The Thomas More Law Center — conservative America’s answer to the ACLU — is no stranger to defeat, whose acquaintance they made again today, as the Sixth Circuit became the first court of appeals to issue a decision on “ObamaCare,” and the first to sustain the Act (pdf). The majority decision comes as a thorough rejection of the conservatives’ favorite distinction — between regulating activity and inactivity. Per the Court:
The Supreme Court has never directly addressed whether Congress may use its Commerce Clause power to regulate inactivity, and it has not defined activity or inactivity in this context. However, it has eschewed defining the scope of the Commerce Power by reference to flexible labels, and it consistently stresses that Congress’s authority to legislate under this grant of power is informed by “broad principles of economic practicality.” Lopez, 514 U.S. at 571 (Kennedy, J., concurring). [. . . .]
Similarly, this Court has also refused to focus on imprecise labels when determining whether a statute falls within Congress’s Commerce Power.
Emphasis mine: it’s obvious that the Court sees this as rhetoric — not doctrine. Note too the citation to Kennedy’s concurrence. Pure diplomacy.
Contra some commentators on the right, eager for some good news, the Court expressly declined to consider, and therefore did not reject, the argument that the mandate constitutes a “tax.”
In light of the conclusion that the minimum coverage provision is a valid exercise of Congress’s power under the Commerce Clause, it is not necessary to resolve whether the provision could also be sustained as a proper exercise of Congress’s power to tax and spend under the General Welfare Clause, U.S. Const. Art. I, § 8, cl. 1.
Slip Op. at 26. And, before we get too excited about a “divided panel,” keep in mind that it’s the rare (and weak) case that results in a unanimous vote.