The latest installment of the Federalist Society’s “Originally Speaking” debate series features UC Irvine Dean Erwin Chemerinsky and Baker & Hostetler partner David Rivkin sparring over the constitutionality of an individual mandate.
We’ve had something of a debate over this subject here on the VC as well. Our prior posts are collected here.
Categories: Commerce Clause, Health Care
wooga says:
Setting aside for the moment the glaring “tell” in Prof. Chemerinsky’s argument (if something truly is “clear,” there would be no reason to say it was “clear,” and thus the claim that your position is “clear” is an admission that you are full of crap), it falls apart with a crass analogy.
There are many activities that I can engage or not engage in which affect interstate commerce. Let’s take dating versus “self dating.” Going on dates is linked with economic activity, and the average person probably spends a few thousand a year on romantic nights out. Many people are excluded from the dating pool because of “pre-existing conditions” like extreme ugliness or lack of money. If I choose to “self-date” rather then direct my energies to the less attractive, I am attempting to opt out of the dating realm.
What is to stop Congress from passing a law requiring me to pay into a national “dating slush fund” or to allocate a certain percentage of dates to ugly people? And to ensure that I am serious, Congress will outlaw all forms of “self dating.” There is precedent for this, as I bet the states use to make such activity illegal years ago. Federal/state, what’s the difference?
As Prof. Chemerinsky might say:
What about those who want to opt out of dating altogether rather than date the fuglies? Like self-insurers, they would be “self-daters.” No dice, as Prof. Chemerinsky says:
In conclusion:
What’s that you say? The Consitution provides sexual rights and liberties, and Congress cannot ban “self dating”? Where is that in the Constitution? As prof. Chemerinsky says,
Now, I say that the Constitution, because it is set up as a LIMIT on the powers of the federal government, places the burden on Congress to first show that it has the enumerated authority to do something. It is not my burden to show that the Constitution gives me some right. But what do I know? I lack the magical sunglasses needed (a la Roddy Piper in “They Live”) to see the hidden text in the Constitution.
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November 5, 2009, 3:53 pmBC says:
Is Chemerinsky ordinarily prone to this sort of conclusory pomposity? I’m not familiar with his entire ouvre, but his piece here is larded with enough “obviously” and “clearly” and “there can be no dispute” tics to make it read like the work of a 1L. Show your work, professor.
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November 5, 2009, 4:06 pmB.D. says:
Chemerinsky is uncharacteristically glib. I’m already inclined to agree with his argument, but he was unpersuasive.
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November 5, 2009, 4:21 pmFederal Farmer says:
He says:
Isn’t that mixing apples and oranges? Healthcare expenditure does not equal health insurance expenditure. People opting out of buying insurance are not necessarily opting out of buying healthcare.
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November 5, 2009, 4:32 pmCrunchy Frog says:
Some of us need all the help we can get. Who are you to refuse?
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November 5, 2009, 4:45 pmHadur says:
I make this comment every time a commerce clause post is made:
I don’t view Raich as a serious case. To me, Raich stands only for the idea that “the decisions of this court are not to be construed so as to legalize weed”, and in a case where the outcome of applying Morrison/Lopez is not freeing the weed, the conservative justices are likely to return to their principles.
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November 5, 2009, 4:56 pmPerseus says:
Cf. The Assembly of Women:
First Hag:
The women hereby decree
that should a young man
Desire a young girl,
he may not bang with her
Until he knocks
an older woman first.
But if he refuses,
and still desires the girl,
The law entitles all
the older women
To drag him where they want -
and by the knob!
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November 5, 2009, 5:31 pmCrunchy Frog says:
If the definition of “older woman” includes Teri Hatcher, Dana Delaney, and Sandra Bullock, well... I suppose I could live with that.
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November 5, 2009, 6:24 pmMalvolio says:
Someone said that of the four most common arguments, two are “It’s a slippery slope” and “No, it’s not.” but I notice that a new one has arisen: “It’s a slippery slope this far but no farther.”
The version I see a lot is “The unconstitutionality of anti-miscegenation statutes implies the unconstitutionality of anti-same-sex-marriage statutes, but no, no, no, the unconstitutionality of anti-same-sex-marriage statutes does not imply the unconstitutionality of anti-polygamy statutes.”
This one is, “Wickard leads inevitably to Raich and Raich leads inevitably to individual mandate’s constitutionality, but don’t worry, it stops there.”
Most amusingly, Chemerinsky cites slippery-slope warnings about an early anti-child-labor law, seeming to imply since we haven’t gone all the way to Hell yet, we should keep on going.
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November 5, 2009, 7:19 pmA. Zarkov says:
Chemerinsky’s argument is hopelessly confused and muddled. The Commerce Clause authorizes Congress to regulate interstate commerce not require it. How can mere existence constitute the engaging in interstate commerce? Wickard v. Filburn does not apply by any stretch of the imagination because farmer Filburn actually did something: he grew wheat. Compare and contrast to the individual mandate. You don’t have to do anything. Similarly for Raich. He did something: he grew cannabis.
In desperation Chemerinsky tries the race card when he says:
Being in the hotel business requires you engage in transactions that are intimately connected to the business at hand. Refusing a transaction is an action, an action that is part and parcel of the business itself. Recall that Lester Maddox decided to go out of business rather than engage in transactions with blacks. Did Congress have the authority to require him to stay in business? Of course not. My mere existence does not mean I am engaging in any kind of transactions as part of a business. This argument is beyond stupid. But he compounds the stupididy writing,
which profoundly misinterprets necessary and proper. This phrase applies to the enumerated powers and the individual mandate is not one of them. Finally he says
No. We don’t need a constitutionally declared right to refuse to purchase something. The Congress needs to have the power to make us do that and it doesn’t under the US Constitution.
I was going to end with something really nasty, but my good sense got the better of me.
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November 5, 2009, 8:45 pmMalvolio says:
Really? Why not? The Federal government certainly requires you to do all sorts of things, I’m not sure why “stay in your current line of business”, Directive 10–289-style, is that different.
All you can say is “Well, that would be a ridiculous outcome” — to which I will just wave airily in the direction all the other ridiculous things the Federal government does.
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November 5, 2009, 11:03 pmDavid Schwartz says:
wooga: Your argument conflates something that is obviously interstate commerce with something you can disingenously argue is sort of like interstate commerce somehow.
Zarkov: I pay more income tax because I don’t donate to charity. How is this not Congress “requiring” charity? “Do X or pay a tax penalty” is not the same as requiring X.
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November 5, 2009, 11:05 pmOff Kilter says:
Chemerinsky: “the choice whether to purchase or not purchase health insurance is an economic decision and constitutes economic activity.”
Here’s a basic problem in logic: Economic activity should be unambiguously describable. If you observe someone purchasing health insurance, you can describe this as purchasing health insurance, and confidently conclude he is not engaged in some other economic activity, like seeing a movie.
Consider observing someone sitting quietly. You can describe him as engaged in not purchasing health insurance. You can also describe him as engaged in not seeing a movie. There is no clear description that trumps all others. So if not doing X constitutes economic activity, one can be simultaneously engaged in an infinite number of economic actions. Does this cause no legal complications?
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November 5, 2009, 11:50 pmA. Zarkov says:
At the time of Lester Maddox, Congress was not inclined to re-institute slavery or make business owners into serfs. Now Obama might be headed down that path, and if he is, then we will have to deal with him.
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November 5, 2009, 11:54 pmA. Zarkov says:
Exactly. Very well put. I wonder if Chemerinsky would think that my cats are engaged in interstate commerce? They just hang around house, sleep, eat and use the litter box. Sometimes I don’t do much more than that so how can he say I should have to buy insurance when my cats don’t? Is it the litter box?
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November 6, 2009, 12:03 amA. Zarkov says:
There are lots of things in the tax code like that. Congress wants to encourage some kinds of activities so they bribe you by reducing your tax. If you don’t owe any tax then giving to charity does you no good and thus you are not in any sense forced into giving to charity.
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November 6, 2009, 12:09 amwooga says:
Really? How is buying health insurance “obviously” interstate commerce? Simply declaring it to be “obvious” does not make it so. You are sounding like Chemerinsky, declaring things to be “clear” and “obvious” and “indisputable.” As BC noted above, that is 1L level argument.
Look, I buy health insurance from a California provider, who only provides in California. That is “interstate” commerce only in the Wickard sense (and that assumes of course, that California would even allow me to buy insurance from another state, and thus my purchase could conceivably divert economic activity from interstate commerce “Wickard-style”).
Turn to my dating example. Going on dates is an “obvious” economic activity (for some more than others). This is not “disingenuous” at all — and if you actually could raise a counter argument you would not have to resort to such Chemerinsky style proclamations.
Unlike health insurance, however, there is a vast and widely used interstate dating market (online dating services). If I choose to stay at home and not date, and not participate in these interstate economic markets, Chemerinsky would say I am still engaging in interstate economic activity. Therefore, my participation in “self dating” is just as much “interstate commerce” as “growing my own wheat” in Wickard.
So I ask you: how is health insurance more “interstate commerce” than dating — particularly internet dating?
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November 6, 2009, 12:58 amDavid Schwartz says:
Surely you can’t be fined for not having health insurance if you have no money to fine. We don’t have debtor’s prisons anymore. Congress wants to encourage buying health insurance.
wooga: My argument was not intended to address the interstate/intrastate distinction, only the commerce/non-commerce distinction. Dating is a non-commercial activity that is only incidentally commercial. Once can go on a date without spending any money at all, and an exchange of money for services is not required and certainly not the primary purpose. Buying health insurance is, primarily, a commercial transaction that exchanges money for services. You argument is too clever by far and simply not one that a rational personal can make with a straight face.
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November 6, 2009, 3:55 amRicardo says:
Let’s consider the numbers from the NIH concerning who pays for health care in the U.S.:
Medicare: 19%
Private out of pocket: 12%
Private insurance: 35%
Other private: 7%
Other public: 12%
Medicaid and SCHIP: 15%
Roughly, 46% of all health care expenditures are directly from federal, state and local governments, 35% are from insurance companies, and only 19% are from other private sources.
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November 6, 2009, 4:01 amBrett Bellmore says:
I’d say that’s a fair description of CURRENT commerce clause jurisprudence.
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November 6, 2009, 6:02 amDavid Schwartz says:
Brett Bellmore: I agree — as bad as current commerce clause jurisprudence is pretty bad. Growing wheat on your own land to feed the chickens your family will eat cannot be argued to be interstate commerce with a straight face. However, arguing that buying health insurance is no more commerce than dating is bizarre.
I have more sympathy for the argument that regulating health insurance is not interstate commerce, especially since there is no interstate market in health insurance. However, I think that’s covered by two things. One is the sad state of modern commerce clause jurisprudence. The other is that tax policy will inevitably regulate purely intrastate commerce — as it does with charitable giving, state income tax, purely intrastate income, and the many other things that affect your Federal tax payment. So you would have to hold almost the entire Federal income tax to be unconstitutional to find a “no health insurance tax penalty” rule to be unconstitutional.
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November 6, 2009, 6:42 amwooga says:
In college, I spent a lot more money on dating than health insurance. Moreover, you ignore that I also compared “buying health insurance” to “buying a membership to a dating service.” Both are economic activities, but only the latter is actually interstate. Similarly, buying movie tickets and dinners is economic.
Do you seriously contend that the Congress has less Constitutional authority to regulate eharmony (for example) than to mandate individuals buy health insurance?
If you want to get more basic: how come we don’t have a federal law banning local prostitution? Seems like Raich would allow it. Do you disagree? If the feds can regulate “pay for sex” — why can’t the feds regulate “indirect pay for sex” (which, as many standup comics will tell you, is the reality of “dating”)? Going on a date discourages picking up local prostitutes, which discourage picking up prostitutes across state lines. Therefore, dating affects interstate commerce. This is much more a direct link that “buying health insurance” — because I can’t buy health insurance across state lines.
It’s a slippery slope argument for sure, but all you have responded with is the conclusory assertion that “dating is not as economic as health insurance” — which is simply not true when you go with either the “dating service” or “prostitution” examples.
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November 6, 2009, 4:44 pmGrant says:
Chemerinsky relies on the wrong theory to argue the constitutionality of a health insurance mandate. Interpeting the commerce clause to extend to requiring an individual to purchase a good, whether that be health insurance, a vehicle, housing, etc., seems to me to be a tremedous reach. As someone pointed out above, there is a difference between “regulating” commerce and “requiring” it (as a condition of living). However, Congress’s taxation powers, via Amendment, are much broader, and by definition include the power to compell citizens to provide money for certain services. The problem that Chemerinsky has is that, for political purposes (and unlike other versions), the Bill is specifically designed to not refer to the mandate as a “tax” (with an exemption if certain goods are purchased). That opens up a Constitutional argument: if Congress specifically rejects calling it a tax, then they must mean they are using other authority to enact this mandate, and, as no such authority exists, the mandate must be unconstitutions.
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November 6, 2009, 6:07 pmDavid Schwartz says:
wooga: If you want to argue that modern commerce clause jurisprudence would allow the government to regulate dating by making a ridiculous argument that dating is interstate commerce, I agree. They could do that. A court might accept their argument. However, their argument would still be just as disingenuous and preposterous.
In any event, this completely contradicts your original point. The argument that commerce can regulate anything as interstate commerce under current laws argues that this law is constitutional under current commerce clause jurisprudence. Showing that the argument that it does leads to absurd results doesn’t mean it’s wrong because we have obvious absurd results already.
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November 6, 2009, 11:30 pm