It’s a bit of an upset, but good to see the 6CA panel do the right thing. It should be noted that while both majority opinions do an excellent job of attacking the bad commerce clause arguments underlying the challenge to the ACA, James Graham’s dissent does a good job of self-refutation. Consider this passage:
Here, Congress’s exercise of power intrudes on both the States and the people. It brings an end to state experimentation and overrides the expressed legislative will of several states that have guaranteed to their citizens the freedom to choose not to purchase health insurance. The mandate forces law-abiding individuals to purchase a product – an expensive product, no less – and thereby invades the realm of an individual’s financial planning decisions. (“Neither here nor in Wickard had the Court declared that Congress may use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities.”). In the absence of the mandate, individuals have the right to decide how to finance medical expenses. The mandate extinguishes that right.
Graham starts off with policy arguments that are irrelevant — the fact that the ACA “brings an end to [some] state experimentation and overrides the expressed legislative will of several states” means nothing in itself, since all kinds of valid federal legislation does so, and the stuff about state legislatures suggests that Graham stopped reading the Constitution before he got to Article VI. But the real key is the last sentences, which suggest that what’s at issue here is not really federalism but a desire to return to a radical Lochner-era liberty of contract — a state mandate, after all, would also “invade the realm of an individual’s financial planning decisions” and “extinguishes the right to decide how to finance medical expenses.” And at this point, the whole shaky edifice collapses, because in fact Lochner hasn’t been good law for many decades, and as Graham concedes the federal government could clear create a more centralized and government-controlled system than the ACA does, opening up the frightening possibility that the U.S. could cover more people for less money like every other major liberal democracy.
The quality of the opinions arguing against the constitutionality of the ACA we’ve seen so far have been remarkably bad, but in part that’s because the argument itself is inherently weak. The only coherent argument against the ACA requires reading quasi-libertarianism into the Constitution, a long-discredited project that has vanishingly tiny amounts of political support.