My co-blogger Randy Barnett has posted his very interesting analysis of why he believes that requiring health care insurance is unconstitutional under existing Commerce Clause precedents. A key part of his argument is that requiring health care insurance is not regulating commercial activity because it attempts to regulate inactivity:
To assess the constitutionality of a claim of power under the Commerce Clause, the primary question becomes, “what class of activity is Congress seeking to regulate?” Only when this question is answered can the Court assess whether that class of activity substantially affects interstate commerce. Significantly, the mandate imposed by the pending bills does not regulate or prohibit the economic activity of providing or administering health insurance. Nor does it regulate or prohibit the economic activity of providing health care, whether by doctors, hospitals, pharmaceutical companies, or other entities engaged in the business of providing a medical good or service. Indeed, the health care mandate does not purport to regulate or prohibit activity of any kind, whether economic or noneconomic. To the contrary, it purports to “regulate” inactivity.Proponents of the individual mandate are contending that, under its power to “regulate commerce…among the several states,” Congress may regulate the doing of nothing at all! In other words, the statute purports to convert inactivity into a class of activity. By its own plain terms, the individual mandate provision regulates the absence of action. To uphold this power under its existing doctrine, the Court must conclude that an individual’s failure to enter into a contract for health insurance is an activity that is “economic” in nature– that is, it is part of a “class of activity” that “substantially affects interstate commerce.”
Never in this nation’s history has the commerce power been used to require a person who does nothing to engage in economic activity. Therefore, no decision of the Supreme Court has ever upheld such a claim of power. Such a regulation of a “class of inactivity” is of a wholly different kind than any at issue in the Court’s most expansive interpretations of the Commerce Clause.
Unlike Randy, I am no expert in the commerce clause. At the same time, the counter-argument is worth flagging, and I believe it runs like this. Everyone pays for health care goods and services somehow, whether often or only once-in-a-while. Some pay for services individually on their own. Others pay through a pre-purchased insurance plan. Both ways are economic activities — purchasing health care services. From this perspective, if the government chooses to mandate one option, it is not regulating “inactivity.” Rather, it is regulating the economic activity of buying health care services by replacing one means of buying those services with another way of buying those services.
Also, I’m not sure that the regulation of inactivity under the Commerce Clause is as unprecedented as Randy suggests. Gonzales v. Raich, which Randy argued for Raich, is notable here. The Controlled Substances Act at issue in Raich banned both activity and inactivity. On one hand, it banned the activity of manufacturing, distributing, and dispensing controlled substances. On the other hand, it also banned the inactivity of possessing controlled substances. If you happened to have marijuana in your closet when the CSA went into effect, and thus were already in possession of it, the CSA regulated your inactivity by requiring you to act: The law mandated that you dispossess yourself of your marijuana or else face severe criminal punishment. And yet the majority opinion in Raich readily construed the ban on both activity and inactivity relating to controlled substances to be a straightforward regulation of economic activities:
[T]he activities regulated by the CSA are quintessentially economic. “Economics” refers to “the production, distribution, and consumption of commodities.” Webster’s Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.
That is, Congress could regulate the inactivity of possession because it was a rational and common means of regulating commerce in the product. By that reasoning, Congress can regulate the inactivity of not buying health care insurance because it is a rational way of regulating the health care market.
As I said, unlike Randy I’m not an expert in the commerce clause. But I thought it was worth flagging the counterargument for those interested in these issues.
J. Aldridge says:
Thomas Jefferson: “To make a thing which may be bought and sold is not to prescribe regulations for buying and selling. Besides, if this were an exercise of the power of regulating commerce, it would be void, as extending as much to the internal commerce of every state, as to its external.” From Meaning of Regulating Commerce.
December 9, 2009, 6:24 pmChristopher Phelan says:
Assume that it is unconstitutional to require someone to buy health insurance.
So, for instance, it would be unconstitutional to have, say, a $5000 per year fine for going uninsured. Ok. Then do this instead. Add a $5000 lump sum to everyone’s taxes. Everyone, just by being a US resident, owes the government $5000 per year. I don’t think this is unconstitutional. Next, at the same time enact a $5000 tax credit if you buy health insurance. A tax credit for engaging in a behavior the government likes is also not unconstitutional. But together, you have the same thing as a $5000 fine for not having health insurance.
December 9, 2009, 6:34 pmTRE says:
OK, not everyone pays for health care. Even so a government monopoly on health care options is different from a mandate.
As to your Raich reference, (what a coincidence that RB was involved in that case) do you not recognize a difference between criminalizing having something and criminalizing not having something?
December 9, 2009, 6:48 pmTRE says:
(You must think that under the commerce clause Congress could outlaw health insurance.)
December 9, 2009, 6:51 pmPubliusFL says:
“Also, I’m not sure that the regulation of inactivity under the Commerce Clause is as unprecedented as Randy suggests. Gonzales v. Raich, which Randy argued for Raich, is notable here. The Controlled Substances Act at issue in Raich banned both activity and inactivity. On one hand, it banned the activity of manufacturing, distributing, and dispensing controlled substances. On the other hand, it also banned the inactivity of possessing controlled substances. If you happened to have marijuana in your closet when the CSA went into effect, and thus were already in possession of it, the CSA regulated your inactivity by requiring you to act: The law mandated that you dispossess yourself of your marijuana or else face severe criminal punishment.”
That seems a bit like sophistry. The law doesn’t view possession as inactivity, which would make the cessation of possession an action that ends one’s inactivity. The law views possession as an activity: a continuing offense. The offense continues until you stop possessing the contraband. If possession were inactivity, what would be the actus reus of the offense?
December 9, 2009, 6:52 pmanti-troll says:
Hey Kerr, what if the government wants to mandate that you eat your vegetables? Is that a regulation of the inactivity of leaving the vegetables on your plate?
December 9, 2009, 6:54 pmOff Kilter says:
As a physician, I can assure Professor Kerr that this claim is incorrect: ” Everyone pays for health care goods and services somehow, whether often or only once-in-a-while.”
Believe it or not, some people can still go through life and ultimately die without seeing a doctor. If we restrict our scrutiny to adults, it is very easy for healthy young active adults to never see a doctor, and suddenly die in an auto accident (DOA, so no futile care even in the end), or drop dead of an unexpected cardiac problem (classically hypertrophic cardiomyopathy). Further, these hypotheticals demonstrate fairly obviously that being forced to pay for health insurance wouldn’t have helped. So Kerr’s argument doesn’t seem sufficient.
December 9, 2009, 7:05 pmAnderson says:
Along Christopher’s lines, if the feds taxed everyone for the amount of the required premiums, and then paid those premiums to an insurance provider, that would be unproblematic, just like taxing us to pay private defense contractors.
So if the feds simply cut out the middle step and require direct payments to the insurers, I’m not seeing anything more than a purely formal difference that might aggravate some law professors, but would be of no practical import.
December 9, 2009, 7:16 pmSteve says:
You must think that under the commerce clause Congress could outlaw health insurance.
I certainly think that.
December 9, 2009, 7:22 pmMark Field says:
Prof. Barnett’s argument strikes me as peculiarly unpersuasive.
First, the commerce clause is not the only clause at issue in this debate. The necessary and proper clause is also relevant. Congress has power not just to regulate “commerce among the several states”, but to pass all laws “necessary and proper” to such regulation.
Prof. Barnett’s argument seems to recognize the N&P clause in the first quoted paragraph, because there he mentions the “substantial effect on commerce” test. However, he then does two things:
1. He denies that the mandate amounts to the regulation of “economic activity”. This misses the point. The point is whether it’s “necessary and proper” for Congress to regulate something — anything at all — as a means of regulating the health care market.
2. He then moves, in his second paragraph, to a discussion of the regulation of “commerce among the several states” alone, without reference to the N&P clause.
He needs to fill in these gaps.
December 9, 2009, 7:22 pmOrin Kerr says:
Off kilter,
Going to a doctor is only a very small part of paying for health care, of course. Something as mundane as buying toothpaste counts as a purchase of goods and services for health care, too: It is a purchase of goods or services for an item used to take care of your physical health. And even if a small percentage of the population lives off the grid, never gets sick, never buys soap, and never has any medical care at all, presumably the existence of these outliers doesn’t address the rationality of the legislation.
December 9, 2009, 7:25 pmOrin Kerr says:
Also, I should add, in case it’s not clear to commenters, that by presenting this argument I am suggesting what the cases seem to say, not what I personally think the law should be or what I personally want Congress to do.
December 9, 2009, 7:26 pmShelbyC says:
Well, the argument’s no more of a stretch than the rest of the arguements they use to regulate activity that isn’t interstate commerce under the commerce clause.
December 9, 2009, 7:34 pmSammy Finkelman says:
It should be Constitutional, as long as you call it a tax. And the power to tax is the power to destroy as the supreme court said in 1819.
The only difference is that this would make it more starkly clear what they are doing.
And you could add all the other complicated provisions too without it becoming unconstitutional.
December 9, 2009, 7:35 pmDaniel Charlies says:
Lol. Oh Orin, we can all predict what you are suggesting the cases seem to say. That SCOTUS psychology analysis has us with sharpened skills on those kinds of things.
Back to your post here, aren’t you assuming away the individual who indeed NEVER presents for health care? They may not be many, but will we find a religious exemption for those birthed at home, treated within the home community if needed, and dies at home, having never presented for an economic transaction in exhange for health care.
By presuming away that type of individual, you assume away the “inactivity” issue by framing it in a different way. But the issue is still there, like those individuals treating at home, even if you can’t see them where you’re at/coming from.
[OK Comments: But that is not Randy's argument, LOL. Randy's paper discusses the inactivity of buying insurance, not the inactivity of buying any health care at all.]
December 9, 2009, 7:36 pmjimM47 says:
Christopher Phelan:
As alluded to in the video, Article 1 Section 9 potentially makes this a politically impractical solution when it mandates that: “No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.”
December 9, 2009, 7:36 pmJ. Aldridge says:
Before any congressional activity can come under the necessary and proper clause the activity must be an enumerated object invested in Congress. So health care must be a legit regulation of commerce or congress cannot touch the subject.
Health care is not an exchange of trade between governments.
December 9, 2009, 7:39 pmRowerinVA says:
Orin, are you trolling on your own blog?
If I get this right, you’re claiming that buying “toothpaste” and “soap” is buying healthcare, and from there that the Constitution’s grant of limited powers to the federal government permits … well, what exactly would the federal government NOT be permitted to do?
I guess buying food is also buying healthcare, since not eating kills you. And not buying food is buying healthcare, since eating too much kills you. Wearing shoes prevents foot injuries! Not buying shoes prevents athletes foot! The list is endless! EVERYTHING is healthcare!
Wait, that’s not right. I thought health care was only 1/6 of the economy.
Ten points for the first person who explains why blogging is healthcare.
December 9, 2009, 7:40 pmShelbyC says:
Right. And for it to be “necessary”, congress has to be unable to regulate the health care market without taxing folks that don’t have health insurance, correct? It seems congress has had no trouble regulating the health care market without such a tax.
December 9, 2009, 7:40 pmShelbyC says:
Because without it work would drive me nuts.
December 9, 2009, 7:42 pmAvatar says:
I was under the impression that a capitation tax was not constitutional – the government can tax your income but not your existence.
Of course, you could accomplish the same thing with a careful reworking of the tax tables. But to the extent that the greatest reason most uninsured people don’t buy insurance is cost – they are, by and large, poor and can’t afford it – then this would be a particularly lousy way to go about encouraging them to buy insurance. They would have to make an expensive purchase during the year in order to receive a big tax credit after April 15th…
Wouldn’t it just make more sense for the government to help pay the premiums directly?
December 9, 2009, 7:44 pmgeokstr says:
Thanks for re-inforcing my distrust of law professors, who seem to be somewhat disengaged from reality.
If buying toothpaste can be considered health care, and therefore interstate commerce that can allow this administration to basically take over one sixth of the economy through the side and back doors, then I guess I shouldn’t complain when the EPA decides to have two-thirds of the population put down because they emit CO2, and regulating CO2 has been declared just peachy by the SCOTUS.
Who needs a steenken’ constitution anyway? It’s “just words”.
December 9, 2009, 7:45 pmJ. Aldridge says:
Regulating a market is not the same as regulating commerce with states or nation’s.
December 9, 2009, 7:46 pmDaniel Charlies says:
Going to a doctor is only a very small part of paying for health care, of course. Something as mundane as buying toothpaste counts as a purchase of goods and services for health care, too: It is a purchase of goods or services for an item used to take care of your physical health. And even if a small percentage of the population lives off the grid, never gets sick, never buys soap, and never has any medical care at all, presumably the existence of these outliers doesn’t address the rationality of the legislation.
That’s not a satisfying response. Buying soap is healthcare? What of those who would make their own, and use a twig to brush their teeth in mineral-rich water?
Defaulting to the “outliers” rationale is weak, because I do fear you presume that people have homogenized health care needs, and all things being equal, would choose to treat equally.
Does consuming food — homegrown from seeds that way back entered the stream of commerce, or storebought — consist of enjoying health care, in a slippery slope example of your issue shifting?
We ought to take care where these presumptions are leading us, is the last thing I will say.
December 9, 2009, 7:46 pmTRE says:
If you think the commerce clause gives unlimited power to Congress, then of course they can regulate whatever they want, like toothpaste and soap, and it doesn’t require a blog post. I appreciate the open comments posts following DB locked posts though.
December 9, 2009, 7:47 pmKazinski says:
You don’t even have to go to the commerce clause to see Congress has the power to “tax” not having health care insurance. If Congress passes an surcharge on all income, and structures it so it is a flat per person, or household $3000.00 tax, that is constitutional. If congress then wants to provide a flat 3000.00 per person, or houshold tax credit for having health insurance, then that is legal too.
December 9, 2009, 7:49 pmDaniel Charlies says:
Randy’s paper discusses the inactivity of buying insurance, not the inactivity of buying any health care at all.]
Faster please.
Randy’s paper may discuss the inactivity of buying insurance, but your spin on the issue we’re discussing introduced the inactivity of not buying any health care at all.
I asked — responding to your poor assumptions — if you were not forgetting there are indeed those who purchase no healthcare insurance, and also never enter the realm of economic activity because they never pay to consume heathcare services either.
Then…
you trumped us all by introducing the variable that perhaps, the storebought purchase of toothpaste, or soap, might be consider the consumption of healthcare, for which the mandatory purchase of healthcare insurance might be constitutionally mandated.
(Still keeping up, OK?)
December 9, 2009, 7:51 pmSteve says:
I like how everyone is pretending they have never previously heard the argument that the Commerce Clause basically allows regulation of everything. Wickard v. Filburn is not up for grabs, people.
December 9, 2009, 7:52 pmOrin Kerr says:
RowerinVA,
I think you’re confusing the message with the messenger. The question Randy focuses on, that I bring out in the post, is what counts as “economic activity.” I think buying toothpaste is pretty clearly an economic activity. Of course, this doesn’t mean I want Congress to regulate it, or that I like existing commerce clause doctrine that is so incredibly broad. But the law is what it is, and I thought it helpful to point that out to readers.
December 9, 2009, 7:56 pmShelbyC says:
Well, based on my understanding of current precedents, activity regulated under the commerce clause doesn’t have to be interstate or commercial, so it seems like inactivity is the only thing outside its scope. And now you’re trying to move that in too. :-)
I had understood that the constitution was supposed to be interpreted as to avoid rendering words superfluous, but it seems that every word after “To regulate…” has been rendered superfluous.
December 9, 2009, 7:57 pmMalvolio says:
In all candor, it gives sophistry a bad name. To call possession (or in this case, continued possession) “inactivity” is just a word game. To liken a law that says “All people must do X” to another law that say “All people must do X (if they are in a tiny set of people who did Y in the past and X consists of trivially undoing Y)” is childish.
The problem with this law is that it’s yet another skid down the slippery slope from Wickard to fascism. Yes, buying or not buying health insurance affects interstate trade only a little less than growing or not growing wheat. Regulating it is only a little more unconstitutional. But we have to stop them somewhere.
December 9, 2009, 7:58 pmCDU says:
I am not entirely convinced that possession of a commercial good is necessarily inactivity. Possessing something has an impact on the market by taking it out of commercial circulation.
December 9, 2009, 7:58 pmOrin Kerr says:
CDU, Malvolio,
The problem is that the activity/inactivity distinction has not been recognized in commerce clause doctrine, at least as far I know. It’s hard to know how an unrecognized or hypothesized distinction is supposed to apply: We don’t have any cases applying it to guide us. If it has been recognized in the cases, of course, I would love to read those cases: I hope readers will ofter some cites/links.
December 9, 2009, 8:02 pmRobert Goodman says:
Didn’t anyone read the Controlled Substances Act? It provides that an “ultimate consumer” who obtained a controlled substance legally may continue to possess it legally. That would cover cases where the substance came under controls after the person came into possession of it. It does not require disposal of existing stocks.
However, Raich established that allowing intrastate commerce in an article would decrease demand for it in interstate commerce — and that although such an effect on interstate commerce (i.e. diminishing it in the type of article in question) was exactly what Congress intended in its legislation, that gave Congress an excuse to cover intrastate commerce in it as well! It’s the opposite of the effect that was sought in the Wickard case, where the object was to enrich those who sold in interstate commerce. Unless of course that was the object of the CSA: to enrich those who sell in interstate commerce legally or illegally.
December 9, 2009, 8:10 pmOrin Kerr says:
Robert,
Can you point to the language saying that you can continue to possess cocaine, marijuana, heroine etc., today so long as you were in possession of it before the law was passed? That’s normally not what Congress does in its contraband laws: For example, the child pornography laws do not have a “grandfather clause” letting people keep their child porn so long as they possessed it when it was legal. So that would be really interesting to know about.
December 9, 2009, 8:16 pmMichelle Dulak Thomson says:
OK,
I am curious (as a couple of others have been upthread) why you fixed on toothpaste and soap as “healthcare” purchases, when food is a much more obvious one. Toothpaste and soap are nice contributors to health, sure, but the lack of either will not generally cause someone to die within a week. Food, OTOH . . .
December 9, 2009, 8:21 pmReadMyLips says:
Christopher Phelan:
That would be a direct tax, and have to be apportioned…. so it will never fly.
December 9, 2009, 8:28 pmShelbyC says:
Uh, he can take it back, if he wants. He has the edit power. And it’s not OK’s fault that such small things play a deciding role in commerce clause analysis.
December 9, 2009, 8:38 pmReadMyLips says:
No, they are perfectly constitutional — are explicitly mentioned as such in Article I, Section 9 — but they have to be apportioned, so every dollar collected has to go back to the states.
December 9, 2009, 8:46 pmJNHeath says:
I suggest the issue here is not how to analogize the health care to existing regulations, but rather how to distinguish health care from possible future regulations. We might accept Orin’s analogy, but how do we distinguish if a future congress mandates cell phone ownership?
And Orin: I think possession is always “activity” not inactivity. Owning a machine gun that is banned is an act of possession, even if you bought it before the prohibition.
December 9, 2009, 8:56 pmMitchell J. Freedman says:
But what about this in McCullloch v. Maryland (1819), by Chief Justice Marshall:
The people of a State, therefore, give to their Government a right of taxing themselves and their property, and as the exigencies of Government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislator and on the influence of the constituent over their representative to guard them against its abuse. But the means employed by the Government of the Union have no such security, nor is the right of a State to tax them sustained by the same theory. Those means are not given by the people of a particular State, not given by the constituents of the legislature which claim the right to tax them, but by the people of all the States They are given by all,
for the benefit of all — and, upon theory, should be subjected to that Government only which belongs to all.
(17 U.S. 316, 428, 429)
Or this:
The subject is the execution of those great powers on which the welfare of a Nation essentially depends. It must have been the intention of those who gave these powers to insure, so far as human prudence could insure, their beneficial execution. This could not be done by confiding the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.
(17 U.S. at 415)
At page 416, Marshall gives some exceptions, as when there is an enumeration of an oath of office. However, Marshall upheld a government run bank, for goodness sakes. Mercantilism writ large.
Randy’s jurisprudence stems from a view of the Constitution that is more in line with the Gilded Age Justices who grafted Social Darwinian sensibilities and capitalist/corporate positions that antebellum Justices had little belief in–or at least Justice John Marshall had little belief in from a judicial philosophy point of view.
Randy should be less of an advocate here and acknowledge that Marshall’s judicial philosophy is far more akin to Wickam, the New Deal era case, than the Gilded Age Supreme Court opinions.
Help me if I’m wrong here, Randy. I hate the mandate the way it’s explained thus far, but I don’t see the unconstitutional argument.
December 9, 2009, 9:14 pmMitchell J. Freedman says:
I commented above because Randy does not seem to have his comments on, unless I am again mistaken. I’m with Eugene on this one!
December 9, 2009, 9:14 pmJ. Aldridge says:
He also expressed the alien and sedition act was constitutional and most likely would had upheld it. Strictly speaking, Marshall was a lefty nationalist not always correct on points of constitutional law.
December 9, 2009, 9:38 pmOrin Kerr says:
Marshall was a lefty nationalist not always correct on points of constitutional law.
That may be my favorite J. Aldridge quote yet.
December 9, 2009, 9:40 pmjrose says:
Check out Eugene explaining that “necessary” in the Constitution means “useful”, and that Randy does not object.
December 9, 2009, 9:42 pmMitchell J. Freedman says:
But let’s stay with my point about Marshall. His jurisprudence is closer to the New Deal jurisprudence on the Commerce Clause. Therefore, the New Deal represents less of a break with constitutional tradition than a restoration. The Gilded Age interlude is just that. An interlude…
December 9, 2009, 9:49 pmAnderson says:
yet another skid down the slippery slope from Wickard to fascism
“From Wickard to fascism.” Good lord. Words have no meaning, evidently.
December 9, 2009, 9:54 pmMark Field says:
No. A broad definition of “necessary” has been in place since nearly day 1 (Hamilton’s brief to Washington regarding the Bank). The Supreme Court adopted that broad definition in M’Culloch v. Maryland. In addition to the quotes provided by Mitchell Freedman, here’s another:
“We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. 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.”
December 9, 2009, 10:01 pmVirginialawstudent says:
Unfortunately, I think you are using the drug possession as a red herring.
Possession is not “inactivity”. Or, if it is, then not buying health insurance is “double inactivity” or “inactivity on steroids”. The following does not compute: “possession of drugs–>buying/selling drugs” what “not buying healthcare–>reforming healthcare”.
December 9, 2009, 10:06 pmJ. Aldridge says:
There was no powers over health care of citizens within the several states delegated. There is nothing “necessary” about federal health care.
December 9, 2009, 10:09 pmMark Field says:
Yes, but Washington rejected Jefferson’s argument in favor of Hamilton’s (which Marshall then used in writing McCulloch v. Maryland). I suppose Washington was a lefty nationalist as well.
December 9, 2009, 10:28 pmOff Kilter says:
It seems, Prof. Kerr, that I am not the only one to find your toothpaste argument as to why, contrary to my comments, all people engage in healthcare activity somewhat contrived. And some of the other commenters were actually lawyers, so I don’t feel too bad.
Here’s a question for lawyers from a non-lawyer: Is there a principle of law that forbids the government from achieving an illegitimate end through convoluted ways that, themselves, would not necessarily be forbidden? Example: It would be illegitimate for the government to reinstitute the military draft for blacks only. So presumably it would be illegitimate for the government to reinstitute the military draft and draft everyone, then give permanent furloughs to all non-blacks, even though reinstituting the draft and granting furloughs are not, per se, illegitimate.
I ask this because the attempt to use the tax power, legitimate in itself, to achieve the end of forcing everyone to buy private health insurance SEEMS like the process I have just described.
December 9, 2009, 10:33 pmMitchell J. Freedman says:
May I add something else to consider in a more robust scope for the Constitution? Federalist Paper no. 10 written by Madison, before he found, in his later days, that slavery was an important enough institution to save that he started agitating more for states’ rights and was a vigorous supporter of the Gag Rule on any discussion of slavery:
The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.
____
Man, that last sentence really gets to me…Sniff, sniff. He sounds like a prehistoric Ralph Nader, though most of our “modern” politics may not be as easily understood by the Founders that way. Still, it is difficult to simply ignore the import of what Madison is saying there and say that one should throw out the mandate as unconstitutional on its face.
December 9, 2009, 10:38 pmDaniel Charlies says:
Don’t forget folks, Marshall also wrote in McCulloch v Maryland:
“However, should Congress under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the national government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.”
Barnett has a good story on the Heritage video at about 53 minutes in, regarding Marshall writing anonymous op-eds under the name “Friend of the Constitution” on the limits of McCulloch.
December 9, 2009, 10:44 pmDaniel Charlies says:
Mitchell Freedman:
Did you get a chance to listen to the Barnett Volokh discussion at Heritage today?
Many of your questions about the limits of McCulloch are answered there, I think. And it might be helpful to listen fully to those discussions in framing the argument.
December 9, 2009, 10:48 pmJ. Aldridge says:
McCulloch v. Maryland dealt with implied powers to implement express powers. You can’t have implied powers without express powers.
P.S. If we took Hamilton half seriously Jimmy Carter would still be president today. :-)
December 9, 2009, 10:58 pmCrazyTrain says:
That might be the greatest comment I have ever read on this blog.
And, frankly, I admire the fact that J. Aldridge has the courage to say it — if you are going to take a such a narrow view of Congress’s commerce clause powers (as J. Aldridge takes — that commerce among the states is commerce among the governments of the states) then you’ve got to take the position that Marshall was wrong. And although I don’t agree with it, it’s not crazy to think that Marshall was wrong about his views of the power of the federal government — a lot of people at the time thought he was (see, e.g., Thomas Jefferson). Marshall is not Moses — I wish people like Clarence Thomas and Randy Barnett just said he was wrong about things as well, instead of trying to make their views of a limited, limited federal government consistent with McCulloch, Gibbons v. Ogden, etc. And, lest some people interpret me otherwise, that is not an insult to either Justice Thomas or Randy Barnett.
December 9, 2009, 11:26 pmMark Field says:
Sure you can — that’s much of the argument about presidential power. Putting that aside, the subject of the post is that in this case there is an express power (regulate commerce).
December 9, 2009, 11:26 pmjrose says:
I thought Eugene effectively countered Randy by noting that the limits only apply when the objects of legislation are beyond the power of the federal government. But in this case, the object is to regulate the healthcare industry (the mandate being necessary to that object), and even Randy doesn’t argue that current precedent would find regulating the healthcare industry is an impermissible object.
December 9, 2009, 11:27 pmMitchell J. Freedman says:
Daniel Charles,
If the answers are that clear, let’s have some. I just read the post and Randy’s link to the Heritage site where his article appears. Strikes me the answer to my points about McCulloch should be brought to light rather than have me watch too long a video on the computer.
December 9, 2009, 11:42 pmThomas says:
I know Wickard reaches pretty damn far, but I’d always thought that even the most ardent New Dealer would have conceded that the government couldn’t have required the Filburn family to grow wheat. As slippery as the slope is, we still needn’t take that next step.
December 9, 2009, 11:42 pmMark Field says:
Can Congress require them to serve on a jury? Serve in the army? Call them into militia service? Sell their property? Force them to take paper money as legal tender?
December 10, 2009, 12:04 amDaniel Charlies says:
Sorry Mitchell. I thought I gave you the time in at the video, where some of what you were addressing here was discussed, but I see now I just referred you to watch the discussion as a whole. (The time reference was on my own blog, where I linked the video.)
Anyway, if you are serious about learning more, go about 50 minutes in, when the audience begins asking questions, and Barnett, Volokh and the Heritage moderator are seated. It might answer some of your questions about where that line is drawn.
December 10, 2009, 12:05 amAndrew says:
Suppose Congress passes a statute that says: “Every jail term provided by state law for every state crime whatsoever is hereby doubled, so that prisoners will not be able to go shopping and engage in other forms of commerce for twice as long.” Constitutional? I kind of doubt it, even if it’s prospective only. That’s the kind of thing we seem headed toward, though.
December 10, 2009, 12:05 amDaniel Charlies says:
I thought Eugene effectively countered Randy by noting that the limits only apply when the objects of legislation are beyond the power of the federal government.
We appear to differ in our thinking on whether or not that was an effective counter.
December 10, 2009, 12:08 amDaniel Charlies says:
But in this case, the object is to regulate the healthcare industry (the mandate being necessary to that object), and even Randy doesn’t argue that current precedent would find regulating the healthcare industry is an impermissible object.
Back up the assumption that the mandate is necessary to that object (sorry, I didn’t buy Eugene’s spin that necessary can merely mean “useful” either).
If it’s an unpopular bill, which it is, look for a 5-4 vote stating you can’t use an unconstitutional mandate to justify buying toothpaste/soap as an activity of commerce to force an unprecedented Congressional overreach.
December 10, 2009, 12:12 amOrin Kerr says:
Andrew,
Your hypo reminds me of United States v. Comstock, presently before the Court.
December 10, 2009, 12:13 amAndrew says:
Good point, Orin. Ilya Somin wrote regarding Comstock:
Maybe the Fourth Circuit decision would be worth a look.
December 10, 2009, 12:19 amJ. Aldridge says:
But to regulate commerce was never a power used to regulate business or consumer industries. No colony would had approved of the constitution if that was the understanding of the meaning to regulate commerce. The clause does not read “To regulate Commerce within foreign Nations, and within among the several States.”
The United States has never regulated commerce with another nation by establishing health care or gun control within that country.
Madison said it was not a “power to be used for the positive purposes of the General Government.”
Regulating commerce with states and nations means simply to impose tariffs that either protects a specific industry against another governments trade, or used as leverage to gain certain trade advantages with another government. It is simply the flow of trade between, not the industries themselves.
December 10, 2009, 12:31 amleo marvin says:
Some people hide their opinions by attributing them to others, so it’s logical to assume nobody ever tells you someone else’s opinion unless they believe it themselves. Dick Cheney, Thomas Friedman and several commenters here seem to agree.
December 10, 2009, 12:56 amAndrew says:
Did Bingham say anything about it? :-)
December 10, 2009, 12:57 amShelbyC says:
Thirsty?
December 10, 2009, 1:48 amCareless says:
Yep, it’s really easy to justify mandatory insurance being Constitutional based on court precedent. It’s much, much more difficult based on the Consitution.
andrew: I’m fresh out of booze!
December 10, 2009, 2:33 amAndrew says:
Yes, thirsty.
Seriously, I would like to correct what seems to be an error above, in the comment by “ReadMyLips” in which ReadMyLips commented about the proposal in this comment thread by Christopher Phelan.
Congress could impose a direct tax, and the proceeds would not have to “go back to the states.,” as ReadMyLips asserted. My feeble understanding is that the “apportionment” required by the Constitution does not mean that the proceeds have to be apportioned back to the states, but rather that the proceeds from each state must be proportional to the population counted in the census.
Christopher Phelan’s suggestion in this comment thread was as follows:
Indeed, I don’t see any unconstitutionality so far. Phelan continues:
I think it would not be best to call this a “tax credit.” The feds should get the $5000 and the feds can then spend it in just about any way that promotes the general welfare. So, the feds could simply give $5000 to anyone who buys health insurance. Again, this seems constitutional.
However, it would simply be impractical, without some adjustments. For instance, a person could go out and buy a pathetic insurance policy for $100, and then lay claim to the $5000 from the feds. Of course, the feds could additionally require that a person spend at least $5000 per year on the insurance policy, and that might make Phelan’s suggestion both constitutional and practical.
Although I should mention that I spend about $80 per month on my perfectly acceptable health insurance policy, which has a very high deductible, and I would not be happy about spending more.
December 10, 2009, 2:35 amAndrew says:
P.S. I suspect the “apportionment” requirement would not even apply if the $5000 is taxed out of a person’s income instead of out of the person’s other assets. Nothing in the Constitution requires that all income taxes be levied at progressive rates.
December 10, 2009, 3:34 amGuy says:
I think the distinction between “activity” and “inactivity” is an illusion. Sure, many of us think we have a good intuition, but ultimately I think it comes down to a word game. Suppose we invent a term, “insurance truancy”, to describe the act of not buying insurance. Is insurance truancy now an activity? Or still inactivity? If someone can give me a definition of inactivity that doesn’t amount to “I know it when I see it”, then I’d be grateful.
Maybe we should say something is an “activity” if the number of possible quantum physical states that represent performing it are outnumbered by the number of states that don’t, but I’m not sure that’s workable, and I doubt the Framers had quantum mechanics in mind when they wrote the Constitution.
December 10, 2009, 3:44 amTwirlip says:
I’m not sure that I buy that. (Yes, bad pun)
You say that “Everyone pays for health care goods and services somehow”. Over the course of a persons life, perhaps. But I have not paid for “health care goods and services” in the last ten years. (Buying asprin at the supermarket excepted)
The argument would have to be, not that everyone pays for health care goods and services now, but that they do at some point in their life. And that this justifies taxing them (not regulating them) in the present.
I just don’t see it.
December 10, 2009, 3:47 amTwirlip says:
Actually, they want to tax doing nothing at all. Any way you slice it, people like me will be required to give money to the government in exchange for nothing. You can call that a banana if you like, but its still a tax.
December 10, 2009, 3:51 amTweets that mention The Volokh Conspiracy » Blog Archive » Regulating Inactivity Under the Commerce Clause -- Topsy.com says:
[...] This post was mentioned on Twitter by PostRank – Law, Eugene Volokh. Eugene Volokh said: Regulating Inactivity Under the Commerce Clause: My co-blogger Randy Barnett has posted his very interesting an.. http://bit.ly/4XT3eJ [...]
December 10, 2009, 8:03 amjrose says:
What did you find lacking in Eugene’s response (which was 1] McCulloch’s limitation strictly applies to the object of the “necessary” legislation, and 2] in this case the object (regulation of healthcare insurance) is a permissible regulation of interstate commerce under current precedent)
Even Randy conceded this point when he said, “I don’t think I made any claims about the word ‘necessary’ being any stricter than what Eguene said.” Why do you disagree with Eugene’s analysis (which was 1) a textual analysis of other uses of “necessary” in the Kuhnstitution [I love the way he says that], and 2) it’s based on 190 years of precedent since McCulloch]?
December 10, 2009, 8:09 amDaniel Charlies says:
Jrose,
No time to go into detail now, but I flat out didn’t buy it. Maybe you can mandate that we all accept Volokh’s view was persuasive, but it wasn’t all that convincing to me.
“Even Randy conceded” — why don’t you take that up with him then? Looks like the clock ran down on that last point; plus I’m uncomfortable with your seeming position that “what Randy says” is authority here. Think for yourself, man.
In short, Volokh’s end of the argument wasn’t convincing to me. Plus, he’s much better at presenting his thoughts in writing then in words. I wasn’t much impressed with the public speaking skills, and the laptop seemed more a distraction than help in organizing his points. Barnett had them down cold.
I though Volokh was conceding early on, in fact, when he casually thanked Heritage for allowing him to present the “other” side of the issue (and was a good sport about the inherent Soviet blood ribbing), and then went on to begin his presentation stating he wouldn’t at all mind if Barnett’s argument was persuasive in helping the current Court dial back the Commerce Clause reach.
Gotta run! Glad to see some are working to convince others of the righteousness of this huge policy proposal, rather than simply assuming “We got the power to do this to you so we can and will even if you don’t buy in.”
This my friends, is where the books come into the battle: if you’re not working to preserve American liberties on issues so precious as financial and health care choice, then when will you shut the books, and know on which hill eventually you will fight?
December 10, 2009, 8:59 amPubliusFL says:
What you said is that you’re “not sure that the regulation of inactivity under the Commerce Clause is as unprecedented as Randy suggests.” So what’s the precedent for regulating inactivity under the Commerce Clause, given that “possession” has always been considered an activity as discussed by myself and many others above? If no one has actually tried regulating inactivity under the Commerce Clause clause, why would you expect to see an irrelevant distinction expounded on in the case law? If you wouldn’t expect to see that, and all previous cases have involved regulating activity, why would you assume that inactivity is just as subject to regulation as activity?
December 10, 2009, 9:14 amThomas says:
To the extent that Congress can, it isn’t because of the Commerce Clause.
December 10, 2009, 10:09 amArrowSmith says:
Honestly why should we differentiate between preventive activity(dental, eating right, gym membership) and using medical care? There is no reason not to.
December 10, 2009, 10:21 amArrowSmith says:
America is not about liberty, but entitlement of the majority that does not pay taxes of any consequence. Why should a parasite care about freedom when blood-sucking on the host is so much easier?
December 10, 2009, 10:23 amMark Field says:
I didn’t say it was. I was pointing out various ways in which Congress can command people to take actions, in response to a post which suggested it could not do so.
December 10, 2009, 10:39 amuh_clem says:
I own a house and consequently pay mortgage interest and local property tax. Both are deductable on my Federal Taxes.
Does this amount to a “charge for inactivity” on the part of those who don’t own their own homes?
If not, from a constitutional perspective why is this different than promoting the purchase of health insurance via the tax code?
Granted, the numbers are different – the health care bills currently being discussed will make it more …um…compelling to buy health insurance than the tax breaks for home ownership, but this is a difference in degree, not kind.
December 10, 2009, 10:39 amShelbyC says:
My understanding of apportionment is even more feeble, but wouldn’t the proceeds from a direct tax always be proportional to the population? Isn’t that what a direct tax is?
December 10, 2009, 11:02 amPubliusFL says:
It does seem to me that the taxation power is safer ground than the commerce clause.
December 10, 2009, 11:15 amShelbyC says:
Technically only jury and military fit the bill. They can take your property, and expunge the debt you’re owed, but I doubt they can force you to accept compensation or currency. Just quibbling.
December 10, 2009, 11:17 amRobert Goodman says:
822(c)(3) of the CSA. In my edition it hadn’t been kept up by properly renumbering the referenced definition of “ultimate user”, which was at 802(27), not 802(25) as 822(c)(3) said at the time.
I believe you’ll find this to be true of all federally controlled substances. The term “controlled substance”, although best known in the context of the CSA, is also used in legislation regarding radionuclides and chlorofluorocarbons at least. Maybe it’s different for obscene material.
December 10, 2009, 11:36 amRobert Goodman says:
Why? Is apportioning such a politically difficult task?
December 10, 2009, 11:40 amA. Zarkov says:
Orin Kerr writes “Everyone pays for health care goods and services somehow, whether often or only once-in-a-while.”
Tell that to Yitzhak Ganon who avoided doctors for 65 years.
This is not one of your better posts Orin.
[OK Comments: I recognize that it is attention-getting to invoke Auschwitz, Mr. Zarkov -- especially so to someone whose grandmother and two uncles were gassed at Auschwitz. At the same time, I don't see the relevance of your point. Mr. Ganon lives in Tel-Aviv, and he has free government provided health care. He tries to avoid doctors, true, but he has state-provided health care. More broadly, are you suggesting that the experience of an Israeli Holocaust survivor determines whether health care is an economic activity that Congress can regulate? I'm not sure I see the connection. ]
December 10, 2009, 12:14 pmAndrew says:
Robert Goodman, ReadMyLips is mistaken. First, Phelan’s hypothetical tax would be an income tax instead of a direct tax, if it comes out of a person’s income. Second, even if Phelan’s hypothetical tax were a direct tax instead of an income tax, that does not mean the money would have to go back to the states (rather, it means the money would have to come from the states proportionally to each state’s population).
December 10, 2009, 12:30 pmMichelle Dulak Thomson says:
ArrowSmith,
Honestly why should we differentiate between preventive activity (dental, eating right, gym membership) and using medical care? There is no reason not to.
Did you mean “no reason to”?
But, again, why “eating right“? Eating “not-right” (too much, too fatty, not enough of this or that nutrient) may well kill you, sure; but not eating at all will, I promise you, do it a hell of a lot faster. Therefore anyone who ever traded money for food has “pa[id] for health care goods and services somehow.” And yet it seems a leap from my buying some chicken broth and some onions this morning to “Well, clearly you already buy health care goods and services; therefore, you are by definition active in the health-care-goods-and-services market.”
(NB I have insurance, and see a doctor periodically; I’m just unpersuaded that everyone who has ever paid money for food belongs in the same basket.)
December 10, 2009, 1:04 pmDavid Schwartz says:
A.Zarkov (and others): That the law might unfairly affect some people is the weakest argument for its unconstitutionality I’ve yet heard. The government does not have to consider the fact that a law might be somewhat unfair to a miniscule percentage of people. Those people are welcome to file an as-applied challenge if they wish.
If you want to make the “opt out” argument, you need something that makes it possible for a person to actually opt out. That would require making medical debts not dischargeable in bankruptcy if they’re due to voluntary underinsurance and it would require an enforceable “opt out” so that if you opt out and get sick, you die. I just don’t see that happening.
Social security is comparably unfair to someone who never collects it.
December 10, 2009, 1:07 pmKevinM says:
Interesting. Perhaps Congress should amend laws as to which jurisdiction has been questioned to require that persons engaging in such conduct (e.g., possession of handguns in a school zone) travel to an adjacent state.
December 10, 2009, 1:17 pmGreg says:
If it’s good it’s constitutional. That’s one side. The other side, my side, the Constitution has no “good” clause, makes no promises on behalf of any constituency, therefore folks should not look to the Constitution for a definition of good or bestowing of largess.
December 10, 2009, 1:34 pmCarl The EconGuy says:
Under the proposals we’ve seen, not buying health insurance will become a crime, punishable by a fine and/or jail. Is that a necessary and proper way to reach the goal?
Well, that depends on what the goal is. The discussion here, and at Heritage, has narrowly focused on resolving the free rider problem of some getting health care but not paying for insurance. If that’s the goal, public policy considerations would require weighing alternatives, and their consequences. Take the following two extremes.
Alt. A. Make purchase of health insurance mandatory, as currently proposed. I can foresee all kinds of unforeseeable consequences of such a disastrous policy. For example, we know that unemployment is associated with bad health, so, using the commerce clause, Congress will soon see it necessary and proper to force people to become employed, and will tax them and/or throw them in jail if they don’t work. Clearly, unemployed people are free riding on the entire welfare system, and that must be contrary to commerce clause by which all economic activity affecting health can be regulated. Likewise with marriage — not being married affects health negatively, so everyone must be married. Divorce shortens the life span of males and affects children’s health, so by the commerce clause we now deem it necessary and proper to outlaw divorce. Why, this might be a slippery slope, don’t you think?
Alt. B. To induce voluntary participation in the buying of health insurance, the Federal Government, as a condition for receiving Medeicaid grants, will require the several States to enact legislation that taxes health service providers for delivering health care to uninsured people, unless they require each patient to pay for health care received in proportion to some measure of ability to pay, say income and net wealth. That takes care of the free rider problem, and raisess no possible constitutional objection.
Now, back to Alt. A. SC could say that since Alt. B achieves the purported goals of the legislation, it is a less invasive way of achieving the goals, and that therefore the regulations proposed under Alt. A are neither necessary nor proper. That would seem to be consistent with past jurisprudence — if a legitimate legislative goal can be attained without pushing a new interpretation of the Constitution, let’s do that. And, as Randy points out, there is no precedence for the individual mandate. If we don’t need it, let’s avoid it — see the slippery slope argument above.
But wait, there’s more. Congress knows all of this. The hard-left minority of the country that wants this expansion has a much broader goal in mind than eliminating a free rider problem that can easily be fixed with simpler interventions. It would not take 2,000 pages of legislation and huge new bureaucracies managing health care and health insurance if that were the only issue on the table.
So, we should look at the individual mandate as a piece of a huge new structure that has much broader intent than solving the free rider problem. Alt A is a step towards a lefty vision of society, Alt B is not.
I don’t think our original Constitution supports the policy goals of the liberal left in this case. But I don’t think the SC would stop the proposed legislation on those grounds. Clearly, the individual mandate is both necessary and proper as a means of getting to the greater goal of socializing the delivery of health care in the US. The real commerce clause issue raised by the health care debate is then whether we think it is constitutional to achieve socialization by one-step-at-a-time actions.
And I think it is this kind of politicized reasoning that will ultimately result in a 5-4 decision in the SC. I can only hope that they strike it all down, but I wouldn’t bet on it.
December 10, 2009, 1:38 pmA. Zarkov says:
So it’s ok with you if the feds practice invidious discrimination against some racial minority as long as it’s small enough? I agree that the opt out part is not the strongest argument against the mandate, but it’s strong enough. Surely liberty still counts for something. And surely liberty includes more than the right to engage in sodomy.
[Ok Comments: In case you haven't seen it, I respond to your earlier comment above, Mr. Zarkov.]
December 10, 2009, 2:04 pmDaniel Charlies says:
Social security is comparably unfair to someone who never collects it.
There are ways to opt out of paying Social Security. Namely, to work in the home and opt out of the commercial workforce.
The point is: can Congress mandate you pay for a product you don’t want or need, and fine you for not doing so?
Orin’s spin, the subject of this post, is that there is no “inactivity” in the healthcare marketplace if you define down participation. Thus, even the woman who works in the home, bears her children there, makes her own soap, etc. will eventually be labeled as a healthcare player, because as Michelle Dulak Thomson has suggested, you could just toss the net so wide you catch in everyone who has ever commercially transacted for food.
So… do you folks buy that? Would the Court be better off drawing the line here — unconstitutional to regulate “non activity” (remember, there’s no non-participation opt out like Soc. Sec., David Schwartz)?
Never before has Congress regulated such “in activity” and the slippery slope potential is great. What Barnett is suggesting, based on Lopez and Morrison, is that this Court perhaps recognizes the great leap that such mandating legislation would impose, and despite Raich, isn’t ready to impose such costs on non participants and indeed, the whole meaning of “liberty”.
(In Raich, we’re looking at whether the “possession” is comparable to the “in activity” in mandating the purchase of health insurance. The ones arguing that possessing indeed means there was activity to get there — one can, for example, opt out by dispossessing — have the upper hand here in distinguishing that from the in activity of not wanting to subsidize the healthcare of others, while choosing not to participate in such a system as well.
And now, with abortion being tossed in the mix, I suspect you’ll have even more “outliers” determined to opt out of participation in both the insurance part, and the healthcare system as a whole.
Which is what I think the gentleman above was referring to, in citing the specific example of an elderly survivor. To this reader, it was Kerr being overly emotion in dragging out his dead relatives and missing the purpose of the example: these people exist. And they don’t want to subsidize your care, or whatever other procedures are deemed acceptable these days.
If there’s no opt out provision for these people, the mandatory healthcare bill is clearly unconstitutional — unless the Court sits by while the Congress grabs for even more under the Commerce Clause…
Stay tuned, kids. This one might get exciting! assuming 5 of the justices are still thinking clearly, and aren’t afraid of defining bright lines.)
December 10, 2009, 3:02 pmGuy says:
“Invidious discrimination” is relevant under the Equal Protection Clause, not the Commerce Clause, we’re talking about the extent of that clause here. Also, people who don’t seek health insurance are not a suspect class. I agree with David Schwartz, it would seem to me that universal healthcare could be made compatible with libertarian ideals by including an “opt out” provision- one that makes sure that if you opt out, you don’t get to take advantage of the free rider program by receiving emergency medical care. If you get hit by a car and have opted out, too bad, you don’t get necessary life-saving treatment unless you prove you can afford to pay for it first.
December 10, 2009, 3:06 pmA. Zarkov says:
OK Comments: I recognize that it is attention-getting to invoke Auschwitz, Mr. Zarkov — especially so to someone whose grandmother and two uncles were gassed at Auschwitz. At the same time, I don’t see the relevance of your point. Mr. Ganon lives in Tel-Aviv, and he has free government provided health care. He tries to avoid doctors, true, but he has state-provided health care. More broadly, are you suggesting that the experience of an Israeli Holocaust survivor determines whether health care is an economic activity that Congress can regulate? I’m not sure I see the connection. More broadly, perhaps it would work to bring in less emotion and more legal analysis to the question — just a thought.
I’m sorry about your relatives, and if my post caused you any discomfort please accept my apology. It was not my intention to be sensational. I brought up Mr. Ganon to show that people can and do avoid doctors. His living in Israel with state-provided medical care only strengthens my argument. He didn’t avoid doctors to save money. He simply wanted no part of them, and he should be free to do so whatever his reasons.
As a point of fact, Dr. Arthur Garson from the University of Virginia and author of the book, Health Care Half-Truths points out that medical services account for about 10% of health and longevity. Genetics and lifestyle choices account for most of the rest.
To answer your question, health care– really sick care– is certainly an economic activity, but the choice to stay out of that activity is not an economic activity. Sending someone to jail for doing that does invoke the specter of a dictatorship, and Mr. Ganon certainly suffered from that. I know that the mandate only requires one to pay and not to visit doctors. But once we give the feds plenary police powers that sort of thing will happen. Then there will be no escape other than leaving the country, and who knows the feds could prevent that too.
December 10, 2009, 3:17 pmDaniel Charlies says:
and it would require an enforceable “opt out” so that if you opt out and get sick, you die.
Or… you opt out and get sick, and choose your treatment methods within your budget. Better still, use the premiums or proposed fines to practice preventative maintenance in terms of healthcare. That way you minimize risk, and can still live a long and healthy life treating within your budget. Guess what David Schwartz? Plenty of people have done this in our country, and will continue to do so.
Not everyone demands a mammogram, ultrasound, CT scan, and two chest x-rays per year, because they think that the more medical procedures performed, the better their health. I am starting to honestly think that the problem some have, is they just cannot fathom not seeing a doctor many times a year, for treatments they deem necessary (shots, pills, surgeries, out patient tests, lab work, etc) that others manage to avoid through diet, active lives, watching the stool/skin/0other daily body processes for changes, letting the body heal when ill, etc.
If you choose not to live like that — minimally, and prefer to put your health care needs in the hands of corporate organizations and modern technologies, bully for you. Many know via family history, lifestyle and personal observation that their end time is often much the same as that person demanding the chest xrays and out patient procedure, which very often don’t prolong the life as promised.
Why is it that the minimal treaters, those living within their budgets with or without health care insurance, are suddenly the “fix” to an out-of-control system that will only continue to ration unfairly and unequally?
Why not leave those who want to independently structure their finances and their health care plans free to do so, with a free market to accomodate the minimal procedures they choose? Already these out-of-pocket payers cover the corporate insurance discounts, and those who indeed are receiving top-of-the-line care, with no plans to pay for it.
(Tell me again why we don’t tackle the problems of undocumented citizens, who will allegedly not be covered by this plan but will continue to be treated — hence that “LIAR” comment in the State of the Union — before we go passing an unconstitutional mandate?)
December 10, 2009, 3:34 pmDaniel Charlies says:
If you get hit by a car and have opted out, too bad, you don’t get necessary life-saving treatment unless you prove you can afford to pay for it first.
Car insurance — your PIP personal injury protection policy — would be the first carrier, over any health insurance plan.
If you have more than one vehicle on your policy, you can “stack” coverages and significantly up the amounts to draw on, should you be that one-in-a-million unlucky heathy person who practices preventative maintenance and is then hit by a bus.
Very often, if you were cautious and did not cause the accident, your PIP amounts are then reimbursed when your own carrier subrogates against the liability of the person at fault.
So no — let’s not assume the person not carrying health insurance who gets hit by the bus has unpaid bills, or is forced to declare bankruptcy to become whole again.
December 10, 2009, 3:38 pmOrin Kerr says:
A. Zarkov:
These are fine reasons to oppose Congress’s legislation. But as I think I make clear in the post, my interest is in presenting the counterargument to Randy’s view just as a matter of existing commerce clause doctrine. That is, there is nothing wrong or illogical with saying that legislation is (a) a terrible idea and (b) constitutional. My view is that we need to keep these separate: Making normative claims under the guise of descriptive constitutional claims is common, but it’s not what I’m trying to do here.
December 10, 2009, 3:39 pmGuy says:
What if the person hit by the bus doesn’t own a car, and therefore doesn’t have car insurance? Also, being hit by a bus is a bit more likely than “one-in-a-million”.
December 10, 2009, 3:42 pmGuy says:
Of course, it’s not necessary to discuss hypotheticals; it is demonstrably true that uninsured people receive healthcare they can’t afford, and it does cost the rest of us a lot of money to pay for it for them. I don’t see why we should let them opt out of paying the cost when they still get to receive many of the benefits.
December 10, 2009, 3:54 pmEd Darrell says:
Thinking quickly, and not even close to a law library, I’m curious how the regulations of flying don’t make it clear that the federal government can regulate just about anything. Or how about regulation of food, and drugs?
Then the sarcasm takes over and I think maybe the modern federalists are right, and we should instead just create a tax to cover it all and let the government run it.
December 10, 2009, 3:57 pmDaniel Charlies says:
What if the person hit by the bus doesn’t own a car, and therefore doesn’t have car insurance? Also, being hit by a bus is a bit more likely than “one-in-a-million”.
Depends on how fit you are (most people could get out of the way of a bus, and have keen enough senses to see/hear it coming. Discounting the self handicapped with ear buds, steamed up glasses, scarves that don’t allow full head movement etc. Once elderly and these senses diminish, the wise thing to do is avoid that type of lifestyle that would have you competing — on foot or driving — with busses. SO yes, you indeed can minimize your risk down to zero, if you needed without the safety net of healthinsurance to put you back together again…)
If not a driver yourself, and no PIP coverage that indeed covers pedestrian accidents, or Un/Underinsured Motorist coverage — which is necessary despite these “mandatory” car insurance laws, because of undocumented citizens and others who ignore the mandate, then you better hope you didn’t walk in front of that bus with your i-pod on… Because if it’s your fault, the bus company likely won’t pay under their liability insurance and you’ll be s.o.l.
I think people adjust their lifestyles often to how much of a safety net is beneath them. Funny how all those well-insured 16-year-olds with new cars from mommy and daddy smashed them up quickly before getting the settlement to buy the next … while those on a tighter budget who understood: smash the car, there’s not another coming … seemed to take better care of theirs.
Perhaps that is the lesson to this health care fiasco.
It’s not the bills. It’s the treatments we’re incurring — so many more and so many more obese and self-inflicted lifestyle diseases. Throwing more money — from the conservative who tend to take care of themselves and treat minimally — is not the answer.
Give the industry, and the insured, a blank check and there will be no incentive either to improve the system, or the health (not the healthcare, or the healthcare insurance payment mechanism, but the HEALTH) of this nation. That’s sad. And blaming those who live within their minimal means, choosing not to run up bills in the system as a way of life, is sadder.
December 10, 2009, 3:58 pmDaniel Charlies says:
I don’t see why we should let them opt out of paying the cost when they still get to receive many of the benefits.
Show me how you will enforce this mandate against undocumented, uninsured, “invisible”, often medically needy people and you will hold the key to the kingdom, my friend.
Until then, the mandate is not really a mandate for purposes of coverage, just a mechanism to force the healthy non-users into a system that needs their unused premium dollars to prop up the Ponzi.
December 10, 2009, 4:01 pmGuy says:
We can’t know who will need medical insurance and who won’t (that’s the whole point of insurance) and that’s precisely my point. Everyone currently has a safety net under them, hospitals are mandated to provide emergency medical care. The only downside you face from having an injury or illness you can’t afford is bankruptcy, which means the burden of paying to keep you alive is transferred to other people. If you can propose a real opt out system that works, I’m okay with that. But in the meantime, the only way we can make the emergency treatment mandate fair and workable is to require the purchase of health insurance.
December 10, 2009, 4:07 pmleo marvin says:
I’ll start worrying as soon as Switzerland locks its insurance mandated population behind a chocolate curtain.
(I have no idea whether the mandate is Constitutional. I just support it, assuming it is.)
December 10, 2009, 4:22 pmDaniel Charlies says:
If you can propose a real opt out system that works, I’m okay with that.
In Wisconsin, even when liability car insurance became “mandatory” there was still an opt-out provision. Proving that you had sufficient resources — your own, and family — to cover any losses was sufficient. You were in essence acting as your own insurer, and people are often decent enough to settle up what damages they might have caused. More likely, they were driving minimally and cautiously and often on their own property, and were able to avoid ever causing any such “claims”.
How about a resource test, coupled with legal documentation spelling out requested care. If you intend to treat minimally –say, no tests or stents in the case of a heart attack; no outstanding chemical treatments in the case of cancers; — and are not just saying this as a scam to get into the system later, but indeed have a history of choosing minimal involvement with the heathcare system, that should be enough for an opt out. Age (past childbearing years?), prescription history, and absence of injuries could all be used to “prove” the ability to opt out without costing others.
Also, how about … a fitness/physical test. Run the bloodwork, give a physical. If you are in good shape, and wish to opt out with the legal paperwork above, odds are you won’t be costing the system. Of course, that’s exactly why we can’t allow the healthy to continue to pay for their own needs, and continue to treat cautiously and minimally.
Again, how will you enforce the mandatory insurance purchase on those financially needy, undocumented non-citizens? That is the group to target regarding costs, not those who prefer to go it alone and have a track record of being able to do so.
December 10, 2009, 4:31 pmGuy says:
What you’re arguing for isn’t a “no cause” opt out, but rather a provisional right to opt out if you meet certain criteria, so that doesn’t address the constitutional argument, it’s merely a question of what’s good policy. It’s practically equivalent to a law telling health insurance companies how to set their rates: “if a person meets criteria X, Y, and Z, then their premiums must be $0, and costs they are unable to pay are distributed among all of you and your customers.” Still, if you can show that this system, in practice, does not lead to the public ever having to pay for the healthcare of someone who opted out, I have no objection. As far as illegal immigrants, I admit that problem is not easily fixed. Amnesty is the obvious solution, but it’s a political nonstarter.
December 10, 2009, 4:48 pmDavid Schwartz says:
I think with sufficient cleverness, you can come up with a hypothetical by which any law might effect some discrimination against some racial minority. I’m sure some racial groups statistically live shorter lives than others with at least some of the reasons being genetic, but social security imposes the same retirement age on everyone. I don’t think you can fairly compare anything in the mandate to “invidious racial discrimination”.
If you’re just trying to point out that my explanation didn’t cover a case it obviously wasn’t meant to and that wasn’t relevant to this discussion anyway, well, congratulations. You did that.
December 10, 2009, 4:58 pmDaniel Charlies says:
Oh Guy.
Here I responded in good faith, and then you played me for a chump with a “gotcha!”
I’m wary of physical tests, or financial opt outs. Everyone should have the liberty to structure their finances (because at the heart of this, it’s about money, not health) and choose to pay only the medical expenses they incure themselves.
If there are problems with the government Ponzi, the viability of the private plans, or the coming obesity crisis — it’s every man for himself healthwise. Liberty to contract, or not, is at its most precious in chaotic economic times.
This bill will be so unpopular by the time it faces the Court, there should be 5 justices enough to see through this grab on economic “inactivity”.
December 10, 2009, 5:21 pmDaniel Charlies says:
If you’re just trying to point out that my explanation didn’t cover a case it obviously wasn’t meant to …
I think he was just calling you on the consistency thing, Schwartz — how much “unfairness” are you willing to tolerate against other minority or outlier groups.
If your argument were solid and well thought out, you might have responded consistently. As it was, your phrase (may I paraphrase — “suck it up, suckers”) added little to the argument that requiring a mandate for inactivity is indeed Constitutional, as Congresses mighty powers march on.
December 10, 2009, 5:24 pmA. Zarkov says:
Switzerland has a system of direct democracy. At the federal level a group of citizens can call for a referendum to challenge a law passed by parliament. If the referendum passes by a simple majority, the law is thrown out. Eight Cantons can get together and call for a referendum on a federal law. If we could do that, I wouldn’t worry about the mandate– we could get rid of it.
Localities can veto applicants for citizenship. For example, the voters of Emmen recently approved the naturalization of eight Italian immigrants, while rejecting 48 other applicants, almost all of them Bosnians. If only we could do that we would get rid of a lot freeloaders on our medical system.
You like the Swiss ways, so do I!
December 10, 2009, 6:35 pmGuy says:
I’m sorry, but I wasn’t trying to catch you with a “gotcha!”, and I honestly felt I was commenting in good faith.
Wait, individual applications for citizenship can be vetoed? Or do I misunderstand the process? Why on Earth would you have a system like that?
December 10, 2009, 6:44 pmJ. Aldridge says:
How about a more important and pertaining question, like how did the continental and newer federal congress regulate inactivity under the commerce clause? The answer is congress never did because regulating consumer “inactivity” or even “activity” is not how commerce (trade) is regulated.
When the colonies or states regulated “inactivity” it was not under any pretense of regulating commerce but because they possessed the reserved, unenumerated and exclusive powers to legislate upon such activity. Congress does not.
December 10, 2009, 7:03 pmJ. Aldridge says:
Because if you want Getty to pay $100,000 in taxes instead of $5.00 you would have to also tax the homeless $100,000. That is why the states wanted to pass the 16A so the wealthy could pay more without harming the poor.
December 10, 2009, 7:14 pmA. Zarkov says:
Yes individual applications. You will have to ask the Swiss why they have that. I guess local communities want to have control over who can participate in Swiss politics. They have a lot of foreign workers and I guess they don’t want them taking over communities the way Mexicans have taken over communities in California. For example the 2000 Census had Maywood California as 97% Hispanic with 55% foreign born. I think in Maywood the police were ordered to stop traffic enforcement because so many Hispanic drivers had no license or registration.
December 10, 2009, 7:19 pmDoc Merlin says:
The question I have is if the abortion funding goes through, will Christians not have to pay for it, for teh same reason that the Amish are not under Medicare/Medicaid?
December 10, 2009, 9:25 pmAndrew says:
Getting back to Phelan’s suggestion (the second comment in this thread), I wonder if the $5000 would more properly be considered a taking rather than a tax. After all, it’s basically seized only from certain people who the feds are having a hard time coercing.
If the $5000 is more accurately characterized as a taking, then the person who refuses to get the health insurance policy must be entitled to compensation, per the Takings Clause. No? The takings argument seems much better than the capitation argument.
Randy Barnett seems to have overlooked the takings argument.
http://www.heritage.org/Research/LegalIssues/lm0049.cfm
December 10, 2009, 11:16 pmJ. Aldridge says:
The $5000 would be personal property since it is movable, temporary, etc. The takings clause deals with real property. But I am sure you could find five screwball justices who can ignore the facts.
December 11, 2009, 2:03 amPubliusFL says:
I was addressing Prof. Kerr’s argument on its own terms, which is considering what the Court is likely to do given the current state of case law on the commerce clause. Even from that perspective, I think an individual health care mandate is a stretch. But I would agree with you that modern case law goes far beyond the original understanding.
December 11, 2009, 10:18 amAndrew says:
Eminent domain is not limited to real property. Government may condemn personal property too, such as military supplies, and even intangible property like patents, trade secrets, contract rights, and copyrights. Even football teams have been seized by eminent domain. So, the distinction between real property and personal property does not prevent Phelan’s $5000 from being construed as a taking.
On the other hand, courts have been justifiably reluctant to use the Takings Clause to limit the taxing power. See Does the Takings Clause Limit Congress’s Power to Tax? by Joseph Henchman.
December 11, 2009, 10:52 amAndrew says:
I said above that maybe the Constitution’s “apportionment” requirement would not apply if the $5000 is taxed out of a person’s income instead of out of the person’s other assets. Actually, I now think it would apply. Wealth and property that is not income may not be taxed as income by the Federal Government on the theory that the actual tax payment is coming out of the person’s income. See Eisner v. Macomber. But, still, I don’t think it would be very difficult for Congress to satisfy the apportionment requirement. And I also don’t think that money is totally exempt from the Takings Clause, given that other forms of personal property are not exempt.
December 11, 2009, 11:20 amSteverino says:
Well, what the government is doing is mandating that we only have one option in terms of what you can get in terms of services, one option in terms of where to buy, and one option on what to pay.
I don’t doubt a court could buy this argument. But essentially making us all sharecroppers on the the government plantation who must buy what our overseers tell us to buy at the government store isn’t consistent with the principles of the revolution or the purposes of the Constitution.
I’m curious; if the government can force me to engage in an economic activity as a consumer, can it also force me to engage in an economic activity as a provider?
A great many doctors say they’ll retire if Congress passes its health care reform. If even a quarter carries through on its threat it will have disastrous effects on health care. And you’ll certainly never get enough future doctors to spend years in school and residency if you’re going to tell them they will only make a fraction of the money doctors once did.
As I see it, this is a far better example of “inacitivity” than the author’s use of the act of possession of a controlled substance.
Certainly, if the government can regulate both economic activity and economic inactivity, as the author argues, Congress can lawfully pass a law against doctors engaging in inactivity.
Now, we fought a war in the 19th century to prevent that sort of employer/employee relationship. But apparently courts are buying all sorts of arguments these days.
December 11, 2009, 3:14 pmbobdevo says:
If the government may mandate all must contract with a private party to purchase some good or service, why may the government not mandate we all buy Chrysler product, making Chrysler able to pay back its TARP funds, and fine those who do not make a purchase within the mandated time frame?
And what of those whose religious disdains medical services? How is it not an impermissible violation of First Amendment religious rights to force Christian Scientists to buy health insurance they will not use?
December 16, 2009, 11:29 am