Today’s Florida district court ruling that the individual mandate is unconstitutional is by far the best court opinion on this issue so far. Judge Roger Vinson provides a thorough and impressive analysis of the federal government’s arguments claiming that the mandate is authorized by the Commerce Clause and the Necessary and Proper Clause, and explains the flaws in each. He had already rejected the government’s claim that the mandate is constitutional because it is a tax in a previous ruling. So far, all three federal courts that have considered the tax argument have rejected it, instead ruling (in my view correctly) that the mandate is a penalty.
This is perhaps the most important of all the anti-mandate lawsuits because the plaintiffs include 26 state governments and the National Federation of Independent Business.
One of the best parts of today’s opinion is Judge Vinson’s critique of the federal government’s argument that the mandate is constitutional under the Commerce Clause because the Clause gives it the power to regulate “economic decisions”:
The problem with this legal rationale, however, is it would essentially have unlimited application. There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort. The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that — when aggregated with similar economic decisions — affect the price of that particular product or service and have a substantial effect on interstate commerce. To be sure, it is not difficult to identify an economic decision that has a cumulatively substantial effect on interstate commerce; rather, the difficult task is to find a decision that does not….
The important distinction is that “economic decisions” are a much broader and far-reaching category than are “activities that substantially affect interstate commerce” [which Supreme Court precedent allows Congress to regulate]. While the latter necessarily encompasses the first, the reverse is not true. “Economic” cannot be equated to “commerce.” And “decisions” cannot be equated to “activities.” Every person throughout the course of his or her life makes hundreds or even thousands of life decisions that involve the same general sort of thought process that the defendants maintain is “economic activity.” There will be no stopping point if that should be deemed the equivalent of activity for Commerce Clause purposes.
Judge Vinson has a similarly compelling answer to the government’s claim that choosing not to purchase health insurance is an “economic activity” because everyone participates in the health care market at some point:
[T]here are lots of markets — especially if defined broadly enough — that people cannot “opt out” of. For example, everyone must participate in the food market. Instead of attempting to control wheat supply by regulating the acreage and amount of wheat a farmer could grow as in Wickard, under this logic, Congress could more directly raise too low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market. Or, as was discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system. Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile — now partially government-owned — because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business….
As Vinson explains, both the “economic decisions” argument and the “health care is special” argument ultimately amount to giving Congress the power to mandate virtually anything, and therefore conflict with the text of the Constitution and Supreme Court precedent. I addressed both arguments in more detail here. Judge Vinson also notes that the scenarios he raises are not merely a “parade of horribles,” but have a realistic basis, a point that I discussed in this recent post.
Turning to the Necessary and Proper Clause, Judge Vinson concedes that the individual mandate is “necessary” under existing Supreme Court precedent, but argues that it isn’t “proper” because the government’s logic amounts to giving Congress virtually unlimited power. I think this is exactly right; Vinson’s analysis is actually very similar to my own in this post (which is not to even suggest that he got the idea there).
Vinson also notes that the mandate probably runs afoul of the five part test recently outlined by the Supreme Court in United States v. Comstock, though he ultimately does not base his ruling on this point. I advanced a similar interpretation of Comstock and its implications for the mandate case in this article (pp. 260-67). Overall, Judge Vinson’s analysis of the Necessary and Proper Clause is a big improvement on Judge Henry Hudson’s performance in the recent Virginia ruling striking down the mandate.
Unlike Judge Henry Hudson in the Virginia case, Judge Vinson ruled that the mandate is not “severable” from the rest of the health care bill, and therefore invalidated it in its entirety. I think this may be somewhat too sweeping. However, Vinson is on strong ground in ruling that the mandate cannot be severed from the bill’s provisions forcing insurance companies to cover people with preexisting conditions. As he emphasizes, the federal government itself has repeatedly stressed this point in the litigation.
Finally, Judge Vinson rejected the 26 states’ argument that the funding provisions of the bill are unconstitutionally “coercive.” I may have more to say on this issue in a later post.
As I have often noted in the past, this decision is just another step in an ongoing legal battle. Ultimately, the issue of the individual mandate will be resolved by the courts of appeals and probably by the Supreme Court. Still, Judge Vinson’s ruling is a victory for opponents of the mandate. It’s also extremely well-written, and thereby provides a potential road map for appellate judges who might be inclined to rule the same way.
UPDATE: Co-blogger Orin Kerr takes Judge Vinson to task for holding that the mandate is not “proper” because it leads to unlimited federal power. Orin claims that this is is inconsistent with the “words” of Supreme Court precedent, citing a dissent by Justice Thomas in Gonzales v. Raich. However, the words of actual Supreme Court precedent repeatedly emphasize that Congress’ power is not unlimited. For example, in United States v. Lopez, the Court emphasized that ““The Constitution . . . withhold[s] from Congress a plenary police power that would authorize enactment of every type of legislation.” In its most recent Necessary and Proper Clause decision, United States v. Comstock, the Court similarly stated that there is no reason to “fear that our holding today confers on Congress a general ‘police power, which the Founders denied the National Government and reposed in the States’” (quoting United States v. Morrison); the Court emphasized that the regulation it was upholding was “narrow” in scope. Gonzales v. Raich itself gives Congress virtually unlimited power to regulate “economic activity,” but does not address the issue raised by the mandate case. Thus, if Judge Vinson is right that the federal government’s argument for the mandate would give Congress unlimited power, then the mandate indeed conflicts with the words of Supreme Court precedent.
Orin is also wrong to suggest that Vinson “used a first principle to trump existing Supreme Court caselaw.” Vinson in fact discussed those precedents, including Raich, in great detail, and noted how the individual mandate case is distinguishable from them (e.g. – the discussion of Raich on pp. 36-44 of his opinion).
As I have argued elsewhere, both Comstock and Raich give Congress vastly greater authority than is actually authorized by the Constitution. But going way too far down this road is not the same as authorizing completely unlimited congressional power. At the very least, it certainly isn’t what the words of the relevant Supreme Court precedents say they have done.
UPDATE #2: I have corrected an unfortunate typo in the title of this post.
UPDATE #3: In an update to his post, Orin insists that Judge Vinson failed to consider existing precedent, which in Orin’s view imposes only “symbolic” limits on congressional power. All I can say is that Vinson in fact discusses current precedent in great detail and explains why it doesn’t cover the mandate case. Moreover, nowhere does that precedent state that the remaining limits to federal power are purely symbolic and would not strike down any significant congressional policies. Thus, if Vinson is correct in concluding that the argument for the individual mandate would give Congress unconstrained authority to mandate anything it wants, then the mandate really is contrary to existing precedent. At the very least, existing precedent certainly doesn’t require upholding the mandate. I discussed the relevant precedent in more detail here, here, and here.
SecurityGeek says:
I think the best part is when he gives a literal shout-out to the (historic) Tea Party! Conservative Judicial Activism FTW! Take that Warren Court!
January 31, 2011, 8:05 pmDilan Esper says:
However, Vinson is on strong ground in ruling that the mandate cannot be severed from the bill’s provisions forcing insurance companies to cover people with preexisting conditions. As he emphasizes, the federal government itself has repeatedly stressed this point in the litigation.
This is really transparently phony.
The government wasn’t “conceding” the mandate wasn’t severable. The government was arguing that it was NECESSARY to enact a preexisting condition exclusion ban.
It’s a bait and switch to say, “it’s not within the necessary and proper clause” in a response to the argument that the government had to do this in order to make the preexisting condition ban work, but then turn around and say that the government conceded that it was inseverable from the preexisting condition ban (and in fact, the whole legislation!) by making that argument.
If the the mandate is inseverable, it’s flatly constitutional because it’s necessary to a clearly constitutional comprehensive scheme of insurance regulation. If it isn’t constitutional, it must be severable. There’s no way of squaring this circle.
January 31, 2011, 8:19 pmJustin says:
LOL.
January 31, 2011, 8:24 pmJustin says:
To continue, this cannot remotely be a dispassionate view of the opinion, even for an avowed supporter of the litigation. This opinion was a mix of adopting briefs wholesale and a wall street op-Ed. If this is the best argument for 5 votes in the supreme court, justice can mail the rest in.
January 31, 2011, 8:31 pmjrose says:
Vinson argues it is not proper because the federal government can, without limit, purposely enact flawed-yet-permissible regulations in order sneak in the back door an N&P “fix” that would otherwise be unconstitutional. But, to reach that conclusion, Vinson must believe the regulations on preexisting conditions were just a pre-text for the mandate.
Ilya, do you agree with Vinson on this last point?
January 31, 2011, 8:38 pmJ. Aldridge says:
Court needs to go back to how commerce was regulated by states and nations with each other instead of continuing to abuse it. A good place to start is with its original purpose and method of regulation.
January 31, 2011, 8:42 pmAlaska Jack says:
So:
(A) We want to accomplish policy goal Y.
(B) In order to do that, we would need to use tactic X.
(C) X would normally be unconstitutional.
(D) But since we cannot accomplish Y without X, therefore X becomes constitutional?
I have to admit I’m struggling a bit with this. The logic seems completely backward. As far as I can tell, it seems to say that anything is “constitutional” as long as we can plausibly claim a “need” for it.
Isn’t this what the amendment process is for? What am I missing?
– aj
PS As I think about this, I wonder — why *not* a constitutional amendment? If the Obama administration really thinks most Americans support this colossal endeavor, then why not? Prove to everyone how out-of-touch the Republicans are.
January 31, 2011, 8:42 pmjrose says:
That’s not a correct premise in the government’s argument. The correct premise is Y is an exercise of an enumerated power.
January 31, 2011, 8:47 pmAlaska Jack says:
Also, a question (and I sincerely apologize if I missed this in another thread):
Lofty dismissals aside, I think it would be quite understandable for a regular American layperson to wonder: Under the logic articulated in this case, what exactly does the government *not* have the power to do?
What is the progressive response to this? (I sincerely hope there more to it than “Under this paradigm the government *can* do pretty much anything, but we trust they *won’t*”)
(Again, apologies if this has been covered 100 times here.)
– aj
January 31, 2011, 8:51 pmcboldt says:
–That’s not a correct premise in the government’s argument. The correct premise is Y is an exercise of an enumerated power. –
January 31, 2011, 8:52 pmThat difference is addressed at point “C”, “X would normally be unconstitutional”
Alaska Jack says:
jrose -
ah, I see. Thanks — need to think about that.
– aj
January 31, 2011, 8:53 pmBigmouth says:
Quick question: what’s the constitutional basis for mandatory education of all children in the U.S.?
January 31, 2011, 8:55 pmJason says:
IANAL,
But the two sides are largely talking past each other.
One side argues that the gradual drift of laws and precedents provide strong support for the constitutionality of Obamacare.
The other side argues that any construction of constitutionality which permits Obamacare would imply that congress is virtually without limit, and that the enumerated powers of the constitution are without substantive meaning.
Both are compelling arguments. When will both sides admit that the two lines of reasoning are in conflict?
Instead, both sides cling to precarious world views that attempt to reconcile both the gradual tide of historical precedent and the text of the constitution. Why must they be reconciled?
Laws and precedents evolve. The text of Article I does not.
It is inevitable that the two will eventually conflict in a manner that cannot be resolved without making a choice between them.
Doesn’t Obamacare represent that moment?
January 31, 2011, 8:59 pmObamacare Unconstitutional Says U.S. District Judge Roger Vinson « Working for Liberty says:
[...] Here are legal experts Ilya Shapiro and Ilya Somin on the ruling. LikeOne blogger likes this [...]
January 31, 2011, 8:59 pmBigmouth says:
Jrose, I think his point isn’t that the regulations in THIS law are a pretext. Rather, it’s that the precedent set by upholding the government’s rationale would allow massive assertions of federal authority under the pretext of necessity in FUTURE legislation.
January 31, 2011, 9:00 pmdts-01 says:
State level.
January 31, 2011, 9:01 pmhttp://www.enotes.com/everyday-law-encyclopedia/compulsory-education
Gov98 says:
Quick question: what’s the constitutional basis for mandatory education of all children in the U.S.?
I don’t believe that the Federal Government can compel mandatory education. (But I don’t have all of the U.S.C. memorized so I could be wrong.) Instead, I think the states through their plenary police power can mandate education, and the Federal Government through the Tax and Spend Power can “encourage” states to enact such mandatory education programs if they want to receive federal money for education.
January 31, 2011, 9:02 pmDavid M. Nieporent says:
Well, one could read all the words of the constitution, and understand that a law must be necessary and proper, rather than merely “necessary.”
January 31, 2011, 9:03 pmJackson says:
I’m not aware of any individual federal mandate for the education of children. I believe any individual education mandates (to the extent that they exist at all) come from the individual states, which of course aren’t encumbered by all that 10th Amendment business.
But please, if you are aware of such a mandate, please be sure to share it with everyone. Thanks!
January 31, 2011, 9:10 pmBigmouth says:
Gov, you’re correct — thanks for the info.
January 31, 2011, 9:11 pmJoe says:
The other side argues that any construction of constitutionality which permits Obamacare would imply that congress is virtually without limit, and that the enumerated powers of the constitution are without substantive meaning.
How is this a ‘compelling’ argument when the Bill of Rights, Art. I, sec. 9, the 13A, the 14A, the 15A, the 19A, et. al. all provide lots of limits on Congress, limits not erased by the legislation? How does the “enumerated powers” have no substantive meaning? Do you mean limit? Again, not true.
January 31, 2011, 9:12 pmAdam says:
So any mandate is that is inseverable to a law is constitutional if the scheme it is part of is clearly constitutional? So if a scheme to regulate safety of air travel (something that is fully in the constitutional power of Congress to do) has an inseverable mandate that implements racial/religious profiling then imposing such a mandate on freedom of movement would be constitutional? Because regulating safety of air travel is?
January 31, 2011, 9:14 pmTocqueville says:
I think that’s exactly right. In fact, Vinson concedes it is strictly necessary, just not proper.
January 31, 2011, 9:15 pmInstapundit » Blog Archive » WHITE HOUSE FLUMMOXED? “I think it’s a bit curious that the White House would send an ‘anonymous’… says:
[...] An analysis of the opinion here, and another one from Ilya Somin here. The judge appears to have adopted what Dave Kopel and I have elsewhere called the [...]
January 31, 2011, 9:16 pmJrny says:
Question: Have any of the plaintiffs so far identified a single person who has not consumed any healthcare resources after at least a few decades of living? Seems to me the activity vs. inactivity distinction only holds water for a brief moment in time, but in the grand scheme of things, everyone is an actor in the healthcare industry.
January 31, 2011, 9:19 pmmcf says:
here’s a potential example – a stand-alone mandate to buy insurance. Such a bill would not be necessary to implementing something within an enumerated power, namely, regulation of the health care industry. So congress couldn’t do it. Another example – a stand-alone law that keeps certain prisoners incarcerated after they have served their sentence. There are many other examples.
January 31, 2011, 9:21 pmGov98 says:
How is this a ‘compelling’ argument when the Bill of Rights, Art. I, sec. 9, the 13A, the 14A, the 15A, the 19A, et. al. all provide lots of limits on Congress, limits not erased by the legislation? How does the “enumerated powers” have no substantive meaning? Do you mean limit? Again, not true.
This is because a system of enumerated powers means that the powers of the government are only those granted. To say that we have a government of enumerated powers because there are restrictions on the plenary police is a non-sequitor, it misunderstands what enumerated means.
Contrast, the state governments (generally) are plenary powers, the constitution vests power to legislate on every basis possible, the exceptions are however, the People have said that they can’t legislate on certain things, so they can’t.
To have enumerated powers means something different, in order for the government first to do something the constitution must have granted to that government the power to do it. If the power exists than a further restriction may still eliminate the power of the government to regulate it. For example, it may be that it affects interstate commerce but if for example it regulated political speech it may still runafowl of the 1st amendment.
January 31, 2011, 9:23 pmjrose says:
I’m not following how the government’s rationale permits a pretext.
January 31, 2011, 9:24 pmGov98 says:
a stand-alone mandate to buy insurance.
So we’re clear, you are saying that the government can do something contrary to it’s enumerated powers as long as it’s done with enough other stuff. I think this would clearly represent the situation of necessary but NOT proper.
We need to violate the Constitution in order to obey it, is not all that well, appealing.
What happened to you know actually amending the Constitution, if sufficient powers are not granted?
January 31, 2011, 9:26 pmjrose says:
The federal government would not be able to mandate non-economic behavior.
January 31, 2011, 9:27 pmSteve P. says:
So, you also want to resort to a ‘first-principles conceptualization of the meaning of “proper”’, as Orin discussed here?
Seems pretty activist to me.
January 31, 2011, 9:29 pmGov98 says:
The federal government would not be able to mandate non-economic behavior.
Only because it fits and is from one of the greatest games of all time…
Human behavior is economic behavior. The particulars may vary,
but competition for limited resources remains a constant. Need
as well as greed have followed us to the stars, and the rewards
of wealth still await those wise enough to recognize this deep thrumming of our common pulse.
– CEO Nwabudike Morgan,
January 31, 2011, 9:30 pm“The Centauri Monopoly”
jrose says:
Isn’t that the message from Raich? A stand-alone federal ban on the possession of marijuana is dubious under enumerated powers. But, the same ban is constitutional when it is a means to enforcing the Controlled Substances Act.
January 31, 2011, 9:32 pmShelbyC says:
I’m still not sure I understand this one. The government can pass the preexisting condition ban without the mandate, and insurance companies wouldn’t be able to deny patients with preexisting conditions. IOW, the ban would work just fine. I’m not sure how the fact that the govt claims that the ban is bad policy without the mandate gives them the authority to impose it.
January 31, 2011, 9:35 pmjrose says:
That formulation conflicts with Raich which limited economic behavior to production, consumption and distribution. Certainly, gun possession and violence against women are not economic behaviors.
January 31, 2011, 9:35 pmfrankcross says:
I think this was very well executed and the best case for striking down the act. Its weakness is that it turns on the judiciary assessing whether a statute is “proper.” That’s not good. But I think this could be rescued by saying the judiciary only looks at “proper” in the context of the constitutional scheme, i.e., does the law eviscerate all limits to government power. Still, judicial evaluation of “proper” is a pretty big pill to swallow.
January 31, 2011, 9:38 pmricky says:
“Have any of the plaintiffs so far identified a single person who has not consumed any healthcare resources after at least a few decades of living? Seems to me the activity vs. inactivity distinction only holds water for a brief moment in time, but in the grand scheme of things, everyone is an actor in the healthcare industry.”
Does the mandate require people to purchase “healthcare resources”, or health insurance?
January 31, 2011, 9:41 pmMDH says:
This line, “Congress could require that people buy and consume broccoli at regular intervals,” is a specious, sloppy, argument.
Buy? Yes. Consume? No. But by rhetorically linking the two, Vinson plays on the fact that the government almost surely doesn’t have the power to force citizens to consume broccoli. Thus, granting that, so goes this slippery slope, it doesn’t have the power to force citizens to buy broccoli.
But everyone would agree, I think, that the government would be well within rights to lay a tax on every person for an amount equivalent to a brunch a broccoli per day, no questions asked. Particularly, as in the wheat example, were it to immediately turn that money around to producers to affect the general price level. The modern obsession that these two activities are distinct; the laying of a tax and the compulsion to purchase, is most unfortunate.
January 31, 2011, 9:42 pmGov98 says:
That formulation conflicts with Raich which limited economic behavior to production, consumption and distribution.
But what is produced, consumed, or distributed in not buying insurance?
January 31, 2011, 9:45 pmmcf says:
assuming we agree that only the commerce clause and N&P clause are at issue here (as opposed to some other provision that might prohibit the mandate), then the mandate violates the constitution only if the regulation of the health care industry is not within the commerce clause power. But if that is your objection, then your quarrel is with Wickard and Raich.
January 31, 2011, 9:46 pmBigmouth says:
Thanks as well to Jackson and dts.
January 31, 2011, 9:46 pmJason says:
What I find compelling, is the argument that the plain language of existing precedents place no meaningful limits on the exercise of congressional power over economic affairs.
Indeed, even if the Supreme Court were to rubber stamp Judge Vinson’s ruling, it would do little to prevent the Congress from implementing an equivalent scheme. Both sides seem to agree that congress has the authority to pass a new tax, and then use the revenues from that tax to pay for health care vouchers.
At the same time, this expansive interpretation of congressional powers hardly seems consistent with Art. 1 Section 8 or the tenth amendment (nor with their application prior to FDR).
Both sides are employing tortured arguments to reconcile the text of the constitution with the past 75 years of precedent.
Wouldn’t it be simpler to admit that the two are no longer reconcilable, and pick one over the other.
If, instead of such clarity, the Supreme Court opts to adopt a muddled view that claims the legitimacy of both (the text of the constitution and historical precedent), it will merely be delaying the inevitable (and, in the intervening period, ensuring additional uncertainty).
January 31, 2011, 9:48 pmjrose says:
Health care services, supplies and medicine are consumed.
January 31, 2011, 9:51 pmBigmouth says:
Dilan, I think you misunderstood the argument, which is that the mandate IS necessary but NOT proper because it’s functionally boundless.
January 31, 2011, 9:55 pmA.W. says:
nice analysis, and very similar to mine over at patterico’s. take a peek. i will be linking to yours very soon.
January 31, 2011, 10:01 pmGov98 says:
Health care services, supplies and medicine are consumed.
And so are bullets near schools, on occasion.
January 31, 2011, 10:02 pmPerseus says:
James Madison, among others, would beg to differ, as “to affect the general price level” is not exactly an enumerated power.
January 31, 2011, 10:02 pmDan says:
Why would they need to? Like the judge pointed out, the fact that there are markets that everyone participates in does not grant Congress infinite power over our lives.
January 31, 2011, 10:03 pmAllan Walstad says:
Utterly obvious, and end of story on the merits. Here is yet another opportunity for the Supremes to enforce Constitutional limits on federal power. Will they?
January 31, 2011, 10:07 pmRoscoe Filburn says:
The suggestion that the commerce clause contains an “activity” requirement is altogether suspect. Seeming inactivity can affect interstate commerce just as much as can clear activity, and, in my view, the arguments for an activity requirement–chiefly those of Judges Vinson and Hudson–sound more in substantive due process than in Article I.
Take Wickard v. Filburn, for example. Sure, in that case, Filburn had engaged in some activity. He had grown wheat. But the aspect of his conduct that affected interstate commerce–that is, the aspect of his conduct that vested Congress with prescriptive jurisdiction–was his failure to purchase wheat in interstate commerce (after all, the acts of growing and eating wheat, without more, don’t affect commerce). His act of growing wheat thus was beside the point, as far as Congress’ power to regulate was concerned. Assuming Filburn and his family needed to eat wheat (which seems reasonable), wasn’t the statute, then, an effective mandate to buy wheat in interstate commerce?
Consider also Heart of Atlanta, where the Supreme Court said Congress can regulate a hotel owner’s decision not to rent rooms to African Americans. It’s true that no one has to operate a hotel, whereas one can’t help but come within the scope of the healthcare mandate. But is this a relevant distinction? Courts haven’t been terribly hospitable to the you-have-a-choice-not-to-do-it argument in other contexts, as they recognize that private economic transactions are not always (if even usually) freely entered into.
We’ll see what the SCOTUS does, but thus far I’m unimpressed with the arguments against constitutionality.
P.S. In response to Judge Vinson’s hypo: the answer to a you-must-eat-broccoli law is simple. Like many dumb ideas, the Constitution doesn’t prohibit it, but no politician would vote for such a law, and if she did, she surely would be voted out of office.
January 31, 2011, 10:11 pmDilan Esper says:
Alaska:
I don’t like Raich very much, but take Raich (the District Court is bound by it):
1. Congress wants to prevent the interstate commerce in marijuana.
2. In order to do that, it feels it needs to ban private possession.
3. Banning private, in-state cultivation and possession of marijuana would normally be outside the commerce power.
4. But since it is necessary to ensure that no marijuana makes its way into interstate commerce, it’s constitutional.
As I said, I don’t like the case very much. But Raich is controlling authority on this point.
January 31, 2011, 10:16 pmMarkO says:
All of this legal legerdemain resulted from the fact that Obamacare would never have passed but for the fiction that it was not a tax. Congress has the power to tax. It choose deception.
January 31, 2011, 10:17 pmbaer says:
Wow, so you think the opinion was compelling?
Who would have guessed.
January 31, 2011, 10:17 pmDilan Esper says:
It’s proper because it complies with the other parts of the constitution. That reads all the words in the clause.
Further, though, even if there is a room to say “necessary but not proper”, it’s still sleazy to then turn around and refuse to sever. Basically, that position would be saying that the government can be forced to make concessions about severability to have a chance of winning its constitutional argument. That’s a form of judicial logrolling (and has nothing to do with the actual definition of whether a law is severable).
January 31, 2011, 10:19 pmDilan Esper says:
Nope, because there (UNLIKE HERE) there is a legitimate arugment, found within the Supreme Court’s precedents, for finding the law improper– it violates another provision of the Constitution.
January 31, 2011, 10:20 pmDilan Esper says:
Which is also known as legislating from the bench. “I admit that Congress had to do this, but I won’t let them anyway because it violates my personal standards of propriety.” This is close to impeachable.
January 31, 2011, 10:21 pmDowlan Smith says:
But there is not a mandate to purchase “health-care” but to purchase insurance. I was without insurance for two years and still purchased band-aids, medication, saw several nurses and even a doctor.
January 31, 2011, 10:22 pmDilan Esper says:
It was possible to regulate the money supply without the Bank of the United States, regulate pot without seizing Angel Raich’s stash, and regulate sex crimes without having a post-sentence detention program. Nonetheless, all these things were upheld because Congress gets to choose the means under McCulloch.
January 31, 2011, 10:23 pmDilan Esper says:
I address this in my other comments. But to say something else about it, is there a SINGLE Supreme Court case which has EVER said that judges determine whether something is “proper” independent of the McCulloch test, let alone that judges determine it based on their personal judgment as to whether that results in “too much” federal power?
This guy is pulling it all out of his judicial ass.
January 31, 2011, 10:25 pmbaer says:
Oh Grata van Sustern agrees with you, by the way. I was watching her just now.
Also she says that the issued involved are “so simple” and “not hard to understand at all.”
January 31, 2011, 10:32 pmShelbyC says:
But the individual mandate isn’t a means of banning pre-existing condition exclusions. The argument is simply, well, our regulation will make insurance less profitable, so we have to make insurance more profitable than it would be with just our regulation.
January 31, 2011, 10:34 pmGerard N. Magliocca says:
Ilya,
I know you like the result and the reasoning, but you think this was “extremely well-written?” Seriously?
January 31, 2011, 10:38 pmSChaser says:
Which is a pretty good indictment of the current state of Commerce Clause jurisprudence! Raich would be laughable if the consequences weren’t so serious.
January 31, 2011, 10:42 pmjrose says:
According to Judge Vinson, the mandate is a means of making that ban effective.
January 31, 2011, 10:43 pmDowlan Smith says:
How to make ObamaCare work.
In Gibbons v. Ogden it was held that a federal license to engage in a type of commerce (river steam-boating) over-ruled state restrictions or restrictive monopolies.
If insurance companies were given federal licenses, federal rules would apply. Some large companies might be willing to work under those rules in exchange for not being subject to multiple conflicting rules from all the different state fiefdoms they wish to sell their product in.
January 31, 2011, 10:43 pmSChaser says:
And she’s right, unless you are in love with 75 years of Supreme Court misconduct. The idea that the federal government can do pretty much anything it pleases in the name of “regulating commerce” is, SIMPLY, wrong – precedent, not withstanding.
A whole lot of Americans simply understand that simple point. It is SCOTUS that turned it into a tangled skein and failed to understand the simple issue.
January 31, 2011, 10:48 pmSChaser says:
This is one of the problems a lot of conservatives seem to ignore in their argument for a national market. Conservatives don’t want the feds to run things, but we want a national market in insurance to improve availability and widen risk pools. The two goals are in conflict.
January 31, 2011, 10:50 pmruddyturnstone says:
I still don’t understand why the mandate is not separable from the rest of the actual health insurance reform addressed in the law (to say nothing of the miriad unrelated other provisions the judge makes reference to). OK, the insurance companies MUST write policies for everyone, preexisting conditions or not. And, OK, the companies cannot discriminate against the purchasers with preexisting conditions (“community rates”). But what is stopping the companies from considering, when they set the community rates, that some folks who have preexisting conditions but do not have insurance will purchase it “at the last minute,” when they require acute care? Why would the insurance companies not consider (or more to the point, what would be stopping them from considering) the added liability that such purchasers will be incurring on their behalf?
In my view, the mandate is not only “improper” but also not “necessary” for making the rest of the reforms work, and is separable from the rest of the reforms.
January 31, 2011, 10:51 pmDavid McGraw says:
jrny,
I’m 58, last time I partook in the healthcare system was in the early 1970′s for a stress fracture in my left foot (sports related). Not including dental, which has always been paid out of pocket.
Regards,
January 31, 2011, 10:58 pmRaoul says:
The quality of judging really has gone downhill- I guess this happens when a group of people press enough to pursue alternate (devoid of reality) theories. If we go by enumerated powers only the US will cease to exist. Adams/Jefferson pushed an individual health mandate to mariners-where is that in the Constitution.
January 31, 2011, 11:03 pmDowlan Smith says:
The McCulloch test provides: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”
Which is basically, “the ends justify the means.” Oh do they? Congress is given enumerated powers not enumerated goals. For instance there were limits on how (means) they could levy taxes, not on what they wanted to expend it on (ends). Similarly the government has and end of punishing crime, but the 4th and 5th amendments mandate certain means and proscribe other means.
January 31, 2011, 11:06 pmfrankcross says:
Dilan, if you think that “proper” simply means not violating other parts of the Constitution (a plausible position given precedents), that makes the term totally superfluous. Which is a legitimate answer.
And your position on severability makes little sense. This is simply a question of: “would Congress pass this without the individual mandate.” It’s not at all sleazy to say it would not.
January 31, 2011, 11:06 pmNo Theory of Jurisprudence says:
The Supreme Court previously conceded to the legislative branch of our Government the final word on whether an activity affects interstate commerce. The adopted standard of review is whether any rational basis exists for a Congressional finding that a regulated activity affects interstate commerce. Presault v. ICC, 494 U.S. 1 (1990); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264 (1984); Heart of Atlanta Motel, Inc. v. United States, 379, U.S.241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964); etc. We could add Raich, but we’d have to acknowledge that in Morrison there were Congressional findings, but the majority rejected them, on the theory that sometimes piling inference upon inference was not rational (although, interestingly, the Court in Morrison never uses the word “rational”–no doubt Rehnquist’s work, as he was somewhat hostile to Congressional deference, although he admitted the rational basis test in his dissent in Hodel v. Virginia).
Quoting Hodel 452 U.S. 264:
(Quotations and cites omitted, emphasis added).
Congress made the following finding, which cannot be found in Judge Vinson’s opinion, in Sec. 1501(a)(2)(A) of the Patient Protection and Affordable Health Care Act:
I would be very interested to hear from Professor Somin (and others) why a Congressional finding that X affects interstate commerce should be treated differently from a Congressional finding that X is an activity. Congress may only regulate interstate commerce under the Commerce Clause, and wil show that its regulation [substantially?] affects interstate commerce so long as there is some rational basis for a Congressional finding of the same. Congress may only regulate “activity” according to Judge Vinson and others, so why shouldn’t it be the case that Congress need only show that there is a rational basis for the Congressional finding that not-purchasing health care is an “activity?”
Judge Vinson, for example, mentions “rational basis” only once, citing Raich, but never addresses what role, if any, the rational basis test has for the Health Care Mandate. Implicit here is that there is a more stringent standard of review if Congress is defining “activities” rather than defining “things substantially affecting interstate commerce.” That is not intuitive, at least to me.
Although Judge Vinson does note that Lopez was decided in part on the basis that “Congress did not make any formal findings concerning the effect of the regulated activity on commerce” it was apparently totally meaningless that in this instance Congress did find that not-purchasing health care is an activity. And although Vinson repeats the Morrison line that Congressional findings alone are not sufficient, he never levels that argument directly at the Congressional finding that not-purchasing health insurance is an activity. So what standard applies to this type of finding?
Judge Vinson has expressly adopted the view held by a few Conspirators: That the Commerce Clause only authorizes Congress to regulate activities. That is functionally similar to the restriction that the Commerce Clause only authorizes Congress to regulate interstate commerce. Some Court should explain why the rational-basis test does not apply to a Congressional finding that the Health Care Mandate regulates activity, as Judge Vinson didn’t do so in this opinion.
January 31, 2011, 11:10 pmDowlan Smith says:
I don’t see that it has to be all of one or the other. Freedom of choice in the marketplace is to be preferred. Let the consumer pick the state licensed or federal licenses (or unlicensed) insurance or health care provider.
My point was that the feds could act in a way to increase competition and break down trade barriers instead of instituting a top down, daddy government knows best for all approach.
January 31, 2011, 11:14 pmSChaser says:
It isn’t as stark as I implied, but the interstate insurance pool would require federal intervention, simply because the states have been unwilling AFAIK to cooperate. Hence you end up with insurance regulated by what state you live in – whether you buy it from a national company (as most do) or not. Of course, ERISA removes a large number of people from that state regulation, but that’s a Federal intervention itself.
Obamacare is a hodgepodge of means and goals. Ultimately, universal coverage is a goal that many want, and the way chosen to achieve that was the individual mandate – which is rational but not IMHO constitutional. The alternative is government subsidies for high risk insurees (which is a heck of a lot of people these days), and that is another mess. High risk pools (such as my state has) tend to get short-changed – they often provide poor benefits. My state, for example, has a $250,000 lifetime coverage limit last time I checked – which renders the insurance useless as insurance – you still go broke if you get osmething serious.
January 31, 2011, 11:21 pmDilan Esper says:
actually it is not superfluous. Without the word “proper”, Congress could violate, e.g., the First Amendment if it were necessary.
January 31, 2011, 11:22 pmJon Shields says:
I don’t see why that’s a problem — that the word proper is simply there to underscore that there are other Constitutional limits on Congress’ power, even if a law fits into Article I Section 8. Without the word proper, someone could read the clause as a sweeping grant of authority to pass laws even if they violate another provision. I wouldn’t read it that way, but it makes sense to add the word “proper” to underscore other limits articulated in the Constitution.
I really don’t think they meant to create a new judicial line where judges could start judging the propriety of laws as they please, untethered from specific Constitutional provisions. It is up to Congress to decide the on the propriety of a law, so long as it does not violate other provisions (and so long as it is necessary for a law passed under an enumerated power to function).
January 31, 2011, 11:22 pmDilan Esper says:
Your position is inconsistent with McCulloch, Comstock, and Raich. In each case, it was necessary and proper to Congress’ choice as to how to exercise its power.
January 31, 2011, 11:25 pmDilan Esper says:
Bear in mind, District Court judges are bound by those cases, whether or not they love them.
January 31, 2011, 11:28 pmAnderson says:
Nonetheless, all these things were upheld because Congress gets to choose the means under McCulloch.
Why do people find this difficult?
I recommend that everyone get out their Federalist Papers and read what Hamilton and Madison — they both wrote on the subject, IIRC — had to say about the Necessary and Proper Clause.
If your pet theory of the Constitution contradicts Hamilton, Madison, and Marshall … well, sir or madam, at just what point will you begin to entertain the possibility that ’tis YOU who are mistaken?
January 31, 2011, 11:32 pmAnderson says:
I really don’t think they meant to create a new judicial line where judges could start judging the propriety of laws as they please, untethered from specific Constitutional provisions.
And from specific case law. It’s just a matter of what the judge can or can’t imagine the Framers had in mind.
January 31, 2011, 11:37 pmNo Theory of Jurisprudence says:
Are you sure that’s true? Congress can pass a law raising and supporting an army without invoking the Necessary and Proper clause, because laws raising and supporting armies are expressly provided for in the Constitution. The Necessary and Proper clause only applies in instances where the legislation is one-step removed from the Constitutional grant of power, i.e., I want to regulate purely intrastate commerce that affects interstate commerce, and X is necessary (and proper) to accomplishing that end.
Under this reading, “proper” isn’t superfluous, as some grants of Congressional power aren’t even subject to being “proper.” Congress can enact a draft even if it would violate the 13th Amendment, because drafts are so connected to the power to “raise and support Armies” that there need be no inquiry whether the same is “necessary and proper for carrying into Execution” that power. This could help explain Korematsu, as it probably violated the 14th Amendment, but Congress has plenary power to provide for the common Defence, and interning Japanese-Americans was required to do so in a way that did not implicate the Necessary and Proper clause. (The Constitution is not a suicide-pact, etc.)
Some Constitutional grants of power don’t even rely on the Necessary and Proper clause, which addresses only the “foregoing Powers[.]” For example, the Fourteenth Amendment authorizes Congress to pass any law enforcing the Fourteenth Amendment, but the test is not whether such law is “necessary and proper” but rather that it be “appropriate[.]” If we wanted to be as charitable as possible to Congressional deference, it could be the case that Congress may pass any law “appropriate” to enforce the 14th Amendment… even one that is not “proper” for the reason that it would otherwise violate some other Constitutional provision.
Under this reading, a Federal law prohibiting the solicitation of child sex-slavery in a newspaper could be legislated under the 13th Amendment — if “appropriate” — even if the same legislation would violate the 1st Amendment. The Constitutional grant of power under the 13th, 14th, and 15th Amendments require neither necessity nor properness. I suppose some people would want to read the 1st Amendment as strictly as possible, but it should give ground to later amendments.
Also you can give effect to the word “proper” merely by recognizing that some limits on the Commerce Clause were enacted after 1789. What was perfectly “proper” at the time the Commerce Clause was ratified was not “proper” two years later. Therefore “proper” is meant to incorporate future Constitutional limitations on Congressional power.
January 31, 2011, 11:38 pmSteve S. says:
It’s true that the government could impose a tax for the purpose of purchasing broccoli, sure. But so what? As Randy Barnett pointed out in his debate with Orin Kerr recently (posted to this blog) no one is disputing that Medicare is constitutional, and thus expanding Medicare to cover everyone would also be constitutional. But that’s not what the government has chosen to do.
Regarding consuming broccoli, while that particular example may be far-fetched, something I haven’t heard discussed is that insurance companies do indeed impose restrictions and requirements on your behavior in order to retain coverage. Insurance companies aren’t permitted to deny you a policy because you have a pre-existing condition, but can they deny you coverage if you smoke? I don’t know – life insurance companies do that.
So while the law might not require that you do X or refrain from doing Y, (e.g., get an annual checkup, or take a multivitamin, or quit smoking), it may well be that all available policies impose such a requirement, and since the law requires that you get a policy, it’s indirectly requiring that you adhere to whatever requirements the insurance company can lawfully impose.
January 31, 2011, 11:38 pmNo Theory of Jurisprudence says:
I agree with Dilan.
January 31, 2011, 11:41 pmNo Theory of Jurisprudence says:
Does anyone know of a Supreme Court case holding that Congressional power to tax under the 16th Amendment is subject to 14th Amendment limitations? Can Congress pass an income tax that disproportionately taxes the income of whites? Why not?
January 31, 2011, 11:44 pmDowlan Smith says:
Exactly. My point is that McColloch is inconsistent with the Constitution. The limited powers are limited means.
Let me give an example. It was proposed to prohibit a standing army (ends) unless authorized by a super-majority. Instead Congress was limited to appropriating money for an army for only two year terms.
Justice Marshall asserted that if the ends are constitutional, so are the means, ignoring that the limits on the powers of the government are limits on means not ends.
January 31, 2011, 11:57 pmPerseus says:
Because that eminent tribunal has woven a web of obscurity around the Constitution.
February 1, 2011, 12:16 amM. Simon says:
The federal government would not be able to mandate non-economic behavior.
Exhaling CO2 can be made illegal?
February 1, 2011, 12:18 amThis is Why Government Mandates Suck | Dueling Barstools says:
[...] Judge Vinson, the federal judge in Florida who hoisted Obamacare by its own petard. Via Volokh: [T]here are lots of markets — especially if defined broadly enough — that people cannot “opt [...]
February 1, 2011, 12:22 amEd says:
Vinson is wrong – the mandate isn’t even necessary. To keep the new pre-existing condition regulations from bankrupting the insurers, Congress could instead have allowed insurers to charge more for them and then provided a subsidy to folks who couldn’t afford the higher rates.
February 1, 2011, 12:22 amJ. Aldridge says:
Federal Court does just that in Arizona by fining the state with steep fines if it doesn’t spend $40+ million a year to teach english to thousands of illegals.
February 1, 2011, 12:39 amGov98 says:
Federal Court does just that in Arizona by fining the state with steep fines if it doesn’t spend $40+ million a year to teach english to thousands of illegals.
This may be so, I am not highly versed in these things, but are you sure that Arizona is actually fined? Or instead is Arizona, excluded from the benefit of a number of grants and other federal money if they fail to comply? Why they may not be materially different, one would be acceptable under the tax and spend clause the other not so much.
February 1, 2011, 12:50 amM. Simon says:
Because of the web of obscurity that our Almighty Justices have woven around the Constitution.
Yep.
February 1, 2011, 12:53 amJon Shields says:
Ed, Congress specifically has the power to prohibit insurers from charging them more. The mandate is necessary for that (even Vinson recognized that).
What you are doing is defining the “end” to be as broad as possible, so that you could then find an alternative means and claim Congress’ means is not necessary. But that’s not how it works — Congress gets to define the end. So long as the end is Constitutional (in this case, community rating), Congress can enact means that are necessary to achieve the end.
February 1, 2011, 12:59 amKazinski says:
I’ll address Orin’s comment here since he closed his comment thread:
It may well be that Wickard and Raich joins Plessy, Cruikshank, Dred Scott, ex Parte Quirin and Korematsu on the ash heap of discarded “binding precedent”.
I suppose lawyers and judges are supposed to care about precedent rather than what is right. But laymen, Supreme Court justices, and Harry Pregerson are allowed more latitude in their imagination.
February 1, 2011, 1:05 amBruce Hayden says:
That is the opposite of how I understood his ruling – rather, that Congress could, indeed, have organized the parts of the bill differently, and, could have done so without regulating inactivity, but chose not to. But the way that it was designed, the individual mandate was necessary to make it work.
Jumping on his analogy a bit – the law is like a watch, with a lot of moving parts that interact to get the desired result. Watches with other organizations and arrangements of moving parts also work, and other bills/laws would have worked to get to the desired result. But removing the individual mandate, like removing one of the main gears in the movement, would cause it to fail, and without a lot of thought and work, it is unlikely that a differently shaped gear (or provision) could be fitted in there successfully.
February 1, 2011, 1:06 amGrant says:
I believe that the pro-Obamacare commenters are espousing a contradictory argument re: propriety.
“Proper” would indeed be superfluous if all it did was relate to the negative rights set forth in the Amendments. Would you really have us believe that, but for the existence of the word “Proper” in the N&P clause that Congress could pass any law infringing however much it wanted on the Freedom of Speech in the face of the 1st Amendment’s plain language: “Congress shall make no law… abridging the freedom of Speech….”
That’s a ludicrous, laughable argument. Justice Marshall said that the N&P clause would be superfluous if it was exclusively a “negative right” to limit the ability of Congress in its proscription of legislation. But he went on to say that (paraphrasing) “for the N&P to create a limit, it must first expand the powers of Congress.” He also, in one sentence, loosely defined the meaning of “proper.”
I don’t understand how so many here feel fit to ignore the Federalist and Anti-Federalist papers and arguments therein regarding the limits of the enumerated powers (ultra-vires theory). Frankly, despite the group-think-esque, Journo-list-ic commentary accusing Judge Vinson and Prof. Somin of political motives, it is in fact the Obamacare proponents who are solely motivated by political, as opposed to legalistic, considerations. Hence the objection to the term “Obamacare” (and concurrent accusations) but not a peep regarding the term “Romneycare” or even “Hillarycare,” and also a willingness to call Iraq “Bush’s war” where both houses of Congress authorized it and the Clintons’ supported it. Obamacare is useful shorthand; but since both the Bill and President are marginally unpopular, there is POLITICAL (and hypocritical) opposition to the use of commonplace nomenclature. The same occurred regarding condemnation of the rhetoric after the Tuscon Massacre – conservatives = evil; liberals using the same language… nothing to see here, folks.
But, that was a tangent. Back to the law, I think ultimately Judge Vinson’s opinion will hold, and the legal doctrine will come around to a theory I have long espoused, that the N&P clause in fact sets forth a balancing test (between Necessity and Propriety – with proper along the lines of what J. Vinson (or Ju.Marshall) described) – and, indeed, McCulloch sets the vague outline for the balancing tests, and all of the judicially invented levels of scrutiny and “5 part tests” are merely an outgrowth of the textually based balancing tests between “necessity” (degree of state interest) and “propriety” (degree that the law exceeds the confines of the enumerated powers, as historically understood, or infringes upon negative rights).
February 1, 2011, 1:39 amGrant says:
I skipped a step above: The point re: Marshall’s statement on the N&P being superfluous if the solely to mean: Congress can pass laws but there are limits was based on an IMPLIED power to pass laws to effectuate the enumerated powers (I think an overstatement in of itself in that clause would still have significant meaning) – combined with the fact that the N&P clause is within the section enumerating positive powers. In short, Marshall’s claim of superfluousness was somewhat of a reach -necessity well could have been intended to mean more, and interpreted, with meaning and with meaning to the enumerated powers, consistently. But the argument above – that all the N&P clause does is restate the limits of the negative rights – there Marshall’s logic would be far stronger! After all, if the enumerated powers imply the right to legislate, the negative rights set “clear” limits – and there is no need for the N&P clause at all – it becomes completely and utterly meaningless. But, of course, it was not intended that way, nor would the rules of construction allow that conclusion.
February 1, 2011, 1:46 amjbarntt says:
I’d guess none, but if I had find one, I’d guess the general welfare clause in Art. I.
Do I win the prize ?
February 1, 2011, 1:59 amjbarntt says:
Who amongst us hasn’t bought broccoli from time to time ? We are all actors in the grand scheme of the broccoli market.
February 1, 2011, 2:05 amBrian Garst says:
Disagreeing with the Great Orin Kerr? How uninteresting of you. Clearly your post is a waste of time, and your blogging privileges should be revoked.
February 1, 2011, 2:07 amjbarntt says:
Why stop at a requirement based on the price of broccoli ? I’d suggest the standard be the price of a Rolls Royce automobile.
February 1, 2011, 2:10 amcatchy says:
McCulloch v. Maryland:
Given McCulloch, strong arguments that the mandate isn’t “proper” are owed.
The quoted slippery slope worries re: broccoli and GM cars strike me as inadequate.
February 1, 2011, 2:17 amjbarntt says:
Yeah, your argument makes sense, kinda like Obama was born in Ethiopia.
February 1, 2011, 2:17 amMichael Drew says:
Given that the term “proper,” if not strictly confined in meaning, would expand to a general invitation to the reviewer to consider the overall propriety of a provision, all things constitutional and otherwise considered, and that a further explanation of the sense intended isn’t in the text, isn’t then the best reading of the term “proper” in “Necessary and Proper” simply something on the order of “properly related to the achievement of the government end being pursued by means of enumerated power X”? What else would such a broad term mean in that context? The other specific limitations on powers listed in the BoR and elsewhere are not in need of a vague reminder here, but nowhere else, to please abide by them when considering what specific measures are necessary to the achievement of a governmental aim made implicitly legitimate by a power that is enumerated. Otherwise, the text would be littered with reminders and pleas to pass “proper” legislation with respect to this limit, and that one, and all those others over there, too. And it isn’t.
February 1, 2011, 2:19 amjbarntt says:
IANAL but I would guess that the 16th doesn’t address equal protections issues, hence, in that regard the 14th still applies re: application of the 16th.
February 1, 2011, 2:25 amManuel Lopez says:
This is surely a critical point: call the bluff. Liberal or conservative judges still agree, or say they agree, that the federal government is one of limited, delegated, enumerated powers. If the principle is not merely, “all powers and ends not explicitly prohibited, are given,” then there must be SOME limit. Can any judge upholding the national health mandate come up with even a hypothetical instance of a power the federal government does not have (beyond those explicitly forbidden)? If not, then the devotion to the Constitution as it has always been understood by both sides will be exposed for what it is (mere lip service, or worse). I think that this could give some judges pause, and perhaps even weigh on The One. The judges must be forced to reveal their true principles, and to reveal their law.
February 1, 2011, 3:51 amLou Gots says:
The government had been applying, “Necessary and Proper” is a trivial, figurative sense. The individual mandate was never “neceasary and proper” for their insurance system to function, for as has been pointed out in preceding comments, the money to cover the increased cost of insuring those with pre-existing conditions could have been obtained elsewhere.
Rather, the inmdividusal mandate was only necesssary politically, to get the thing passed. It wouldn’t fly unless the costs could be concealed within particular spoilation, in this case of those who wished to refrain from the activity of purchasing approved insurance..
February 1, 2011, 5:36 amQuestion on the Individual Mandate and the Commerce Clause | A Fools Game says:
[...] ShareI was reading some blog posts on the recent ruling against healthcare reform (of which Ilya Somin and Charles Lane do the best job of explaining the conservative argument). But I have a question [...]
February 1, 2011, 6:27 amAFG says:
The core argument is that the mandate regulates inactivity as opposed to activity. But suppose the following hypothetical: Congress imposes an additional flat income tax equivalent to the size of the penalty on everyone in the country, and then exempts people from that tax (or gives them a tax credit) if they have health insurance meeting the minimum standards set by ACA. Would that version be unconstitutional in Conservatives’ eyes?
Surely not. In that case, Congress is not punishing inactivity (not buying insurance), but is subsidizing activity (buying insurance). It also seems identical to every other tax exemption we already have, like for people that own a home. I tend to think, but am not sure, that opponents would argue that this is not a proper hypothetical, because there is a difference between regulatory penalties and taxes.
But then my question is, what is the point? To any rational economic agent, the individual mandate and my hypothetical have exactly identical effects on their incentives. They are no more “free” than they were except for the rhetorical victory that the government now can’t require them to do something; it can just make it so they are effectively forced to by economic circumstances.
-AFG
February 1, 2011, 6:33 amhttp://www.afoolsgame.com/?p=63
Anderson says:
for as has been pointed out in preceding comments, the money to cover the increased cost of insuring those with pre-existing conditions could have been obtained elsewhere
This is precisely the kind of judicial micromanagement of legislation that Marshall abhorred in McCulloch. Are the courts really to determine whether legislation is “necessary” in the sense of “no better alternative”?
Be careful what you wish for, so-called “conservatives.”
February 1, 2011, 6:52 amMrs. du Toit says:
Incorrect. Conceding that concedes all. Congress does not have the power to tax, full stop. The issue here is what the Congress has to power to lay and collect taxes for ONLY those things specifically authorized. Conceding that “Congress has the power to tax” is suggesting that it may tax for anything and everything it damn well pleases, and it may NOT do that.
Obamacare fails on all points: The power to tax to require that all people buy a particular product or service is not enumerated. The power to penalize people for not buying a product or service is not enumerated. The power to shore-up an industry penalized by another law is not enumerated. Show me where in the Constitution it says that Congress may do this and lay and collect taxes for it.
I realize that arguments continue on the preface that “providing for the general welfare” means something other than what the word “general” means, but that’s just WRONG. Article I, Section 8 is not a “may include” or “such as.” It is a list of things that the Congress has the ‘power to lay and collect taxes’ to pay for. There is nothing in there that says that Congress may lay and collect taxes for the purposes of making health care more affordable, or health care more fair, or health insurance affordable for the poor, etc. There is nothing in the Commerce clause that says that Congress may regulate activities between citizen and citizen, or citizens and a particular industry. It clearly states that it may regulate commerce between states and between the U.S. and a foreign state. Congress may not regulate all commerce.
Lawyers may enjoy this sophistry and nit finding in the review of case law, but the rest of us aren’t interested in case law. We’re interested in justice, and relief from this horrible legislation. If Judge Vinson is prevented, by case law, from stating the obvious, then something is very wrong with the way these things are handled.
February 1, 2011, 6:56 amSome reviews of Judge Vinson’s ruling « says:
[...] reviews of yesterday’s 78 page decision. An analysis of the opinion here, and another one from Ilya Somin here. The judge appears to have adopted what Dave Kopel and I have elsewhere called the “non-infinity [...]
February 1, 2011, 7:31 amSarcastro says:
Indeed. A judge who agrees with me cannot be criticized, no matter how un-judge-like he acts. This is because lawyers with their fancy training lose sight of the common sense that shows I am right and they are wrong. Except the ones that agree with me. They’re all right, I guess.
February 1, 2011, 8:23 amLN says:
1. Does Congress have the ability to raise taxes on everyone, for any reason at all?
2. Does it have the ability to then offer a tax credit to people who purchase health insurance?
3. What is the difference between Congress doing #1 and #2 and Congress instituting a mandate?
February 1, 2011, 8:42 amNo Theory of Jurisprudence says:
The response to your [EDIT:] statement is yes, at least once upon time, because in 1790 there was a Necessary and Proper clause but no 1st Amendment.
February 1, 2011, 8:46 amJoe says:
This is because a system of enumerated powers means that the powers of the government are only those granted. To say that we have a government of enumerated powers because there are restrictions on the plenary police is a non-sequitor, it misunderstands what enumerated means.
The statement was “would imply that congress is virtually without limit” AND “that the enumerated powers of the constitution are without substantive meaning.”
Congress is not “virtually without limit.” Congress is “limited” in many ways. BOR et. al.
As to the second half of the statement, the law sets forth a regulation of interstate commerce and/or one that is necessary/proper to its execution. This is an “enumerated power.” In detail, people have explained the reasonable connect here and how it doesn’t allow everything under the sun. It has a “substantive meaning.”
February 1, 2011, 9:04 amScore Tied at 2-2 | HREOnline's The Leader Board says:
[...] co-blogger, Ilya Somin disagrees, and says the case is even more important because the plaintiffs are 26 state governments and the [...]
February 1, 2011, 9:16 amCarl the EconGuy says:
@OK
Even though Orin Kerr has closed his comment threat, Ilya Somin has let the camel’s nose into the Conspiracy by referring to it in Update #3, to which Orin has responded.
Orin argues that Vinson is inconsistent with Thomas. I don’t think that’s right. I think they are talking about two different things.
Thomas refers to the power to regulate activity, and says that if Raich is right, then Congress can regulate anything — active commerce, that is. He didn’t comment on non-activity. He probably didn’t even imagine that Congress would go that far. That issue has, as I understand the commentariat (esp. Randy Barnett), never come up before SCOTUS before. Had Thomas been asked to consider that, he would likely have agreed with Vinson.
Vinson takes on the non-activity argument. I’m sure he would agree with Thomas that Raich has conferred virtually limitless power on Congress to control activity. Vinson does not take on that argument at all. He’s only discussing the constitutionality of non-activity.
Thus, I don’t see any contradiction between the two opinions. But I’m just a weekend, armchair lawyer talking to my betters. What do you all think?
February 1, 2011, 9:24 ambillyjoejimbob says:
Gents – we might be missing a very important point that SCOTUS I am sure is very aware of. Some 27 states and growing have passed or about to pass Obamacare nullification. If the number reaches 38, we have a de fact amemndment to the constitution. In fact 34 states can call for a constitutional convention with ZERO input from congress or the WHite House and could address a number of issues if so desire – i.e. what is the limit of Federal Government powers?
February 1, 2011, 9:33 amSCOTUS is aware of this and most likely will strike down Obamacare. Simply because the final voice is “We the people” – period.
Morning Must Reads: Rule - Swampland - TIME.com says:
[...] –Orrin Kerr argues Vinson's ruling breaks with precedent. Ilya Somin thinks it's a constitutional slam dunk. [...]
February 1, 2011, 9:48 amDavid M. Nieporent says:
Then you’re both wrong. The First Amendment was passed subsequent to the N&P clause (or the hypothetical N clause we’re discussing) and thus overrides it.
(Moreover, even if they were passed at the same time, that interpretation wouldn’t make any sense. The first amendment has to act as a check on powers that otherwise exist, not powers that don’t exist. Your interpretation would render the 1st amendment a nullity. The N&P clause simply can’t be read as saying “Congress can do anything it wants, except perhaps or some really narrow exceptions.” It makes no sense to note that they carefully debated each power to be granted to Congress and then put at the bottom of a specifically itemized list, “or anything else,” let alone “or anything else even if it violates one of the express limitations on Congressional power found here.”
February 1, 2011, 10:11 amloki13 says:
I think Thomas was a dissenting judge. And a district court judge, like Vinson, shouldn’t be relying on dissents, law bloggers like Randy Barnett, campaign speeches, and overheated rhetoric to craft their opinions.
That’s why we have the appellate courts. ;)
(BTW, this was a fait accompli as soon as it went to Vinson. The only surprise, from my point of view, was how heavy the rhetoric in the opinion was. There will be a few 11th Cir. judges who would have preferred a more reasoned approach, even with the same result.)
February 1, 2011, 10:41 amNo Theory of Jurisprudence says:
You can give effect to the Necessary and Proper clause without referencing the 1st Amendment. Congress could not, in 1790, convict someone of treason on the testimony of only one witness, even if doing so would be necessary to provide for the national defence, because it would be improper to do so.
Under normal canons of legislative interpretation and judicial deference to the elected branches, courts generally do whatever they need to do to give effect to apparently contradictory legislative pronouncements. I think there are a lot of ways to give effect to “Proper” without invalidating the Health Care Mandate on [EDIT] that ground. I am sure you can define “Proper” in such a way to render the HCM unconstitutional, but that’s not the default interpretative rule. Is it?
Why are we trying so hard to invalidate this particular law?
February 1, 2011, 10:43 amDilan Esper says:
David:
The original constitution bars ex post facto laws. If a law were passed, and it was necessary to include an ex post facto provision to carry it into effect, that would not be proper.
It really is that simple
Then you’re both wrong. The First Amendment was passed subsequent to the N&P clause (or the hypothetical N clause we’re discussing) and thus overrides it.
February 1, 2011, 10:59 am(Moreover, even if they were passed at the same time, that interpretation wouldn’t make any sense. The first amendment has to act as a check on powers that otherwise exist, not powers that don’t exist. Your interpretation would render the 1st amendment a nullity. The N&P clause simply can’t be read as saying “Congress can do anything it wants, except perhaps or some really narrow exceptions.” It makes no sense to note that they carefully debated each power to be granted to Congress and then put at the bottom of a specifically itemized list, “or anything else,” let alone “or anything else even if it violates one of the express limitations on Congressional power found here.”
Wuzzagrunt says:
Everyone knows Obama is Keynesian; not Ethiopian.
February 1, 2011, 11:14 amEdward Kenney says:
Vinson argues that the “opt out” argument could be applied to the wheat market:
“T]here are lots of markets — especially if defined broadly enough — that people cannot “opt out” of. For example, everyone must participate in the food market. Instead of attempting to control wheat supply by regulating the acreage and amount of wheat a farmer could grow as in Wickard, under this logic, Congress could more directly raise too low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily”
The only way this logic works is if you argue that the broadly-defined food market is the same as the more narrowly defined wheat market. Clearly individuals can opt out of the wheat market–individuals with ciliac sprue do so all the time–so the opt-out argument would not hold in this case. If the health care mandate is ruled constitutional, congress could mandate that every individual participate in the food market, but that would pointless, wouldn’t it?
February 1, 2011, 11:19 amCarl the EconGuy says:
@Wazzagrunt:
Maybe you’ve heard this before: we’re all Keynesians now.
February 1, 2011, 11:48 amByomtov says:
David M. Nieporent,
The N&P clause simply can’t be read as saying “Congress can do anything it wants, except perhaps or some really narrow exceptions.” It makes no sense to note that they carefully debated each power to be granted to Congress and then put at the bottom of a specifically itemized list, “or anything else,” let alone “or anything else even if it violates one of the express limitations on Congressional power found here.”
The N&P clause has two requirements, not one. It doesn’t say “Congress can also do anything it wants that doesn’t violate some other specific provision.” It says “Congress can do anything
(a) necessary to do carry out one of the functions listed above,
but
(b) cannot violate one of the limitations listed elsewhere (not in Article 8).
That’s a far cry from saying it can do anything that doesn’t violate some other limitation, which would be (b) only. So it seems to me that this is just a sort of clarificiation of which provisions take priority.
February 1, 2011, 11:53 amStrange Tea: Judge Vinson’s overbroad healthcare ruling : The Reid Report says:
[...] today, I linked to a couple of legal analyses of Judge Roger Vinson’s decision, including one by Ilya Somin that explained Vinson’s reasoning this way. “Vinson concedes that the [...]
February 1, 2011, 12:07 pmAnderson says:
Some 27 states and growing have passed or about to pass Obamacare nullification. If the number reaches 38, we have a de fact amemndment to the constitution.
Far from it. A “state” can file suit b/c it has a Republican governor or attorney general. It cannot approve an amendment to the Constitution in that manner; the state legislature, or a “convention,” must do so.
… I am somewhat surprised, on reflection, that the Tea Party in each state has not declared itself a “convention” under Article V. Fortunately Congress has to approve an amendment first (unless 2/3 of state legislatures demand a convention to propose amendments).
Still, if the GOP takes the Senate in 2012, which it could do even if Obama’s reeelected, that does suggest a route for pushing through some radical amendments.
February 1, 2011, 12:40 pmBrett Bellmore says:
That instituting a mandate is what they actually chose to do, instead of 1 and 2? Just because Congress could have chosen to do something else that would have been constitutional doesn’t automatically make whatever they DO decide to do consistent with the Constitution.
February 1, 2011, 12:59 pmjrose says:
New York and Printz established that statutes which violate the principle of state sovereignty are not “proper” even though no other parts of the Constitution were violated.
I’m at a losss to see a violation of state sovereignty in the insurance mandate.
February 1, 2011, 1:26 pmSarcastro says:
Next up: punishments must be both cruel and unusual! We’re bringing back La Guillotine!
February 1, 2011, 1:57 pmLN says:
I guess I don’t understand how doing one thing is totally fine and normal, but doing another thing that leads to identical outcomes in all states of the world means rolling down a slippery slope to a world in which there are no limits on federal government power.
February 1, 2011, 2:37 pmJordan says:
Your “special markets” argument is off in one crucial respect.
Health Care is a special, unique market, but not because virtually every living person is bound to use it sooner or later. What makes health care unique is that it is provision of health services is already mandatory at the federal level. Emergency rooms are forbidden by federal & state law from denying services to anyone, on pain of losing Medicare funding. See COBRA’s EMTALA provisions (1986).
So in a very real & binding sense the question of whether Congress can mandate economic nonactivity has already been answered, and in the health care marketplace to boot.
Now, since Congress has already mandated economic activity by penalizing nonactivity (i.e. denying emergency care), it remains to be seen whether Congress can also make it mandatory that said services be paid for by those receiving them. This is not the direct purpose of the ACA, but it is certainly the indirect intention of Congress to curb the rampant & expensive free riding on the health care system as it currently stands.
February 1, 2011, 3:31 pmBrian Larkin says:
Emergency rooms are forbidden by federal & state law from denying services to anyone, on pain of losing Medicare funding. See COBRA’s EMTALA provisions
I don’t have to show up to an emergency room. I can self treat (or even… gasp! die…) at home. Just because Congress said that emergency rooms have to treat, doesn’t mean that Congress has forced me to use ER services.
I don’t understand why the health insurance market is somehow tied to the health service market. Insurance companies can impose restrictions on a level of care.
Bill Gates does not need insurance. He may require health services. This is also the case for a significant number of multiples below Bill Gates level of wealth.
February 1, 2011, 4:07 pmJordan says:
But EMTALA is a Congressional mandate that penalizes economic non-activity. If ACA is struck down on the rationale that Congress can’t impose such a mandate, many current widely accepted laws will be in jeopardy. Contrariwise, if those laws pass constitutional muster, then ACA necessarily will as well. The “penalizing non-activity” toothpaste is already out of the tube.
Agreed that the provision of (and payment for) health services is only indirectly related to health insurance.
Also, if you die at home, EMTs & other private care providers will likely be involved in moving you, certifying death and all that. Avoiding the health system completely really is just about impossible.
February 1, 2011, 4:28 pmDavid M. Nieporent says:
Congress can’t enact a draft even if it would violate the 13th amendment, with or without resort to the N&P clause. That doesn’t make any sense. Congress can enact a draft because the court has ruled that it doesn’t violate the 13th amendment, not because the power to raise armies somehow supersedes a later amendment to the contrary.
The fourteenth amendment doesn’t apply to the federal government, so was irrelevant to Korematsu.
February 1, 2011, 4:31 pmNeophyte says:
The EMTALA regulates the activity and operations of an emergency room or offering emergency medical services.
February 1, 2011, 4:42 pmDilan Esper says:
1. I gave you a better example. The ex post facto clause. The “proper” component of the N&P clause prevents the Congress from enacting an ex post facto law on the ground that it is “necessary” to legislation. (Actually, my Bill of Rights example was fine too, but it apparently was aesthetically displeasing for you.)
2. This is important. To even bring up “proper” is bad faith here. There’s NO authority saying “proper” imposes some requirement above the McCulloch or Comstock test. NONE. The whole conceit of this litigation is that the individual mandate is unconstitutional UNDER CURRENT PRECEDENT. Otherwise, the District Court can’t strike it down– only the Supreme Court can. And advocates like Professors Somin and Barnett SWEAR that they aren’t arguing for the overturn of precedents to get this result.
But this “proper” crap is a textual argument based on first principles. It has NOTHING to do with current precedent. The Supreme Court has never endorsed it and has managed to decide 200 years of necessary and proper cases without mentioning it.
It’s a complete, dishonest, fraudulent bait and switch.
February 1, 2011, 4:52 pmBrian Larkin says:
But EMTALA is a Congressional mandate that penalizes economic non-activity.
No it imposes a standard of care with penalties if not executed. If you are going to take Medicare money you have to stablize any patient that shows up to your door (you don’t have to provide them treatment beyond that though). You can also charge them for your services (and beyond Medicare rates at that!).
Are you saying that Obamacare is valid because it’s just telling us that we have to be healthy, and after all we all should want to be healthy?
A person that jumps off a bridge to his death and is never seen again, doesn’t use health services from the moment his feet leave the rail. People die in their bed all the time.
This argument that we all use health services at some point in our life and therefore MUST have insurance is a leap of logic.
February 1, 2011, 4:59 pmNo Theory of Jurisprudence says:
Do you think there are things Congress can do under the enumerated powers that it needs not invoke the N&P clause?
I have to concede the point [EDIT: which is to say that I was WRONG] because, at the time of Korematsu, it was the case that the 14th Amendment didn’t apply to the Federal Government. I had forgotten that Korematsu predated Bollinger v. Sharpe.
February 1, 2011, 5:02 pmJordan says:
Emergency services which states must provide to their citizens or face civil penalties. States cannot simply opt out of offering (or allowing private operators to offer) emergency care.
February 1, 2011, 5:12 pmBrian Larkin says:
Emergency services which states must provide to their citizens or face civil penalties.
But nobody forces the states to make their citizens show up! Just because they say they must provide a specific set of services (economic activity) doesn’t mean that every citizen will NEED those services.
A person can go his whole life without having to show up in an emergency room with a life threatening illness. (non-economic activity)
February 1, 2011, 5:19 pmJordan says:
Coroners, police, EMTs, hospital facilities and so on would all be invoked in the case of your bridge jumper or your dead shut-in. You don’t have to be alive to need health care.
The fact that you are grasping for extremely rare exceptions to the norm goes to prove the point that nearly everyone goes through the system at some point.
There’s also the statistical chance of an emergency, illness, epidemic or what have you. There’s no way you can GUARANTEE that you won’t get hit by a bus, poisoned in an E. Coli outbreak, burned in a house fire, or otherwise be incapacitated and brought unconscious & dying to an ER somewhere. The off chance that you might randomly require expensive medical treatment means that you already are a liability to the system, whether you think you can ‘opt out’ or not.
Put in economic terms, you represent a financial risk that must be paid for somehow. You are costing the health care system as we speak, just by living in this country (assuming you’re living in the US).
February 1, 2011, 5:20 pmBrian Larkin says:
Coroners, police, EMTs, hospital facilities and so on would all be invoked in the case of your bridge jumper or your dead shut-in. You don’t have to be alive to need health care.
My grandfather died in his bed. He had funeral arrangements pre-arranged. Medical services didn’t need to touch him.
We all die, should the federal government force us to buy funeral insurance?
The off chance that you might randomly require expensive medical treatment means that you already are a liability to the system, whether you think you can ‘opt out’ or not.
Bill Gates without insurace is NOT a liability to the system. A millionaire is likely not a liability to the system.
Health services DOES NOT REQUIRE health insurance.
You have the right to be treated (stabilized) without health insurance, but you are not required to be treated if you don’t want it.
February 1, 2011, 5:32 pmJordan says:
Wrong way to think about it. Bill Gates is absolutely a liability to the system. If something terrible happens to him, ERs must stabilize him regardless of his ability or willingness to pay for the services. He can’t be sued for refusal to pay. This goes for every person in the country. EMTALA is the definition of an unfunded mandate. ACEP estimates that 55% of all emergency care goes uncompensated, and of course the resultant cost-shifting impacts everyone (an average of $455/year per taxpayer, according to the study).
This is what happens when you mandate an economic activity (emergency treatment) without mandating a reasonable way to pay for said activity.
Be that as it may, it would seem to me that the constitutional question of requiring economic activity is mooted by multiple pieces of legislation spanning decades. Others obviously disagree.
February 1, 2011, 5:54 pmDavid M. Nieporent says:
This makes no sense as an interpretation of the Proper requirement. To argue that Congress could pass ex post facto laws if laws weren’t required to be “proper” would be to make the EPF clause meaningless.
Yes, yes, Dilan, we know that you’re the only one who understands how to interpret court cases and that everyone who disagrees with you is arguing in bad faith.
Do you actually draft briefs like this? Or do you try to make actual arguments?
What you’re saying is also wrong; the district court does not need to argue that it is “unconstitutional under current precedent”; it just has to find that the Supreme Court has never held it to be constitutional. The “whole conceit of this litigation” is that the mandate is unprecedented.
February 1, 2011, 8:54 pmDavid M. Nieporent says:
Um, what? EMTALA says that emergency rooms that receive federal funds must provide emergency care without consideration of whether the patient can pay. It in no way says that the emergency rooms can’t bill patients for the care. Of course they can sue Bill Gates if he refuses to pay.
February 1, 2011, 9:44 pmcory says:
It’s all so messy, confusing and draining.
Aside from in-hospital treatments, it would be great if there was some way that people could just get medical evaluations outside of the industry since there are apparently a lot of individuals out there who want people to go without health insurance by charging outrageous prices for care.
It would be awesome if there was some kind of online application that people could use that offered free prognoses that were automatically generated online. People could just take an online quiz where they fill in certain information and an automated response detailing what medication or device works best to alleviate their pain or discomfort could pop up.
There’s already a similar app: http://mindflashad.com/branding-concept-quiz/posts
but it does free business branding concepts instead.
That’s all most doctors or physicians do anyhow – is just look symptoms up in a book. So an automated online application could just do the work for them and save people the trip and money.
February 1, 2011, 10:15 pmMurgatroyd says:
Good Lord! This man is breaking the rules!
(Good on ya!)
February 2, 2011, 12:07 amGrant says:
In my opinion, it is Professor Kerr, not Professor Somin, that has the “unpersuasive argument.” The logic behind his opinion – that Vinson is ignoring precedent, fails on two counts:
1. Kerr is conflating dicta with precedent. Precedent is generally limited to the holding of a case – “this is the law as applied to these facts.” Precedent is NOT a trend, a direction, or anything broader than holdings – the binding power of a case only works in the precedential context (or in similar estoppel contexts) when you have a duplication of issues. Instead, Kerr is referring to DICTA – and extrapolating trends from precedent and dicta. While that might be persuasive – IT IS NOT BINDING UPON ANY LOWER COURT! For Kerr to fault Vinson on this score is, frankly, wrong. It is the work of an academic, not a judge.
2. Kerr makes the “parade of horribles” or “slippery slope” falacy, but in reverse. His point essentially is: as the S.C. has not set a limit on the extent of the N&P clause, no lower court can set that limit. Essentially, even, when, as here, you have a fact and law pattern that is novel – “a case of first impression” – Kerr seems to argue that because the S.C. has set no limit, that absence of jurisprudence precludes lower Court judges from adjudicating what the Constitutional limit is. I can find no basis for this sort of theory of judicial roles. The absence of actual, on-point precedent DOES NOT “equal” (have the power of) precedent. The absence of S.C. limitation in this area of the N&P clause, since this issues has not been addressed directly by the S.C. (even if related, but clearly distinguishable issues, have been addressed) does not mean that no limitation exists – or that lower Court judges are precluded from finding one. This is not pure common law – this is Constitutional interpretation where there is a well established “toolbox” and reams and reams of scholarship to do the job of judging – and a Judge should preform his or her duty in good faith, and come to the Conclusion he or she believes is consistent with the Constitution.
February 2, 2011, 12:12 amJordan says:
You’re right; I’m wrong about this. Hospitals are allowed to use normal debt collection to try & recover costs of EMTALA care. Different states have different rules & limits (no-fault mechanisms, wage-garnishing and property-lien rules, etc.). Bill Gates could be sued by collection action (and likely would be). However the vast majority of unpaid EMTALA hospital bills never go to court for judgments against the patient, for the simple reason that “you don’t sue shallow pockets.”
Bill Gates is still a liability to the system (meaning he could randomly need expensive emergency care), however he’s wealthy enough to meet that liability on his own. Most people aren’t able to shell out $150,000 for an emergency multiple bypass operation; that’s why insurance is a necessary part of the equation.
February 2, 2011, 5:36 pmCommentary on Judge Vinson’s Ruling at Patriots for Freedom says:
[...] Florida District Court Ruling Striking Down the Obamacare Individual Mandate [...]
February 2, 2011, 8:57 pm