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June 30, 2011

Sixth Circuit Was More of a Split Decision Than First Advertised

The ruling was 2-1, two upholding, one dissenting, and urging the law be struck as unconstitutional.

But within that 2, the two judges were not of the same mind. The Democrat appointed judge thought the mandate was just peachy.

The Republican appointee who joined with him in the ruling, but wrote separately in a concurrence, seems ambivalent. His own concurrence seems to say that given the current ultra-liberal, virtually-no-limits jurisprudence on the Commerce Clause, this new power grab would probably pass muster.

But, he writes: perhaps it's time for a reconsideration of that "virtually no limits" reading of it.

That brings me to the lingering intuition — shared by most Americans, I suspect — that Congress should not be able to compel citizens to buy products they do not want. If Congress can require Americans to buy medical insurance today, what of tomorrow? Could it compel individuals to buy health care itself in the form of an annual check-up or for that matter a health-club membership? Could it require computer companies to sell medical-insurance policies in the open market in order to widen the asset pool available to pay insurance claims? And if Congress can do this in the health-care field, what of other fields of commerce and other products?

I suppose this just means, as we've always known, that the Supreme Court will have to rule on this.

One thing for Justice Switch-Hitter to consider is the untrammeled breadth of the claim of federal power offered by those supporting ObamaCare.

They are offering Kennedy a stark decision: Either bless this and confess there are virtually no limits on federal power whatsoever, at least according to those who supposedly interpret the Constitution, or start imposing some limits.

More... Critical Condition has more quotes.

More from Sutton's ambivalent "concurrence."

At one level, past is precedent, and one tilts at hopeless causes in proposing new categorical limits on the commerce power. But 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. The stakes of identifying such a limit are high.

I love that. Either stop pretending there are limits, or announce the limits.

Ilya Somin calls this "an exercise in overzealous judicial deference." That is, Sutton is very nearly screaming "This makes no damn sense and is offensive to the Constitution," but then says, "But these are my marching orders, from both Congress and the muddled mess of past court decisions, so march I shall."

If it's unconstitutional a judge is supposed to say so.

Conservatives favor judicial deference, sure -- but they are not supposed to favor it when doing so would result in reading out virtually all limits on Congressional power, a posture which is clearly unconstitutional and hence owed no deference or respect.

Update: I edited out another quote by Sutton, which is a bit of a jumble. But see the link for the quote.

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posted by Ace at 02:25 PM

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