Given the gravity of the question, it is time for the federal appellate courts to simply certify this plain spit among the federal trial courts, in the various federal districts -- and kick the various cases directly to the Supremes. It is no longer likely that any one federal appellate court is going to harmonize all of Judge Hudson's, and Judge Vinson's, "novel" (erh, erroneous) analyses with the three trial court opinions that have adhered to three-quarters of a century of Supreme Court precedents. It just isn't.
So, why waste taxpayer money at the appellate level? We all know this is a matter to be decided in the United States Supreme Court. Let's get on with it, forthwith.
In any event, you may read all 64 pages of the latest (PDF file) memorandum opinion for yourself, here -- but this is the core of it:
. . . .When considered together, as they must be, Wickard, Lopez, Morrison, and Gonzales establish three major lines of inquiry. See id. at 15, 125 S.Ct. 2195 (“[N]one of [the] Commerce Clause cases can be viewed in isolation.”). First, the Court must consider whether the decision not to purchase health insurance is an “economic” one, like the activities in Wickard and Gonzales, or a “non-economic” one like those in Lopez and Morrison. Second, if the decision is economic, the Court must determine whether Congress had a rational basis for concluding that such decisions, when taken in the aggregate, substantially affect the national health care market. Third, the activity may be found to be within the reach of Congress’s Commerce Clause power if it is “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Lopez, 514 U.S. at 561, 115 S.Ct. 1624. . . .
In undertaking this analysis, the Court is mindful of the proper balance of power among the different branches of the federal government and, in particular, of its duty to apply a presumption of constitutionality when reviewing laws passed by Congress. See Morrison, 529 U.S. at 606, 120 S.Ct. 1740 (“Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.”). . . .
When it enacted § 1501 of the Affordable Care Act, Congress made several findings, chief among them the general finding that “[t]he individual responsibility requirement provided for in this section. . . is commercial and economic in nature, and substantially affects interstate commerce.” ACA § 1501(a)(1). Thus, there can be no doubt that it was the intent of Congress to invoke its Commerce Clause power in enacting § 1501. . . .
Congress has clear authority under the Commerce Clause to regulate the insurance markets because insurance policies are “commodities” in the flow of interstate commerce. South-Eastern Underwriters Ass’n, 322 U.S. at 552-53, 546-47, 64 S.Ct. 1162. Both the decision to purchase health insurance and its flip side--the decision not to purchase health insurance -- therefore relate to the consumption of a commodity: a health insurance policy.
It therefore follows that both decisions, whether positive or negative, are clearly economic ones. See Gonzales, 545 U.S. at 25-26, 125 S.Ct. 2195 (“‘Economics’ refers to ‘the production, distribution, and consumption of commodities.’”) (quoting Webster’s Third New International Dictionary 720 (1966)). . . .
Next, the Court must determine whether Congress had a rational basis for concluding that such decisions, when considered in the aggregate, substantially affect the national health insurance market. The findings on this subject could not be clearer: the great majority of the millions of Americans who remain uninsured consume medical services they cannot pay for, often resulting in personal bankruptcy. In fact, the ACA’s findings state that “62% of all personal bankruptcies are caused in part by medical expenses.” ACA § 1501(a)(2)(G), as amended by § 10106. Of even greater
significance to the national economy is the fact that these uninsured individuals are, in fact, shifting the uncompensated costs of those services -- which totaled $43b illion in 2008 -- onto other health care market participants, as well as federal and state governments and American taxpayers. See ACA §§ 1501(a)(2)(F), (G), as amended by § 10106; Thomas More Law Ctr., 720 F.Supp.2d at 894. Because of this cost-shifting effect, the individual decision to forgo health insurance, when considered in the aggregate, leads to substantially higher insurance premiums for those other individuals who do obtain coverage. According to Congress, the uncompensated costs of caring for the uninsured are passed on by health care providers to private insurers, which in turn pass on the cost to purchasers of health insurance. “This costshifting increases family premiums by on average over $1,000 a year.” ACA § 1501(a)(2)(F), as amended by § 10106. Thus, the aggregate effect on interstate commerce of the decisions of individuals to forgo insurance is very substantial. . . .
For the foregoing reasons, the Court finds that Congress had a rational basis for its conclusion that the aggregate of individual decisions not to purchase health insurance substantially affects the national health insurance market. Consequently, Congress was acting within the bounds of its Commerce Clause power when it enacted § 1501 in order, as Chief Justice Marshall said, “to prescribe the rule by which [interstate] commerce is to be governed.” Gibbons, 9 Wheat. at 196, 6 L.Ed. 23. Thus, Defendants’ Motion to Dismiss on the basis that Plaintiffs have failed to state a constitutional claim is granted. . . .
As the Supreme Court recently noted, the Necessary and Proper Clause “grants Congress broad authority to enact federal legislation.” United States v. Comstock, 130 S.Ct. 1949, 1956, 176 L.Ed.2d 878 (2010). “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch v. Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579 (1819). Courts look to see whether the challenged statute constitutes a means that is “rationally related to the implementation of a constitutionally enumerated power” when determining whether it falls within Congress’s power under the Necessary and Proper Clause. . . .
[Editor: It is. Q.E.D.]
. . . .§ 1501 is a clear-cut example of “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Lopez, 514 U.S. at 561, 115 S.Ct. 1624. . . .
Prediction: this will be ultimately decided by the Supremes, with (surprisingly) Chief Justice Roberts authoring a majority opinion declaring that the mandate passes Constitutional muster. You read it here first, last year.