5. Profile Photo Contributor
    @AdamFreedman
    Kennedy Smith: What’s the state of play on this? Seems like we’ve had more than one decision, and they varied. (Supreme Court, here we come!)

    Also, what effect will this Michigan decision have on other AG’s? I’m assuming Granholm isn’t suing, so the guy must have multi-state jurisdiction. · Oct 8 at 8:24am

    This ruling didn’t come in an AG lawsuit. This is a suit brought by the Thomas More Law Center. There are lots of lawsuits out there. The good thing about legislation this sweeping is that lots of people have standing to challenge it. For now, each federal district and circuit can make its own parallel rulings; they don’t have to follow the other circuits. So yes: Supreme Court here we come!

    • #5
  6. Profile Photo Contributor
    @Midge
    Adam Freedman

    The good thing about legislation this sweeping is that lots of people have standing to challenge it. For now, each federal district and circuit can make its own parallel rulings; they don’t have to follow the other circuits. So yes: Supreme Court here we come! · Oct 8 at 8:46am

    Is there any reason to be optimistic about what the eventual Supreme-Court ruling on this might be? (I’m not feeling the optimism, but then, I’m a pessimist, not a lawyer, so what do I know?)

    • #6
  7. Profile Photo Coolidge
    @Pilgrim
    Midget Faded Rattlesnake

    Adam Freedman

    The good thing about legislation this sweeping is that lots of people have standing to challenge it. For now, each federal district and circuit can make its own parallel rulings; they don’t have to follow the other circuits. So yes: Supreme Court here we come! ·

    Is there any reason to be optimistic about what the eventual Supreme-Court ruling on this might be? (I’m not feeling the optimism, but then, I’m a pessimist, not a lawyer, so what do I know?)

    Midget – for a full Cato discussion of the SC’s current posture on the commerce clause, post Lopez, hit the link. Gist: The SC has never said that the commerce clause was unlimited, they just never found anything that wasn’t permitted until Congress tried to regulate possession of a gun in proximity to a school. (Lopez).

    .

    As Adam points out “For now, each federal district and circuit can make its own parallel rulings; they don’t have to follow the other circuits. So yes: Supreme Court here we come!” — which is a long and laborious process to find out what Justice Kennedy thinks.

    • #7
  8. Profile Photo Contributor
    @AdamFreedman
    Pilgrim which is a long and laborious process to find out what Justice Kennedy thinks.

    Bingo – that’s what it comes down to.

    • #8
  9. Profile Photo Contributor
    @Midge

    Thanks for the link, Pilgrim.

    Adam Freedman

    Pilgrim which is a long and laborious process to find out what Justice Kennedy thinks.

    Bingo – that’s what it comes down to. · Oct 8 at 10:23am

    And that’s why I’m nervous…

    • #9
  10. Profile Photo Coolidge
    @Pilgrim
    Midget Faded Rattlesnake: Thanks for the link, Pilgrim.

    Adam Freedman

    Pilgrim which is a long and laborious process to find out what Justice Kennedy thinks.

    Bingo – that’s what it comes down to. · Oct 8 at 10:23am

    And that’s why I’m nervous… · Oct 8 at 2:03pm

    I am not a fan of Justice Kennedy, but that doesn’t mean that I don’t pray for his good health (and enlightenment)

    • #10

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