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December 01, 2010



It used to be that government had an obligation to protect the rights of individuals. Now, individuals only have obligations to do what the government tells them to do.

hit and run

So this judge's big finding is that "individuals' decisions...in the aggregate affect the interstate...market"?

Or to put it another way,"[Individuals] are making an economic decision [and] as Congress found, the total incidence of these economic decisions has a substantial impact on the national market"

Wow. Heavy stuff. Who knew that the market was made up of a bunch of individuals making individual decisions? I mean, *individuals!* Making *individual!* decsions! We surely can't have that. Why,if a sufficient number of *individuals!* made a sufficient number of *indivdual!* decisions,they could move the market. That's a horrible thought! How are central planners supposed to centrally plan the entire economy if *individuals!* are able to make free choices act in their selfish,self-interested ways that ruin the centrally planned economy? This calls for a . . . central plan to end the freedom of coerce these *individuals!* into more collective decisions. For their own good!

Jane (sit on the couch or save your country)

TM nails it. And it makes me very very sad.

Danube of Thought

I haven't gone back to check, but the quoted language sounds like it was lifted verbatim from the Michigan decision.


That's a good point about individuals and their decisions screwing up the interstate market. What should be done about that?

Oh wait...

Wickard v. Filburn, 317 U.S. 111 (1942), was a U.S. Supreme Court decision that dramatically increased the power of the federal government to regulate economic activity. A farmer, Roscoe Filburn, was growing wheat to feed his chickens. The U.S. government had imposed limits on wheat production based on acreage owned by a farmer, in order to drive up wheat prices during the Great Depression, and Filburn was growing more than the limits permitted. Filburn was ordered to destroy his crops and pay a fine, even though he was producing the excess wheat for his own use and had no intention of selling it.
hit and run

I really don't know what got into me -- but I started reading the ruling. This is an odd behavior for me --unprecedented almost!-- one for which I am glad that I have health insurance so that I can have myself checked out. But I digress.

I notice that the Government argued that the fine for not getting health insurance is . . . a tax* (pg 17-18):

Defendants urge that Plantiffs' assertions are barred by the Anti-Injunction Act, 26 U.S.C § 7421(a). The Anti-Injunction Act, which is located in the Internal Revenue Code provides, in pertinent part, that

no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.

26 U.S.C. § 7421(a). The two primary objectives of the Anti-Injunction Act are "[1] to allow the federal government to asssess and collect allegedly due taxes without judicial interference and [2] to compel taxpayers to raise their objections to taxes in suits for refunds."

You might remember the fun Obama and George Stephanopoulous had with the issue of whether the fine for failing to maintain health insurance http://blogs.abcnews.com/george/2009/09/obama-mandate-is-not-a-tax.html>was a tax...

*OK,so the government isn't exactly calling the fine a tax. It is maintaining that when U.S.C § 7421(a) uses the word "tax" it should be read to also include "penalties" -- such as the fines in ObamaCare. The judge dismisses the argument as "unconvincing" because he sees them as penalities and not a tax and reads U.S.C § 7421(a) as not being applicable to penalities. But still, to see them try and kick this case out of court because of a law that prevents a plaintiff from bringing a suit against a tax is . . . rich.


How is the Anti-Injunction Act constitutional? That quoted language sounds like it's a violation of the act to challenge the constitutionality of any tax.


The decision is ridiculous.

OT, but the Senate is ridiculous, too..

"y John Stanton
Roll Call Staff
Nov. 30, 2010, 10:09 p.m.

File Photo

Text size
A food safety bill that has burned up precious days of the Senate’s lame-duck session appears headed back to the chamber because Democrats violated a constitutional provision requiring that tax provisions originate in the House.
By pre-empting the House’s tax-writing authority, Senate Democrats appear to have touched off a power struggle with members of their own party in the House. The Senate passed the bill Tuesday, sending it to the House, but House Democrats are expected to use a procedure known as “blue slipping” to block the bill, according to House and Senate GOP aides.
The debacle could prove to be a major embarrassment for Senate Democrats, who sought Tuesday to make the relatively unknown bill a major political issue by sending out numerous news releases trumpeting its passage."

Aaron Worthing

well, the fact is it is NOT a sure shot that everyone will participate in the health market. most states recognize that you have a right to refuse treatment. And i suspect if it was tested, the SC would say that you have a constitutional right to refuse treatment.

Danube of Thought

The anti-injunction act doesn't prevent a challenge to the constitutionality of a tax. There is still a remedy available--recovery of any money paid if it's later held unconstitutional--but you can't enjoin it in advance. At least that's the stated rationale.

The Wickard decision is indeed far-reaching and offensive, but it still seems to me that this mandate goes beyond what Wickard authorized. At least Filburn was actually doing something.

Rob Crawford

Judge Norman Moon is a tyrant.


Wouldn't eating an apple a day set you up for the same treatment Filburn got?

Rob Crawford

I haven't gone back to check, but the quoted language sounds like it was lifted verbatim from the Michigan decision.

Well, it could be because the government lawyers are all using the same material.

Or it could be because the judges are colluding.

Thomas Collins

Unfortunately, the two decisions upholding the individual mandate are not all that radical if viewed in light of modern Constitutional jurisprudence. See the comments in the LUNed article for an interesting discussion about Professor Herbert Wechsler's view that the political safeguards of federalism (for example, the fact that States themselves or State districts elect the House and Senate members), not federal courts, are the primary guardians against Congressional Commerce Clause overreach.

DOT, I agree with your thought that at least Filburn was doing something, but under Wechsler's approach, it would seem to me that Judge Moon got it right. Not buying health insurance could have a greater impact on interstate commerce than Filburn's small plot, and if the States feel impinged upon, they can elect folks who will overturn ObamaCare.

I myself don't buy Professer Wechsler's approach. It seems to me that although members of Congress are selected through the States, when Congress sits it is part of the federal body politic that may be prone to trample upon federalism, so that the federal courts have an appropriate role in preventing such trampling. However, Judge Moon's view is not out of the mainstream of modern Constitutional thought of legal scholars of various ideological stripes (Professor Wechsler for example was hardly in the vanguard of the prog movement).

Rob Crawford

Wouldn't eating an apple a day set you up for the same treatment Filburn got?

"Breathing is, of course, partaking in interstate commerce, because you have the choice as to whether or not you want to breathe air packaged in another state. Since all humans breathe, and all activity increases the amount of air breathed, there is no activity that is not subject to Congressional authority.

Further, there is no bounds to the regulatory authority that Congress may delegate to an executive agency.

For these reasons, the 2010 Government Efficiency Act is found Constitutional, and the newly established Federal Lifestyle and Habit Management Bureau may go forward as planned."

(Republican Congressional leaders were later quoted as saying they would act to repeal most of the GEA, but would leave the FLHMB in place, as it's quite popular with the press. The Bureau's new director, formerly head of the CSPI, denies they will be banning all meat as unfit for human consumption, "Not all. For a certain period chicken and some fish will still be available.")

Thomas Collins

For a view of Commerce Clause jurisprudence different from Professor Wechsler's, see LUN (which contains a scholarly piece by Randy Barnett arguing that the individual mandate is unconstitutional).


True, but I don't see how Comstock enters into it, unless it's like citing Councilman
in the Gitmo detainee cases, off the mark


Let's hope the twenty state attorneys general make a better impression on the more intelligent, less politicized and presumably more aware of the REAL constituton, not the commerce clause, judges their case is being presented in front of. Liberty is a good school, but twenty states make a more impressive presentation to the court.

Then let the SCOTUS decide, so lil Barry Soetero can throw another hissy fit at the 2012 SOTU and shame himself as he did this last January!!

hit and run

"I love you,man. Eat the salad."
--stuff Barack Obama said

Danube of Thought

I've been following Randy Barnett's stuff for some time now at Volokh, and he's really the strongest advocate for our side's view.

There's no doubt at all that the trend is all against us, but the hope lies in the fact that Wickard does not compel upholding the mandate under principles of stare decisis--a lower court could void the mandate without contravening existing law, and the Supreme Court could do so without disturbing existing precedent.

Jane (sit on the couch or save your country)

We are either going to have to find a way to get rid of all the parts of this government that go against the constitution or we are going to have to secede or leave.

Sue, Porchlight, how big are your guest rooms?

Danube of Thought

Well, I'm off to Las Bariles in an hour and I plan to forget about this crap for a few days. But maybe I won't...

Thomas Collins

DOT, see LUN for some related leisure reading while you're away (click on one of the Table of Contents links, and Story's full text discussion of the relevant subject matter can be accessed).


If ever there was a precedent that should be overturned, it's Wickard v. Filburn.

I grow my own tomatoes, so therefore I'm not participating in the interstate tomato market, which results in the government coming and trampling my tomato plants, forcing me to buy tomatoes at the supermarket, and fining me to boot. What would the Framers think about that?

Isn't what Filburn was doing essentially the same thing as keeping oneself healthy so as to avoid participating in the interstate health care market?

How about if I choose to only buy in-state grown tomatoes, thus refusing to participate in the interstate tomato market? But that would adjust the balance between the in-state and interstate tomato commerce, possibly inviting the feds to step on the local growers' tomato fields, too, wouldn't it?

I agree, Wickard v. Filburn is "offensive."


--"I hold that there is a rational basis for Congress to conclude that individuals' decisions about how and when to pay for health care are activities that in the aggregate substantially affect the interstate health care market,"--

I can think of few things that substantially
[e?]affect interstate commerce more than voting.
Consequently voting clearly falls under congress's powers to regulate under interstate commerce and therefore not only can we be compelled to vote but they should be able to regulate who it is we vote for, via a congressionally approved slate of candidates, since who we vote for determines the impact on interstate commerce.

Army of Davids

I'll leave the legal merits of his ruling to others.

The economic merits of the healthcare bill are flawed and will not work.

Taxing supply, subsidizing demand and increasing price controls and regulatory costs will result in higher prices and a lower quality of care.

The judge needs to stick to law.

And dollars to donuts he doesn't even begin to understand to fiscal and economic costs that come out of the bill. And they are substantial.


"I love you,man. Eat the salad."
--stuff Barack Obama said

Maybe Biden can tell Obama that the next time Obama takes Biden out for a hellburger.

Jane (sit on the couch or save your country)

Have a blast DOT!


I wonder how the "I love you, man" would work if the chubby aide walked up and yanked the Marlboro out of Obama's split lip?

JM Hanes

I haven't been following this case, but if, per hit above, the matter at issue was the tax/not tax business, why is the judge making a commerce clause ruling?


Obamacare will find its way to the Supreme Court. I have no real faith in the outcome there. The overreach of the government continues apace. Yesterday, the Republicans all talked about how the President had told them he wanted to “reach out” to them as if they had been invited on a date with old Purple Lips. The debt commission wants to put the resolution of the crisis on the backs of those receiving social security and medicare. What about taking back the stimulus that hasn’t been spent. What about liquidating GM? What about reversing the very programs and policies that skyrocketed the debt? The Department of Education has done nothing, ever. Abolish it. Don’t fund Obamacare.

Now, with the newly elected and re-elected actually put on the brakes, or will we continue to kick it down the road to some arbitrary date? Depending on the courts continues to be the favorite tactic, but it is ever more harmful to the country.


Sue, Porchlight, how big are your guest rooms?

We have a tiny house, sadly, but if circumstances allow, we are going to build a little backyard structure for my husband's practice room/study.

Incidentally, I've never been so thankful to be living in Texas.

Jane (sit on the couch or save your country)

And I;ve never been so jealous Porch.


Come visit, Jane! Spring is spectacular. Maybe we can get Hit out here and have a JOM TX party with Sue, Glenda, Gmax...


From Barnett's piece:

Article I, section 8 of the U.S. Constitution delegates to Congress the power "To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States...." From this enumerated taxation power, the courts have derived an implied power to spend tax revenues. Whether correct or not, current precedents do not limit this so-called "spending power" to expenditures that are necessary and proper to carry into execution an enumerated power.

An alternative view:

It has been urged and echoed, that the power "to lay and collect Taxes[...]" amounts to an unlimited commission to exercise every power which may be alledged to be necessary for the common defence or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the pwoers of the Congress been found in the Constitution, than the general expression just cited, the authors of the objection might have found some colour for it....

But what colour can the objection have, when a specification of the objects alluded to by these general terms, immediately follows; and it is not even separated by a longer pause than a semicolon....For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural or common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars, which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity....

Then again, who understands the Constitution better - the Great and Powerful Court, or Some guy who never even got a law degree?


Barnett is right, DoT. If I didn't miss you, have a great time and save a margarita for me.

Thomas Collins

JMH, Judge Moon ruled that the individual mandate is not a tax, so that a lawsuit attempting to enjoin it is not barred by the Anti-Injunction Act. If the individual mandate is not a tax, the issue then arises as to what is the Constitutional basis for imposing it. The argument accepted by Judge Moon is that the individual mandate is an appropriate exercise of Congress' power under the Commerce Clause.

Jane (sit on the couch or save your country)

You know I've never been to Texas Porch.


I would love for some of these advocates of the expansive view of interstate commerce to say exactly what is NOT interstate commerce. Because if there is nothing that cannot be construed as IC under their interpretation, then that is obviously at odds with the intent of the clause, which presumably was intended to be restrictive.


Jane, definitely consider spring for your first visit. Would be lovely after a New England winter.

Jim Ryan

The aggregate effect of millions upon millions of lazy people who, though not on the dole, nevertheless do only just enough to get by, is a huge loss to our commercial system and therefore an incalculably large impoverishment of our country. The sum is certainly in the hundreds of billions every year, reports have demonstrated. Interstate commercial activity would be far more vibrant and robust in a country in which everyone did what he could to create wealth. Sadly, we don't live in such a country.

However, the federal government has the right to regulate commerce. Since laziness has a huge effect on commerce, the federal government has a right to disallow it.

Under the proposed law, all Americans over the age of 18 would be required to undergo quarterly interrogations intended to discover the extent and range of their efforts at producing wealth to the best of their abilities. The law proposes that a failing grade in two consecutive quarters would result in a tax penalty of $1750 for the year, while a failure in three or more consecutive quarters would result in a penalty of $5000 and imprisonment of not more than five years and not less than 1 year. Prison terms would involve full-time labor aimed at productive economic activity.

The Senate will vote on the final version of the bill on Friday.

Mark Folkestad

Jim Ryan, you're a softie, compared to Draco the Tyrant. He prescribed death for all infractions of the law, including indolence. I find it hilarious that, when critics said that it was unfair to penalize both murder and indolence with death, Draco said that it was indeed unfair, but he had no more severe punishment available than death for the worst crimes.

JM Hanes

Thomas Collins:

"If the individual mandate is not a tax, the issue then arises as to what is the Constitutional basis for imposing it."

I should really go read up on the case, I suppose, but I thought that judges only rule on the vehicle a complaint rolls in on. The plaintiffs can't simply complain that something is unconstitutional and leave the judge to ruminate on why that might or might not be so. They must state a basis for that argument, and in doing so, define the matter to be adjudicated. Or so I thought.

It's my impression that most of the cases now in front of the courts have purposely avoided the commerce clause in light of the Supremes' expansive views of its reach. Perhaps that's just not the case in this instance.


The expansive view of the commerce clause articulated in this decision is not at all unprecedented. It's not radical at all under our commerce clause jurisprudence.

There are valid reasons for disagreeing with Moon's decision, but if you think it's some kind of radical departure from our constitional law, then you clearly haven't read any of the relevant cases.

Pro Tip: Rehnquist cited Wickard approvingly in his decision in Lopez.

JM Hanes


"There are valid reasons for disagreeing with Moon's decision, but if you think it's some kind of radical departure from our constitional law, then you clearly haven't read any of the relevant cases."

I'd have thought it was obvious that I think no such thing. I'm asking about the judge's purview on that issue in this particular case, as a technical matter of scope.

Ralph L

If the mandate is unconstitutional, isn't Social Security also, since it's retirement and disability insurance? I doubt the courts want to go there, even if it's correct.

cheap calls

Health care in the US is provided by many separate legal entities.The right to health care, access, fairness, efficiency, cost, choice, value, and quality is always what we are after for. But requiring people to buy insurance that could cover abortions is a total abuse. Yes, it used to be that government had an obligation to protect the rights of individuals while we only have obligations to do what is mandated. However, if the mandated is working against us, then what is the use doing what they want?

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