My, What An Expansive Commerce Clause You Have, Justice Scalia

The Supreme Court’s decision to tackle the constitutionality of the Affordable Care Act in the thick of the 2012 Presidential contest will put the Court in as high a political profile as we have seen since Bush v. Gore.  By allotting five and a half hours for oral argument, the justices have elevated the case into the rarefied air reserved for school desegregation (8.5 hours in 1952, 6.5 hours on re-argument in 1953), the 1965 Voting Rights Act (7 hours) and the now-famous Miranda v. Arizona case (6 hours), among a few others[1], and will trump, by 4 hours, the time allotted for Bush v. Gore.

Although most of the attention around the ACA is focused on the individual mandate, the justices have split oral argument into four parts: (1) whether the individual mandate is constitutional; (2) whether the mandate, if found unconstitutional, can be severed from the law, allowing those parts deemed constitutional to remain unmolested; (3) whether the case is “unripe” for adjudication based on the Anti-Injunction Act, a relic of the 19^th century that does not permit adjudication of claims brought by litigants related to the imposition of tax penalties until such a tax is levied[2]; and (4) whether the ACA’s Medicaid expansion infringes on the 10^th Amendment[3]. 

Although this may seem overly complex, in reality, the first three parts all wrap around the same whole; that is, if the justices pass on ruling based on the Anti-Injunction Act, the case will go away until someone is assessed a penalty for not purchasing insurance, which will not occur until 2015.  If the Court finds that the Anti-Injunction Act is not triggered, that point goes away entirely.  Similarly, if the Court upholds the individual mandate, it by definition eliminates the need to sever it from other parts of the law.  If the Court strikes down the mandate, it is hard to imagine it permitting severability because the law itself contains anti-severability language and, even if the Court ignored that, the rationale underscoring the law is the need to broaden the pool of insured health care users to reduce the overall costs of health care for everyone.  That simply cannot be done if the individual mandate is not upheld.  Medicaid expansion is a separate question whose jurisprudential underpinnings are from a different part of the legal tree than the individual mandate (10^th Amendment for the former, Commerce Clause for the latter).

So how is all of this going to shake out?  Three Courts of Appeal have issued rulings on the ACA, with two, the D.C. Circuit and the 6^th Circuit, upholding the ACA in its entirety, and the third, the 11^th Circuit (whose ruling is the case the Supreme Court granted certiorari to review) striking down the individual mandate but upholding other portions of the law[4].  In reviewing these three decisions, as well as recent Supreme Court jurisprudence related to the Commerce Clause, my own view is that this is a case that, but for the highly charged political atmosphere around it, would actually not be a particularly thorny legal question for the Court to resolve.  Ironically, because the President and his allies in Congress made attempts to tailor the legislation to garner Republican votes (which never came), they ended up creating an avenue to challenge it that would have been foreclosed had they not attempted to be conciliatory while attempting to inoculate themselves politically from certain Republican charges[5].

Those facts notwithstanding, the primary question before the Court, assuming it does not opt for the Anti-Injunction Act dodge, is whether the individual mandate is a constitutionally permissible exercise of Congress’ power under the Commerce Clause[6].  Even so, the question is actually narrower than that because of the three ways in which the Court has found Congress can legislate pursuant to the Commerce Clause, only one is at issue[7].  Here, the Court will look at whether the individual mandate falls within Congress’ authority to regulate those activities that “substantially affect” interstate commerce either because purely intrastate activity is found to substantially affect interstate commerce or if the regulation of “non-economic activity … is essential to a larger scheme that regulates economic activity[8].”

The argument for the Affordable Care Act generally, and the individual mandate specifically, is that “health care” is a commodity that, taken in the aggregate, substantially affects interstate commerce.  This is true whether individuals secure insurance as a protection against having to pay for health costs out-of-pocket, or “self-insure,” that is, either opt against having insurance or do not have it available to them[9].  Moreover, those who opt not to secure insurance, cannot afford insurance or are denied insurance consume health care regardless; however, those costs, which are not always recouped, are passed along in the form of higher insurance premiums for those who do have coverage[10]. Congress, supporters argue, in recognizing the impact health care spending has on our economy (it accounts for roughly 17 percent), rationally concluded that requiring all individuals to carry health insurance was a way to reduce cost shifting that currently exists and reduce the overall costs associated with health care spending.

On the other side are the law’s opponents, who argue that compelling individuals to purchase a product (health care insurance) or face a penalty is beyond the scope of Congressional authority under the Commerce Clause[11].  From a legal standpoint, opponents point to the fact that the ACA attempts to regulate inactivity in a commercial market – that is, by forcing people who do not have health insurance and who are not currently utilizing medical services to purchase insurance for some speculated future event, the government is forcing activity upon those who are not currently active[12].

Suffice it to say, reams of paper have been spent debating this critical point and on that score, the circuit courts supporting the mandate outnumber the circuit court that rejected it by two to one. Further, even the 11^th Circuit, which struck down the individual mandate, upheld the remaining provisions of the law, not a total defeat for the Obama Administration.  As the clock ticks down to the March 26^th-28^th 2012 oral argument, so-called originalists who believe in the rock-ribbed legal textualism of Justice Antonin Scalia or the general conservatism of the Court may end up being disappointed by the Supreme Court’s consideration of the individual mandate.  It is no coincidence that the D.C. Circuit Court cited Justice Scalia’s concurring opinion in the Court’s Gonzalez v. Raich[13] decision, or that the Raich decision is more generally relied on because its majority also included Justice Kennedy[14]. 

Predicting how the Justices will rule is an inexact science at best; however, the Court’s recent Commerce Clause jurisprudence is illuminating because a majority of the conservative Justices (Scalia, Kennedy and Thomas) were all apart of the three most recent Commerce Clause cases, each of which carries important clues as to how they will likely view the Affordable Care Act. 

The first two cases, Lopez v. United States[15] and United States v. Morrison[16], were notable because each struck down legislative provisions as being outside Congress’ authority under the Commerce Clause.  This was the first time since the mid-1930s that legislation had been overturned for that reason and in this way, represented a modest attempt at retrenching what had been viewed as unfettered Congressional authority.  The third case, Gonzalez v. Raich, upheld a law under Commerce Clause challenge with the aforementioned concurrence of Justice Scalia and a majority that included Justice Kennedy.

Lopez and Morrison both addressed the constitutionality of laws targeted at criminal activity, gun possession (the former) and violence against women (the latter).  In both cases, the Court found that Congress, in the way it drafted these laws, exceeded its authority under the Commerce Clause.  Lopez involved a challenge to the Gun Free Schools Act that made it a federal crime “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone[17].” The Court rested its decision primarily on the fact that prior Commerce Clause jurisprudence focused on economic, as opposed to criminal, activity, that the law was poorly drafted by failing to tie the affect of possession of a firearm to interstate commerce, and the fact that the law, at least in part, affected an area historically within the ambit of state regulation (education)[18]. 

Of importance to those who do not support the individual mandate, the Court rejected the government’s arguments that violent crime, taken as a whole, affect all of us because crime raises insurance costs, acts as a disincentive for people to travel to crime-ridden areas and impacts the learning environment, all of which, taken in total, impacts interstate commerce[19].  The Court found that accepting the government’s argument would remove any bounds to federal intervention in a host of areas, including criminal justice and education policy[20].

In Morrison, the Court struck down provisions of the Violence Against Women Act (VAWA) and specifically, a section within VAWA that provided a private civil remedy in federal court to victims of “gender motivated” violence under the rationale that, as in Lopez, this law addressed primarily criminal activity that, were the Court to uphold it, would allow “Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption[21].” Even though Congress provided ample findings to support its contention that gender-motivated criminal activity impacted victims and their families, the Court gave those findings little credence and, regardless, found the same risk of Congressional overreach as it did in Lopez[22].

The Court’s most recent Commerce Clause case, Gonzalez v. Raich, dealt with the question of whether the federal Controlled Substances Act trumped a state law that permitted the private cultivation and possession of marijuana for personal use.  The Court held that the CSA could reach even local cultivation of marijuana for personal use for reasons largely affirming its New-Deal era decision in Wickard v. Filburn – that where intrastate activity that is itself not commercial can nevertheless be regulated if the aggregate effect of that activity would impact interstate commerce.  In Wickard, the question was whether someone’s wheat production, which was harvested and consumed by the individual, not sold off for money, could be regulated under the Commerce Clause.  The Court held that it could because the “failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity[23].” 

The

Raich Court

reiterated the importance of the economic nature of the impact of the CSA and state law as opposed to the criminal statutes at issue in Lopez and Morrison.  Marijuana growth, the Court found, fell within the definition of “economics[24]”and thus, appropriately within Congress’ legislative authority.  Interestingly, the Court also appeared to retrench in its aggressive posture toward questioning Congress’ Commerce Clause power, noting that its review was “modest” and that it need not determine whether marijuana growth, in the aggregate, affected interstate commerce, but merely whether Congress possessed “a rational basis … for so concluding[25].”

The Court also noted the distinction between the question presented in Raich and those posed by Lopez and Morrison.  The present case, the Court held, did not involve a question of whether the law fell outside of Congress’ Commerce Clause power, but rather, whether “individual applications of a concededly valid statutory scheme” were impermissible[26].   The prior cases, the Court went on to say, “asserted that a particular statute or provision fell outside Congress’ commerce power in its entirety[27].” Importantly, the Court also noted that the CSA was a “lengthy and detailed statute creating a comprehensive framework[28],” which made it quite different than either the Gun Free School Zone Act or VAWA, both of which, the Court held, were “at the opposite end of the regulatory spectrum[29].”

The 6-3 decision in Raich is notable not only for Justice Kennedy’s presence in the majority but also for Justice Scalia’s concurrence.  In it, he argued for an even more expansive view of Congress’ Commerce Clause reach when the issue of intrastate commerce, and its relation to interstate commerce, is at issue.  As he noted, “[T]he category of ‘activities that substantially affect interstate commerce is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce[30].”  Justice Scalia’s interpretation of Congress’ authority to regulate economic activity under the Commerce Clause includes its power to “devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants[31].”  As examples of that authority, Justice Scalia referenced Congress’ ability to, among other things, ban discrimination in restaurants[32] and hotels[33], to regulate the power of local grain exchanges[34], and prohibit intrastate price-fixing schemes[35].

Moreover, Justice Scalia affirmed that Congress’ Commerce Clause power is broad provided it is directed at economic, as opposed to, for example, criminal activity.  As he said, “[t]hough the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as an ‘essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated[36].’”  Put another way, according to Justice Scalia, had Lopez targeted economic, as opposed to non-economic activity, the legislation would have been upheld.  Further, he noted that if Congress properly exercises its Commerce Clause power “it possesses every power needed to make that regulation effective[37].”  Lastly, Justice Scalia takes the dissent in Raich to task for suggesting that the majority undercut the Court’s rulings in Lopez and Morrison, noting that the latter cases stood for the proposition that “Congress may not regulate certain ‘purely local’ activity within the States based solely on the attenuated effect that such activity may have in the interstate market[38].”  He also distinguished those cases by noting that “[n]either case involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation[39].”

In short, Justice Scalia’s Commerce Clause touchstones relate to questions of economic versus non-economic regulation and, to a lesser degree, whether what is being regulated is purely local and, at most, has some attenuated connection to interstate commerce.  It is clear from his Raich concurrence that provided the exercise of Commerce Clause authority is appropriate, his scrutiny is not only minor, but his deference substantial by noting that Congress has “every power” within its authority to legislate under the Commerce Clause.

This modern day jurisprudence is problematic for individual mandate opponents.  They like to cite to Lopez and Morrison with favor and suggest that they point to the Court’s sympathy toward their position that the individual mandate is so exhaustive in its reach and so breathtaking in its scope, that if it is accepted, little will be outside Congress’ purview.  However, faced with the affirmation of core Commerce Clause principles in Raich, they are left to parsing distinctions that fall apart on quick review[40]. Further, even these recent cases that trimmed Congress’ authority are a bit overblown. First, while the Court in Lopez struck down one section within the Gun Free School Zones Act, it was subsequently reenacted with minor modification and convictions under it have been uniformly upheld[41].  Moreover, a wide swath of criminal laws covering everything from drug to child pornography possession have withheld scrutiny “no matter how passive the possession, and even if the owner never actively distributed the contraband, on the theory that possession makes active trade more likely in the future[42].”  That is, so-called “inactivity” in the stream of interstate commerce (i.e., mere possession) is not a meaningful distinction under which laws are typically struck down. 

While the 11^th Circuit’s opinion is surely exhaustive, ultimately, it fails because of its overly simplistic view of the health care market.  While the judges concede that health care is amenable to regulation pursuant to the Commerce Clause, the majority found fault in the nature of the regulation (i.e., the individual mandate) as impermissibly requiring individuals to purchase a product even though they may not be currently using it.  This theory makes no sense.  For example, the Court noted that “when the uninsured actually enter the stream of commerce and consume health care, Congress may regulate their activity at the point of consumption[43].”  In the real world, you cannot accurately predict when you will need to utilize health care and the idea that an otherwise uninsured person would be required to purchase insurance at the point of contact with the health care system is absurd.  Consider this situation: a 26 year old man who does not carry insurance because he is young and healthy is in a serious car accident that requires hospitalization.  Under the 11^th Circuit’s reasoning, either the seriously injured man (or perhaps a family member?) would be obligated to purchase insurance at the hospital in the middle of a medical emergency before care would be given.  This is nonsense.

More generally, health care is something that every person, at some time, will use – whether it’s a simple physical, mammogram or check-up or because of a serious injury or illness.  I myself “consumed” health care by getting a check-up this year.  I may not get another check-up for 2 years.  So am I no longer an active user of health care?  The 11^th Circuit’s answer would appear to be “no.”  And therefore, I should be able to slip in and out of the insurance market, only purchasing insurance when I am prepared to make another doctor’s appointment or, in the event of a serious medical emergency. 

The Circuit Courts of Appeal that upheld the individual mandate did not suffer from attempts to twist and contort precedent to reach their conclusions.  Tellingly, each opinion is modest in length and does not necessitate serious looking, but laughable sub- headings as the 11^th Circuit employed in an attempt to project the gravamen of its ruling[44].  For example, in Seven-Sky, Senior Circuit Judge Silberman, an appointee of President Reagan, applied precedent in a simple two-step fashion: “Appellants do not question that Congress can regulate the interstate health care and health insurance markets, or that Congress could conclude that decisions about whether to purchase health insurance substantially affect interstate commerce[45].”  Once concessions of that nature are made, it is not a great leap to affirm that “broad regulation is an inherent feature of Congress’ constitutional authority in this area; to regulate complex, nationwide economic problems is to necessarily deal in generalities.  Congress reasonably determined that as a class, the uninsured create market failures; thus, the lack of harm attributable to any particular uninsured individual, like their lack of overt participation in a market, is of no consequence[46].”  Put another way, Judge Silberman, even if he conceded that some people would never use health care (a dubious conclusion), held that those individuals could still be required to carry insurance because Congress’ ability to regulate “health care” as an interwoven, complicated economic area is complete.

Similarly, the 6^th Circuit, once it concluded (1) that Congress can regulate wholly intrastate activity that affects interstate commerce, (2) the individual mandate regulates activity that is economic, and (3) that the mandate was essential to Congress’ overall regulation of a broader, economic regulatory scheme (the provision of health care and health insurance), easily found the individual mandate passed constitutional muster[47].  As the Court noted, if you concede that health care can be regulated under the Commerce Clause, “Congress plainly has the power to regulat[e] the price of [products] distributed through the medium of interstate commerce … [and] it possesses every power needed to make that regulation effective.”  As the Court noted, no one questions Congress’ ability to prohibit insurance carriers from denying coverage due to pre-existing conditions or to regulate prices because it is understood that “these reforms a[re] part of its power to regulate the interstate markets in health care delivery and health insurance[48].”

Similarly, the Court did away with the unworkable distinction between “activity” and “inactivity” in the health care market by noting that more than 80% of all adults “visited a doctor or health care professional one or more times in 2009[49],” and that “[t]he unavoidable need for health care coupled with the obligation to provide treatment make it virtually certain that all individuals will require and receive health care at some point[50].” In short, the Court avoided “unworkable labels” regarding activity and inactivity and recognized that whether one chooses (or has available to them) health insurance, affirmative choices about the manner in which one received health care are made.  That, coupled with federal law that obligates medical facilities to provide treatment regardless of a person’s ability to pay[51], state laws and the mission of certain hospitals, creates “unique aspects of health care that make all individuals active in this market[52].”

If you concede that Congress can regulate health care and you admit that everyone, at some point will use it, the question then becomes whether requiring everyone to carry insurance is a rational means of addressing those facts and spreading the risk (and cost) among as many people as possible. This is why Justice Scalia’s Raich concurrence is so important.  In it, he stated “[w]here necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce[53].”  His interpretation of Commerce Clause jurisprudence is more expansive than mainstream thought.  Remember that the touchstone is “those activities having a substantial relation to interstate commerce … i.e., those activities that substantially affect interstate commerce.”  Justice Scalia’s test does not require that connection. Rather, he permits the regulation of intrastate commerce so long as doing so is necessary to make the regulation of interstate commerce effective. 

As he put it, Congress has “every power” at its disposal to effectuate its regulatory scheme provided authority under the Commerce Clause exists.  Here, the Affordable Care Act easily clears the bar because everyone, even the appellate court judges that struck down the individual mandate, agree that Congress can regulate health care[54] and has done so on a number of occasions in the past[55].  Moreover, the activity/inactivity argument is one that has not only been rejected by courts that have upheld the ACA, but does not hold up in practice, because the idea that people will be required to purchase insurance at the point of contact with the health care system is unworkable.   

Also, because all courts have recognized that regulating health care is not something uniquely delegated to the states, the Affordable Care Act avoids Justice Kennedy’s admonition from his Lopez concurrence that “[i]f Congress attempts that extension, then at least we must inquire whether the exercise of national power sees to intrude upon an area of traditional state concern[56].” Health care is an area subject to active and long-standing federal regulation and further, no appellate court has ruled that other components of the ACA (e.g., prohibiting coverage denial based on pre-existing condition) are outside Congress’ reach.  Taken together, there is a reasonable argument to be made that both Justices Scalia and Kennedy, based on their prior court opinions, will be amenable to the government’s contention that the individual mandate is an appropriate exercise of Congress’ Commerce Clause authority.  If we assume that the four so-called “liberal” judges will also vote in favor of the mandate’s permissibility, a 6-3 ruling is entirely possible.  Indeed, even if one of the two “conservative” judges decides to rule against the mandate, it can still pass muster 5-4.

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[1]   Christy, A., Obamacare Will Rank Among The Longest Supreme Court Arguments Ever. November 15, 2011. http://www.npr.org/blogs/itsallpolitics/2011/11/15/142363047/obamacare-will-rank-among-the-longest-supreme-court-arguments-ever.

[2]   In this case, failure to purchase a policy results in the assessment of a penalty against the person in question.  The issue of whether the penalty is a “tax” or a “penalty” is itself a matter of disagreement among litigants and judges alike.

[3]   Lazarus, S., and Lithwick, D., The Medicaid Ambush, November 14, 2011. http://www.slate.com/articles/news_and_politics/jurisprudence/2011/11/the_unexpected_and_astounding_arguments_the_supreme_court_will_hear_on_obamacare_.html

[4]   Susan Seven-Sky v. Holder, 661 F. 3d 1 (D.C. Cir. 2011), Thomas More Law Center v. Obama, 651 F. 3d 529 (6^th Cir. 2011) and Florida v. HHS, 648 F. 3d 1235 (11^th Cir. 2011).

[5]   For example, had the law referred to the penalty for not buying insurance as a tax, a stronger argument for the individual mandate would have been found in Congress’ authority under the General Welfare Clause, Article I, Section VIII, Cl. I.

[6]   The question of whether “health care” is something that can generally be regulated under the Commerce Clause does not appear to be in question.  Even the 11^th Circuit, which ruled against the individual mandate, acknowledged that Congress can so legislate. See, Florida v. HHS, 648 F. 3d at 1302.

[7]   Case law holds that Congress can utilize its authority under the Commerce Clause to regulate: (1) “the use of the channels of interstate commerce;” (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce;” and (3) “those activities having a substantial relation to interstate commerce … i.e., those activities that substantially affect interstate commerce.” Thomas More, 651 F. 3d at 541, citing U.S. v. Lopez, 514 U.S. 549, 558-59 (1995).  The Government has conceded that the ACA does not trigger either of the first two rationales. See, Thomas More Law Center, supra.

[8]   Thomas More, 651 F. 3d at 542.  See also, Gonzales v. Raich, 545 U.S. 1, 25 (2005), Wickard v. Filburn, 317 U.S. 111, 127-29 (1943).

[9]   See, e.g., Thomas More, 651 F. 3d at 529 (“Virtually everyone requires health care services at some point … [t]he uninsured cannot avoid the need for health care, and they consume over $100 billion in health care services annually.”)

[10]   Florida v. HHS, 648 F. 3d at 1245-46. Congressional findings estimated that premium shifting increased the cost each insured family pays for coverage by $1,000 a year.

[11]   “It cannot be denied that the individual mandate is an unprecedented exercise of congressional power.  As the CBO observed, ‘Congress has never required people to buy any good or service as a condition of lawful residence in the United States.’”  Florida v. HHS, 648 F. 3d at 1311.

[12]   See, e.g., Florida v. HHS, supra at 1298-1300, Susan Seven-Sky v. Holder, 661 F. 3d at 39-40.

[13]   See, Susan Seven-Sky, 661 F. 3d at 55-56.

[14]   See, e.g., Thomas More, 651 F. 3d at 544-547.

[15]   514 U.S. 549 (1995).

[16]   529 U.S. 598 (2000).

[17]   Lopez, 514 U.S. at 551.  See also, 18 U.S.C. §922(q)(1)(A)(1993).

[18]   See generally, Lopez, supra at 560-61, 566.  See also, Florida v. HHS, 648 F. 3d at 1273-75.

[19]   Lopez, 514 U.S. at 564-65.

[20]   Id. at 564-66.

[21]   Morrison, 529 U.S. at 615-16.

[22]   Ibid.

[23]   Raich, 545 U.S. at 11.

[24]   See, Raich, 545 U.S. at 25-26 where “economics” is defined as “the production, distribution, and consumption of commodities.”

[25]    Id. at 22.

[26]    Id. at 23.  See also, Florida v. HHS, 648 F. 3d at 1278.

[27]    Ibid.

[28]    Id. at 24.

[29]    Ibid.

[30]    Id. at 30 (emphasis in original)(internal citations omitted).

[31]    Ibid., citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)

[32]    Katzenbach v. McClung, 379 U.S. 294, 300 (1964).

[33]    Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241, 258 (1964).

[34]    Board of Trade of Chicago v. Olsen, 262 U.S. 1, 40 (1923).

[35]    Mandeville Island Farms v. American Crystal Sugar Company, 334 U.S. 219, 237 (1948).

[36]    Raich, 545 U.S. at 36, quoting Lopez, 514 U.S. at 561.

[37]    Ibid., citing U.S. v. Wrightwood Dairy Company, 315 U.S. 110, 118-19 (1942)(emphasis added).

[38]    Id. at 38.

[39]    Id. at 39.

[40]    See, e.g., Florida v. HHS, 648 F. 3d at 1295 attempting to distinguish Congress’ authority to regulate health care only at the “point of consumption” and my discussion infra.

[41]   See e.g., 18 U.S.C. §922(q)(2)(A), U.S. v. Dorsey, 418 F. 3d 1038, 1046 (9^th Cir. 2005), U.S. v. Danks, 221 F. 3d 1037, 1039 (8^th Cir. 1999).

[42]   Seven-Sky, 661 F. 3d at 47 (internal citations omitted).

[43]   Florida v. HHS, 648 F. 3d at 1295.

[44]    See, e.g.,  “Dichotomies and Nomenclatures,” 648 F. 3d at 1284,  “Unprecedented Nature of the Individual Mandate,” Id. at 1288.  

[45]    Seven-Sky, 661 F. 3d at 41.

[46]    Id. at 53.

[47]   Thomas More, 651 F. 3d at 545-47.

[48]   Id. at 547.

[49]   Id. at 548.

[50]   Ibid. (emphasis added).  This runs directly contrary to the 11^th Circuit’s notion of only permitting regulation at the point of health care usage and also happens to take a far more realistic view of the way health care is actually delivered in the country.

[51]   See, 42 U.S.C. §1395dd, the Emergency Medical Treatment and Active Labor Act, signed into law by noted liberal Ronald Wilson Reagan.

[52]   Thomas More, 651 F. 3d at 549.

[53]   Raich, 545 U.S. at 35 (Scalia, J., concurring).

[54]   “[W]e fully recognize that Congress has the power under the Commerce Clause to regulated broadly in those arenas.  In fact, Congress has legislated expansively and constitutionally in the fields of insurance and health care.” Florida v. HHS, 648 F. 3d at 1302.  See also, Seven-Sky, 661 F. 3d at 41 (“Appellants do not question that Congress can regulate the interstate health care and health insurance markets, or that Congress reasonable could conclude that decisions about whether to purchase health insurance substantially affect interstate commerce.”)

[55]   See, e.g., Employee Retirement Income Security Act, 29 U.S.C. §18, Emergency Medical Treatment and Active Labor Act, 42 U.S.C. §1395dd.
[56]   Lopez, 514 U.S. at 580.