That’s the title of a Heritage panel coming up in D.C. this Wednesday, December 9, 12:30 to 1:30 pm. The panel will begin with introductory remarks by Sen. Orrin Hatch (rumor has it that he’s a reader of this blog, though I can’t personally vouch for that), and then a discussion between our own Randy Barnett and me. Randy will argue that the personal mandate is unconstitutional; I’ll express some skepticism about that, though I’m not firmly confident of the answer. Here’s a paragraph from the Heritage e-flyer summarizing the question:
Can Congress require all Americans to buy a new Buick every year or pay a tax equivalent to the price of a used LeSabre? Some members of Congress claim that power in the health care debate. Indeed, all the leading health care bills being debated in Congress require Americans to either secure or purchase health insurance with a particular threshold of coverage, estimated to cost up to $15,000/year for a typical family. Such a purchase mandate has never been attempted. The purpose of this forced purchase, coupled with the arbitrary price ratios and controls, is to require many people to buy artificially high-priced policies to subsidize the coverage for others. Sponsors of the current bills are attempting, through the personal mandate, to keep the transfers entirely off budget or through the gimmick of unconstitutional tax penalties. The sponsors have struggled to analogize and justify the mandate under existing federal laws and court decisions, but those efforts all fail under serious scrutiny. Senator Orrin Hatch and a growing number of Congressmen argue the mandate is unconstitutional as a matter of first principles and under any reasonable reading of constitutional precedents, and it is very unlikely the Supreme Court would devise or extend current constitutional doctrines to save them.
Orin Kerr says:
From the Heritage flyer:
I like how Heritage uses such neutral and balanced language to identify the issues.
December 7, 2009, 10:55 pmsitzpinkler says:
Eugene is always trying to be a tool for The Man, The Man who is trying to keep me down.
December 7, 2009, 11:23 pmTexas Lawyer says:
I’m a supporter of healthcare reform, but I agree there might be constitutional issues.
It seems to me the problem is that Congress isn’t using a single-payer plan like Medicare. I think that would be plainly constitutional (or at least Medicare hasn’t been successfully challenged yet). Instead, they’re using this jerry-rigged plan of private insurance with mandates.
The one ground that I think might make it constitutional is the commerce clause coupled with the necessary and proper clause. If Congress has commerce-clause power to regulate the interstate market for healthcare and health insurance, then it has the power to make all laws necessary and proper for that. One could argue that you can’t have a prohibition on preexisting conditions without also having a mandate. Otherwise people would wait until getting sick until they bought insurance. The freerider problem. The way to solve that is to make everyone buy insurance.
In the end, I bet it’s found constitutional. But we could avoid a lot of problem by going to single payer.
December 7, 2009, 11:23 pmSen. Orrin Hatch says:
I enjoy reading this site.
December 7, 2009, 11:26 pmresh says:
Congress figures to sneak this tax in via the commerce clause, I suspect. Absent a unifying health posture for the polity, achieved by the tax, business would be imperiled. The dead and infirm don’t add to the revenues-or so they’ll say.
Th problem is, that particular body of people is who will be legislating the issue…
December 7, 2009, 11:32 pmDaniel Charlies says:
Eugene,
You’ve mentioned before setting your rates as a speaker.
Can you clue us in to what they are paying you and Barnett for this debate? In the thousands, and if so, more than a handful?
Just curious what the marketplace for these talks are. Thanks.
December 7, 2009, 11:35 pmJ. Aldridge says:
Hopefully no one will get away with abusing the meaning of the commerce clause for the nth time.
December 8, 2009, 12:00 amJoseph Somsel says:
If a citizen can’t escape paying for health insurance, does that also mean he can’t refuse or select his own treatment?
I suspect that many others think this will prove true and so see it as leading to a government coercion against the individual person.
December 8, 2009, 12:22 amJohnF says:
Is this question any different from the question whether Congress could simply levy a fixed-amount tax on everyone?
December 8, 2009, 12:28 amraoul says:
As a liberal I have to say that there is something rotten about individual mandates. I have yet to totally put my finger on it but it and the Constitution don’t mesh. The right to enter a contract includes the right not to but suddenly it is a birthright for other private citizens to collect my salary?
December 8, 2009, 12:43 amMalvolio says:
The way to solve it is to not have a prohibition on charging for preexisting conditions.
Single-payer would definitely get us out of the frying pan.
December 8, 2009, 1:03 amRicardo says:
Are the obligations to serve on a jury, to register for the draft (and possibly serve if drafted and if you are a guy) or to appear as a witness in a criminal or civil case also rotten? These obligations are all held to be constitutional and are generally considered the basic obligations of citizenship.
If you want a more restrictive reading of the commerce clause, then individual mandates may well be unconstitutional. But under the status quo, it seems to me as long as there is a regulatory justification implicating interstate commerce of some kind for an individual mandate (and there is, much more so than in the case of prohibiting a cancer patient from growing her own marijuana on her own private property) it is constitutional.
December 8, 2009, 1:09 amnone says:
Barnett gets described as a libertarian. Where was he on the Bush admins’ views on executive power? The Iraq War and the racketeering of govt contractors who piss away hundreds of billions in taxpayer money? How’d he feel about warrantless domestic spying? He gets described as a federalist. What is the proper federalist response to one of the cases arising out of the warrantless wiretapping controversy – the one where a handful of state AG’s and public util commish’s sought to find out whether telecoms within their states had broken the law in handing over customers’ personal data to fed agents? The man seems like your typical right-wing hack (like the rest of Glen Becks’ guests). The word “libertarian” has been stripped of a lot of its meaning.
December 8, 2009, 1:34 amMahan Atma says:
Agreed. I’m against the idea of mandated purchases, and even I think the language is full of ludicrously one-sided premises.
Is this supposed to be a serious debate in good faith? I’m guessing not…
December 8, 2009, 1:40 amRedlands says:
Being forced to buy health insurance is a basic obligation of citizenship now? Jury service, draft registration, being subpoenaed into court to testify, serve a public interest in that it serves the whole. Having to shell out major ducats so that someone else will be covered with a health plan doesn’t seem to fit the model.
December 8, 2009, 1:56 amRicardo says:
Why not? You used the term “public interest” to justify the others and it’s the same justification for a health insurance mandate. You may disagree that it does in fact serve the public interest but that’s an argument for Congress, not for the courts unless, as I mentioned before, you are willing to adopt a much more stringent view of the Commerce Clause than what the Supreme Court has taken up until now.
December 8, 2009, 2:20 amSplunge says:
I think Congress should solve the coming implosion of entitlements, caused by the fact that the ratio of retired to workers will approach 1:1, by setting up an individual mandate for a robust birth rate. Say, everyone must have 1.3 children by age 30 or be fined $5,000 per year afterward. After all, surely among the basic obligations to society mentioned above — serving on juries, paying taxes, driving less than 55 MPH, patriotically not growing and smoking dope to relieve the agony of your cancer — there must also be the patriotic obligation to produce the next generation, the young healthy taxpayers who will pay for your Social Security, Medicare, “public option,” “cap ‘n’ trade” or whatever moral uplift the Brave New World is bringing us.
Although…come to think of it, this would blatantly discriminate against the infertile and perhaps gay couples. We could put in an exception for adoption, so long as you adopted from China, since adopting domestically-produced infants doesn’t increase the net number of children.
December 8, 2009, 2:35 amRicardo says:
Splunge, nice Swiftian comment. I suppose there are several possible responses:
1. As Scalia argues, not every bad policy is unconstitutional.
2. Reproductive freedom has been accorded special status by liberal activist judges so any law mandating you have children or prohibiting you from having children may well be unconstitutional on Bill of Rights grounds.
3. Immigration can solve the entitlements squeeze just as easily. The availability of a less intrusive alternative to a given problem makes the more intrusive one more dubious on public policy and maybe constitutional grounds.
4. I’m a twenty-something guy currently childless. I’ll make as many babies as you want me to. But, wait, you want me to support them as well?…
Etc.
December 8, 2009, 2:51 amArrowSmith says:
By that convoluted logic, the government can enslave us to anything. You can’t be serious. If we don’t make a stand now against forced medical insurance, then everything else follows.
December 8, 2009, 3:07 amRicardo says:
Slippery slope fallacy.
December 8, 2009, 3:19 amOff Kilter says:
In response to ArrowSmith: If we don’t make a stand now against forced medical insurance, then everything else follows.
Ricardo replies: Slippery slope fallacy.
If only there were someone at the debate who knew something about slippery slope fallacies…
December 8, 2009, 3:32 amTweets that mention The Volokh Conspiracy » Blog Archive » “Is the Personal Mandate to Buy Health Insurance Unconstitutional?” -- Topsy.com says:
[...] This post was mentioned on Twitter by Eugene Volokh, Eugene Volokh. Eugene Volokh said: “Is the Personal Mandate to Buy Health Insurance Unconstitutional?”: That’s the title of a Heritage panel comin.. http://bit.ly/6sF3zo [...]
December 8, 2009, 3:59 amA. Zarkov says:
Those obligations have nothing to do with the commerce clause. The commerce clause give Congress the power to regulate interstate commerce not require it.
The mandate is still unconstitutional under the CC. Growing marijuana like growing wheat is still a perceptible activity. Not buying health insurance is not an activity unless you want make mere existence into some kind of individual action. In that case virtually everything is covered under the CC. Why have such a clause if everything including mere existence come under it? Unless you are entirely ignorant of history, you know the reason the framers put in the CC was to prevent the states from levying tariffs against one another.
Perhaps Congress has the power to legislate the mandate under some other provision in the Constitution, but sure not the CC. If the Supreme Court should uphold the mandate under the CC, it would be tantamount rejecting the whole idea of a federal government with enumerated powers. It would mean Congress can do virtually anything except regulate abortions and forbid sodomy. Such as decision could put us on the road to a civil war.
December 8, 2009, 4:13 ama oeIs the Personal Mandate to Buy Health Insurance Unconstitutional?a says:
[...] the story on Topix Posted in [...]
December 8, 2009, 7:07 amRobbL says:
A Zarkov says;
“If the Supreme Court should uphold the mandate under the CC, it would be tantamount rejecting the whole idea of a federal government with enumerated powers. It would mean Congress can do virtually anything except regulate abortions and forbid sodomy.”
Perhaps you did not notice what the government has done since 9/11 in the name of “security”? They clearly think that they can do anything already, no matter how repugnant. The supreme court (left and right) doesn’t bat an eye.
I guess I life in an alternate universe. I worry a lot more about torture than any possible financial requirement for providing health insurance. I am required to buy auto insurance and I find that my liberty is not impaired.
December 8, 2009, 7:09 amPJens says:
Workers are currently required to purchase Social Security and Medicare insurance. How has that been Constitutional?
December 8, 2009, 7:37 amPintler says:
@Ricardo: what do you consider the outer limits of what would be acceptable? Are any of the following over the top?
“An informed electorate being essential for society, each household shall subscribe to an approved newspaper.”
“An informed electorate being essential for society, each household shall subscribe to cable TV.”
“Because of the overwhelming societal benefits of good health, every individual shall obtain a membership in an approved gym.”
“In order to provide a reservoir of trained markspersons, every individual shall participate in sanctioned High Power competition.”
“To facilitate contacting emergency personnel, every household shall purchase telephone service.”
December 8, 2009, 8:32 amalkali says:
Senator Orrin Hatch and a growing number of Congressmen argue the mandate is unconstitutional as a matter of first principles and under any reasonable reading of constitutional precedents …
“as a matter of first principles” = there is no actual text in the Constitution that supports the argument we are making
“under any reasonable reading of constitutional precedents” = likewise as to case law
December 8, 2009, 8:39 amCountDuckula says:
You must be new here. On volokh.com, slippery slope arguments are not only not fallacious, but also carry is an irrebuttable presumption of truth.
Which, of course, they can do. Next week the states and Congress could pass a Constitutional amendment re-instituting slavery and it would be perfectly legal and Constitutional.
Or the Congress could, by itself, just direct the IRS to collect 100% of income earned by every person. It probably wouldn’t work very well and a lot more people would work under the table, which is a pretty good reason for the government to not do it. But it wouldn’t be unconstitutional.
This is what you get if you have a government. Bad ideas are bad ideas, but it doesn’t make them unconstitutional.
December 8, 2009, 8:39 amscattergood says:
It seems to me that if Congress justifies the requirement to purchase insurance under the Commerce Clause, which regulates commercial activity between the states, then I as an insurance purchaser should be able to purchase insurance from outside of my state, no?
Until I can do the latter, the government shouldn’t do the former.
It seems pretty assinine that government action can stop me from buying insurance across state lines while at the same time require me to buy insurnace at all.
December 8, 2009, 8:56 amjnheath says:
Orin says that the Supremes will reject P&I incorporation because it historically implicates economic liberties like the “right to contract.” If he is correct, then does not _McDonald_ have ramifications for the individual health care mandate? I.e. might a libertarian P&I win including freedom to contract imply a freedom to *not* contract, analagous to the freedom to *not* associate implied with the freedom of association?
I am aware that the 14th Am is generally directed against the states, but a “natural right” guaranteed against the states would seem to be enforceable against the feds too.
I blogged about this recently.
December 8, 2009, 8:57 amTexas Lawyer says:
Malvolio:
That’s a policy choice you’re making. Assuming Congress wants to prohibit excluding preexisting conditions (which I think most would agree it could), I think mandates could follow as a necessary part of that.
Though I continue to think single payer is simpler and avoids the Constitutional issues. It’s just not politically feasible right now.
December 8, 2009, 9:21 amRicardo says:
They have to do with other powers granted to Congress under the constitution. We’ve argued this before. You are basically saying that Congress can mandate certain obligations but only so long as they are linked to certain non-commerce clause powers. Where is your support for this argument under current constitutional law?
I don’t know what to tell you: virtually everything is already covered by the commerce clause. In a different world where the Supreme Court held a more restrictive view of the commerce clause and where laws regulating health insurance (including purely intrastate transactions) like HIPAA, ERISA and COBRA were in peril of being ruled unconstitutional, you would have a case. Your arguments are thin on citations to the actual state of constitutional law for a reason. I get that a lot of people don’t like the idea of government making them buy health insurance. But that’s an issue for Congress, not the courts.
As for Pintler, I’m not crazy about regulations mandating that all new toilets made for private homes be “low-flow” but it’s a waste of time to argue that it is unconstitutional. Not every stupid law is unconstitutional. But if you are curious about my opinions of your hypotheticals, I’d imagine the first two are unconstitutional on First Amendment grounds, the third strikes me as pretty dubious, the fourth could well be constitutional (the Militia Act of 1792 required every adult white male to own a gun at his own expense and to train with his local militia — this was fairly uncontroversial to the founders), and the fifth doesn’t make sense since you only need a line, not paid phone service, to dial 911 thanks to intrusive government regulation.
December 8, 2009, 9:24 amBart DePalma says:
I am having a hard time seeing the constitutional problem here. To start, Obamacare does not compel you to purchase insurance. Rather, it inflicts a tax to punish you for not purchasing insurance. This is a vital distinction since taxes are often used to punish acts or omissions which the government finds contrary to the public interest. The Obamacare punitive tax, while arguably awful public policy, seems to me to fall comfortably in Congress’ Article I taxing power.
December 8, 2009, 9:58 amAtomic says:
Congress has the authority to regulate commerce among the states.
How is going down the street to my doctor “commerce among the states?”
Allowing that my doctor may use or prescribe materials which have previously crossed state lines, how does that prior activity incorporate congressional authority over my medical exchange? That I would purchase materials afterwards which cross state lines is not the issue.
December 8, 2009, 10:41 amDavid Schwartz says:
I wonder, would the people who call the individual mandate unconstitutional have the seem feeling about a law that permitted people to opt out of social security provided they put enough money away in the retirement plan of their choice?
December 8, 2009, 10:41 amCountDuckula says:
This ship has long since sailed. You get nowhere with that line of reasoning.
December 8, 2009, 10:42 amjheath says:
David Schwartz:
Not to be contentious, but the percieved distinction between Social Security and the individual mandate may be that Social Security is a tax on *voluntary* economic activity. The individual mandate threatens to tax you for breathing, I think (not sure how the tax penalty is assessed if you are “off the economic grid”). And Social Security doesn’t require you to enter a contract or buy anything: you pay a tax for participating in voluntary economic activity, and the government uses the money to buy something for you, just like they buy cruise missles for you, although they don’t send you a cruise when you retire, which would be cool.
December 8, 2009, 10:52 amnone says:
ZOMG! we’re losing ARE “liberty”!
December 8, 2009, 11:11 amMalvolio says:
Many of the arguments here are not that a personal mandate is Constitutional, but that the federal government already does so many unconstitutional things that one more won’t matter. I assume that everyone can see, when the matter is put so baldly, that such arguments are puerile.
BTW, anyone who believes that slippery-slope arguments are fallacious can stop now. The argument “if the Federal government regulates toilet flushing day, tomorrow it can force you to buy medical insurance”, although never made, could have been dismissed as a slippery slop, and would now have been proved prescient.
December 8, 2009, 11:13 amCommodore says:
As Professor Jost told us months ago, the important thing to remember is that the question of the constitutionality of the individual mandate is “not a serious legal issue” and the argument that the individual mandate is unconstitutional is a claim which, though “a favorite theme at town hall meetings and tea party demonstrations,” is not “an argument taken seriously by constitutional scholars.”
December 8, 2009, 11:32 amCountDuckula says:
Not exactly. Rather, the argument is that the definition of what is Constitutional has long since expanded so far that an individual mandate to buy health care is probably Constitutional. Nothing happened in Supreme Court jurisprudence recently that changed this; as far as I know the commerce clause has been more or less interpreted the same for nearly 70 years.
See, Ricardo. I wasn’t kidding.
December 8, 2009, 11:45 amShelbyC says:
Ricardo, did you just argue that the govt can make you buy health insurance because it can make you serve on a jury, and then a comment or two later, respond to another comment with a one-line response, “slippery slope fallacy”? Do I have that right?
December 8, 2009, 11:59 amA. Zarkov says:
It’s up to you to come up what enumerated power gives Congress the authority to pass the mandate. I submit it can’t be the CC even under current CC jurisprudence. See below.
You are arguing for an infinite reach to the CC, which is not true as we found out in Lopez. I note you use the word “transactions,” and that’s the whole point. Mere existence is not any kind of transaction. You want to make a non-action into a transaction which drains all meaning from the word “transaction.” HIPPA, ERISA and COBRA all involve business activities and transactions. The mandate fails to connect to any kind of business or even personal activity. Evidently anyone with a pulse is subject to the mandate. You could be in a coma and be subject to the mandate. If you think some other part of the Constitution provides Congress with authority for the mandate, then let’s hear what it is. But thus far you whole argument boils down to giving all power to Congress under CC, with a few exceptions like abortion and sodomy.
What a sorry state for SCOTUS jurisprudence you posit. Congress is precluded from regulating abortion or sodomy, items nowhere to be found in the Constitution, but has infinite power to regulate virtually everything else under the CC, even doing nothing. This is the kind of thinking dictatorships use and one which I think Americans are not prepared to swallow. If SCOTUS should uphold the mandate under CC, there will be hell to pay, and they know that.
December 8, 2009, 12:09 pmA. Zarkov says:
That might or might not be true, but it’s irrelevant to the matter at issue: Congressional authority for the mandate. There is no national security at issue here. The republic has existed for over 200 years without a mandate to buy heath insurance. No external or even internal threat to the existence of the republic exists.
December 8, 2009, 12:14 pmShelbyC says:
Could congress mandate that women carry additional insurance, or pay a bigger tax, because they risk more public money due to maternity costs?
December 8, 2009, 12:23 pmDavid Schwartz says:
jheath: Those are all distinctions without differences. They are both an additional tax that is waived so long as you engage in specific economic activity. They are both used for general government expenses that might benefit you but might not. (Social security is not a contract, you absolutely do not buy anything specific with your payments. They are simply taxes.)
December 8, 2009, 12:24 pmGordo says:
When the Heritage Foundation comes out and advocates that people who don’t purchase insurance be denied treatment at any emergency room in the country unless they can post a $100,000 bond, then they won’t be a bunch of stinking hypocrites.
Or perhaps I missed it and they have advocated such a policy …
December 8, 2009, 12:24 pmCountDuckula says:
Where was the “transaction” in Wickard v. Filburn? The guy was growing wheat for his own personal consumption.
The answer is, there doesn’t have to be an explicit transaction to regulate:
(emphasis mine)
If that particular language has been overruled or modified please let me know. It seems they relied on the same in Gonzales v. Raich. The only counterpoint I know if is Lopez, where the Court found regulating possession of a gun on school campus to be too far removed from commerce.
Too bad they already swallowed it 70 years ago. The American people are mostly sheep who will keep watching their reality tv shows and won’t know the difference.
December 8, 2009, 12:28 pmCountDuckula says:
Probably not since last I checked maternity costs necessarily implicate men as well, if only 9 months prior.
December 8, 2009, 12:32 pmTHESMOPHORON says:
A discussion of the limitations on the Commerce Power and how many comments did it take before someone brought up Lopez? VC commenters ought to be ashamed of themselves.
This is an unprecedented reach of Commerce Power. It may or may not be feasible to restructure using only the Tax Power. I think coercing the states through funding would be one of the most constitutionally sound ways to go about this – federal funding for public indigent medical programs and all medical and biological research funds to state universities could be predicated on participation in some nationwide infrastructure (perhaps even a civilian-run program).
December 8, 2009, 12:36 pmJustin Levine says:
Congress can certainly tax us. So what if, instead of forcing us to buy health insurance, Congress merely taxes those without insurance and says that the money will be used (by Congress) to buy insurance polices for those people on their behalf. Surely it has the power to do this under the current (admittedly broad) interpretation of the Commerce Clause. In terms of the end result, what is the practical difference between this scenario and forcing people to buy health insurance directly?
When you look at it from that perspective, I fail to see how it could be unconstitutional. If the Court ever overturns Wickard, then we’ll talk.
December 8, 2009, 12:42 pmShelbyC says:
I’m not sure why people are so concerned about the freerider problem in this case but so few others. Aren’t people who make less than average free-riding on medicare, education, etc?
December 8, 2009, 12:49 pmA. Zarkov says:
Notice that I wrote about transactions and activities. Farmer Filburn did something: he grew wheat. From your quote:
Notice that one has to do something that somehow affects interstate commerce. Mere existence is not an activity.
Again Raich did something. He grew marijuana. He didn’t simply exist.
They sure will notice the difference when the IRS gets on their back. They hate the IRS, and the IRS will be enforcing the mandate. I live in the most far left whacked-out part of the US– the San Francisco Bay Area. But even here, in my very East Bay community, I see and experience tremendous anger over the heath insurance bill. I see middle class people demonstrating out in the street. I have never ever seen anything like this level of opposition before. One can only imagine what’s happening in places like Texas.
December 8, 2009, 12:53 pmShelbyC says:
Yeah, but that doesn’t cost anything. Isn’t pregnancy something that primarily implicates a woman’s body?
December 8, 2009, 1:08 pmTwirlip says:
Only if you think that “regulate” is a term interchangeable with “to take over completely”. It’s as if it was argued that the commerce clause gave the Feds the authority to nationalize industry.
December 8, 2009, 1:17 pmCountDuckula says:
Yes, but you’re missing HOW growing his own wheat affected interstate commerce:
(emphasis mine)
The whole point of the law was to force him to buy wheat instead of growing his own. The same logic works for health care: instead of relying on your own luck and money, you have to buy health insurance.
Given that language, I don’t see why Congress can’t stimulate the insurance market by forcing people to buy health insurance.
(footnote omitted)
In other words, even it’s bad policy it’s well within Congresses power and they can do it if they want to.
Since the vast majority of “middle class” people already have health insurance, I’m not sure what aspect of “you have to buy health insurance” they will be upset about. Only 20% of people 18-64 don’t have insurance.
December 8, 2009, 1:18 pmCountDuckula says:
Primarily, maybe. But the pregnancy never happens without a man (so far). There’s no rational reason to only tax women to pay for pregnancy: somewhere, some man is equally responsible.
Notice how aggressively courts will order men to pay child support, even when the sperm was acquired from a clinic, or even acquired through deceit.
December 8, 2009, 1:32 pmTwirlip says:
The difficulty here is that “the Constitution” and “constitutional law” are two things with an increasingly divergent relationship to one another.
If we go by the actual Constitution, public healthcare is clearly unconstitutional. If we go by the body of “con law” as developed by the Court over the past seventy years – it depends. It depends almost entirely on who is sitting on the bench when a case on the topic makes its way before the SCOTUS, and not on any genuine legal matters.
December 8, 2009, 1:36 pmPintler says:
Ricardo, I’m trying to survey where you think the boundary between constitutional and unconstitutional lies, or should lie. You seem to carve out a first amendment area, but otherwise only seem to require that congress feel the restriction is in the public interest. How about banning tobacco – if that worked, it would certainly be good for smoker’s health. And there is precedent, right – we ban lots of other psychoactive drugs that are bad for you. What about other things that are unhealthy to ingest like, say, pork rinds. Can they be banned? Can the government enforce an individual mandate to lose weight by e.g. a penalty for obese people?
I’m not trying to make a bizarre slippery slope argument, but you are arguing that congress can mandate anything that is in the public interest, less a few areas that are off limits because of, e.g. the first amendment. I’m trying to delineate where you feel those boundaries are.
December 8, 2009, 1:37 pmTwirlip says:
They’ll be required to spend more for less in return. (The difference is to be used to provide healthcare to those currently without it, including illegal aliens.)
December 8, 2009, 1:39 pmTwirlip says:
It may be a waste of time to so argue. But it remains unconstitutional none the less.
December 8, 2009, 1:41 pmTwirlip says:
No. The Courts abortion jurisprudence (if that’s not too polite a term for it) makes it very clear that women decide to be pregnant or not.
December 8, 2009, 1:45 pmShelbyC says:
I believe current caselaw says a man would pay child support to a woman he’d never met who fished a used condom out of the trash and inseminated herself. But I don’t think he’s ever required to pay her medical bills, is he?
December 8, 2009, 1:47 pmCountDuckula says:
You lie!
December 8, 2009, 1:50 pmPubliusFL says:
He was only forced to buy wheat because he was essentially “in the market” for wheat anyways (because he needed it to feed his chickens). Filburn was a consumer of wheat, and the Court said that Congress could require him to buy wheat rather than produce it himself. But he always had the option of simply doing without the wheat instead of complying with Congress’ mandate about how to obtain it. Might the outcome have been different if Filburn had no use or need for wheat, but Congress simply mandated that everyone buy [i]x[/i] bushels of wheat whether they could use it or not?
December 8, 2009, 1:54 pmCountDuckula says:
No, the abortion jurisprudence makes it very clear that a woman can decide to abort or not. Once a woman is deciding whether or not to abort, she’s already pregnant. The decision is when she ceases to be pregnant (either at some point in the first two trimesters, or full term), which is not what we were talking about.
No. But the point is that taxing women more because they will take make more insurance claims due to pregnancy is silly – for every pregnant women, there is a man somewhere whose semen led to the pregnancy (sometimes the same man). Neither sex alone is sufficient to create the condition of pregnancy, so there’s no reason to tax either one more to pay for it.
December 8, 2009, 1:57 pmA. Zarkov says:
Let’s look at the whole paragraph to get the context right.
Farmer Filburn was himself engaged in commerce– his farm was not a mere hobby activity. He grew wheat in excess of his allocation under the Agricultural Adjustment act to feed his chickens instead of buying wheat on the open market. Thus his wheat growing activities were part and parcel of operating a business with a connection to interstate commerce. He didn’t just grow wheat to feed his family. You might as well say that under Wickard, Congress could force everyone to buy bread so as to stimulate the demand for wheat and support prices. The mandate to buy bread would apply to all who simply exist.
The nexus to a business activity is all important in applying Wickard. If Wickard had the power you posit, we would not have gotten Lopez.
December 8, 2009, 1:59 pmShelbyC says:
Currently, when a pregnant woman gets medical treatment, we send her 100% of the bill instead of 50%. Is that silly?
December 8, 2009, 2:05 pmCountDuckula says:
Sorry, I thought we were talking about taxation, not billing. One triggers intermediate scrutiny with “exceedingly persuasive justification”, and the other does not. From your past comments I believe you know the difference.
December 8, 2009, 2:19 pmCountDuckula says:
The implication of this argument is that the purpose for which Filburn was growing his wheat matters. It does not. He was allotted X acres. He planted more than X acres. The excess is seized and destroyed, end of story. Indeed, the Court also held “wheat grown for home consumption would have a substantial influence on price conditions on the wheat market”. Even if he had been only growing it for home consumption, that would still be within the scope of the commerce clause.
And yes, I would indeed argue that Congress could force everyone to buy bread under Wickard.
How? Because everyone eats. Every food product competes with every other, so everyone is in the market for food. The same applies to health care. Everyone gets sick. Thus everyone is in the market for health care, and so everyone is within the scope of the commerce clause.
Framing it as “mere existing” is misleading, because you’re always doing something other than existing. If you’re breathing, you’re in the market to continue breathing.
December 8, 2009, 2:26 pmShelbyC says:
Well, isn’t the justification for the taxation that the public will be stuck with medical bills that the taxee should be responsible for. Under our current system of allocating responsibility for medical bills, women will be responsible for more of those costs than men.
December 8, 2009, 2:26 pmA. Zarkov says:
Supplement to prior post.
Let’s not forget that the decision in Wickard upheld the constitutionality of the 1942 Agricultural Adjustment Act; a law regulating farming businesses, not individuals. To take the dicta from that decision as a justification for the mandate is going too far. Under such reasoning, Congress could prohibit me from writing non-business software for my own personal computer, for my personal use. After all if I write my own software, I don’t buy software and that affects interstate commerce. I suppose under Wickard Congress could tell software companies like Microsoft that they can’t write their own device drivers– they have to buy licenses from other companies to stimulate demand for programmers to write device drivers.
December 8, 2009, 2:26 pmCountDuckula says:
Which is why I was arguing that men are equally responsible for pregnancies. A billing department can’t identify a father to bill him equally, but if the government just taxes everyone, you can be pretty sure you got him.
December 8, 2009, 2:41 pmA. Zarkov says:
Let’s look at what the court wrote in Wickard.
Here we see the court specifically linking Filburn’s excess wheat to the business activities of his farm. The reference to home consumption is incidental in the narrative. The court simply listed all the uses of the Fiburn’s wheat as part of the fact pattern of the case. Now you want to make a mountain out of a molehill by making that incidental fact into a all encompassing doctrine. Sorry that doesn’t wash.
December 8, 2009, 2:41 pmPubliusFL says:
Even if the purpose for which Filburn needed wheat didn’t matter, it seems important that he did need it. Therefore, in a rational sense, he was in the market for wheat. What about Christian Scientists and others who do not use medical services at all, and therefore are not in the market for health care at all? Can Congress force them into the market?
December 8, 2009, 2:52 pmCountDuckula says:
Not sure how this is relevant. I would say that yes, Congress could do that.
No, I am referring to an explicit statement by the Court:
It’s in the syllabus as well… I’m not making a mountain out of a molehill, I’m telling you what the Court said.
December 8, 2009, 2:53 pmCountDuckula says:
Many Christian Scientists DO use medical services and drugs. Their Church doesn’t forbid it.
December 8, 2009, 2:56 pmDeanS says:
I find Jacob Sullum’s argument that it is actually a tax persuasive though not necessarily a constitutional one. It appears that most of the disagreement is because no one wants to call it a tax; instead it is a mandate. (It’s not mandatory, just required logic).
”
December 8, 2009, 3:27 pm…
Yet the fact that you can avoid a tax by changing your behavior does not mean it isn’t a tax. You don’t pay gasoline taxes if you don’t drive, you don’t pay property taxes if you don’t own real estate, and you don’t pay income taxes if you don’t earn income. In this case, people are subject to the “fee” simply by virtue of living in the United States and choosing not to buy something the government thinks they should.
…
”
href=”http://reason.com/archives/2009/11/04/obamas-hidden-fees”><a
Relic says:
Just a quick question: Article 1, Section 9 says “No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken”. The 16th amendment modified this, saying, “he Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration”.(Is that the proper period placement?)
Wouldn’t the mandate qualify as a banned direct tax not allowed under the 16th?
December 8, 2009, 3:43 pmbpbatista says:
Congress should pass a mandate requiring everyone to be good looking, smart and rich. That will solve all of our problems.
December 8, 2009, 4:15 pmTwirlip says:
That sounds an awful like like saying that “women decide to be pregnant or not”. The whole point of making it a constitutional right for women to decide whether to abort or not is so that they can decide whether to be pregnant or not. The people who conjured up Roe were clear about this, not that it requires any dazzling insight to notice it.
December 8, 2009, 4:16 pmA. Zarkov says:
But the court also said,
We can see here that “home grown” pertains to wheat consumed on the farm– a farm operating as a business engaged in commerce, where the home-grown and home consumed product affects the farming business. In those days we had many family farms which functioned both as homes and as businesses. That’s why the court writes about wheat consumed at home.
Now you might think that Congress can order us all to go out and buy an extra loaf of bread so as to promote commerce, but I contend that’s absurd extension of the Wickard. It would virtually negate the whole idea of enumerated powers.
December 8, 2009, 5:12 pmChristopher Cooke says:
It doesn’t seem like much of a debate when one side is vigorously represented and the other side is only lukewarmly represented (see Eugene’s statement “I’ll express some skepticism about that, though I’m not firmly confident of the answer”).
This is kind of like having a debate about the merits of Roe v Wade and inviting Scalia and O’Connor but no Blackmun.
December 8, 2009, 5:25 pmChristopher Cooke says:
It doesn’t seem like much of a debate when one side is vigorously represented and the other side is only lukewarmly represented (see Eugene’s statement “I’ll express some skepticism about that, though I’m not firmly confident of the answer”).
This is kind of like having a debate about the merits of Roe v Wade and inviting Scalia and O’Connor but no Blackmun.
December 8, 2009, 5:25 pmCountDuckula says:
Except that it has different words that mean different things.
Well who cares what the people who “conjured up Roe” think? Obviously you don’t so don’t go citing them as some great authority on the telos of pregnancy.
December 8, 2009, 7:21 pmCountDuckula says:
Well, I guess we disagree about it but last 70 years make me think that the concept of limited, enumerated powers has pretty much been eviscerated. Whoever has the better argument between us (I’m too tired to continue), I really doubt this Court would overturn a mandate to buy health insurance.
December 8, 2009, 7:26 pmTwirlip says:
I assume you do, since their words are the law of the land.
Slippery evasion.
December 8, 2009, 8:36 pmTwirlip says:
Right, because Blackmun was such an articulate defender of Roe. And never mind the fact that, last I checked, Blackmun was still dead.
December 8, 2009, 8:43 pmDavid Schwartz says:
Not if it was styled as an income tax. However, the proposals I’ve seen so far have not worded it in this way.
The problem is, one can argue that any monetary penalty is a tax on income. After all, if you don’t earn money, there’s no way you can pay any fees or taxes. Frankly, it wouldn’t surprise me if courts took such an expansive view of the 16th.
You can find lots of dicta that suggests that the 16th removed the requirement for apportionment, period. Except for the (now defunct) requirement that direct taxes be apportioned, the Constitution pretty much gave the Federal government all the taxing power that there is to give.
December 8, 2009, 8:58 pmjrose says:
Applying Raich, Congress need only a rational basis that the mandate is necessary and proper to support a comprehensive scheme that regulates interstate commerce – in this instance the regulations concerning pre-existing conditions.
December 8, 2009, 9:18 pmA. Zarkov says:
I would be inclined to agree with you, but for Lopez. Here the court did call a halt to the infinite expansion federal power and clarified the scope of CC.
Again and again we see the scope of the CC hinges on an activity– you must do something, even if that something is growing marijuana. Why would Wickard trump Lopez in defining the scope of CC?
Think of that poor ole man sitting on the Mississippi–
He don’ plant tators,
He don’t plant cotton …
But little does he know– he engaged in interstate commerce. Because of all those things he don’ buy.
December 8, 2009, 9:21 pmjrose says:
Congress outlawed partial-birth abortion under its Commerce Clause powers.
December 8, 2009, 9:22 pmA. Zarkov says:
That’s a pretty creative reading of Raich. Where does the decision say no kind of activity need be present?
December 8, 2009, 9:28 pmjrose says:
If you are resting your case on the notion that not having health insurance is not an activity, I am unpersuaded. The activity is the choice of health insurance, including choosing none at all.
December 8, 2009, 9:39 pmRicardo says:
That’s because you don’t understand the argument. It is that Congress already has pretty wide discretion when it comes to regulatory powers and as long as there is some linkage between a law or regulation and interstate commerce, the Supreme Court has ruled it is constitutional. If you are saying that the principal of stare decisis is “puerile” I wonder what you are doing on a legal blog run out of the U.S.
December 8, 2009, 9:39 pmRicardo says:
Yes, if you look at past Supreme Court decisions they talk about activities — that’s because the cases that actually came before them involved activities that were prohibited. The Supreme Court rarely veers off track and discusses an issue that is not actually before it. This is simply not a point in your favor.
As for Lopez, the decision hinged on the fact that Congress did not even attempt to justify some linkage between interstate commerce and possessing firearms near a school. Raich shows that the court is willing to accept even a pretty far-fetched link as long as the government actually attempts to justify the interstate commerce interest.
Now as others have pointed out, if the mandate is framed in the form of a tax on people who fail to obtain health insurance, the commerce clause is implicated much less. That would be more of a taxation power issue.
December 8, 2009, 9:51 pmDavid Schwartz says:
What “activity” was involved in the Federal capitation taxes of the late 1790s?
December 8, 2009, 10:51 pmRay says:
Are those of us not able to attend going to be able to watch this, somehow?
December 9, 2009, 12:25 amJ. Aldridge says:
And if the court finds it unconstitutional the first time, pols will work to pack the court with “like minded” until they get the result they seek.
December 9, 2009, 2:18 amJ. Aldridge says:
It isn’t. That would be a regulation of professions, not commerce.
“The Commerce Clause deals solely with exchanges of trade between Nations or States, which in return has absolutely nothing to do with regulating internal industries, labor or transactions. Regulating trade with another country has never been construed to mean to make and enforce laws that regulate the internal industries or labor of that country under the ruse such activity might have an effect on commerce with the United States.” (source)
December 9, 2009, 2:24 amJ. Aldridge says:
James Monroe:
December 9, 2009, 2:29 amRicardo says:
Shelby, the comment I was responding to was, “By that convoluted logic, the government can enslave us to anything… If we don’t make a stand now against forced medical insurance, then everything else follows.” Since it is a textbook-quality example of a slippery slope fallacy and given that slavery is prohibited by the 13th Amendment, I didn’t think it needed much additional rebuttal. If you find the above argument persuasive in some way, perhaps you could explain why.
December 9, 2009, 2:58 amBrett Bellmore says:
The slippery slope fallacy is a logical fallacy, but formal logic is not the entirety of reasoning. For instance, it would be a logical fallacy to say, “You’re a known pedophile, I won’t hire you as a baby sitter because you’d molest my children.” But it would still be rational to say it.
We have to distinguish between formal logic, which is always, without any exception, correct, if you do all the steps right. And heuristics, which if done correctly works more often than not, but comes with no guarantee.
Slippery slope reasoning is an example of heuristics. It isn’t the least bit illegitimate. We would be lost without that sort of reasoning, formal logic has so little application to everyday life.
As for the constitutionality of the mandate, it is, at one and the same time, blatantly unconstitutional, and almost certain to be upheld by the Court. That is a commentary on the debased state of constitutional jurisprudence in this country, and legal realists be damned, we are not required to ignore the difference between “constitutional”, and “approved of by the Supreme court”.
December 9, 2009, 6:52 amDon says:
No matter all the educated “angels on a pin head” arguements, the people will revolt just as they did against King George. We are heading towards revolution and I will be on the front line. Even though I want and have insurance I have it at my choosing and of my free will and will fight to the death to protect this freedom. Now you all can pick that one apart but the revolution is coming nonetheless.
December 23, 2009, 11:09 am