Boyce F. Martin, Jr.

“ In Wickard and Raich, it is true, the Court permitted Congress to regulate individuals
who did not offer to buy or sell anything, who merely raised their crops and plants at
home, who consumed them at home and who in one instance (Raich) were prohibited
from buying and selling the product in any market. Yet that reality confirms only the
breadth of the substantial-effects doctrine. It does not show that Congress may compel
individuals to buy products they do not want. ”

“ Individuals must finance the cost of health care by purchasing
an insurance policy or by self-insuring, cognizant of the backstop of free services
required by law. By requiring individuals to maintain a certain level of coverage, the
minimum coverage provision regulates the financing of health care services, and
specifically the practice of self-insuring for the cost of care. 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. ”

“ The Act itself proves they will be required to purchase insurance and maintain it when the time comes. Unlike the McConnell plaintiffs, who had not taken any action that would subject them to the Act, the plaintiffs need not do anything to become subject to the Act. That, indeed, is their key theory—that mere “existence” should not be a basis for requiring someone to buy health insurance on the private market. ”

“ Even
accepting the claimants' characterization of the law as regulating “non-activity,” the law
still concerns individual decisions that, when aggregated, have a substantial effect on
interstate commerce. Individuals cannot disclaim the need to obtain health care and to
pay for it, as virtually everyone at some point will consume healthcare services. In this
sense, it is hard to characterize self-insurance as non-action, as opposed to one of many
possible actions an individual may take in determining how to pay for health care. ”

“ None of this matters, plaintiffs claim. However broad Congress's commerce
power may be, it is not unlimited, and one limit on that power is that it applies only to
individuals already engaged in commerce. The Clause permits the legislature to
“regulate” commerce, not to create it. Put another way, it empowers Congress to
regulate economic “activities” and “actions,” not inaction—not in other words
individuals who have never entered a given market and who prize that most American
of freedoms: to be left alone. ”

“ The requirement that all citizens obtain health insurance does not depend on them
receiving health care services in the first place. Individuals must carry insurance each
and every month regardless of whether they have actually entered the market for health
services. Simply put, the mandate does not regulate the commercial activity of obtaining
health care. It regulates the status of being uninsured.
III.
Congress's legislative finding that the “individual responsibility requirement . . .
substantially affects interstate commerce” turns the analysis on its head. ”

“ Congress generally has broad authority under the commerce power to choose the class
of people it wishes to regulate, see Raich, 545 U.S. at 26–27, permitting it to group all
of the self-insured together, whether they have many assets available for medical care,
very few, or something in between, particularly since the financial wherewithal of the
self-insured is unlikely to stay put. Individuals lose jobs and obtain jobs, and the value
of their assets goes up and goes down, making it appropriate (if perhaps unfair) to
regulate this entire group together. ”

“ But to the extent plaintiffs mean to argue that the Tenth Amendment contains its
own anti-commandeering principle applicable to individuals and to all of Congress's
enumerated powers, that is hard to square with the taxing power, which regularly
commandeers individuals—in equally coercive ways—to spend money on things they
may not need and to support policies they do not like. ”

“ The government offers several contrary arguments, all unconvincing. That the
minimum-coverage requirement will raise revenue when individuals fail to obtain
coverage—at a rate of $4 billion a year, predicts the government, U.S. Br. at
59–60—does not convert the penalty into a tax. ”

“ Raich, 545 U.S. at
25 (finding that growing and consuming a crop was “quintessentially economic”) .
Congress here attempts to regulate a class of individuals who have refrained from
purchasing health insurance. The conduct being regulated is the decision not to enter the
market for insurance. Plaintiffs have not bought or sold a good or service, nor have they
manufactured, distributed, or consumed a commodity. See Raich, 545 U.S. at 25-26
(defining “economics” as the “production, distribution, and consumption of
commodities”) . Rather, they are strangers to the health insurance market. ”

“ Take the drug laws at
issue in Raich, where Congress regulated by prohibiting individuals from possessing
certain drugs. A drug-possession law amounts to forced inaction in some settings (those
who do not have drugs must not get them) , and forced action in other settings (those who
have drugs must get rid of them) . ”

“ Plaintiffs, true enough, could leave the country or die, and Congress could repeal the law. But these events are hardly probable and not the kinds of future developments that enter into the imminence inquiry. Riva v. Massachusetts, 61 F.3d 1003, 1011 (1st Cir. 1995) (“The demise of a party or the repeal of a statute will always be possible in any case of delayed enforcement, yet it is well settled that a time delay, without more, will not render a claim of statutory invalidity unripe if the application of the statute is otherwise sufficiently probable.”) ”

“ When healthy individuals opt not to buy insurance, the pool of insured persons is smaller
and less healthy as a whole, thus raising premiums. Second, when previously uninsured
individuals do obtain insurance, they tend to do so when they have a significant medical
need and thereby consume more and costlier services.
Lopez and Morrison rejected a view of causation whereby the cost-shifting to
society caused by violent conduct can satisfy the substantial effects test. See Lopez, 514
U.S. at 564 (rejecting the government's “costs of crime” and loss of “national
productivity” reasoning) ”

“ However, the United States offers no reason to believe that anything in the declarations is untrue, and we cannot think of any such reason ourselves. The Federal Rules of Appellate Procedure permit the filing of affidavits on appeal, particularly in response to a motion filed by an opposing party, and so do court decisions in settings similar to this one. ”

“ At least in this context, where the only Article III question concerns the imminence of the plaintiffs' injury, standing analysis parallels ripeness analysis. See Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 81 (1978) (“To the extent that issues of ripeness involve, at least in part, the existence of a live ‘Case or Controversy,’ our conclusion that appellees will sustain immediate injury . . . and that such injury would be redressed by the relief requested would appear to satisfy this requirement.” (internal quotation marks omitted) ) ”

“ Third, a variation on the action/inaction line—between regulating individuals
already in markets and those outside of them—does not seem to work, at least in view
of Raich and Filburn. Angel Raich and Roscoe Filburn never entered any markets,
whether interstate or intrastate, yet Congress regulated them nonetheless. That is why
the decisions upholding this regulatory authority are so far-reaching. To the extent both
individuals still did something (grew wheat or marijuana) , that takes us back to the
action/inaction line and the problems associated with it. ”

“ Here we have a problem—a
serious illness or accident—that most people will experience directly themselves or
indirectly through a family member at some point in their lives, and one that virtually
no one can afford based on current income and savings. ”

“ In the context
of a shared-responsibility payment to the United States for failing to buy medical
insurance, however, the most natural reading of the provision is that the “manner” of
assessment and collection mentioned in sections 5000A (g) (1) and 6671 (a) refers to the
mechanisms the Internal Revenue Service employs to enforce penalties, not to the bar
against pre-enforcement challenges to taxes. ”

“ And probabilities can be measured by many things, including the certainty that an event will come to pass. The uncertainty that the event will come to pass may be based on developments that may occur during a gap in time between the filing of a lawsuit and a threatened future injury. ”

“ Va. Code Ann. § 38.2-3430.1:1. The mandate forces law-abiding individuals to
purchase a product – an expensive product, no less – and thereby invades the realm of
an individual's financial planning decisions. Cf. Maryland v. Wirtz, 392 U.S. 183, 196
n.27 (1968) (“Neither here nor in Wickard had the Court declared that Congress may use
a relatively trivial impact on commerce as an excuse for broad general regulation of state
or private activities.”) . In the absence of the mandate, individuals have the right to
decide how to finance medical expenses. The mandate extinguishes that right. ”

“ Magaw, 132 F.3d 272, 279 (6th Cir. 1997) . “We review issues of justiciability pursuant to Article III de novo.” Id. at 278. Standing requires plaintiffs to demonstrate “actual present harm or a significant possibility of future harm.” Id. at 279. “ [T] he presence of one party with standing is sufficient to satisfy Article III's case-or-controversy requirement.” Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006) . An issue must be ripe, or ready for review, before we act. “Ripeness requires that the injury in fact be certainly impending.” ”

“ Page 43
before-destroy imperatives of reviewing facial challenges. The Supreme Court can
decide that the legend of Wickard has outstripped the facts of Wickard—that a farmer's
production only of more than 200 bushels of wheat a year substantially affected
interstate commerce. See Wickard, 317 U.S. at 114. A court of appeals cannot. The
Supreme Court can decide that Raich was a case only about the fungibility of marijuana,
see Raich, 545 U.S. at 18–19, not a decision that makes broader and more extravagant
assertions of legislative power more impervious to challenge. ”