July 1, 2011

WHICH IS WHY THE COMMERCE CLAUSE APPEARS IN ARTICLE 1, NOT ARTICLE 3:

Why Bush judge backed mandate (Jennifer Haberkorn, July 1, 2011, Daily Beast)

[Judge Jeffrey Sutton, a member of the three-judge panel for the 6th Circuit Court of Appeal] subtly suggests throughout his opinion — which concurs with Judge Boyce F. Martin’s majority opinion — that he doesn’t like the law but thinks it must be upheld.

“Call this mandate what you will — an affront to individual autonomy or an imperative of national health care — it meets the requirement of regulating activities that substantially affect interstate commerce,” he wrote.

Sutton also sides with the government on a key issue: that not buying health insurance is “activity” that can be regulated. His opinion rips apart the opponents’ argument that choosing to not buy health insurance is akin to sitting at home, asking to be left alone. He argues that those people who don’t buy insurance choose to be “self-insured.” [...]

But opponents of the law read Sutton’s opinion as a helpful outline of how the Supreme Court might strike down the law. Sutton listed all of the legal precedents that support upholding the mandate and said the court would have to strike them down to strike down the mandate.

“There is another way to look at these precedents — that the Court either should stop saying that a meaningful limit on Congress’s commerce powers exists or prove that it is so,” Sutton wrote.

Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute, calls it the “put up or shut up” dare to the Supreme Court. “He says, ‘if you’re going to strike this down, you’re going to have to define the limiting principle.’ ” [...]

Sutton hints that if opponents of the law want it overturned, they have to do it in the public and the legislature, not the courts.

Throughout his opinion, he points to the landmark 1819 case of McCulloch v. Maryland, in which the courts settled an issue that was then almost as controversial as the mandate by ruling that Congress has the power to institute a national bank. While the courts approved the creation and renewal of the bank, after the decision, Congress never approved it again.

“Today’s debate about the individual mandate is just as stirring, no less essential to the appropriate role of the national government and no less capable of political resolution,” Sutton wrote. “Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.”

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Posted by at July 1, 2011 6:01 AM
  

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