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Vinson opinion

Vinson opinion

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Published by Dave Weigel

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Published by: Dave Weigel on Jan 31, 2011
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11/13/2011

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Preliminarily, based solely on a plain reading of the Act itself (and a common
sense interpretation of the word “activity” and its absence), I must agree with the
plaintiffs’ contention that the individual mandate regulates inactivity. Section 1501
states in relevant part: “If an applicable individual fails to [buy health insurance],
there is hereby imposed a penalty.” By its very own terms, therefore, the statute
applies to a person who does not buy the government-approved insurance; that is,
a person who “fails” to act pursuant to the congressional dictate. In fact, prior to
final passage of the Act, CRS attorneys advised Congress that it was “unclear” if
the individual mandate had “solid constitutional foundation” specifically because:
One could argue that while regulation of the health
insurance industry or the health care system could be
considered economic activity, regulating a choice to
purchase health insurance is not. It may also be
questioned whether a requirement to purchase health
insurance is really a regulation of an economic activity or
enterprise, if individuals who would be required to
purchase health insurance are not, but for this regulation,
a part of the health insurance market. In general,
Congress has used its authority under the Commerce
Clause to regulate individuals, employers, and others who
voluntarily take part in some type of economic activity.
While in Wickard and Raich, the individuals were
participating in their own home activities (i.e., producing
wheat for home consumption and cultivating marijuana
for personal use), they were acting of their own volition,
and this activity was determined to be economic in nature
and affected interstate commerce. However, [the
individual mandate] could be imposed on some individuals
who engage in virtually no economic activity whatsoever.
This is a novel issue: whether . . . this type of required

Case No.: 3:10-cv-91-RV/EMT

Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 44 of 78

Page 45 of 78

participation can be considered economic activity.
CRS Analysis, supra, at 3, 6 (emphasis added).
The defendants insist that the uninsured are active. In fact, they even go so
far as to make the claim --- which the plaintiffs call “absurd” --- that going without
health insurance constitutes “economic activity to an even greater extent than the
plaintiffs in Wickard or Raich.” See Def. Mem. at 29. They offer two (somewhat
overlapping) arguments why the appearance of inactivity here is just an “illusion.”

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