Massimo Calabresi at Swampland has taken a closer look at the majority opinion by the 6th Circuit court panel on Wednesday that upheld the individual mandate to purchase health insurance in Obama’s healthcare law. Calabresi says the most interesting argument in support of the individual mandate is in the concurring opinion by Circuit Judge Jeffrey Sutton, a former clerk to Supreme Court Justice Antonin Scalia. Sutton is a powerful right wing judge in the 6th circuit. The fact that he would declare the individual mandate is significant, particularly since he total demolishes the argument of those opposed to the individual mandate.
As you know, the main argument of those opposed to the individual mandate is that Congress cannot compel Americans to buy something they do not want. Sutton disagreed completely with that argument.
Here are excerpts from Sutton’s opinion provided by Calabresi:
[Sutton writes] the Constitution doesn’t limit Congress power to regulate inaction the same way it regulates action.
First, he says, “the relevant text of the Constitution does not contain such a limitation.”
Second, distinguishing between inaction and action under the healthcare law is harder than it seems. What if someone previously had healthcare and then dropped it so he could free-ride on the system? Under the plaintiff’s own argument, it would be constitutional to make him buy healthcare because he had already “entered the stream of commerce”.
Third, precedent exists for regulating people who aren’t actively participating in a market: one of them, a case outlawing growing marijuana for personal use, was written by Scalia.
Fourth, everyone agrees Congress could force someone to buy health insurance the moment they seek care at an emergency room because they would then be entering the market; “Requiring insurance today and requiring it at a future point of sale amount to policy differences in degree, not kind,” says Sutton.
Note that the judge writing this opinion was one of Scalia’s clerks and is known as in the Right Wing of the court. Interesting….. Is it possible the conservatives on the court might end up siding with Obama? Very, very interesting… We’ll have to wait and see.