[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]
The Daily Caller story tells you no more than that, but fwiw… Expect updates.
Update: Volokh has a little more and straightens me out on which circuit is involved. And you can read it, here.
Update: Okay I read over the majority opinion (there is a dissent, too), at least starting when we get to the commerce clause issues. Bluntly, the opinion is surreal. One heading reads:
The minimum coverage provision regulates economic activity with a substantial effect on interstate commerce
Mind you, they are upholding this. So…inactivity is activity? Well, this is how they try to fudge it:
The activity of foregoing health insurance and attempting to cover the cost of health care needs by self-insuring is no less economic than the activity of purchasing an insurance plan.
So by that logic, there is no such thing as inactivity. I am right now engaged in the following activities: not buying a car, not buying a video game, not buying food, not buying the services of a prostitute… and so on. The mind boggles.
They they go through the usual bit about claiming that it is necessary and proper simply because it would be a disaster if they didn’t uphold the mandate. As I have pointed out before, I believe that is inadequate. Instead it must be necessary to carry the other parts of Obamacare into execution.
Finally they confront the inactivity/activity distinction:
However, the text of the Commerce Clause does not acknowledge a constitutional distinction between activity and inactivity, and neither does the Supreme Court.
How can not engaging in commerce be commerce?
Furthermore, far from regulating inactivity, the provision regulates active participation in the health care market.
So “active participation in the health care market” equals “sitting on your couch and scratching yourself”?
The Supreme Court… has not defined activity or inactivity in this context.
How about you crack open a dictionary? Most dictionaries state that in order to engage in activity you have to, you know, do something.
Then finally they punt on the other arguments, such as whether it is a tax or not:
In light of the conclusion that the minimum coverage provision is a valid exercise of Congress’s power under the Commerce Clause, it is not necessary to resolve whether the provision could also be sustained as a proper exercise of Congress’s power to tax and spend under the General Welfare Clause[.]
Which is a fairly normal thing for a court to do, but on the other hand, they did argue in the alternative earlier in the opinion. First they claimed that this inactivity is activity and thus subject to regulation under the commerce clause, and then they argued that even if it wasn’t commerce, they could still reach it under the Necessary and Proper Clause. But if the Commerce Clause argument was enough, then why even bother with the Necessary and Proper Clause if they were in the practice of punting on other arguments once they believe they have found a sufficient one? Aren’t they implicitly admitting that even they don’t know if that Commerce Clause argument will fly?
But nonetheless this line brought a smile to my face given my current crusade:
In our dual system of government, the federal government is limited to its enumerated powers, while all other powers are reserved to the states or to the people. U.S. Const. amend. X. States have authority under their general police powers to enact minimum coverage provisions similar to the one in the Affordable Care Act… However, the federal government has no police power and may enact such a law only if it is authorized by one of its enumerated powers.
Mind you, that is still the majority opinion. So that is right, even they think Richard Stengel was wrong to say that the Constitution didn’t limit federal power.
Update: Let me add that like the D.C. District court opinion, I think this dealt with the activity/inactivity distinction in a way that wasn’t credible. Its not as laughably bad as the “mental activity” concept, but it is about equal in lameness. I prefer a win, obviously, but a lame victory might do their side substantial harm.
[Posted and authored by Aaron Worthing.]