By Jason Weltman, JMI Intern & University of Florida Junior in Economics & Political Science
On June 29, the United States 6th Circuit Court of Appeals ruled on the case of Thomas More Law Center, et al vs. President Barack Obama, et al, the first such major ruling on the Patient Protection and Affordable Care Act (PPACA), a.k.a. “Obamacare”. The Thomas More Law Center filed one of many lawsuits primarily targeting the individual mandate (the part of the bill that requires a minimum insurance coverage by all) as unconstitutional.The Appellate court, comprised of a President Carter nominee, a President Reagan nominee and President Bush (W.) nominee ruled 2-1 in favor of the constitutionality, upholding a decision by a lesser District Court. This decision may be celebrated as a sign that the bill is here to stay, or that it is truly constitutional. This argument is bolstered by the fact that a conservative judge ruled in favor of the bill. And while they may ultimately be right, celebrating now would be extremely premature.First, and most basically, this case or one of the even more prominent cases just like it will inevitably reach the Supreme Court. As we can confidently predict how eight of the nine justices will vote on the matter, the question is how Justice Anthony Kennedy will feel that day. His track record mostly shows that he will agree with the conservative wing of the bench in ruling such a sweeping mandate as unconstitutional. In Justice James L. Graham’s dissenting opinion, he actually references Justice Kennedy’s opinion on another case similarly relating to the Commerce Clause. Assuming Justice Kennedy’s position has not evolved (as Obama’s position on gay marriage), it is not too hard to predict his opinion.Second, the arguments made in the opinion of the majority are weak. The court effectively ruled that because the mandate would affect interstate commerce, it falls under the Commerce Clause and thus falls under Congress’ authority. In his dissenting opinion, Justice James L. Graham made some notable points. Quite importantly, he states that the Commerce Clause has never (yes, never) required citizens to purchase anything. Justice Graham, most logically, states that this fact alone requires judicial scrutiny on the matter. Justice Graham looks to the crux of the issue of the mandate and Congress’ stated purpose of regulating the insurance market. Graham argues this does not reflect the true nature of the mandate. He notes that the mandate does not regulate a citizen’s participation in the health services market, it simply regulates the status of being uninsured. States Graham, “The proper object of Congress’s power is interstate commerce, not private decisions to refrain from commerce.”I will go one step further. This mandate could regulate commerce, as coercing all citizens to purchase any good would. My problem is that it indirectly regulates commerce by primarily regulating a citizen’s actions to achieve that end. I usually refrain from slippery slope arguments, so instead I will let Justice Graham make one for me. He states, “If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits of Congress’s Commerce Clause authority would be.”The bottom line is Justice Graham laid out a terrific framework for future dissents in his opinion, while the majority and concurring opinions relied on weak arguments that refused to see the whole picture, overlooked the gritty details or ignored the true methods of how the mandate would regulate the market. With such a shaky victory on unfounded ground, it is clear the PPACA is on thin ice.