The D.C. Circuit Court of Appeals, in a 2-1 decision, has upheld the constitutionality of the Individual Mandate in Seven-Sky v. Holder. You can find the decision here. (You can read our brief in the case here.)
There are three opinions, just like there were in the Sixth Circuit case: an opinion of the court, a concurrence by Judge Edwards, and a dissent by Judge Kavanaugh.
The court rejects the argument that only existing commerce can be regulated; it cites 18th century sources to show that the term “regulate” can include coercing behavior, and finds that no Supreme Court precedent limits Congress’ reach to existing commerce. Then it relies on Wickard v. Filburn to conclude that “‘activities’ of some sort” are not “required before the Commerce Clause [can] be invoked.”
What about the argument that, if Congress can do this, it can do anything? “We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce,” the court writes.
But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation. That difficulty is troubling, but not fatal, not least because we are interpreting the scope of a long-established constitutional power, not recognizing a new constitutional right. It suffices for this case to recognize, as noted earlier, that the health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services.
Update: Judge Edwards’ concurrence is only one paragraph long, and is intriguing because although it invokes Justice Scalia’s opinion in Raich (which held that Congress can control non-economic, non-interstate activities whenever doing so is necessary to the success of a federal commercial regulatory scheme) it emphasizes the supposed limits on Justice Scalia’s theory: “There are boundaries that emanate from the Necessary and Proper Clause, which serve as principled limitations on Congress’s authority under the Commerce Clause.” This is a very odd way of putting it, because (a) the limits on the Necessary and Proper Clause are, if anything, far less clear and defined than even the hard-to-trace limits on the Commerce Clause, and (b) nobody that I know of has ever suggested that the Necessary and Proper Clause imposes limits on an enumerated power; it’s always been thought to go further than the enumerated powers!
Update: The dissenting opinion, by Judge Kavanaugh, holds only that the court lacks jurisdiction under the Tax Anti-Injunction Act. This is the same conclusion that was reached by the Fourth Circuit Court of Appeals in the Liberty University case. The majority, however, rejects this view because the Individual Mandate is not a tax, but a penalty.
Update: The bottom line is this: this decision, like the Sixth Circut decision some months ago, is not a big victory for the Obama Administration. Even the judges that upheld the Individual Mandate this morning expressed deep concern about what they called “the Government’s failure to advance any clear doctrinal principles limiting congressional mandates.” In other words, the Obama Administration has still not answered the simple question: if the government can force us to buy insurance, what can it not do? Sadly, the Supreme Court’s commerce clause precedents have failed so dramatically to enforce the Constitution’s limits on federal power, that these judges felt bound to uphold the Mandate. All eyes now turn to the Supreme Court, to see whether the justices will protect the Constitution against what the D.C. Circuit admits is an unprecedented expansion of federal power and an unprecedented intrusion on individual freedom.