Virginia v. Sebelius

Tue Dec 14 09:54:30 PST 2010

Adding an attitudinal twist to Doug's point below.  Four of the Six
members of the Raich majority are still on the Court plus the additions
of Sotomayor and Kagan.  Only
Thomas remains from the Raich dissenters. This really does seem like an
easier case than Raich.  Hudson seems to arrive at his decision by
abstracting the "individual mandate" requirement out of the regulatory
context within which it occurs.  Of course this is what most of the pre
New Deal commerce clause decisions did.  Further proof that some
arguments never die.

Don

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Tuesday, December 14, 2010 9:31 AM
To: Conlawprof at lists.ucla.edu
Subject: Re: Virginia v. Sebelius

The claim that these people are not in the market is of course a
fiction. As soon as they incur any serious illness or injury, they will
show up in the emergency room or the Medicaid office and expect the rest
of us to pay for their health care. It really does seem preposterous to
claim that Congress lacks power to address such an obvious free-rider
problem, in the context of an industry that is pervasively regulated,
covers a large fraction of the economy, and buys and sells goods and
services and financial obligations in interstate commerce every day.

Congress can also do this under the spending power. Once a society
becomes sufficiently civilized that it pays for health care for those in
need (which may be the real underlying debate here), it can surely enact
rules to prevent that generosity from being abused.

And as others have pointed out, the enforcement mechanism is a tax,
apparently with nothing more vigorous to back it up. Only a tax.

So belt and suspenders and thumbs in the belt loops: three independent
ways to uphold this. It's an easy case compared to Raich, where the feds
regulated home production for home consumption, with no showing that
seeds, dirt, pot, water, or anything else came from outside California. 

Other forms of home production for home consumption include cooking
dinner, sweeping floors, making beds, and growing flowers in window
boxes. Also having sex, which some people sell commerically in an
illegal market like the marijuana market. All closer analogies to Raich
than exercise is to the individual mandate in the health care law.

There is more, but that's enough for now.

On Tue, 14 Dec 2010 12:10:04 -0500
 "Eric Segall" <esegall at gsu.edu> wrote:
>I think David's question is exactly the right one when trying to
predict what the Court will do. I am not sure there is a good answer but
maybe here is the beginning: Congress does not regulate exercise
generally nor does it regulate cars in the sense of who buys what, where
and when. But, Congress does regulate the health care industry
comprehensively. Certainly, for example, Congress could stop an entity
from entering the market if that entrance threatened the entire market.
The next question is can Congress require an entity or person to enter
the market? The answer might depend on how Congress regulates that
market already (like in Raich). I think this question will present
Justice Kennedy with serious heartburn.
>
>
>Best,
>
>Eric
>
>>>> <davidebernstein at aol.com> 12/13/2010 6:55 PM >>>
>
> My own guess is that the end result will depend on whether the
government is able to provide a plausible "no" answer to this question:
"If we uphold the law, does that mean that the federal government would
also have the power to require all Americans to exercise thirty minutes
a day if deemed by Congress necessary and proper to shore up Medicare
and other federal health programs, that Congress can mandate that
individuals buy GM cars instead of Toyotas to ensure that the bailout of
GM is successful, etc."  If there is a plausible "no" answer to that
question, I haven't seen it yet.
> 
>
>-----Original Message-----
>From: Steven Jamar <stevenjamar at gmail.com>
>To: CONLAWPROFS professors <Conlawprof at lists.ucla.edu>
>Sent: Mon, Dec 13, 2010 6:13 pm
>Subject: Re: Virginia v. Sebelius
>
>
>I read it much as Prof. Lupu does -- it is a political decision.  And
that is how it will be decided at the court. 
>
>
>If Alito, Scalia, and Roberts really follow precedent on broad commerce
and taxing law, the outcome is pretty clear, it seems to me. 
>
>
>But I expect it to be decided not on legal or precendential reasoning,
but rather it will be decided as all or nearly all such fundamental
issues of liberty/equality, federal/state balance are decided -- from a
political point of view.
>
>
>Thus, it will once again fall to Kennedy to decide this case.  Is
anybody up on Kennedy to the extent that he or she is willing to hazard
a prediction and explain why Kennedy's jurisprudence would lead to one
result or the other?  
>
>
>I suspect he supports it under power to tax, commerce power, and
deference sort of theory, but have no real evidence to back that
intuition up.
>
>
>Of course the final opinions of the court will be dressed up in law and
law-like rhetoric, like the 2nd amendment cases, but the true basis of
the decision will lie elsewhere.
>
>
>Steve
>
>
>On Dec 13, 2010, at 5:37 PM, Ira (Chip) Lupu wrote:
>
>
>Judge Hudson's opinion (you really do have to read it in order to
evaluate it) spends about 12-13 pages reciting all of the (quite
sophisticated) arguments and counter-arguments from the U.S. and
Virginia, and then "resolves" the Commerce Clause question in two
paragraphs on pp. 23-24.  
>He does not come close to engaging the question he says is presented --
whether Congress can penalize someone for failure to enter the health
insurance market, in circumstances in which there is a rational basis to
believe that individual refusals to enter that market will, in the
aggregate, jeopardize the entire scheme of market regulation.  
>Perhaps the answer is not obvious, but Judge Hudson's two paragraphs
contain almost nothing that looks like an attempt to reason to an answer
(he does refer to the "historic reach" of the Commerce Clause, as if
that made the answer self-evident), and will not guide the 4th Circuit
or anyone else to a thoughtful resolution of the problem.
>
>Ira C. Lupu
>F. Elwood & Eleanor Davis Professor of Law
>George Washington University Law School
>2000 H St., NW 
>Washington, DC 20052
>(202)994-7053
>My SSRN papers are here:
>http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg 
>
>
>---- Original message ----
>
>Date: Mon, 13 Dec 2010 12:44:59 -0500
>
>From: conlawprof-bounces at lists.ucla.edu (on behalf of "Miller, Darrell
(mille2di)" <mille2di at ucmail.uc.edu>)
>
>Subject: Virginia v. Sebelius  
>
>To: "Conlawprof at lists.ucla.edu" <Conlawprof at lists.ucla.edu>
>
>
>
>  For those of you following the litigation, a link to
>
>  today's opinion:
>
>
>
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>
http://www.oag.state.va.us/PRESS_RELEASES/Cuccinelli/Health%20Care%20Mem
orandum%20Opinion.pdf 
>
>
>
>
>
>
>
>  Darrell A.H. Miller
>
>
>
>  Associate Professor of Law
>
>
>
>  University of Cincinnati College of Law
>
>
>
>  PO Box 210040
>
>
>
>  Clifton Avenue & Calhoun Street
>
>
>
>  Cincinnati, OH 45221-0040
>
>  v: 513-556-0133
>
>  f: 513-556-1236
>
>  e: darrell.miller at uc.edu 
>
>
>
>
>
>
>
>  faculty page:
>
>
>
>  http://www.law.uc.edu/faculty/profiles/miller.php 
>
>
>
>
>
>
>
>  SSRN: 
>
>
>
>  http://ssrn.com/author=1107305 
>
>
>
>
>
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>Prof. Steven D. Jamar                     vox:  202-806-8017
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Douglas Laycock
Armistead M. Dobie Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
     434-243-8546
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