Michigan Judge Rules About "Economic Decisions"


By Hadley Heath

Today Judge George Caram Steeh in the Eastern District of Michigan ordered that the Plaintiff will not receive a Preliminary Injunction. (Thomas More Law Center v. President of the United States)


The Plaintiffs in this case asked that the government be stopped from implementing the Patient Protection and Affordable Care Act, before some of its provisions (like the individual mandate to purchase health insurance) violate the U.S. Constitution and cause harm to the rights and resources of the Plaintiffs (and other Americans too).


The Preliminary Injunction will not happen.  And the Court also dismissed the first two claims of the Complaint which include the Commerce Clause challenge to the individual mandate. This does not, however, mean the case is dismissed.  The Complaint listed six claims.


Legal scholar Randy Barnett released this statement today:

In the course of dismissing the plaintiff's Commerce Clause challenge, the Judge Steeh has vindicated an important element of all such pending challenges: this claim of power by the government is without any precedent in experience or in law.  In Judge Steeh's words:  

"The Court has never needed to address the activity/inactivity distinction advanced by plaintiffs becausein every Commerce Clause case presented thus far, there has been some sort of activity. In this regard, the Health Care Reform Act arguably presentsan issue of first impression."

 Never before in American history has the U.S. Government imposed an economic mandate commanding that persons engage in economic activity.  Given that there is no current Supreme Court doctrine recognizing such power in Congress, the appropriate stance of a district court judge is to follow Supreme Court precedent and deny this claim of power until the Supreme Court decides in due course to expand its doctrine.

 Instead, Judge Steeh accepted the government's expansion of Congressional power beyond regulating economic activity to regulating economic "decisions":  

 "While plaintiffs describe the Commerce Clause power as reaching economic activity, the government’s characterization of the Commerce Clause reaching economic decisions is more accurate."

But this was not "plaintiff's description."  It was how the Supreme Court itself described its own doctrine in each and every Commerce Clause case that allowed Congress to reach wholly intrastate activity because it was necessary and proper to the regulation of interstate commerce.  

 By inventing a new "economic decisions" doctrine, Judge Steeh has gone beyond the Commerce and Necessary and Proper Clause doctrines established by the Supreme Court.  Only the Supreme Court is authorized to expand its own interpretation of the scope of Congressional power.

Of course, judges in other challenges will have their opportunity to opine on whether Congress has the power to regulate any "economic decision" that may substantially affect interstate commerce.  The "economic decision" not to buy a car, the "economic decision" not to buy or sell your home, or even the "economic decision" not to have a physical exam.  For make no mistake.  If the Supreme Court ever accepts the government's "economic decision" theory, then there is nothing it cannot mandate in the future in the name of regulating "commerce  . . . among the several states."  Congress will then have the general police power that both the Constitution and the Supreme Court have always denied it.


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