Many commentators have noted that the individual mandate is an idea that some Republican politicians and right-of-center thinkers used to support. Over the weekend the Associated Press reported that many on the right once championed an individual mandate as part of a broader health care overhaul. Not only does the Massachusetts health care reform championed by Mitt Romney include an individual mandate, but back in the 1990s , the Heritage Foundation and many Republican office-holders called for an individual mandate as part of a GOP alternative to the Clinton Administration’s proposed health care reforms. In 1993, for example, Heritage’s Stuart Butler testified before Congress in support of a new, “more rational” social contract under which government would provide greater assistance to those lacking health care in return for greater individual responsibility. Explained Butler:
This translates into a requirement on individuals to enroll themselves and their dependents in at least a basic health plan – one that at the minimum should protect the rest of society from large and unexpected medical costs incurred by the family. And as any social contract, there would also be an obligation on society. To the extent that the family cannot reasonably afford reasonable basic coverage, the rest of society, via government, should take responsibility for financing that minimum coverage.
It’s certainly true that many conservatives and Republicans championed an individual mandate as part of a broader package of reforms (such as ending preferential tax treatment of employer-provided insurance). But others on the Right have always been opposed. So, for instance, when some Congressional Republicans introduced health reform legislation based upon the Heritage Foundation’s proposal, the Cato Institute published this paper by Tom Miller (now a health care analyst at the American Enterprise Institute) attacking the idea. Working in D.C. at the time (as one of Tom Miller’s colleagues), I recall that many conservatives and libertarians believed those who had embraced the Heritage approach were engaging in preemptive compromise, proposing bad ideas in an effort to forestall worse ones. It was only after conservatives revolted that Republicans in Congress sought to defeat health care reform outright. The Cato Institute, among other groups, has also been extremely critical of RomneyCare (see, e.g., here, here, and here).
Even so, why were so many on the Right willing to embrace an idea that conservatives attack as unconstitutional today? How can the Heritage Foundation’s legal scholars attack an idea once championed by its health care analysts? One possibility is that the Heritage Foundation is simply more conservative, or more free market, than it used to be. Another is that the legal environment has changed dramatically. In 1994 it had been over 50 years since the Supreme Court had invaildated a federal law for exceeding the scope of the Commerce Clause. The Supreme Court’s decision in United States v. Lopez , striking down the Gun-Free School Zones Act, was not until 1995 — after the Clinton health care plan had been defeated and after the Republicans had retaken Congress, effectively ending the debate over health care reform. Prior to Lopez, it was simply assumed there were no meaningful limits on the federal government’s regulatory powers. After Lopez (and United States v. Morrison in 2000), that all changed. While the argument that the individual mandate exceeds the scope of federal power as interpreted by the courts is still difficult to make, it is no longer implausible as it was in 1994 (particularly for those of us who believe Gonzales v. Raich was wrongly decided).
Of course it’s also fair to argue that many Republican office-holders and partisans are simply opportunistic, opposing ideas today they supported before merely to oppose the President. In many cases, I am sure this is true. Just witness Republican efforts to transform themselves into champions of Medicare, opposing any and all spending cuts. But just because this may be true of partisans and politicians, does not mean its true of those in the broader conservative and libertarian movements. Many conservative and libertarian voices were no less critical of the individual mandate when proposed by the Heritage Foundation or Mitt Romney than they are today.
Sarcastro says:
[Saying Lopez and Morrison changed everything is a perfectly cromulent argument. But Orin Hatch isn't doing anyone any favors:
Heh.
March 29, 2010, 1:45 pm]
Joe says:
“While the argument that the individual mandate exceeds the scope of federal power as interpreted by the courts is still difficult to make, it is no longer implausible as it was in 1994 (particularly for those of us who believe Gonzales v. Raich was wrongly decided).”
The parenthetical undercuts the argument in the same sentence. It is very difficult to square arguments that the individual mandate exceeds Congress’s Commerce Clause powers with the holding in Wickard. Justice Jackson is clear that Congress has the power to force an individual to enter the stream of interstate commerce where the failure to do so might affect the (interstate commercial) regulatory structure enacted by Congress. And while opponents of the mandate argue that there is some distinction between affirmative noncommercial conduct (which presumably can be regulated) and passive/inactive noncommercial conduct (which cannot), there is nothing inherent in the text of the Commerce Clause, or suggested by the authorities interpreting it, that would compel that result. Put simply, arguments distinguishing between the nature of the noncommercial conduct being regulated smack of a sort of “is your client named Miranda?” distinction.
The better argument against the constitutionality of the mandate is, of course, that Wickard was wrongly decided or that it has been since overruled. The problem with THAT position, though, is that it is expressly contrary to the majority opinion and Scalia’s concurrence in Raich. Professor Adler correctly recognizes this dilemma, but in doing so, he incorrectly summarizes it. It is not so much that it is possible to reconcile the view that the mandate is unconstitutional with existing precedent. To the contrary, those positions are only consistent if that existing precedent is assumed to be wrongly decided. And of course that’s right! But when is that ever not the case?
March 29, 2010, 1:55 pmRebecca says:
I was reading an article about how Romneycare has worked in practice, and was surprised to learn that Heritage supported it at the time it was debated.
Something I find interesting is that proponents’ current defense seem to rest on the Commerce Clause to uphold this law. Yet, when I wrote to my representatives, Senator Stabenow replied that she believed health care is a right, as is the major rhetoric in trying to sell this to the rest of the country.
A conservative argument against it was that it was a large intrusion into the economy in addition to believing it would interfere with individual rights.
It dawns on this non legal individual that the arguments for this bill are being defended with the arguments against it, and I find it deeply ironic.
March 29, 2010, 1:57 pmAnonsters says:
Be careful not to conflate the strictly legal arguments with the non-legal, political arguments. Stabenow and others’ argument that health care is a right is, I’d imagine, more of a political argument as to why it’s a good thing, and less of an argument about why the HCR bill is constitutionally valid. In other words, it’s not an argument you’d present to a court when defending the bill against an attack on its constitutionality. The Commerce Clause argument, however, is such an argument.
Ask those making the Commerce Clause defense of the bill whether they think health care is a right, and I imagine some of them, at least, will answer “yes.”
March 29, 2010, 2:01 pmDG says:
The individual mandate can not be evaluated in a vacuum. We (as a society) are already forced to provide “emergency” care to any individual who wanders into an ER, regardless of their ability to pay, or their possession of insurance. Thats a decision that society made – for good or ill – in the name of compassion.
Of course, that creates a bunch of stinking freeloaders. So, as a libertarian, if we have a requirement to provide medical services to all comers, then why not require everyone to have, at least, catastrophic insurance coverage?
What happened to moral hazard? Me paying for your health care, which you can afford, but have chosen not to pay for, is moral hazard.
March 29, 2010, 2:07 pmCrazyTrain says:
Your post does nothing to support that it was NOT a Republican/right-wing idea. Your post merely shows that some others on the right also disagreed with the idea and that others might have changed their view in lighto f Lopez & Morrison (there is zero evidence other your speculation for the latter, however). So, I take it that you concede the individual mandate was a Republican/right-wing idea? If so, you should make that clear.
March 29, 2010, 2:13 pmRecovering Law Grad says:
“Many conservative and libertarian voices were no less critical of the individual mandate when proposed by the Heritage Foundation or Mitt Romney than they are today.”
This may be true, but where are the conservatives/libertarians who supported the mandate when it was proposed by Heritage? The point isn’t just that some conservatives supported the idea 15 years ago – but that none of those people are anywhere to be found now.
March 29, 2010, 2:15 pmmadawaskan says:
Or you could just say that their theories have been tested-and they’ve changed their minds.
Too many confuse politics with religion. I think we should allow politicians to admit they were wrong. Of course being a Libertarian means never having to say you’re sorry.
March 29, 2010, 2:17 pmAnonsters says:
Read the last paragraph of the post.
Of course, he sort of buries the point, and waves it away by saying, “But not all of us are like that!”
But it’s there.
March 29, 2010, 2:19 pmPersonFromPorlock says:
Perhaps, in the case of HillaryCare, the insurance industry thought it was worth their while to buy Republican as well as Democratic legislators? Government-mandated purchasing seldom results in lower profits, in anything.
March 29, 2010, 2:21 pmepluribus says:
It seems pretty clear that the opposition of so many Republicans to the so-called “mandate” (it really isn’t that) is politically situational. If the New York Times conference alluded to by Randy Barnett in a separate thread (I guess he doesn’t like comments) is any indication of the legal arguments that will be presented in court, the opposition will fail miserably on the constitutional question. Balkin had by far the best argument there. Maybe that’s why former Reagan solicitor general Charles Fried has branded the Republican lawsuits “complete nonsense.” They are pretty clearly an exercise in political grandstanding at taxpayer expense. (How many of the attorneys general are running for political office as Republicans this year?)
March 29, 2010, 2:28 pmcityduck says:
“Even so, why were so many on the Right willing to embrace an idea that conservatives attack as unconstitutional today? How can the Heritage Foundation’s legal scholars attack an idea once championed by its health care analysts?”
The easy answer to these question is hypocrisy.
I’m still waiting for the Conservative analysis of why the Act for the Relief of Sick and Disabled Seamen enacted in 1798 and signed by John Adams is not a Constitutional precedent for the health care bill.
March 29, 2010, 2:33 pmcboldt says:
– It is very difficult to square arguments that the individual mandate exceeds Congress’s Commerce Clause powers with the holding in Wickard. –
March 29, 2010, 2:35 pmOne can make it very difficult, by focusing on the holding at the expense of considering the fact pattern.
Filburn could have avoided the penalty he was protesting (the difference between a $.15 and a $.95 per bushel “fine” (amounts from memory)) by: not being a farmer; not planting an excess over his allotment; or by growing an excess and not threshing it before feeding it to his own livestock.
What looks like a plenary power on its surface, turns out to less than so, on account of the situation the rule was derived under.
Raich is distinguishable, as well, in that the statute under consideration is a prohibition. It costs nothing to not grow dope. Oh yeah, Filburn was to be paid for not growing his excess wheat allotment, too.
Joe says:
I actually disagree with this (and I think the mandate is clearly constitutional under existing precedent — AND I agree with Chief Justice Rehnquist’s dicta from Lopez that the evolution of the Commerce Clause is more or less necessary given current realities).
Barnett et al. have a logical and well-reasoned view that the Commerce Clause has been interpreted in a way that exceeds both originalist understandings and the text of the clause itself. They (I think) would concede that this interpretation is at odds with existing precedent, though they would be in favor of such precedent being overruled. Nothing wrong with any of that.
The thing that is wrong here is that the AGs are trying to hide the ball on the issue — they are NOT acknowledging that existing authorities pretty unanimously cut against their position, though they think these authorities are wrongly decided. Based on media accounts (the complaint is worthless for this purpose), they are trying to pretend that they have some basis in the existing caselaw to proceed with their lawsuit. This strikes me as certainly frivolous, possibly sanctionable, and perhaps even sufficient to support an ethics charge in the relevant states. But I’ll reserve judgment on that until I see the opposition to the inevitable 12(b)(6). If they assert some version of Prof. Barnett’s (legitimate) argument, I’ll change my opinion.
March 29, 2010, 2:39 pmDesiderius says:
epluribus,
“It seems pretty clear that the opposition of so many Republicans to the so-called “mandate” (it really isn’t that) is politically situational.”
What would you call your advocacy of Heritage-backed policies then? Are you in the habit of taking up the side of the Heritage Foundation? What is it, if not a mandate? An encouraging word?
DG,
“then why not require everyone to have, at least, catastrophic insurance coverage?”
That’s more less what Cato’s been advocating for 20 years, but there’s not enough skin in that game for insurers, legislators, and our latter-day neo-feudalists with the temerity to call themselves “Progressives”. So instead we get magical comprehensive “required” for all.
Of course, this requirement is free of both enforcement provisions or any earthly idea of how to finance it – hey, let’s lift lifetime caps too while we’re at it! What the heck, free tummy tucks for all! Whoopee! – but at least it’s “fair” in this bizarro world where 1969-2009 never happened.
March 29, 2010, 2:45 pmAllan Walstad says:
The post conflates conservatives with libertarians. CATO is rather more principled libertarian. I doubt you would find many actual libertarians, today or 20 years ago, supporting an individual mandate. The real problem is this insidious notion that individuals have a “right” to medicine or [insert favorite goody] at others’ coerced expense. As long as that’s accepted, we are on our way down the waterslide to the socialist splash.
March 29, 2010, 2:45 pmMark N. says:
Somewhat tangentially, these shifting positions illustrate that from a progressive policy perspective, the Democrats have probably miscalculated a few times. In retrospect, they should’ve pushed something like the Heritage proposal in 1993, and it probably would’ve gotten enough Republican support to pass, even with Cato’s opposition. Going back further, Nixon’s proposal for health-care reform was even closer to what the left wing today would want, so it was probably an error in hindsight that the Democrats controlling Congress at the time didn’t reach a compromise with him.
March 29, 2010, 2:47 pmAnonsters says:
Medicine is now equivalent to, inter alia, cheesecake and good books.
March 29, 2010, 2:49 pmcityduck says:
Is this law Constitutional? Is it a mandate? Inquiring minds want to know:
CHAP. LXXVII – An Act for the Relief of Sick and Disabled Seamen
Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled – That from and after the first day of September next, the master or owner of every ship or vessel of the United States, arriving from a foreign port into any port of the United States, shall, before such ship or vessel shall be admitted to an entry, render to the collector a true account of the number of seamen, that shall have been employed on board such vessel since she was last entered at any port in the United States,-and shall pay to the said collector, at the rate of twenty cents per month for every seaman so employed; which sum he is hereby authorized to retain out of the wages of such seamen.
SEC 2. And be it further enacted, That from and after the first day of September next, no collector shall grant to any ship or vessel whose enrolment or license for carrying on the coasting trade has expired, a new enrolment or license before the master of such ship or vessel shall first render a true account to the collector, of the number of seamen,and the time they have severally been employed on board such ship or vessel, during the continuance of the license which has so expired, and pay to such collector twenty cents per month for every month such seamen have been severally employed, as aforesaid; which sum the said master is hereby authorized to retain out of the wages of such seamen. And if any such master shall render a false account of the number of men, and the length of time they have severally been employed, as is herein required, he shall forfeit and pay one hundred dollars.
SEC 3. And be it further enacted, That it shall be the duty of the several collectors to make a quarterly return of the sums collected by them, respectively, by virtue of this act, to the Secretary of the Treasury; and the President of the United States is hereby authorized, out of the same, to provide for the temporary relief and maintenance of sick or disabled seamen, in the hospitals or other proper institutions now established in the several ports of the United States, or, in ports where no such institutions exist, then in such other manner as he shall direct: Provided, that the monies collected in any one district, shall be expended within the same.
SEC. 4. And be it further enacted, That if any surplus shall remain of the monies to be collected by virtue of this act, after defraying the expense of such temporary relief and support, that the same, together with such private donations as may be made for that purpose (which the President is hereby authorized to receive) shall be invested in the stock of the United States, under the direction of the President; and when, in his opinion, a sufficient fund shall be accumulated, he is hereby authorized to purchase or receive cessions or donations of ground or provision for buildings, in the name of the United States, and to cause buildings, when necessary, to be erected as hospitals for the accommodation of sick and disabled seamen.
SEC 5. And be it further enacted, That the President of the United States be, and he is hereby authorized to nominate and appoint, in such ports of the United States, as he may think proper, one or more persons, to be called directors of the marine hospital of the United States, whose duty it shall be to direct the expenditure of the fund assigned for their respective ports, according to the third section of this act; to provide for the accommodation of sick and disabled seamen, under such general instructions as shall be given by, the President of the United States, for that purpose, and also subject to the like general instructions, to direct and govern such hospitals as the President may direct to be built in the respective ports: and that the said directors shall hold their offices during the pleasure of the President, who is authorized to fill up all vacancies that may be occasioned by the death or removal of any of the persons so to be appointed. And the said directors shall render an account of the monies received and expended by them, once in every quarter of a year, to the Secretary of the Treasury,or such other person as the President shall direct; but no other allowance or compensation shall be made to the said directors, except the payment of such expenses as they may incur in the actual discharge of the duties required by this act.
APPROVED July 16, 1798.
March 29, 2010, 2:50 pmJoe says:
As I said, the foregoing distinctions really take on a “is your client named Miranda?” type of flavor. Justice Jackson’s opinion frames the conduct at issue in the case as the use of homegrown wheat to be fed to livestock. He characterizes it as clearly noncommercial conduct — but then holds that it nonetheless may be regulatable. See Wickard v. Filburn, 317 US 111, 125 (1942) (“But even if appellee’s activity be local *and though it may not be regarded as commerce*, it may still, whatever its nature, be reached by Congress…” (emphasis added).).
You distinguish this noncommercial conduct from the conduct purportedly being reached by an individual mandate by arguing that Filburn could have ceased or altered his voluntary behavior, whereas an individual cannot do the same here. Setting aside the fact that this is clearly false (e.g., an individual could cease working and thus drop his income below the mandate’s threshold), you fail to provide any support for the argument that the nature of the noncommercial conduct at issue is determinative for the purposes of the Wickard/Raich analysis. Put simply, you have invented the affirmative conduct/inactivity distinction from whole cloth.
March 29, 2010, 2:50 pmBob from Ohio says:
Is this today’s talking point?
Are the Alien and Sedition Acts signed by John Adams also good Constitutional precedent?
March 29, 2010, 2:50 pmAnonsters says:
Nixon proposed single-payer?
March 29, 2010, 2:53 pmcityduck says:
This is today’s new fact brought to bear on the debate. You can think of it as a talking point, but its a darn good one unless you have a response.
And, no, pointing to the Alien & Sedition Acts is not a good response. Why? (1) The two Acts involve very different Constitutional analysis, and (2) some Conservatives, perhaps even Scalia, probably do believe that the passage of the Alien & Sedition Acts is relevant to determining the “original meaning” of the Constitution.
March 29, 2010, 3:06 pmcboldt says:
– you fail to provide any support for the argument that the nature of the noncommercial conduct at issue is determinative for the purposes of the Wickard/Raich analysis. –
March 29, 2010, 3:09 pmFilburn could have grown the excess, and *non commercially* fed it to his livestock w/o penalty, under the law.
You didn’t address the point I made about Raich, that being that the law under Raich is a prohibited activity.
Now, as I opened, if you focus on the holding, and avoid the full panoply of fact in the two cases, you are correct. It is very difficult to surmount the rhetoric you cherry picked.
epluribus says:
I said:
Desiderius responded:
Please, Desiderius. I am not “advocating” a Heritage-backed policy. I am expressing an opinion on the constitutionality of a statute that has been passed by Congress and signed into law by the president. This question has passed byond the advocacy phase into an examination of the constitutionality of the issue.
If you read Balkins’s New York Times argument, you would understand that it is a tax imposed on those who do not buy insurance, but not on those who do. The only consequence of not buying insurance is liability to pay the tax. The tax is justified because those who do not buy insurance are subjecting those who do to responsibility to pay for their health care costs, typically through emergency room care, public clinics, or the like. There is no free lunch is, I think, an argument that many conservatives like.
March 29, 2010, 3:27 pmrequired says:
Not quite but pretty close. He proposed a single healthcare system with a single national insurance plan which would be paid for by employers and employees with the governments offering the same plan to the unemployed splitting the costs, but the plan would be administered by insurance companies under control of the federal government. Multiple payers but one plan for everyone.
March 29, 2010, 3:28 pmJoe says:
Filburn could have grown the excess, and *non commercially* fed it to his livestock w/o penalty, under the law.
So what? Again, you ignore the point. Wickard stands for the simple proposition that “Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.” (quoting Raich, though this particular version doesn’t have the reporter page numbers for some reason).
You distinguish the noncommercial conduct at issue there with the purported “inactivity” here by arguing that Filburn had a number of alternatives that would allow him to evade the law’s applicability, but absent some vestige of support, this is a distinction without a difference. Why should it matter that citizens do not have any recourse but to pay the fine for not purchasing insurance (again, not factually accurate, but that is neither here nor there), but Filburn had alternatives to growing wheat? That distinction only goes to the nature of the noncommercial conduct being regulated, and again, there is NOTHING in the text of the Commerce Clause or the authorities interpreting its scope that would suggest that this has any impact whatsoever on the analysis. Once again, you have made this argument up out of thin air — you might as well argue that both Filburn and Raich were growing things, so the cases only apply where the noncommercial conduct being regulated involves horticulture.
You didn’t address the point I made about Raich, that being that the law under Raich is a prohibited activity.
I didn’t argue Raich, except insofar as it expressly reaffirmed Wickard. And on that score, I’d advise you to reread the majority and consider whether there is an inch of daylight between my interpretation of the scope of Wickard and the majority’s. If your position is that Raich only reaffirmed Wickard to the extent that it involves a prohibition of private conduct (rather than a requirement to affirmatively do something), please point out the portion of the opinion you are relying upon.
March 29, 2010, 3:31 pmPeterW says:
http://covertrationingblog.com/healthcare-reform/the-audacity-of-perpetuity
March 29, 2010, 3:32 pmPeterW says:
Do you think you could comment on the claim made here, about the Constitutionality of this statement and whether there is any precedent for this?: http://covertrationingblog.com/healthcare-reform/the-audacity-of-perpetuity
“What [I] did find, however, in Section 3403, is something called the Independent Medicare Advisory Board. The purpose of the IMAB is to “reduce the per capita rate of growth in Medicare spending.” In his next post DrRich will examine the IMAB in more detail, to try to show exactly how this board will reduce healthcare spending. Suffice to say for now that the new law awards the IMAB sweeping powers, powers that will affect all American healthcare (and not just Medicare), and that hands the government some truly useful tools for covert rationing….
Section 3403, the section that creates the IMAB and spells out its functions, contains language that, DrRich suspects, has never been seen before in American legislative history:
“It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.”
So, dear reader, the IMAB and all its legislated functions (including the requirement to do its rationing covertly) are in force for perpetuity. Our Congress has passed legislation that purports to bind all future Congresses from altering it in any way.
March 29, 2010, 3:33 pmWe can surmise from this fact that those who wrote this law must consider the IMAB to be very, very important. Indeed, it must necessarily be the most important feature of our new healthcare system. It may, in fact, be the most important legislative provision ever written (since no other provision has ever received such extraordinary protections from any future alterations whatsoever).”
JT says:
well, on its face it covers INTERstate commerce. Whether that applies to every citizen (or resident) of the US per the current law, is a Supreme Court question (whether or not the Court decides it rightly).
March 29, 2010, 3:37 pmAllan Walstad says:
You can decide for yourself how to rank the importance of goods that you acquire for yourself, and others can decide the same for themselves. But robbery is robbery is robbery. What’s insidious is the notion that one person’s wants serve as coercively enforceable claims on others. Once that idea is generally accepted, I don’t see much of any place for us to dig in our heels and stop the descent into full-blown collectivism
March 29, 2010, 3:40 pmSuperSkeptic says:
I have a number of responses:
1) Didn’t Randy Barnett mention something about how telling it is to have a commerce clause argument buttressed by a taxing argument?
2) I believe RB also wonders what else we can be taxed for if we do not buy something. Would a direct tax only on those who do not buy cheesecake (or good books) be constitutional too? I’m sure The Cheesecake Factory would like that…
3) As to your “justifi[cation]” claim: It is interesting how you first (and many people have pointed out that this is the crux of our slippery slope here) mandate that we must treat people in emergency rooms, and then use/cite that mandate’s burden to legitimize this newest mandate/tax/fee/whateveryoucallit. That’s just rich.
4) I agree that there is no such thing as a free lunch. This statement is appropos here on many levels…
* * *
Thank you to Bob from Ohio on the Alien and Sedition Act comment.
March 29, 2010, 3:48 pmcboldt says:
– So what? Again, you ignore the point. Wickard stands for the simple proposition that “Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.” –
March 29, 2010, 3:56 pmThe “so what” is, as I opened, the difference between asserting the holding outside of the fact pattern, vs. seeing the holding in light of the fact pattern.
I’m agreeing with you, in that when one chooses to emphasize the holding to the exclusion of facts, then the holding prevails.
But the simple proposition you state, in Wickard, while TRUE as a holding, is FALSE in application (in Wickard), because under the law under consideration in Wickard, the regulated class of activity was not regulated in a comprehensive fashion. Filburn incurred his own penalty (he was willing to pay the 15 cent penalty), by planting, growing, harvesting, and threshing the wheat.
Your “Filburn had alternatives to growing wheat” misses an observation. He could grow the excess AND avoid the penalty, while having grown excess for consumption by his own livestock.
– I didn’t argue Raich, except insofar as it expressly reaffirmed Wickard. –
Amplifying reliance on holding, to the exclusion of fact pattern.
ShelbyC says:
Wait a second, if that’s true, why don’t we just tax emergency room care, public clinics, or the like? I thought the whole point of insurance was spread the cost among those who required care and those who didn’t? Isn’t the whole point of the mandate to snare the healthy folks who the insurance companies come out ahead on?
March 29, 2010, 3:58 pmPatHMV says:
cityduck… as a talking point, it’s a pretty darn bad one. It’s a specific tax levied on an identifiable class of individuals, and ONLY those individuals, who are engaged in maritime commerce. It is not a mandate on ALL U.S. inhabitants, regardless of trade, occupation, or travelling habits. The only people affected are those who are immediately involved with commerce with foreign states, the regulation of which is exclusively the prerogative of Congress and the federal government.
Moreover, it’s not a mandate of any sort. You pay the tax, period. The tax is not imposed as a penalty based on a seaman’s failure or refusal to enter into a commercial transaction with a private business. The seaman is not guaranteed any particular benefit in return for his payment of the tax. The government may or may not choose to construct and operate hospitals for seamen, and the seaman may or may not wind up in a port which contains such a hospital.
March 29, 2010, 3:59 pmmikeyes says:
One of the arguments for mandated health insurance is that universal health insurance already exists (“just go to the Emergency room” to quote a Republican Senator) but that it is very inefficient. If that is true, then health care does not operate on a free market basis and may be a special case.
The present mixed system of government and third party payers has no incentives to change the cost structure other than profit or politics. None of these seems to be doing the job very well.
Milton Friedman addressed this in 2001 suggesting the advent of universal catastrophic insurance as an answer.
DC points out that by not having health insurance you end up freeloading on other’s insurance and goodwill (hospitals writing off the loss) which is the antithesis of individual responsibility.
I think that this was the core conservative/Republican argument for mandated health care a decade ago.
Whether it is constitutional is another issue.
March 29, 2010, 4:22 pmDerHahn says:
Leaving aside the argument on constituionality, even Mr Adler has to skirt the issue that the form of the mandate in 1993 proposed by Heritage was different in kind and quality than the one imposed by the current HCR act. The Heritage proposal was to mandate the purchase of a high-deductible catastrophic coverage plan of the kind that is specifically outlawed by HCR, not the first-dollar comprehensive plan that appears to be the vision for the insurance exchanges.
I’m not sure that bringing up the Mitt Romney’s MA health care reform mandate says as much as Mr Adler and others think, for the same reason. No conservative that I know of claims that the state of MA lacks the constitutional power to create such a mandate, and the spirit of federalism would seem to allow that politicians could find that the desired resolution of an issue at the state level might be different than the resolution at the federal level.
March 29, 2010, 4:30 pmRichard Riley says:
Prof. Adler, Stuart Butler of Heritage is a healthcare reform expert who is respected across the political and policy spectrum. (Full disclosure: my wife had Butler, along with liberal healthcare policy types, speaking at her UVA Law School healthcare law seminar this year.) I think it’s fair to predict that Stuart Butler is not going to walk away from his longtime policy recommendations – which indeed include the individual mandate – just because Republican electoral tactics may point the other way this year. To the extent “Heritage” means “Stuart Butler,” their top healthcare policy expert, then Heritage has not changed its position on this.
March 29, 2010, 4:32 pmGo Horns! says:
I do not think that Congress has the power under the commerce clause to direct all able bodied people to procreate. Nevertheless, Congress give tax breaks for having children. So why would it be unconstitutional for Congress to give a tax break for buying health insurance?
Is it because the Mandate is structure as an additional tax? Would the constitutional problems go away if Congress raised everyone’s taxes by 2%, and then offered a 2% tax credit for buying health insurance? Or are the tax breaks for having children unconstituional as well?
March 29, 2010, 4:35 pmThorley Winston says:
I don’t think that five (the total number of Senators who supported Dole-Chaffee in 1993 and voted against Obamacare in 2010) out of forty-one constitutes a large enough number to be “many” in any meaningful sense. Also, when the evidence of supposed “hypocrisy” among Republicans and conservatives consists of saying that Richard Nixon and George H.W. Bush may have supported a policy once*, you know you’re on pretty weak ground.
A better example of opportunism and hypocrisy would be someone who was elected to office after campaigning against both an individual mandate and taxing health insurance and who does a 180, champions and then signs both into law within a matter of months.
* Extending that argument to its logical conclusion, Republicans who don’t support wage and price controls or tax increases are now “hypocrites” because Nixon and Bush 41 both supported them.
March 29, 2010, 4:38 pmcurious about hypocrisy says:
I’ve learned from my friends on the left that any Republican who once supported an indiviudal mandate, but no longer does, is per se a hypocrite. Any claims to legitimate situational differences are not worth assessing: you move from position A to B, and you’re a hypocrite.
Fine.
Obama, however, attacked Hillary over a mandate, ran attack ads on it, criticized Romneycare, and so on. He also ran commericals in the fall attacking McCain for suggesting that we back away from the tax exemption for employer-provided care.
So is Obama a per se hypocrite for moving in that direction? Or is that “growth,” “recognizing changed circumstances,” and so on?
Don’t get me wrong: I can see the case for saying both have legitimate reasons to move, or for saying both are hypocrites, etc. I just don’t see why it’s self-evident that Romney is a hypocrite and Obama isn’t.
March 29, 2010, 4:52 pmThorley Winston says:
I’m not sure that the Heritage Foundation actually supported an individual mandate (Stuart Butler made it clear he was speaking on this own behalf not the Heritage Foundation) but your larger point is a good one. There is a difference between thinking that everyone ought to have (whether it be bought voluntarily or mandated) a catastrophic insurance policy and thinking that everyone ought to have first-dollar prepaid health care. Even though I think that everyone ought to have catastrophic health insurance, I would never support mandating it not just because I think it’s a violation of individual rights but also because I know (based on what’s already happened at the State and federal level) that different political pressure groups would lobby to require that their particular benefits be included in any mandated bill and it would no longer be a catastrophic insurance plan.
Another good point, also it makes sense to allow States to experiment with different policies to see what the results are before trying to create any national policy. Someone like Scott Brown might support Commonwealth Care in his own State but after seeing some of the problems it created (e.g. cost overruns, demand outstripping access, etc.) decide that maybe it’s not such a good idea to try to export it to the rest of the country.
March 29, 2010, 4:53 pmAndrew J. Lazarus says:
Good. I would like none of my taxes going to defending your property or person.
Funny how libertarians usually choke at about this point, because they fear getting mugged more than getting cancer.
March 29, 2010, 5:00 pmRichard Riley says:
Thorley Winston, you are mischaracterizing what Stuart Butler advocated in his 2003 Congressional testimony and what (as far as I know) he thinks now. Prof. Adler quotes the relevant langauge in his post above. Butler clearly didn’t say that he thought merely that “everybody ought to have … a catastrophic insurance policy.” He said everybody ought to have “a basic health plan,” and suggests that a “catastrophic” policy would be the absolute minimum that should be required. Butler quite clearly believed and believes in an individual mandate, admittedly not as broad as the new legislation requires but the same thing in principle. I’m sure Butler will explan the differences between his ideas and the new law (maybe he already has), but you’re not stating his views accurately.
March 29, 2010, 5:08 pmsashal says:
Don’t forget the chronology.
March 29, 2010, 5:12 pmAs soon as Democrats accepted the idea of the mandate, THEN it became unconstitutional in republican eyes
Mike Hansberry says:
Can the supporters of the mandate really say that there no difference between regulating an activity, even non-commercial activity as in Wickard and Raich, and regulating non-activity such as the non-purchase of an approved health insurance plan?
How many things did I not do today?
How many non-events can fit on the head of a pin?
March 29, 2010, 5:21 pmJoe says:
because under the law under consideration in Wickard, the regulated class of activity was not regulated in a comprehensive fashion
And as I’ve said repeatedly, please point me to the authority that suggests that this makes a difference. Yes, the farmer in Wickard could have structured his activity differently so that he didn’t have to pay a fine — just like, I might add, a person might structure THEIR activity in a way that avoids the mandate here. But as I’ve said repeatedly, in the absence of such an authority suggesting that it’s within Congress’s Commerce Clause power to require someone to do something if there’s an alternative way to do it that wouldn’t trigger the regulatory requirement, it’s a distinction without a difference.
I mean, based on your comments so far, you presumably would be (legally) OK with a a mandate that had an “opt out” provision whereby someone could avoid application if they signed an irrevocable waiver saying they wouldn’t seek or receive medical treatment without paying for it up front. (If not, imagine some other mandate-like structure that would pass muster with you.) What authority do you have that would give Congress the authority to pass the hypothetical one, but not the actual one? Seriously, can you name a single case that leads to the conclusion that incorporating an “opt out” provision in a regulation of purportedly noncommercial conduct directly affecting interstate commerce might make a whit of difference in the analysis?
Amplifying reliance on holding, to the exclusion of fact pattern.
I’m confused here. Are you saying that the Court in Raich made the same mistake that you now say I’m making, or are you saying that I’m making the same mistake with Raich as I allegedly am with respect to Wickard? Because if it’s the latter, you REALLY need to reread the case. Stevens is pretty clear that he’s interpreting Wickard as etablishing a broad legal rule more or less divorced from the facts at issue in the case.
March 29, 2010, 5:24 pmsashal says:
a roster of prominent Republicans who’ve either endorsed the individual mandate, voted for a plan with an individual mandate, co-sponsored legislation with an individual mandate, or all of the above. The list isn’t short: George H.W. Bush, John McCain, Bob Dole, Mitt Romney, Scott Brown, Orrin Hatch, Chuck Grassley, Bob Bennett, Tommy Thompson, Lamar Alexander, Lindsey Graham, and Judd Gregg until Obama administration and Democats accepted it.
March 29, 2010, 5:28 pmJoe says:
I do not think that Congress has the power under the commerce clause to direct all able bodied people to procreate.
Funny enough, I’d actually disagree with this. I think that under modern interpretations of the Commerce Clause, if Congress legitimately determined that we needed more people to prop up Social Security, or generally to support the economy over the next few decades, it would have the legislative power to “direct” people to procreate.
Now, I think the use of that legislative power would almost certainly trigger (fatal) substantive due process concerns under Griswold and Bowers, and it’s hard to imagine an implementing mechanism that would pass constitutional muster, but those are different questions entirely.
March 29, 2010, 5:29 pmMike Hansberry says:
Congress has the power to tax incomes (16A) that is why it can do what it wants with the income tax code. The Mandate on the other hand is a direct tax, though Balkin argues it is an excise tax on the failure to purchase health insurance.
Excise taxes a la Balkin (direct taxes magically transformed to indirect taxes)
The Senate wishes to regulate this or that item of commerce, so dear citizen you must pay a tax. However, if you don’t want to pay more than $700, you can opt to pay $700.
By generously providing you this option to avoid paying more than $700, Congress thus tranforms a direct tax into an indirect tax. The “event” or “activity” taxed is the non-payment of the higher amount.
Why didn’t Congress simply write the mandate as a tax on incomes?
Best case: Congress did not want to be slammed for raising income taxes on lower and middle earners in the middle of a recession.
Worst case: Congress wanted to make a point that there is no limit whatever to their power to take from us.
March 29, 2010, 5:42 pmAllan Walstad says:
Once you understand that people have a right to liberty, i.e., against aggression, you also understand the point that a coercively funded defense of liberty might be legitimate if on balance it substantially reduces coercion or threat thereof. Unlike anarcho-capitalists, I’m not prepared to declare such defense to be just another good. Nor am I choking on your attempt at reductio, you may be certain. Any rigid philosophy can be pushed into a corner, but some principles hold together better than others.
March 29, 2010, 5:43 pmThorley Winston says:
Go back and reread my post. My only characterization of Stuart Butler’s testimony was that he made the point of saying in the beginning of his testimony that he was speaking on behalf of himself and not on behalf of the Heritage Foundation as others have suggested. That’s a pretty important distinction IMO.
As far as what Butler meant by a “basic health plan,” it’s irrelevant to the point that the poster was making and my response which was the difference between thinking that everyone ought to have catastrophic insurance with a high deductible and thinking everyone ought to have first-dollar prepaid health care.
March 29, 2010, 5:44 pmJoe says:
Can the supporters of the mandate really say that there no difference between regulating an activity, even non-commercial activity as in Wickard and Raich, and regulating non-activity such as the non-purchase of an approved health insurance plan?
There’s clearly a difference between requiring someone to do something as part of the regulation of interstate commerce, and requiring them not to do (or to do differently) something as part of the regulation of interstate commerce. Just like there’s clearly a difference between requiring a farmer to buy wheat on the open market instead of growing it himself to feed his livestock (Wickard), prohibiting people from growing and using their own pot (Raich), requiring a hotel to serve African-Americans when it’d prefer not to (Hearts of Atlanta Motel), and requiring a sole proprietor of a BBQ restaurant to serve an African-American when HE’D prefer not to (McClurg). The question, as is always the case when applying legal rules established through the caselaw, is whether those differences are relevant. Here, no one — literally, NO ONE — has pointed to a single authority that holds or even implies that Congress has the power to stop you from doing something or make you do it differently where that would promote its regulation of interstate commerce, but it doesn’t have the power to require you to do something. It certainly isn’t compelled by the text of the Commerce Clause.
(Incidentally, the idea that Congress is “regulating inactivity” is a silly word game. It has passed a law that generally regulates interstate commerce [per Southeastern Underwriters if you need a cite], and it does so by requiring people who don’t want to participate in interstate commerce to do so. When my county requires my kids to go to school, it is regulating education, not “inactivity.” Heck, when Congress required the farmer in Wickard to buy grain on the interstate market, it wasn’t “regulating feeding your own livestock” — it was regulating grain prices. Looking at the effect of particular regulation in an isolated situation and saying that is what is being “regulated” is just silly — not to mention expressly contrary to the dictate in Raich, by the way, where Stevens holds that you have to look at the regulatory framework on a broad scale, and not in isolation.)
March 29, 2010, 5:45 pmMalvolio says:
Sadly, I think the constitutional problems would go away. However, since Obama and his Dems lacked the will to impose an across-the-board 2% tax hike (because they definitely would have lost Congress in 2010 and the White House in 2012), it’s a theoretical point.
March 29, 2010, 5:53 pmJohn Thacker says:
It’s also not entirely inconsistent to say:
1) Mandatory issue is meaningless without community rating.
March 29, 2010, 6:07 pm2) Mandatory issue combined with community rating but without an individual mandate will lead to a death spiral of increasing premiums thanks to moral hazard, since people won’t sign up until they get sick, and then either:
3a) I overall oppose the entire package, but if you’re going to have it it needs an individual mandate.
3b) The initial goals like mandatory issue sound good, but I refuse to accept the individual mandate, so I must reject the entire package.
Mike Hansberry says:
Incidentally, the idea that Congress is “regulating inactivity” is a silly word game.
Of course, because by your thinking there is no difference between a tax on an activity and a tax (or penalty) on non-activity.
Surely congress can place a tax on cotton brought to market, but can Congress impose a penalty for my refusal to pick cotton?
March 29, 2010, 6:18 pmAnderson says:
I see where the Militia Act of 1792 required each able-bodied man to “provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder.”
Where was Randy Barnett when they needed him to quash this gross usurpation of power?
This of course makes Barnett’s “huh, well, what if Congress required everyone to buy a gun, huh? huh?” argument less compelling.
Indeed, Barnett might have learned about this example, if he troubled to open his threads to comments. But then, when you’re Randy Barnett, you have nothing to learn. Except how to draft legislation.
March 29, 2010, 6:23 pmA. Zarkov says:
A mandate at the state level is quite a different creature than at the federal level. Those of us who want limited federal government don’t like the mandate because it’s the camel’s nose in the tent for further federal expansion.
If you don’t like what your state does, you can move. State legislatures have plenary power, but Congress is not supposed to.
For the record I would never have supported a mandate. If some Republicans did, then as far as I’m concerned that just more evidence to call them the stupid party.
March 29, 2010, 6:34 pmAnonsters says:
Constitutional amendments, Anderson, not legislation.
March 29, 2010, 6:35 pmJoe says:
Of course, because by your thinking there is no difference between a tax on an activity and a tax (or penalty) on non-activity.
Reread what I wrote above. There is a difference between a tax on activity and a tax on “inactivity” — it’s just that there is absolutely no authority that I’m aware of that says the Commerce Clause analysis is different when the government is prohibiting you from doing something rather than requiring you to do it. Or, to put it perhaps a little more technically, Congress clearly has the authority to regulate noncommercial conduct when doing so is in furtherance of a broad commercial regulatory goal, and there is no authority indicating that this analysis is dependant on the nature of that noncommercial conduct, specifically including whether it consists of affirmative conduct vs. passive inaction.
Surely congress can place a tax on cotton brought to market, but can Congress impose a penalty for my refusal to pick cotton?
I am not a Thirteenth Amendment expert by any stretch, but I think at some point very early on in the process, a tax specifically designed to punish people for not picking cotton would run into involuntary servitude concerns. THAT said, my understanding is that we give certain jobs tax breaks all of the time (though I’m not a tax lawyer either), so I suspect a tax credit for those who pick cotton as an occupation would be permissible.
March 29, 2010, 6:37 pmAnonsters says:
When did this expression gain the currency it now has? I had never heard it used so much as I have in the past few months (mainly around the health care debate). It’s kind of obnoxious.
(I’m not criticizing, you, A. Zarkov. You just happened to be the particular stimulus to which this is a response. I’ve seen it everywhere, like I said, in the past few months.)
March 29, 2010, 6:37 pmRoger the Shrubber says:
George Washington was a socialist!!!! I knew it!!!!!
March 29, 2010, 6:44 pmPunditKix says:
The Volokh Conspiracy » Was the Individual Mandate a “Republican Idea”?…
Trackback from PunditKix…
March 29, 2010, 6:45 pmcboldt says:
– Are you saying that the Court in Raich made the same mistake that
March 29, 2010, 6:48 pmyou now say I’m making, or are you saying that I’m making the same mistake with Raich
as I allegedly am with respect to Wickard? –
I was suggesting neither of those options.
cityduck says:
What is your authority for the notion that the scope of the class of folks who are targeted by a “mandate” to pay taxes if you do or don’t engage in a particular act determines its Constitutionality? What is the rationale that supports the notion that mandates are ok if imposed on some but not all people?
The 1798 tax was imposed on ship owners based on the number of seamen they employed. The govt. authorized the ship owner to pass the tax onto the seamen as a payroll deduction. The Act specifies that the proceeds of the tax must be used for the health care of the seamen. It is, in effect, a payroll tax imposed on all seamen to pay for their healthcare.
And, no, it’s not just ships going to non-US ports, but also those engaging in the coasting trade.
How is this different than a tax imposed on all citizens to pay for their healthcare?
My guess is that Adams would be called a “Socialist” by a segment of the right for this legislation. And I think that has some relevance to the Constitutional debate.
So I’m not sure I find your attempts to distinguish this example as convincing.
March 29, 2010, 6:55 pmTweets that mention The Volokh Conspiracy » Blog Archive » Was the Individual Mandate a “Republican Idea”? -- Topsy.com says:
[...] This post was mentioned on Twitter by Maine CRs. Maine CRs said: Was the Individual Mandate a “Republican Idea”? http://tinyurl.com/ychuayw #crnc #hcr [...]
March 29, 2010, 6:58 pmA. Zarkov says:
It’s a very old expression from an Arab fable, see here.It’s a metaphor for the slippery slope argument.
I did not know it had gained currency recently. I’ve used that expression for decades. Here’s another oldie but goodie: “You can’t make a silk purse out of a sow’s ear.”
March 29, 2010, 6:59 pmPubliusFL says:
Except insofar as the grant of a power to regulate “commerce” implies the lack of a power to regulate not-commerce.
March 29, 2010, 7:00 pmPubliusFL says:
Congress has an explicit power to provide for arming the militia.
March 29, 2010, 7:02 pmPubliusFL says:
The merchant marine is an instrumentality of interstate and foreign commerce.
March 29, 2010, 7:07 pmcityduck says:
Section 8 also enumerates that Congress has the power to “lay and collect taxes” and to provide for the “general Welfare.” So what’s the problem?
March 29, 2010, 7:08 pmcityduck says:
Are you really telling me that you don’t view health care as implicating interstate commerce? Is this really the conservative argument?
March 29, 2010, 7:09 pmLeo says:
When did the comment section here become so infested with left-wing trolls? Go back to Daily Kos or wherever it is you guys hang out now.
March 29, 2010, 7:33 pmjinny says:
“How can the Heritage Foundation’s legal scholars attack an idea once championed by its health care analysts? One possibility is that the Heritage Foundation is simply more conservative, or more free market, than it used to be. Another is that the legal environment has changed dramatically.”
Another possibility is that the Heritage Foundation is filled with dishonest partisan nutters who aren’t guided by any consistent ideology but, rather, by a desire to please whoever is funding them.
That’s another possibility.
March 29, 2010, 7:37 pmAnonsters says:
That one I’ve heard on and off again. But yeah, the camel’s nose one has currency these days. Not sure why.
Only if you promise to go back to Free Republic.
March 29, 2010, 7:46 pmAllan Walstad says:
Congress has the power to lay and collect taxes to perform its Constitutionally mandated functions. If the power to tax and to “provide for the general welfare” could properly be construed as a power to force people to buy health insurance, then it would have no limit whatsoever. If there were to be no limit whatsoever to the feds’ powers, then there would have been no reason to enumerate powers at all. All this is the simplest common sense and has been pointed out innumerable times with regard to other shyster-lawyer excuses for trampling Constitutional limitations on the feds.
March 29, 2010, 7:52 pmAllan Walstad says:
The point is that if the power to regulate interstate commerce could properly be construed as a power to take over 1/6 of the economy and force individuals to purchase health insurance, then it would have no limit whatsoever. If there were to be no limit whatsoever to the feds’ powers, then there would have been no reason to enumerate powers at all. All this is the simplest common sense and has been pointed out innumerable times with regard to other shyster-lawyer excuses for trampling Constitutional limitations on the feds.
March 29, 2010, 7:54 pmMike Hansberry says:
Section 8 also enumerates that Congress has the power to “lay and collect taxes” and to provide for the “general Welfare.” So what’s the problem?
The problem:
Art1, sec9, C4: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”
Congress could have waltzed right around that limitation by making the mandate an income tax (authorized by 16A), but they didn’t.
March 29, 2010, 8:04 pmleo marvin says:
Can we hang out a little longer if we admit you guys were really onto something with the stuff about Obama being a Jew hater?
March 29, 2010, 8:06 pmSuperSkeptic says:
Except insofar as that ship sailed when “substantially affects” arrived and docked – permanently, it seems.
March 29, 2010, 8:07 pmJoe says:
Except insofar as the grant of a power to regulate “commerce” implies the lack of a power to regulate not-commerce.
Sorry, that ship’s sailed. Jurisprudence over the last 75 years or so is clear that Congress can pass laws targeted at noncommercial conduct if it does so as part of a larger effort to enact a broad commercial regulatory framework. See the majority opinion in Raich for a good summary of the law as it exists today.
The argument that people have been making is that it somehow matters whether the noncommercial conduct being affected as part of the broader commercial regulatory framework is affirmative conduct or passive inaction (i.e., Congress can tell you what not to do through its Commerce Clause powers, but it can’t tell you to do something). THAT is what is unsupported by the text of the Commerce Clause and the decisions interpreting it.
(Incidentally, this is why virtually everyone from Barnett to Kerr to Adler believes that under existing precedent, the mandate is within Congress’s Commerce Clause authority. My understanding is that they also largely agree that this existing precedent is wrongheaded. The only area of disagreement as I see it is how likely they believe that the current Court will depart from precedent [i.e., Kerr believes that it's less than 1%, Adler is probably around 10% or so, and Barnett might go as high as 33%].)
March 29, 2010, 8:09 pmerasmus says:
To Joe:
“When my county requires my kids to go to school, it is regulating education, not “inactivity.””
_________________________________________
No. it is not regulating education. It is REQUIRING attendance. Be precise with your terminology.
Since your county no doubt does not have a commerce clause that Corresponds to Art I, Section 8, your analogy collapses.
“Here, no one — literally, NO ONE — has pointed to a single authority that holds or even implies that Congress has the power to stop you from doing something or make you do it differently where that would promote its regulation of interstate commerce, but it doesn’t have the power to require you to do something.”
_________________________________________
No one has to point to any authority that Congress doesn’t have the power to require an inert individual to buy a private product. If such a power is not enumerated in the Constitution, it does not exist. That is self evident.
_________________________________________________
“the idea that Congress is “regulating inactivity” is a silly word game. It has passed a law that generally regulates interstate commerce and it does so by requiring people who don’t want to participate in interstate commerce to do so.”
No one disputes that Congress can regulate activity, even noncommercial activity which affects interstate commerce. But there must be an activity before there is regulation. In Wickard, the farmer grew the wheat; In Raich, the citizen grew the marijuana, activities both, which activated the regulatory statutes. In the case of the individual mandate the citizen takes no action whatsoever, commercial or otherwise. There is no precedent at all for an application of the Commerce Clause to force the otherwise inert citizen to do anything, commercial or otherwise. To achieve such an end would necessitate a (judicial?)amendment of the Commerce Clause to substitute “require” for “regulate”. (I notice your rhetorical sleight of hand in conflating regulate and require. They do not mean the same thing, as you know.) I do not see the Roberts Court issuing such an amendment.
March 29, 2010, 8:13 pmAllan Walstad says:
Is clear that justices are political appointees of power-drunk pols.
March 29, 2010, 8:16 pmcityduck says:
Congress has the power to lay and collect taxes to perform its Constitutionally mandated functions. If the power to tax and to “provide for the general welfare” could properly be construed as a power to force people to buy health insurance, then it would have no limit whatsoever. If there were to be no limit whatsoever to the feds’ powers, then there would have been no reason to enumerate powers at all. All this is the simplest common sense and has been pointed out innumerable times with regard to other shyster-lawyer excuses for trampling Constitutional limitations on the feds.
Alexander Hamilton and Joseph Story, two fellows who normally are in vogue with Conservatives, disagree.
March 29, 2010, 8:20 pmSuperSkeptic says:
erasmus = 56%.
March 29, 2010, 8:21 pmJoe says:
The point is that if the power to regulate interstate commerce could properly be construed as a power to take over 1/6 of the economy and force individuals to purchase health insurance, then it would have no limit whatsoever. If there were to be no limit whatsoever to the feds’ powers, then there would have been no reason to enumerate powers at all.
No, Lopez is clear that laws affecting noncommercial conduct really must be addressing broader interstate commercial concerns in order to fall under Congress’s Commerce Clause powers. So there, a law regulating gun possession within a certain distance of a school was invalid because even though guns are bought and sold through interstate commerce, that wasn’t the primary focus of the law. Morrison (and Raich, for that matter) basically affirmed that. And if your objection is that Congress has unduly wide lattitude to address noncommercial conduct just by saying that it (directly, I think, after Lopez and Morrison — tangentially or indirectly wouldn’t be sufficient) affects commercial regulation, then your problem is with Rehnquist and Scalia and, well, everyone except Thomas. He’s really the only one who has objected to the as-long-as-the-law-is-commercial-in-nature-and-the-noncommercial-conduct-affects-the-framework formulation.
with regard to other shyster-lawyer excuses
And it’s Obama who hates the Jews. Yeah, that’s the ticket.
March 29, 2010, 8:27 pmJoe says:
No. it is not regulating education. It is REQUIRING attendance.
I understand that that’s your interpretion of “regulate” as used in the Commerce Clause. I also understand that that’s based on, well, nothing. You’ve just made up the interpretive rule that requiring participation in “X” isn’t regulating “X.” Fine, I guess. But please provide some support! (For example, the first definition of “regulate” on dictionary.com is “to control or direct by a rule, principle, method, etc.,” which clearly seems to encompass requiring someone to do whatever it is that is being regulated [I would have used the similar definition in Black's, but it's not accessible without a subscription].)
No one has to point to any authority that Congress doesn’t have the power to require an inert individual to buy a private product. If such a power is not enumerated in the Constitution, it does not exist. That is self evident.
See above. The point is that the Supreme Court has permitted Congress to pass laws affecting noncommercial conduct as part of a broad commercial regulatory framework for 75ish years. No one has produced any authority indicating that the analysis changes when the foregoing noncommercial conduct is passive “inactivity” vs. some sort of affirmative conduct.
But there must be an activity before there is regulation. In Wickard, the farmer grew the wheat; In Raich, the citizen grew the marijuana, activities both, which activated the regulatory statutes.
Again, cite? It is not intuitive to me that requiring someone to do “X” isn’t the regulation of “X.” If I am so clearly wrong, there must be a ton of cases, in the Commerce Clause context and otherwise, to support your view. Absent that support, I can reach no other conclusion than you are just making it up.
In the case of the individual mandate the citizen takes no action whatsoever, commercial or otherwise.
I’d dispute this, but whatever. By the way, to the extent your position is that not EVERYONE who goes without insurance ends up seeking healthcare, reread the Wickard opinion. One of the main justifications for the law at issue there was that unsold surplus wheat tends to eventually find itself in interstate commerce, indicating that that particular objection is not well-grounded.
There is no precedent at all for an application of the Commerce Clause to force the otherwise inert citizen to do anything, commercial or otherwise.
Absolutely incorrect. Seriously, you could not be more wrong. Justice Jackson characterized the law at issue in Wickard as requiring citizens to go purchase wheat on the interstate market when they’d prefer not to. The majority in Hearts of Atlanta Motel and McClurg expressly ruled that the Commerce Clause permits Congress to tell hotel owners and BBQ owners that they have to enter into transactions with African-American patrons, regardless of whether or not they want to. Raich is clear that these are all still good law.
Look, I understand that you believe that once someone enters into interstate commerce, then Congress can regulate them in all sorts of ways that it couldn’t otherwise. That’s fine, but you really need to provide some support for it. Because I am not awareof any caselaw supporting that particular interpretation.
March 29, 2010, 8:59 pmSuperSkeptic says:
Joe, with all due respect, so is the Court. At this point, what’s wrong with the Roberts Court “interpreting” the commerce clause to reflect the position that is being advocated by your opponents (regarding the non-economic/inactivity position) here?
I mean, it’s a pretty good line whereby they (and by they I mean assuming they can get Kennedy) can theoretically distinguish Wickard and Raich to some degree and thereby limit the Commerce Clause, which would otherwise be unlimited.
You can even call it activism if you want…
March 29, 2010, 9:09 pmJoe says:
So after eating my fishcakes, it strikes me that I perhaps understate Wickard. For those who haven’t, read Jackson’s opinion. He literally characterizes the law at issue as requiring individuals to enter the interstate wheat market when they’d prefer not to, holding that it is within Congress’s Commerce Clause powers to do so. In light of that, any argument that “regulate doesn’t mean that Congress can force you to do something” or the like is either ignorant or frivolous.
March 29, 2010, 9:10 pmOwen H. says:
I wouldn’t be surprised to learn that most if not all of those condemning Congress requiring the purchase of a private product were also adamantly opposed to the public option as well.
March 29, 2010, 9:16 pmAllan Walstad says:
…Right–the political appointees of power-drunk pols.
WTF?
March 29, 2010, 9:20 pmerasmus says:
“He literally characterizes the law at issue as requiring individuals to enter the interstate wheat market when they’d prefer not to”
No. He characterizes the law as “commercial wheat farmers to enter the interstate what market.”
Since you earlier adverted to Professor Barnett, I quote from an excellent article he wrote on this very topic:
“Wickard v. Filburn, widely regarded as a watershed expansion of the Commerce Clause power, upheld regulations under the Agricultural Adjustment Act of 1938, which, in an effort to avoid wheat surpluses and boost prices, controlled the volume of wheat sold in interstate commerce. Under the regulation, farmer Roscoe Filburn had been allocated 11 acres for his wheat crop, but instead he planted an extra 12 acres of wheat to consume on his own farm. Filburn argued that Congress’s power to regulate the interstate wheat market did not include wheat that was not commercially traded, but was to be consumed on his own farm.
The Wickard Court rejected this contention because the class of activity being regulated was wheat production. As a wheat grower, farmer Filburn was a willing, participating member of that class, and could be barred from growing more wheat than his allotment, regardless of how he planned to use it. Unlike farmer Filburn, however, those who decide not to purchase health insurance have not engaged in a commercial activity. Indeed, they have chosen to abstain from engaging in economic activity.
In passing the Agricultural Adjustment Act of 1938, Congress only claimed the power to regulate commercial farmers, like Roscoe Filburn, who engage in the activity of growing wheat as part of an interstate market. The statute even exempted small farms. Congress’s current effort to compel all Americans to buy health insurance, whether they want to or not, is tantamount to the Agricultural Adjustment Act requiring each American, rural and city dwellers alike, to grow a particular amount of wheat. After all, the refusal to grow any share of wheat could be said to place the burden of wheat production on others and thereby limit the country’s wheat supply. Such a limitation would, in turn, substantially affect the commercial market. Therefore, using the same logic underpinning the personal health insurance mandate, Congress can compel every American to grow his or her own wheat to ensure a greater supply to meet the public’s demand. Or, conversely, Congress can simply “mandate” that every American buy two loaves of wheat bread each week, thereby ensuring a higher, more consistent demand and price for farmer Filburn’s wheat crop.
By boldly asserting that the authority to regulate interstate commerce includes the power to regulate not merely voluntary activity that is commercial or even ancillary thereto, but inactivity that is expressly designed to avoid entry into the relevant market, this theory effectively removes any boundaries to Congress’s commerce power–Congress could mandate anything. Under this theory, given that the American auto industry is a highly regulated commercial activity in the national marketplace (in which the federal government has invested), Congress could constitutionally require every American to buy a new Chevy Impala every year, or a pay a “tax” equivalent to its blue book value.
Even in wartime, when the production of materiel is crucial to national survival, Congress has never claimed such a power. For example, during World War II, no farmer was forced to grow food for the troops; no worker was forced to build tanks. While the federal government encouraged the public to buy its bonds to finance the war effort, it never mandated they do so. While Congress levied a military draft, it did so as necessary and proper to its enumerated power in Article I, sec. 8 “to raise and support armies,” not its commerce power. What Congress did not and cannot do during a wartime emergency, with national survival at stake, it cannot do in peacetime simply to avoid the political cost of raising taxes to pay for new government programs.
More recently, in Gonzales v. Raich,the Supreme Court considered the power of Congress under the Commerce Clause to regulate the cultivation and possession of home-grown marijuana that is neither sold nor bought and is authorized by state law for medical use. In upholding the constitutionality of the Controlled Substances Act,the Court considered this activity to be strikingly similar to that involved in Wickard:
Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market. Just as the Agricultural Adjustment Act was designed “to control the volume [of wheat] moving in interstate and foreign commerce in order to avoid surpluses . . .” and consequently control the market price, a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets.
As in Wickard, the regulated class of activity was the production of a “fungible commodity,” and the Court refused to “excise, as trivial,” the de minimis nature of Angel Raich’s medicinal marijuana plants, or carve out from the class a subset of medical marijuana cultivation in states that permitted this use. Indeed, the Court rested its decision, in part, on the economic nature of the class of activities being reached by the statute:
[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 (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.
Having found the activities in question to be economic, the Court then accepted the government’s contention that the intrastate subset of this class of activity could not be separated from the larger class: “One need not have a degree in economics to understand why a nationwide exemption for the vast quantity of marijuana (or other drugs) locally cultivated for personal use (which presumably would include use by friends, neighbors, and family members) may have a substantial impact on the interstate market for this extraordinarily popular substance.” In short, because the Court in Raich found both that the production of marijuana, like the production of wheat, was an economic activity, and that Congress had power to regulate or prohibit this entire class of activities, it denied the constitutional challenge.
To uphold the constitutionality of a health care mandate under the authority of Raich, the Court would have to find that a decision not to enter into a contract to purchase a good or service was an economic activity that, in the aggregate, substantially affects interstate commerce. Before so concluding it would immediately be apparent to the Justices that, by this reasoning, every action or inaction could be characterized as “economic” thus destroying any limitation on the commerce power of Congress. It is a safe bet that any argument that leads to a conclusion that Congress has an effectively unlimited police power akin to that of states will be rejected by this Supreme Court. As the Court stated in the 1995 case of United States v. Lopez:
To uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local…. This we are unwilling to do.
Nothing about the Court’s current composition suggests it would now be any more receptive to an argument that eliminates all limits on the commerce power.”
The rest of the article,”Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional” is at:
http://www.heritage.org/Research/Reports/2009/12/Why-the-Personal-Mandate-to-Buy-Health-Insurance-Is-Unprecedented-and-Unconstitutional
March 29, 2010, 9:45 pmyankee says:
I don’t get how “the Republican party leadership and a bunch of Republican think tankers supported the mandate, but ‘many’ other conservatives didn’t” proves that the mandate is not a Republican idea. Is something only a Republican idea if Republicans are unanimous in their support?
March 29, 2010, 9:59 pmJoe says:
I’m not entirely sure how you expect me to respond to a multi-page excerpt from Professor Barnett’s article. I’ll just note the following:
1.) Despite the confidence he expresses in his argument, I would be surprised if Prof. Barnett believes that it has better than a 1/3 chance of success. In the unlikely chance that he’s reading this, I encourage him to chime in if that’s wrong.
2.) Prof. Barnett reads the Wickard decision as substantially narrower than its rhetoric suggests on its face. Both I and the Raich majority interpret Wickard as establishing the principle that Congress may pass a law addressing noncommercial conduct where it is part of a broader regulatory framework governing some overarching commercial concern. Prof. Barnett would further distinguish between affirmative action and passive “inactivity” when allowing Congress to regulate. I’m not quite sure why. He and you keep on insisting that it is because inactivity really, truly isn’t interstate commerce, but of course, that makes no sense. The test under Wickard and Raich and Lopez shouldn’t be how close to “commerce” the noncommercial activity is — it is whether the broader regulatory framework at issue is commercial in nature (Lopez; and it unquestionably is here), and whether there is a direct causal relationship between the noncommercial conduct at issue and the broader commercial purpose that it is intended to serve (Wickard and Raich; ditto).
3.) With respect to the latter, Barnett grossly exaggerates the connection between the interstate commercial aspects of health care reform and the individual mandate. He suggests that it requires “inferences upon inferences,” but of course this is yet more nonsense. The regulation of the insurance industry is unquestionably within Congress’s interstate commerce powers. (Southeastern Underwriters.) Presumably eliminating coverage denials for preexisting conditions is encompassed within the same. (This is admittedly an inference, though I would submit that it is well-founded.) Absent a mandate, insurance companies will fall into a death spiral as people wait until they get sick to purchase coverage. (Is this an inference? I would submit not, but if so, it is very well — and empirically — founded.) Voila. So this is the grand total of Professor Barnes’s “inferences upon inferences” — that it is within Congress’s Commerce Clause powers to exclude coverage denials for preexisting conditions, and that insurance death spirals are a likely result in the absence of such mandates. I would submit that this clears the rational basis standard espoused by Raich so easily that any argument to the contrary is frivolous at best.
But as I said above, it is a bit dirty pool to quote several pages of an edited, carefully drafted law review article (from perhaps the biggest outlier among legal scholars on this issue, no less) and expect me to respond to it in this format.
March 29, 2010, 10:53 pmDesiderius says:
epluribus,
“Please, Desiderius. I am not “advocating” a Heritage-backed policy. I am expressing an opinion on the constitutionality of a statute that has been passed by Congress and signed into law by the president. This question has passed byond the advocacy phase into an examination of the constitutionality of the issue.”
Please, epluribus. If this is the case, why do you feel compelled to impugn the motives of those who question the constitutionality of a mandate? If they are inconsistent, and thus in your reckoning motivated by political convenience, why are you not liable to the same charge, by the same (faulty) reasoning?
What is it, if not a mandate? An encouraging word?
“If you read Balkins’s New York Times argument, you would understand that it is a tax imposed on those who do not buy insurance, but not on those who do.”
Ah, it all becomes clear now. If only I had read that in the first place! If only your foes were as foolish as you imagine, my wouldn’t the world would be grand!
“The only consequence of not buying insurance is liability to pay the tax. The tax is justified because those who do not buy insurance are subjecting those who do to responsibility to pay for their health care costs, typically through emergency room care, public clinics, or the like. There is no free lunch is, I think, an argument that many conservatives like.”
Aye, but it does not follow that all must therefore buy filet mignon for others to feast upon. Those (infrequently) “subjecting” you to pay are otherwise taking on unconscionable collective debt to pay for your utter unseriousness.
March 29, 2010, 10:57 pmMark Field says:
We get paid by the word to respond to your posts.
March 29, 2010, 11:00 pmJoe says:
Oh, and 4.) Both Professor Barnett and commentators on here argue that permitting the mandate would lead to an apocalyptic world where the Commerce Clause has no limits. But of course, for at least the third time, this is nonsense. The limits of Lopez would still survive. The broader overaching regulatory framework would still be required to be targeted at legitimate commercial goals, and the causal relationship between the law affecting noncommercial conduct and this framework would need to be direct, rather than indirect or incidental. And at this point, the objection more properly becomes: But Congress could require you to do anything if it was in furtherance of legitimate commercial regulation, and the relationship was direct!
To which I would respond, yes.
March 29, 2010, 11:02 pmcboldt says:
– The limits of Lopez would still survive. –
March 29, 2010, 11:11 pmThe limits of Lopez were adjusted, by Congress, post-Lopez. The GFSZ Act was amended, and is now on the books.
SuperSkeptic says:
I’ll take this as your only response to my question. But I’d like to clarify that I never said such an interpretation (upholding the mandate) would “lead to an apocalyptic world”; however, I did say the Commerce Clause would be essentially unlimited. On that latter point, you seem to agree, sadly.
March 29, 2010, 11:19 pmJoe says:
The limits of Lopez were adjusted, by Congress, post-Lopez. The GFSZ Act was amended, and is now on the books.
That’s just silly. The principal requirement of Lopez (that the law at issue be directed at primary commercial concerns) is still applicable to Congressional laws in general. That the law at issue in the case was amended to comply with this requirement is of no moment.
I did say the Commerce Clause would be essentially unlimited. On that latter point, you seem to agree, sadly.
That’s not what I said at all. I said that the overarching regulatory framework in question must have primarily commercial goals — so gun control near schools or anti-violence laws generally won’t suffice. I further said that the relationship between the narrow aspect of the law affecting noncommercial and/or local conduct and the broader commercial purpose must be direct and not incidental.
But to the extent that the law in question is part of some broader commercial regulatory framework, and it is directly related to these same commercial purposes, then yes, Congress can make you do just about anything and still be within its Art. I, sec. 8 constraints. If you don’t like it, elect new Congressmen. Preferably those who would impeach Scalia and Kennedy, who are just as much to blame as anyone for the state of Commerce Clause jurisprudence.
March 29, 2010, 11:33 pmDesiderius says:
“We get paid by the word to respond to your posts.”
Where can I chip in?
March 29, 2010, 11:36 pmJoe says:
Superskeptic–
Sorry, missed your first post. Actually, if you read up to the very beginning, I don’t disagree with you. It would be completely legitimate for the Roberts Court to say “OK, we’re rewriting Commerce Clause jurisprudence to match originalist intent.” But it would require just that — a rewriting of existing and longstanding precedent. And that’s fine! Personally, I agree with Rehnquist and think that it would be practically unworkable in this day and age, but whatever. It’s a legitimate argument. (My big problem with the AGs’ lawsuit is that they don’t seem to actually be making it, but oh well.) Though I will note that if Barnett et al’s next cause du jour isn’t scaling back Eleventh Amendment jurisprudence to match originalist intent as well, I’m going to be very disappointed.
March 29, 2010, 11:44 pmMark Field says:
Heh. There’s a secret slush fund that comes out of Prof. Kerr’s beer money.
March 29, 2010, 11:50 pmSuperSkeptic says:
Thanks for the response(s), Joe. In particular:
After all that’s been said here about the Court, this is the key anyway…
March 30, 2010, 12:07 amMike Hansberry says:
So why would you imagine that Congress has the power to force someone to open a BBQ njoint, or grow wheat, or sell insurance?
Now if one opens a BBQ joint, or becomes a wheat farmer, or sells insurance, then those activities can be regulated. Hence Congress has the power to tell a BBQ joint owner that he must serve customers regardless of race, and can set quotas on wheat farmers, and rules for insurance.
But what underlying activity is the person mandated engaging in that gives occasion for Congress to impose a regulation? Balkin’s suggestion that the non-purchase of insurance is the event or activity that can be taxed is absurd. It brings to mind Baron Von Munchhausen pulling himself up by his own bootstraps.
March 30, 2010, 12:36 amPubliusFL says:
The argument is that “implicating” is too strong a word. Everything implicates interstate commerce in some way. If the founders had meant for the federal government to legislate in every respect regarding everything that can be seen as implicating interstate commerce, they would have made it a government of plenary powers. Since they didn’t, and were quite emphatic that they were creating a government of limited powers, the conservative (or originalist) argument is that more direct regulation of interstate commerce must have been intended. Like regulating the merchant marine. The focus of the law you cited was the merchant marine, not health care.
I always did like Madison better than Hamilton.
Congress has power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Do any of the words after the first three have any meaning? That is, is the power granted any more or less than it would be if it had just said “to regulate Commerce”?
March 30, 2010, 7:07 amPersonFromPorlock says:
That is an excellent question!
March 30, 2010, 7:26 amepluribus says:
Desiderius, it’s really sad that you would come here to accuse me of “unseriousness.” Is that is anything more than ad hominem? Please remind us what “serious” contribution you have made to the constitutional discussion here.
March 30, 2010, 8:04 amJoe says:
The thread seems to have run its course, but I’d just chime in with a final response.
So why would you imagine that Congress has the power to force someone to open a BBQ njoint, or grow wheat, or sell insurance?
I wouldn’t, necessarily. Those are all forms of labor, and as I said previously, I’m not sure where, but I think that there may be Thirteenth Amendment concerns when start forcing labor. Compelling someone to buy a product is a different issue, though.
Now if one opens a BBQ joint, or becomes a wheat farmer, or sells insurance, then those activities can be regulated. Hence Congress has the power to tell a BBQ joint owner that he must serve customers regardless of race, and can set quotas on wheat farmers, and rules for insurance.
But what underlying activity is the person mandated engaging in that gives occasion for Congress to impose a regulation?
I understand that this is your theory — that Congress’s Commerce Clause powers will only be triggered when someone is taking some affirmative action, and absent such action, Congress lacks the authority to regulate. It’s not gibberish, and I can see a commerce clause-type provision in an alternate universe being written or interpreted in such a way.
But here, there is nothing in the text of the Commerce Clause that limits Congress’s regulatory powers to those already taking some affirmative action, and after 100+ comments, no one has pointed me to any authority making that distinction.
March 30, 2010, 9:32 amDesiderius says:
epluribus,
This Harold Hill health-care bill is unserious. Flack for it at your own risk.
March 30, 2010, 9:58 amMark Field says:
This argument founders (pun intended) on the N&P clause and McCulloch v. Maryland.
March 30, 2010, 10:46 amcurious about hypocrisy says:
Sashal, I see you responded twice to my point by pounding some more on Republicans for their hypocrisy. But you quite conveniently ignored my point about whether Obama is equally a hypocrite for campaigning against a mandate and then supporting one, betraying anyone who voted for him on that basis.
Or are you proving my point about hypocrisy by being so selective?
March 30, 2010, 11:15 amepluribus says:
You are sad, Desiderius, really sad. I was going to post an explanation here of why I really dislike you, but I realize it would be a violation of the terms of service, and have decided not to.
March 30, 2010, 11:26 amJoe says:
I think “Joe” above does the name proud. ;)
Anyway, to add something from this Joe, the answer to the question is “yes” — it was a Republican idea. As with the insurance regime promoted by the law just passed being a Democratic idea. In both cases, there were dissents.
This is not to say it was THE Republican idea or something, as if, it grew out of some fundamental Republican principle or such necessarily. Or, that the details are the same in all ways. OTOH, Tim Noah over at Slate did quote Romney and Obama on this issue, and people problems picking who is who.
Is Romney “Republican”? Well, some would disagree, I bet!
March 30, 2010, 11:31 amDesiderius says:
epluribus,
“I was going to post an explanation here of why I really dislike you, but I realize it would be a violation of the terms of service, and have decided not to.”
Who has ad hominem issues again? I’m having difficulty keeping up.
“You are sad, Desiderius, really sad.”
I believe the clinical term is depressed, and indeed I am, accounting for my flight to VC land and overpresence that so troubles you. Have no fear – the bete noire will pass soon and off I’ll go to live life and leave you here in blissful ignorance.
The latest lurch of the U.S. toward Christian Democracy (which is often neither) hasn’t helped, but I think what kicked it off was being RIFfed (along with a more promising, younger colleague) based exclusively on the criteria of seniority, or lack thereof. That an institution charged with the education of children would choose to make that the principle criteria is annoying, if understandable; that they seem unaware that a choice exists is disconcerting.
That those who believe themselves to be Progressive would wish such an organizational structure on the rest of the society with claims of being “too important to be left to the market” is, frankly, chilling. I’ve seen the market work, and it works a hell of a lot better than that.
March 30, 2010, 2:24 pmR C Dean says:
Easily done. The Act dealt only with people actively engaged in interstate and/or international commerce and the collection and disposition of license fees for the same.
March 30, 2010, 6:37 pmAndrew J. Lazarus says:
Let me take a try: the Health Care bill as finally passed is not the one that Obama-the-Candidate would have enacted if he had been made dictator instead of president. I don’t think that the mandate would have been part of Obama-the-Candidate’s bill (and a public option would have been). But the bill on Planet Earth had to be negotiated with conservative Democrats and with Republicans who, I suggest, were arguing in bad faith almost from the get-go, preferring an attempt at Waterloo to moving the bill (further) in the direction of their own plans.
When Obama comes out and says that the evolved plan is better than the plan that he proposed during the campaign, then you can call him a hypocrite or attack him for changing his mind. None of this even begins to approach the egregious behavior of, say, Mitt Romney, who is on video supporting mandates in Massachusetts as part of his own Health Care plan that is not very far from the one now law.
March 30, 2010, 6:38 pmPubliusFL says:
If there has never been a law requiring individuals not previously engaged in a commercial activity to henceforth do so, what kind of authority would you expect beyond the Constitution itself? Wouldn’t the cases or controversies clause inhibit the development of a body of case law on the point?
March 31, 2010, 6:27 ambadlaw says:
So what if Republicans once supported individual mandates? The point isn’t so much that Democrats are uniquely unconstitutional for supporting it, and even if it was, that would be irrelevant, too. This is just like saying it’s hypocritical for Democrats to support affirmative action when historically they were the party who likely would’ve opposed it.
April 1, 2010, 9:30 pmGreg Scandlen says:
I just came across this page, so I apologize for being late to the party. Two points:
1. Many of us vehemently opposed Heritage’s position on the Massachusetts mandate at the time. I have a collection of letters sent by John Goodman (NCPA), Ed Crane (Cato), and myself (then at CAHI) to Stuart Butler and Ed Feulner objecting to their violation of conservative ideals.
2. Our objection to the Massachusetts mandate was on policy grounds, not constitutional. It was (and is) simply a bad idea. I find no constitutional objection to a state enacting such a requirement. But just because a state can do it does not mean the Feds can. The Feds are supposed to be limited to a certain set of enumerated powers.
Too often people lose the distinction between states power and federal power and lump it all together into “the gummint.” Bill O’Reilly does that, too. A while ago he saw no proble with federal building codes because there are city building codes. Egads!
June 24, 2010, 3:15 pmPoll: GOP can handle budget better than Dems - Page 12 says:
[...] and looked at it from both sides. Of particular interest is the ending where he weighs both… The Volokh Conspiracy Was the Individual Mandate a ?Republican Idea?? Even so, why were so many on the Right willing to embrace an idea that conservatives attack as [...]
September 14, 2010, 10:27 pm