The recent District of Columbia federal trial court decision upholding the individual mandate breaks little new ground and has many of the same weaknesses as the two previous district court decisions that went the same way. Judge Gladys Kessler ruled that the mandate is a legitimate exercise of Congress’ power under the Commerce Clause because choosing not to purchase health insurance is an “economic activity”:
It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to
ignore reality.
This argument suffers from the same flaws as the very similar “economic decision” doctrine adopted in the two previous rulings. It would give Congress the power to impose any mandate of any kind. For example, choosing not to buy and eat broccoli surely qualifies as an economic decision under this approach. So too with choosing not to buy a car. And so on. Even choosing to sleep for an hour qualifies, since one could have used the same time to do work or go out and buy a product of some kind. Nothing in Supreme Court precedent gives Congress such unlimited power (a point Kessler seems to accept), and allowing it certainly makes a hash of the text of the Commerce Clause, which merely gives Congress the power to regulate “Commerce . . . among the several States.”
Judge Kessler also relies on what I have previously called the “health care is special” argument: that choosing not to purchase health insurance is an economic activity because we will all use health care at some point in our lives. This argument, however, also leads to unlimited congressional power, for reasons I have explained here:
This, however, doesn’t differentiate health care from almost any other market of any significance. If you define the relevant “market” broadly enough, you can characterize any decision not to purchase a good or service exactly the same way. Notice that [Judges] Steeh and Moon do not argue that everyone will inevitably use health insurance. Instead, they define the relevant market as “health care.” The same sleight of hand works for virtually any other mandate Congress might care to impose.
Consider the case of a mandate requiring everyone to purchase General Motors cars in order to help the auto industry. Sure, there are many people who don’t participate in the market for cars. But just about everyone participates in the market for “transportation….” We all move from place to place in some way. If we don’t do so by purchasing cars, we will have to pay for some other mode of transportation, such as planes, buses, or trains. Even people who walk everywhere they go will have to buy shoes to do so. Buying cars, planes, trains, buses and shoes are just different ways of paying for transportation.
How about a mandate requiring everyone to see the most recent Harry Potter movie? Sure, there are many people who don’t watch movies. But just about everyone participates in the market for entertainment. If you don’t go to the movies, that’s just a decision to pay for some other form of entertainment somewhere else…..
Judge Kessler does break some new ground relative to previous rulings by arguing that health care is special because providers are required to provide emergency services to the uninsured, which is not true of most other markets. But why is that difference constitutionally relevant? She doesn’t really give a clear explanation. The answer seems to be that failure to purchase therefore has adverse economic effects on producers and could potentially increase costs. Put that way, of course, failure to purchase health insurance turns out to be no different from failure to purchase any other product. Any time someone fails to purchase a product, be it cars, movie tickets, or broccoli, producers are made economically worse off than they would be if the potential buyer had made a different decision. This is true regardless of whether the producers must provide services to some consumers for free or not. At most, the latter condition exacerbates the negative impact on producers of a failure to purchase. But so too can all sorts of other market conditions and government regulations. Moreover, Judge Kessler’s approach would allow Congress to impose any mandate of any kind so long as it also required at least some producers to provide their product to at least some consumers for free. This too is a road to virtually unlimited federal power to impose mandates, since producers in any industry would be happy to accept a minor “free service” obligation so long as it was coupled with a more lucrative purchase mandate.
In a footnote, Judge Kessler blames the plaintiffs for supposedly choosing to “’free ride’ on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives.” But it is Congress, not the plaintiffs, which is responsible for the requirement that hospitals free emergency service to the uninsured. If it wanted to, Congress could have eliminated such free riding simply by lifting the requirement with respect to anyone who had enough income to purchase health insurance but chose not to do so. That approach would have prevented free riding without imposing any mandates, and would also have avoided any possible constitutional problems.
Finally, Kessler also upholds the mandate under the Necessary and Proper Clause. In so doing, however, she simply ignores the main arguments against the federal government’s position under that Clause: that the mandate is not “proper” even if “necessary” and that it runs afoul of the five factor test recently applied by the Supreme Court in United States v. Comstock. In fairness, the judge did not need to consider the Necessary and Proper Clause issue, since she had also decided to uphold the mandate under the Commerce Clause alone. But since she chose to reach the issue, she should have made at least some effort to explain why the key anti-mandate arguments (which had previously been accepted by two other federal district courts) are wrong.
UPDATE: I should note that Judge Kessler rejects the federal government’s argument that the mandate can be upheld under Congress’ power to impose taxes. Like every other court that has considered this argument so far, she concludes that the mandate is a “penalty,” not a tax. In reaching that conclusion, she relies on Judge Roger Vinson’s analysis in the Florida decision striking down the mandate. The federal government’s tax argument has now gone 0-4 in federal courts, including two adverse rulings by federal judges who upheld the mandate on other grounds.
Kenneth C. Brooks says:
The problem with the individual mandate is that the Federal Government assumes that is can force a private individual to associated with another private individual against without consent of either individual. Imagine is the government could make one financially liable for contracts that one never intended to enter into. For example, were one’s identity obtained and used to establish multiple credit accounts the government could pass a law stating that your failure to control your identity makes you liable for the aforementioned contracts, independent of whether you intended to enter into them. That would be absurd.
February 23, 2011, 12:55 amkrs says:
The VC’ers seem to be among the most knowledgeable people out there on this subject… so I ask, is there anything new in this opinion?
Any new arguments? Any rebuttals of, say, the Judge Vinson arguments that weren’t in prior opinions? Is there anything here other than one more point on the government’s side of the score card, plus the fact that the nonzero score on the other side didn’t seem to move Judge Kessler?
February 23, 2011, 1:00 amIlya Somin says:
I ask, is there anything new in this opinion?
As I noted in the post, The only part that is new (relative to previous opinions) is the argument that health care is special because providers are sometimes required to provide free service. This is not the first time anyone has made that argument, but I think it is the first time a court has adopted it.
February 23, 2011, 1:03 amAaron Worthing says:
ilya
I am just surprised that you guys are making more notice about the line about “mental activity.”
legal insurrection has a funny post on it tonight. and over at patterico’s i highlight that horrible line.
really one of the lamest judicial quotes i have seen in years.
February 23, 2011, 1:18 amprogressoverpeace says:
There was the old free-ride, which was hospitals having to treat all, in emergencies, including those who couldn’t pay for it. If anyone had any assets, the bills were served and those assets had to go to pay them. This is why one of the left’s main arguments was “sick => bankrupt”. That was then. The only people who had free-rides were those who couldn’t pay the bills, anyway, and would be free-riding on government insurance. Congress extended those free-rides from the emergency room to include full medical coverage (that will expand and enrich in coming years, as these things always do). Congress then added new free-rides, by forcing private insurers to stop considering pre-existing conditions (because someone with an illness that is guaranteed to cost $1 million in care should be able to buy insurance to cover all costs for a few hundred a month – it’s a right). These new free-rides are much more expensive, so they require much tighter federal control of individual behavior – we’ll all talk about healthy lifestyles and their economic impact a little later … I hope Congress doesn’t have any more “gifts” for us.
February 23, 2011, 1:21 amPterocarya fraxinifolia says:
This argument suffers from the same flaws as the very similar “economic decision” doctrine adopted in the two previous rulings. It would give Congress the power to impose any mandate of any kind. For example, choosing not to buy and eat broccoli surely qualifies as an economic decision under this approach. So too with choosing not to buy a car. And so on. Even choosing to sleep for an hour qualifies, since one could have used the same time to do work or go out and buy a product of some kind. Nothing in Supreme Court precedent gives Congress such unlimited power (a point Kessler seems to accept), and allowing it certainly makes a hash of the text of the Commerce Clause, which merely gives Congress the power to regulate “Commerce . . . among the several States.”
This is a joke, right? A rule that “inactivity” is not per se out of bounds for government regulation under the commerce clause is not the same as a rule that “inactivity” may always be regulated. One easy rule, that would not “give Congress the power to impose any mandate of any kind,” is that Congress may impose mandates that are necessary to a comprehensive scheme of economic regulation. None of your examples would survive that test, while the individual mandate would.
February 23, 2011, 2:10 amJoe says:
(I’ll start this off with the obligatory IANAL note.)
With respect to the “broccoli” argument, there’s nothing (besides a desire to be reelected) stopping Congress from doing all sorts of stupid things (yes, there are many straight lines there but we’ll go right past them).
Congress could tax levels of income at 100% or increase the taxes on High Fructose Corn Syrup to a level that makes them unuseable in drinks. It could bump up everyone’s taxes (including those who currently don’t need to file) but provide an offsetting deduction for broccoli consumption (or for buying health care coverage).
I should also note that, as an employee, I am required to buy insurance (or my wife has to provide insurance for us). I’m not clear on the difference between that requirement and health care purchase requirement that we’ve been discussing. (I guess I could quit, but that seems a bit extreme.)
February 23, 2011, 2:23 amKen Arromdee says:
For Congress to do it that way means expending political capital which they can’t just use up willy-nilly. “They raised my taxes” is understood well enough by voters that even rational ignorance doesn’t apply. “They will tax even people who currently don’t need to file” looks even worse to voters.
February 23, 2011, 2:57 amJon Shields says:
I’m glad you finally point out the idea of the constitutional significance of a distinction. Because when it comes to the Necessary and Proper clause, the activity/inactivity distinction is completely constitutionally irrelevant. It is no more relevant than a time-based distinction (“that was then, this is now,”) or a page-number distinction (“this law has an odd number of pages, while that one had an even number of pages”).
To whatever extent the distinction between activity and inactivity matters under the commerce clause, it has nothing to do with the N&P clause. The words “activity” (and even “regulate”) do not appear in the clause, and other mandates are easily constitutional under the N&P clause (such as the selective service). The clause does not say
“To make all Laws which shall be necessary and proper, unless we’re talking about inactivity,”
or
“To make all Laws which shall be necessary and proper, unless the underlying power is the commerce clause, in which case we really mean “some laws” instead of “all laws.”
It just doesn’t.
February 23, 2011, 3:18 amMichael Benson says:
Why do you find the brocoli argument so compelling. Isn’t it just circular?
“This argument suffers from the same flaws as the very similar “economic decision” doctrine adopted in the two previous rulings. It would give Congress the power to impose any mandate of any kind. For example, choosing not to buy and eat broccoli surely qualifies as an economic decision under this approach. ”
Of course if we give congress the power to enact mandates, then it follows that it can enact mandates. Whether or not that’s a problem depends not on showing that enacting mandates allows for enacting mandates, but on showing something in particular that’s wrong with mandates.
As to the brocoli example itself, of course if we give Congress the power to enact laws of some sort it can enact really stupid laws on that subject. Should all stupid laws be unconstitutional? Why is it that I’m supposed to be nodding my head in solemn agreement that the broccoli law must be unconstitutional as opposed to just really dumb?
February 23, 2011, 3:56 amGuy says:
It would give Congress the power to impose any mandate of any kind.
Presumably, Congress could not mandate things unrelated to regulations of interstate commerce, such as possessing a firearm near a school. So it only gives Congress the power to impose mandates which are necessary and proper to regulating interstate commerce.
In a footnote, Judge Kessler blames the plaintiffs for supposedly choosing to “‘free ride’ on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives.” But it is Congress, not the plaintiffs, which is responsible for the requirement that hospitals free emergency service to the uninsured. If it wanted to, Congress could have eliminated such free riding simply by lifting the requirement with respect to anyone who had enough income to purchase health insurance but chose not to do so. That approach would have prevented free riding without imposing any mandates, and would also have avoided any possible constitutional problems.
How could a hospital distinguish people on the basis of their income before providing emergency care without people dying? How could a hospital even reliably distinguish the insured from the uninsured without deaths resulting?
February 23, 2011, 5:05 amBrett Bellmore says:
The broccoli argument is a reductio ad absurdum, and it doesn’t work on living constitutionalists, because the only thing they find absurd is the idea that there could be ANYTHING the federal government lacks the power to do.
It has a lot of heft with most people, of course, because they actually do find the idea that the federal government can do ANYTHING absurd. The problem from a legal standpoint is that “most people” don’t get nominated to the bench, which is heavily weighted towards living constitutionalists.
I’d give this expansion of federal power a 50-50 shot at being approved soon, and a 100% chance of being approved of in the long run, unless we do something to keep the bench from being stacked with believers in absolute federal power. The only question is how long it’s going to take before the last limit on federal power falls.
February 23, 2011, 7:41 amjrose says:
This argument suffers from the same flaws as the very similar “economic decision” doctrine adopted in the two previous rulings. It would give Congress the power to impose any mandate of any kind. For example, choosing not to buy and eat broccoli surely qualifies as an economic decision under this approach.
The portion of the opinion you quote only concerns whether the decision to not do something is an activity, not whether it is an economic activity. This ruling does present a new argumnent on how you distinguish whether “not doing something” is economic activity or non-economic activity:
The standard Kessler offers is “not doing something” is economic activity if and only if “doing the same something” is economic activity. That standard leaves “eating broccoli” (doing so or not doing so) outside of economic activity.
February 23, 2011, 7:41 amJoe Schmoe says:
I think you give short shrift to Judge Kessler’s point that health care is different because we as a society will treat everyone, even those without insurance. Your decision to buy or not buy broccoli has no impact on me, and to find some economic link between your individual decision to buy broccoli and my economic well-being (or an impact on tax payers at large), you have to go pretty far afield and trace a pretty distant line of causation. But the impact on taxpayers of people not buying health insurance is dramatically larger and more direct. I suppose you are trying to say that it’s a different in degree, not in kind, but if the “proximate cause”-type tracing is more direct with health care, and the magnitude is dramatically larger, I’m not sure why a court couldn’t conclude that the broccoli rule just doesn’t impact “commerce” in any meaningful way, while the health care example does.
February 23, 2011, 8:08 amGiant Frog says:
“Mental activity” = “interstate commerce” = some goofy Clintoon nominee.
Government lawyer: “All your selves are belong to us.”
February 23, 2011, 8:09 amGaryM says:
The court has literally declared that not-A is A: that not engaging in interstate commerce is engaging in interstate commerce.
February 23, 2011, 8:26 amruuffles says:
I’d be a lot more impressed with your outrage if you thought state governments lack the power regarding broccoli.
February 23, 2011, 8:39 amJoe says:
The broccoli argument is a reductio ad absurdum, and it doesn’t work on living constitutionalists, because the only thing they find absurd is the idea that there could be ANYTHING the federal government lacks the power to do.
Other than ban certain types of abortions, publications, execute certain types of people certain types of ways and so forth. Can we try a TAD not to just toss out canards?
The argument is used by all sides and often is as convincing (not much) no matter who uses it.
February 23, 2011, 8:44 amGerard N. Magliocca says:
Ilya,
What is your position of the constitutionality (under the Federal Constitution) of a state law requiring people to eat broccoli every day?
February 23, 2011, 8:45 amsteve says:
Am I missing something or does the judge justify her decision by treating health insurance and health care as one and the same?
And that she (and others) justifies the mandate that everybody buy health insurance when having health insurance is but one way of paying for health care?
Another economic themed question on the ‘free rider’ argument she makes: since health insurance premiums approximate the money paid out for health care, those not purchasing insurance, as a group and over the long run, represent no net loss to the insurance marketplace (as they would be charged premiums approximately equal to the health care costs they incur). The costs when they get sick are offset by the premiums they would have paid when healthy. So while there may be an imbalance in a given year, over a longer period they aren’t free riders. It seems to me that the judge is cherrypicking her timeframe in order to justify her conclusion.
February 23, 2011, 8:45 amJoe says:
“They raised my taxes” is understood well enough by voters that even rational ignorance doesn’t apply
The government uses any number of gimmicks to raise taxes so that those who claim to be against that sort of thing can claim that they are not raising taxes. For instance, if you take certain tax break away, including one that some people don’t like on ideological grounds, the net effect is higher taxes for some people.
The opinion’s weak section, imho, is to reject that a “tax” is involved here. A rose by any other name is a rose, except, I guess, when Congress (and Judge Vinson — some source! even some around here don’t like his opinion TOO much) decides to call it something else. But, since there are two bites to the apple here, so to speak, it’s okay. The Commerce Clause (with limits, as shown by the opinion) is fine enough.
February 23, 2011, 8:49 amgeokstr says:
And given the twisted logic used to justify what is or isn’t “interstate commerce” in past cases, literally anything can be defined as affecting it.
You possess a firearm near a school? Hmmm, where was said firearm made – another state perhaps? Have you ever been to another state? Aha! I’ll bet you bought something while you were there – insterstate commerce. Was the school built with anything whatsoever that was made in another state? Were the arresting cop’s socks made elsewhere?
And if by unbelievably rare chance the great legal minds can’t figure out how to make it work that way, there’s always that “general welfare” stuff to cover anything else.
February 23, 2011, 8:59 amElectric Spoon says:
So healthcare change is REALLY important and needs special consideration…what about the potential financial ruin it poses to our nation given that the last few times the gov’t tried BIG programs they cost 1 or 2 orders-of-magnitude more than projected. I don’t get why one is so important we have to make it special and the other isn’t.
Also, if I (here in NC) THINK about buying marijuana in CA, by definition (mental activity) it is interstate commerce. Can the DEA come after me for illegal interstate activity? Even if I think buying it is absurd? I still thought about it.
Lastly, inactivity is supposedly activity, and thought is activity, then NOT thinking about something would logically be defined as activity too. What is my liability for all the stuff I haven’t thought about? Think about it.. wait no don’t.. or…uhhh… ohhhh I give up.
February 23, 2011, 8:59 amgeokstr says:
More or less on-topic:
Can anyone else recall (Civil War not included) where there was this large a legal insurrection of the states against a federal law? Row v Wade overturned laws in a majority of states but I don’t remember any such backlash by the states against it. Individual states keep trying to limit abortion and are usually shot down by SCOTUS, but a concerted effort like this one?
Oh, I know, sorry, I forgot, my bad – it must be racism.
February 23, 2011, 9:07 amPZ says:
I think I’m commenting on a blog entry, but that’s apparently ignoring reality. I’m actually taking the affirmative action of deciding not to work out which would, of course, better the U.S. economy by making me healthier and reducing health care costs. Oh wait… there’s a knock out my door. Oh, it’s just the federal work-out police here for my morning drills.
February 23, 2011, 9:07 amZack says:
Why is it that the commerce clause is suddenly the only avenue to limit the federal government? Regardless of whether it’s permissable under the commerce clause, the broccoli mandate seems to pretty clearly violate the 4th amendment (at least insofar as it requires us to east the broccoli that we purchase). Similarly, the watch harry potter mandate seems to have 1st amendment implications.
Overall, the whole “if they can do this, they can do anything” seems patently false. For one, the commerce clause cannot be used to do something the federal government is prohibited from doing elsewhere in the constitution. Secondly, the much maligned “economic decision” rationale has been used to prohibit actions using the commerce clause in lopez and morrison. Doesn’t that pretty clearly falsify the notion that if the activity/inactivity distinction isn’t upheld the government can do anything?
February 23, 2011, 9:11 amBen P says:
Actually that’s the only part that’s still the case. Non-emergency physicians are not necessarily required to treat anyone. Many people have medicare or medicaid but that’s somewhat of a different issue. Emtala still only requires that people be treated until they are “stable.” In some cases that requires a significant length of time. (say, a heart attack or a traumatic injury).
But I like taking it back to the root. As you state, the root of the problem (or one of the roots to be specific) with the health care system is the “free ride.” 55% of all emergency care in the US goes uncompensated and that puts high cost pressure on hospitals to recover that amount from the services they do get compensated for.
People who do not purchase insurance can simply wait until their conditions become acute and then seek treatment anyway. They will be billed for it, but the vast majority of those bills go uncollected.
There are only really two ways to solve the “free ride” problem. Remove the ability to “free ride,” or to ensure that providers of medical care are compensated for those who seek care, but cannot pay for it.
You don’t seem to be in favor of the latter. So, what about the former?
In your opinion, should a hospital be allowed to refuse to treat someone with an otherwise fatal injury, because that person cannot provide the hospital with sufficient proof of ability to pay?
Moreover, do you believe in that strongly enough to defend it against someone who’s loved one was allowed to die outside of a hospital because they couldn’t pay for the services? I suspect most people don’t, Reagan signed Emtala after all.
If the answer is yes, I can accept that as a philosophical position. An extreme one perhaps, but its consistent with a certain world view.
If the answer is no, now we’re implicitly in a realm where the provision of health care is not completely governed by the free market, and policy issues have to come into play on how to deal with that.
February 23, 2011, 9:12 amAllan says:
One thing I have not seen (perhaps because I have not looked hard enough) is whether the Constitution as passed in 1789 would have precluded the health care act at that time.
My thought is that the founders would have approved of finding the health care law constitutional. They might not have voted for it, but they would not thought the Constitution forbid it.
In 1789, our founders established a Republic with states and a federal government. Certainly, at that time, the people of the US would not have considered a national health care system. But that may be as much due to the fact that he federal government could not do it, as it was to the fact that the people did not want it done.
As the nation became wealthier, the federal government did things that few in 1789 would have contemplated. For example, the federal government quelled the Whiskey Rebellion. Then, under Jefferson, the US bought what is now about 1/3 of the US. Then the US built the Erie Canal. Then the US established a national bank.
One of the reasons that the founders established the government it did was to protect the people from abuses by the federal government (instead, I guess, preferring abuses by state governments). Those abuses were perpetrated by King George, and included meddling in state affairs and taxation without representation. In addition, there were problems with national government interference with free speech and religion, warrantless searches, and quartering soldiers in private houses. All of those abuses were addressed in the original Constitution itself or in the Bill of Rights.
On the other hand, there were functions that the founders thought were the proper function of the federal government, such as national defense and developing bankruptcy laws. Those, too, were included in the Constitution.
Then we have the 10th amendment. The only reason for that amendment was to recognize that there might be other functions of the state that the federal government could not control.
So all federal government actions can be put into the context of the Constitution in four categories: expressly forbidden, expressly allowed, forbidden by the the 10th amendment, and allowed by the 10th amendment.
Health care, and programs like the one recently entacted, are definitively not addressed by the Constitution. Thus, the question is whether they are forbidden or allowed by the 10th amendment. This is a problem, because regulation of health care was definitively not recognized in 1789 as a function of state governments. That is not the case for other things, such as family law issues. Consequently, were this issue to have arisen in 1789, I would argue it would be permitted, where laws regulating family matters would not have been permitted.
We know that there were two things that fell in the middle that the country felt were not in the purview of the federal government: income taxes and regulating alcohol. The people fixed that with two amendments allowing the federal government to tax income and to regulate alcohol (although the second was repealed).
On the other hand, 1789 was a long time ago. Since then, we have had many, many interpretations of the Constitution and the power of the federal government. Health care comes in somewhere between expressly forbidden and expressly allowed. The question, therefore, is whether we lean toward restricting the federal government more or less. And, who should decide how to do it.
In determining whether to lean toward the federal government or the states, there is a thumb on the scale. The federal government appoints the judges who make the decisions. So, as we saw with the New Deal, when the federal government wants more power, all it has to do is wait until some vacancies appear on the high court. But this is what the founders intended. So, one can presume that, by fixing the system, the founders wanted a system that presumed federal government actions did not violate the 10th amendment.
My conclusion is that the constitutionality of health care is a gray area, but that the founders would have approved it, because in areas that were not expressly allowed or forbidden by the Constitution, actions by the federal government would generally be found to be Constitutional.
February 23, 2011, 9:13 amiron308 says:
“If it wanted to, Congress could have eliminated such free riding simply by lifting the requirement with respect to anyone who had enough income to purchase health insurance but chose not to do so. That approach would have prevented free riding without imposing any mandates, and would also have avoided any possible constitutional problems.”
But that would not have created the desired dependency on government with the attendant increased permanent democrat voting bloc.
February 23, 2011, 9:14 amRedlands says:
Inactivity = acting. Who knew?
February 23, 2011, 9:16 amScreenwriters are going to find their tasks much easier beginning in the near future.
PersonFromPorlock says:
Change “eating broccoli” to “eating wheat” and you run square into Wickard.
February 23, 2011, 9:19 amMorning Must Reads: Limit - Swampland - TIME.com says:
[...] –A fifth U.S. district judge rules on health reform. The tally is now 3-2 in favor of the law's constitutionality along partisan lines by appointment. Ilya Somin, a skeptic, critiques the decision. [...]
February 23, 2011, 9:20 amJoe says:
Inactivity = acting.
Using your money to buy other stuff and in the process affecting an interstate market that you will at some point likely enter = inactivity. Who knew?
February 23, 2011, 9:25 amLC says:
As I recall, that Senate panel that Randy was on had everybody on both sides agreeing that the broccoli law would be unconsitutional because of the liberty/DP issue. This clause applies to both federal and state power.
But with the states, all laws are consititutional unless they actively violate some right. For the feds, laws must be actively authorized. So the burden is tougher to justify a law on the federal level, and “inactivity” cannot possibly meet it.
February 23, 2011, 9:26 amBen P says:
I would say Marbury v Madison and McCulloch v Maryland suggest that you’re wrong, but in a limited sense.
That is, I don’t think the “founders” would have agreed or disagreed as a whole on anything.
Some of the founding fathers were accomplished political philosophers and writers. But I think first and foremost virtually all of them were politicians. They disagreed about a lot, and I think history shows their disagreements were just as contentious and hard fought as disagreements today. The earliest constitutional cases show they were as willing to go to the courts to push their positions.
I think you’re probably correct that some of the founding fathers, if the appropriate facts presented themselves, would not have seen a problem with establishing a public health care system. But I think others would have vehemently disagreed, and just as with the Second Bank of the US, probably would have sued to say it wasn’t allowed under the constitution.
February 23, 2011, 9:31 amJoe says:
I think I’m commenting on a blog entry, but that’s apparently ignoring reality.
Well, it’s not “inactivity,” that’s one thing.
It also is not as connected to the matter being regulated as the law in question. The specific decision of not buying insurance (as compared to deciding to watch t.v. or whatever) is directly connected. This starts us into the “limiting principles” that the broccoli example lacks.
See also, the fact that a narrow range of speech is not protected does not mean the government suddenly can prohibit anything in any way connected to that speech. Line drawing is done all the time.
February 23, 2011, 9:34 amAllan says:
Ben P,
You make a good point that some of the founders would have vehemently opposed health care. But, given that the majority established the government as expressed in the Constitution, I think that the vast majority would have agreed that health care was Constitutional, even though some would be appalled by the idea altogether.
February 23, 2011, 9:34 amJoe says:
But with the states, all laws are constitutional unless they actively violate some right. For the feds, laws must be actively authorized. So the burden is tougher to justify a law on the federal level, and “inactivity” cannot possibly meet it
State laws can also be invalid because they invade a federal power or involve areas they are blocked from regulating (Art. I, sec. 10 etc.).
The law in question, anyway, is actively authorized. It is authorized first and foremost by the Commerce Clause.
There is no “activity” requirement in the CC. I’m not seeing one, myself. If a law regulates the commerce covered, including as a means to encourage its practice, it is valid. It is not needed for a “limiting principle” either, since there are various other possible ones, even if some around here don’t care for them for some reason.
Anyway, “inactivity” is not all that is involved.
February 23, 2011, 9:40 amrbj says:
The decision to get married or not certainly is economic activity. There’s the wedding itself (flowers e.g., usually cross state lines along with the wheat used to make the wedding cake). Then there are studies which suggest that married men live longer & are happier (married/unmarried seems to be a wash for women). Living longer certainly has an economic impact.
The decision to have children and how many unquestionably impacts the economy, from all the stuff one buys for one’s kids, to education, to the creation of the next generation’s work force.
So can the federal government, under the commerce clause, compel/deny two citizens a marriage and demand/deny them to reproduce?
February 23, 2011, 9:51 amabstain says:
Thank you all for this website and for the thoughtful answers.
February 23, 2011, 9:53 amConsidering what’s going on in the USA today, we who are not lawyers need your help understanding how to keep our rights from eroding.
Anaximander says:
Commenter Brooks states: “The problem with the individual mandate is that the Federal Government assumes that is can force a private individual to associated with another private individual against without consent of either individual.”
In the U.S., every state except New Hampshire requires that an auto driver carry a minimum level of liability insurance. Auto insurers in turn are required to sell a driver such insurance.
The Federal government could easily, and constitutionally, do the same as these states with regard to both drivers who travel, or might travel, the interstates and their arteries and feeders, and those who offer auto insurance.
So much for the “consent” argument.
February 23, 2011, 10:00 amBob from Ohio says:
Is there any federal circuit NOT hearing an Obamacare case? DC, 5th, 4th, 6th, ?.
Its nickname should be LawyerCare.
Help us Supreme Court, take direct cert now.
February 23, 2011, 10:01 amArkady says:
@Ilya
I have a question. Does not the the Emergency Medical Treatment and Labor Act mandate on hospitals go to the activity vs inactivity distinction? Under the act, hospitals must treat anyone needing emergency healthcare treatment regardless of citizenship, legal status or ability to pay. Does this not count as legislation directed to inactivity?
Is this mandate an unconstitutional?
February 23, 2011, 10:02 amBen P says:
Why is this any different from the absurd asteroid analogies designed to direct the opposite result.
February 23, 2011, 10:03 amMark Field says:
Uh, Brown v. Board of Education?
You were right, though — that was racism.
The US didn’t build the Erie Canal. That was done entirely by NY state.
February 23, 2011, 10:12 amrbj says:
I’m being serious. It’s not whether it would be wise policy, but whether regulating such economic activity/inactivity is allowed under such a broad reading of the commerce clause.
Rush Limbaugh, last year had a heart issue, went to the hospital, and paid for it out of picket as he refuses health insurance. It is false to say that everyone who doesn’t have health insurance will eventually be a free rider on the system.
BTW, I firmly believe that the federal government has the inherent power to deal with meteors especially ones that threaten our existence. We have government to protect us from existential threats.
February 23, 2011, 10:15 amKen Arromdee says:
But in this case, the government would be specifically admitting it raises taxes because they can’t impose a mandate, but they can impose a tax and give a “deduction” for following what is basically a mandate. They can’t do that and hide that it’s a tax–its purpose is only served by not hiding it. If they did try to hide it it would no longer be a workaround for not being able to impose a mandate–it would just be the mandate, and would have exactly the problem that calling it a tax was meant to solve.
February 23, 2011, 10:18 amprogressoverpeace says:
Interesting … since in this specific case the federal government argued until they were blue in the face that the mandate wasn’t a tax (while they were trying to shove the bill through, by hook or by crook). It wasn’t until the court cases started that this same cast of characters changed their minds (which should have been regulated, evidently) and started arguing that the mandate was a tax.
And yet, you think that nothing of that sort would happen in the future, if this clearly un-Constitutional and un-American national socialization of health insurance (and thus, health care) is allowed to stand. That’s kind of funny … I guess. Have you not been watching this administration or the lunatics in the 111th Congress?
February 23, 2011, 10:27 amRichard johnston says:
I think this linkage speaks for the constitutionality of the mandate more than anything else, though I hasten to add I am not at all sure it would carry the day.
If you accept the proposition that everyone will someday inevitably require medical care, then what is being mandated is how they will pay for it. The fact the expense is unavoidable, I think, moves the decision not to buy insurance from inactivity to activity — you are choosing the manner in which you will pay for a service that you will certainly be purchasing (so goes the operative assumption). Given that the choice has already been made to be a medical services consumer now or later (or has been made for you in the nature of things) the consequent payment arrangements are an active, if forced, choice.
Would it be unconstitutional on commerce clause/N&P grounds for Congress, once a choice to purchase a good has been made, to prohibit cash or credit and require all purchases to be on the layaway plan? It’d be stupid, sure, but…
February 23, 2011, 10:28 amRichard johnston says:
I think this linkage speaks for the constitutionality of the mandate more than anything else, though I hasten to add I am not at all sure it would carry the day.
If you accept the proposition that everyone will someday inevitably require medical care, then what is being mandated is how they will pay for it. The fact the expense is unavoidable, I think, moves the decision not to buy insurance from inactivity to activity — you are choosing the manner in which you will pay for a service that you will certainly be purchasing (so goes the operative assumption). Given that the choice has already been made to be a medical services consumer now or later (or has been made for you in the nature of things) the consequent payment arrangements are an active, if forced, choice.
Would it be unconstitutional on commerce clause/N&P grounds for Congress, once a choice to purchase a good has been made, to prohibit cash or credit and require all purchases to be on the layaway plan? It’d be stupid, sure, but…
February 23, 2011, 10:28 amRichard johnston says:
Apologies for the double posting.
February 23, 2011, 10:30 amJustin says:
EMTALA technically only applies to hospitals who receive any sort of funding from DHHS/CMS (Medicare and Medicaid). One could argue that the decision to accept Medicare and Medicaid funding is the “activity” being regulated, even though the rule applies to all patients treated by a “participating” hospital.
February 23, 2011, 10:32 ama_non says:
Serious question for those who like the “broccoli law” argument against the individual mandate. How does this argument square with the commerce clause being a federalism constraint rather than a liberty protection? If a state passes a law mandating that everyone buy broccoli, is that law unconstitutional? If so, on what basis?
Which is the greater concern: impingement on the personal right not to eat broccoli, or the federal government impinging on the states’ rights to police the diets of their citizens?
February 23, 2011, 10:35 amGiant Frog says:
Because it’s the excuse federal government uses when passing or examining these laws.
The attempted mandate violates these amendments, all of which are more important than pretending to regulate interstate commerce:
1 : which is why certain religious groups are exempt; and the exemption itself violates the 1st.
5 : (only because the gov’t lawyers have recently decided that “private” actually means “public”.)
9 & 10 are pretty obvious.
13 : Non-slaves can’t be ordered to spend their money in a certain way.
14 : The exemption in #1 is unequal treatment under the law.
February 23, 2011, 10:38 amJoe says:
But in this case, the government would be specifically admitting it raises taxes because they can’t impose a mandate, but they can impose a tax and give a “deduction” for following what is basically a mandate.
The feds are not saying that they can’t impose a mandate. They are (in part) saying that even if they can’t, the tax power justifies the provision.
Anyway, politicians repeatedly pattern their argument depending on their audience. Just was reading an article that noted Abraham Lincoln was great at doing that. The fact they, in the alternative, call it a tax in some briefs doesn’t mean they won’t call it something else to the general public.
February 23, 2011, 10:39 amPeter says:
It seems to me that the decision cites one government abuse to justify another, ie the practice of compelling an industry to provide a service to individuals without making them pay for it first is cited as justification to force people to buy insurance so that the service will be paid for and costs in that industry will be reduced. Of course the notion that artificially increase demand will result in lowered prices seems contrary to common sense and speculative. The ruling also fails to acknowledge that the folks who go to hospitals and get medical care for free, ie the poor, are not required to buy insurance under the law. So the law doesnt end free-riding. In addition, the opinion assumes that people who do not buy insurance will inevitably obtain medical care and then refuse to pay for it. People pay for medical care out of their own pocket everyday–this is becoming more common as doctors opt out of medicare. Some doctors dont even take insurance anymore. And if the question is what happens in the aggregate, the truth is that there are a great many young people who dont buy med insurance and dont use medical care at all. Later in life they use it, and later in life they tend to be insured.
February 23, 2011, 10:45 amjrose says:
I’m not following your argument. Are you saying Wickard established that eating wheat is economic activity?
February 23, 2011, 10:46 amPeter says:
I’ll bet a 5-4 majority of the USSC holds the law void and for a reason that has nothing to do with precedent. We all know that lawmakers are effectively bribed with campaign contributions. Everyone knows what will unfold over the next forty years if Congress is allowed to compel people to buy goods and services. Penalties will be imposed upon those who fail to buy certain farms goods, or fail to establish a checking account, or fail to buy an American car (assuming they have a minimum income), or fail to buy energy saving devices. The list will be endless and the rent-seeking will be endless. Especially for justices who live in Washington and know that members of Congress are essentially whores.
February 23, 2011, 10:50 amKazinski says:
Joe, that’s just a great argument: congress can direct all your purchases because it is interstate commerce.
Just stop.
February 23, 2011, 10:53 amAJ says:
The question becomes to what extent can the federal government commandeer a citizen’s resources (income) to the benefit of another (health insurance providers)? Certainly government has the power to tax my income and it has the power to subsidize industries through its spending power. The issue here is can government avoid tax/spending and directly accomplish both through regulation of inactivity? The Constitution does provide that the government can take my property for the public good (with just compensation), but it does not say for a private benefit. When you consider the other mandates on mere citizenship (serve on jury, file tax and census forms, file for selective service), there is nothing comparable at the federal level – with the items listed being interactions with the government, not a private company. It is one thing to condition a privilege on something (driving on the interstate or manufacturing goods for interstate sale); it’s another to force market activity from inactivity.
February 23, 2011, 11:00 amjrose says:
In yesterday’s oral argument in Bond, Justice Kennedy said:
Kennedy may decide that individual liberty is imperssibly abridged when the federal government mandates something even when such liberty is not abridged when a state does likewise.
February 23, 2011, 11:08 amTed says:
I don’t understand the common propensity to refer to it as a “decision” to forego insurance.
There need not be any decision involved; if I’m uninsured I can go on forever without thinking about it at all. A decision arises only when I opt to buy or drop coverage.
Maintenance of the status quo doesn’t qualify.
February 23, 2011, 11:08 amBen P says:
I never said all people will be free riders, only that they can be. If Rush Limbaugh had a Heart Attack he could have shown up at the hospital with no money or ID and they would have been obligated to treat him first and ask about payment later. If he turned out to be a turnip, the hospital would be out that money. If I’m a provider I’m perfectly happy to have people pay me in cash, it’s the fact that I legally have to bear the risk of extending credit that concerns me.
As for your hypotheticals, if we’re making up facts, why not combine them? What if an existential threat to the population required the government to regulate reproduction? I’m sure there’s some science fiction scenario that can be dreamed up. Would htat be under the “existential threat” clause? or the commerce clause?
also for the record, I don’t like the individual mandate. It’s a lazy policy solution that was acceptable only because the insurance companies threw their support behind it wholeheartedly. It is constitutionally questionable, But I also think the healthcare system in this country has some serious issues and should be addressed one way or another.
February 23, 2011, 11:10 amBen P says:
Wickard established that growing wheat solely for personal consumption was an economic activity subject to regulation. The losing argument was that if Farmer Wickard didn’t intend to sell the wheat he was growing there was no economic activity to regulate.
February 23, 2011, 11:13 amAllan says:
Kazinski,
I think Joe may be right. And it is not that scary.
Think about what Congress and the President could do that would be scary, but not feasible:
1. Declare war on the rest of the world.
2. Defund the military entirely.
3. Abolish immigration laws and let anyone come to the country.
4. Make the US an armed fortress and not let in foreigners under any circumstances.
5. Raise taxes to 100%.
6. Make it illegal to consume coffee.
7. Make collective bargaining illegal.
All of this would be constitutional. Stupid, perhaps, but there is nothing in the Constitution to prevent it from happening.
February 23, 2011, 11:13 amBrian Larkin says:
That’s a nice trick isn’t it. Congress has the power to mandate inactivity (not purchasing health care insurance) because they mandated activity (you have to give free health care regardless of insurance if you want to run a hospital).
February 23, 2011, 11:15 amNo Theory of Jurisprudence says:
I agree that Supreme Court precedents have expanded the scope of permissible commerce clause regulation. This is why I and others think the Health Care Mandate is constitutional under existing Supreme Court “past cases.”
February 23, 2011, 11:16 amprogressoverpeace says:
He’d have to find an emergency room, first. No one seems interested in mentioning that the original mandate that emergency rooms treat all comers, without regard to payment, served to eliminate most emergency rooms and seriously degrade treatment for all. So, competition in that area of emergency care was utterly destroyed, the few remaining centers were inundated with free-riders (many of whom are illegals who don’t even have the right to be in the country, let alone to be treated in an emergency room at the expense of taxpaying citizens) and now the feds want to implement all new laws of the same sort (on insurers, now, in the form of removing the pre-existing condition considerations – which is absolutely insane) and claim that they need to arbitrarily penalize/tax the life out of anyone with some cash in order to greatly expand the “entitlement” of cadillac medical insurance for those who can’t pay for anything. Before such free-loaders only had access to the emergency rooms (which they helped to destroy) but now they are entitled to a full set of coverage (even as these people have shown that they still abuse emergency rooms, even after having been given exceedingly expensive insurance free). Guess what this will do to the rest of the health care system? Just like the emergency rooms …
And lawyers and legislators wonder why they are held in such low esteem. They even think that this is all very clever stuff – which drives normal, sentient people absolutely nuts.
February 23, 2011, 11:21 amtheobromophile says:
It strikes me as wrong (in the constitutional sense) that the federal government can do an end-run around its enumerated powers by passing laws which make it “necessary” to pass laws that are most distinctly not within its powers. That is not the business of choosing one method of exercising an enumerated power; it’s a problem that Congress created by its own laws.
February 23, 2011, 11:23 amKen Arromdee says:
It’s a catch-22, but for them. If they call the mandate a tax, they have the legal power to impose it, but since it’s a tax it’s politically very costly. If they claim it’s not a tax, and the courts agree that it’s not a tax, they can’t use the taxing power to justify it.
February 23, 2011, 11:26 amBen P says:
Are you seriously suggesting you don’t know where to find an emergency room if you needed one? I can see three hospitals with full emergency rooms from my office window. None of which are more than a 15 minute drive away.
February 23, 2011, 11:28 ama_non says:
jrose:
Is there precedent for striking down a law on commerce clause grounds based on a violation of a personal liberty interest? Or would that be unprecedented? I honestly don’t know and would be grateful for some guidance. Do Lopez, Morrison, et al. refer to personal liberty interests at all?
Also, wouldn’t such a holding dramatically affect standing jurisprudence? If an individual liberty interest is good grounds for striking down a federal law on commerce grounds, doesn’t that create a whole bunch of new plaintiffs?
February 23, 2011, 11:30 amgooners says:
Heh. Can you find your phone, the “9″, and the “1″?
February 23, 2011, 11:31 amNo Theory of Jurisprudence says:
If Congress thinks not-purchasing health care is an activity and Brian Larkin disagrees, how do we resolve this dispute? How should SCOTUS? What if all members of Congress think X is an activity but 5 Supreme Court Justices think X is inactivity?
Under what existing Supreme Court scrutiny is such a dispute resolved? Will the Court strictly scrutinize a Congressional claim that X is activity? Intermediately scrutinize? Rational-basis test?
February 23, 2011, 11:35 amNo Theory of Jurisprudence says:
[EDIT] Double post
February 23, 2011, 11:35 amjrose says:
I think that is correct if passing the enumerated-power law was a pre-text to accomplish the “end run”. However, I think that is incorrect if Congress honestly desires the enumerated-power law but needs to ameliorate short-comings in it with the so-called “end run”.
As Justice Alito put it in his Comstock concurrence:
February 23, 2011, 11:37 amrbj says:
Well the way Social Security is funded, it does require future generations. But I still don’t see how that gives the federal government, based upon the Constitution, the power to compel reproduction. If humanity decides to give up the ghost and die off, I don’t see government as stopping that.
And just because there is some risk (and being a realist, I’ll stipulate that that risk is 100%) that a particular patient may not be able to pay for health care services that that means the government can compel everyone to engage in economic activity.
When my mom worked as a nurse in the late 1950s & 1960s, there were charity cases, every doctor was expected to take on a certain number of patients who were unable to pay. I don’t know if this was every hospital or just where she worked. But there was a system in place.
I think the real issue isn’t that the health care system is broke as much as we are expecting much more from it. It used to be, if your heart failed, well that was nature’s way of telling you your time is up. Now we expect a costly heart transplant. The question is, how do you pay for a health care system that you expect more from.
February 23, 2011, 11:39 amjrose says:
My understanding is this would be new doctrine.
I suppose that depends on what the limits of the new doctrine might be. I doubt plaintiffs will bother if they don’t have a decent chance of winning.
February 23, 2011, 11:42 amDilan Esper says:
Well, the Constitution expressly grants that power and its broad scope has been settled law for almost 200 years.
I am shocked that so many educated Americans don’t know that the entire purpose of the Constitution was to greatly expand federal power because the Articles had been a failure.
February 23, 2011, 11:57 ama_non says:
@jrose Thanks.
I wonder if Ilya agrees with you that his position is a new doctrine. If he does, then it seems to me that he’s flipped the burden of proof around. It should not be up to defenders of the individual mandate to show that a “you must eat your broccoli” law is constitutional. Rather, Ilya and those who want to strike down the individual mandate should have to show why a “you must eat your broccoli” law is unconstitutional.
If their rationale relies at all on the due process clause or political constraints (i.e. the law is too stupid to ever pass), then they are admitting that Congress’ commerce clause power has limits under current law, namely (1) the rest of the constitution; and (2) political reality.
February 23, 2011, 11:59 amtk says:
I have a serious question for those who oppose the mandated emergency room care system. What do you do about people who are gravely injured and can’t afford treatment? For example, if someone is badly injured in a car accident, and will die without treatment, but is conscious enough to report that he or she has no assets and no insurance, do you set the person outside on the sidewalk to die? I mean, if that’s your position, I rarely hear people claim it.
Similarly, if someone appears to be an illegal alien, but is unconscious and also gravely injured, would you advocate refusing to treat the person and letting him or her die?
I’m not trying to be snarky; I really have never gotten a good answer to this from people who oppose mandated emergency room care.
February 23, 2011, 12:01 pmMark Field says:
Madison and Jefferson made exactly this argument in opposition to the Bank.
They lost.
February 23, 2011, 12:03 pmGene Madison says:
If the individual mandate is not a tax, but is a penalty… Where in the constitution does Congress have the power to impose a penalty?
February 23, 2011, 12:07 pmjosh says:
“Judge Kessler does break some new ground relative to previous rulings by arguing that health care is special because providers are required to provide emergency services to the uninsured, which is not true of most other markets. But why is that difference constitutionally relevant? She doesn’t really give a clear explanation. The answer seems to be that failure to purchase therefore has adverse economic effects on producers and could potentially increase costs. Put that way, of course, failure to purchase health insurance turns out to be no different from failure to purchase any other product. Any time someone fails to purchase a product, be it cars, movie tickets, or broccoli, producers are made economically worse off than they would be if the potential buyer had made a different decision.”
This doesn’t make a lot of sense. The reason “that health care is special because providers are required to provide emergency services to the uninsured, which is not true of most other markets” is relevant is because all taxpayers fund the services. It’s not because producers become worse off. Producers don’t become worse off. I *am mandated* to pay for it.
Certainly, Congress’ ability to change the law requiring that *I* pay for your refusal to get insurance is compelling. But THAT is not relevant to the question of constitutionality of this statute. (See any of Anderson’s comments citing cases in which the fact that Congress can take another course to effectuate the N & P clause is not grounds for holding the chosen method unconstitutional).
February 23, 2011, 12:09 pmfwb says:
Once more I ask:
Why do Article I, Section 8, Paragraph 6 and 10 and Article III, Section 3, Paragraph 2 exist?
Why did the Framers select only these to enshrine in the Constitution?
If Congress didn’t have the punishment/police/penalty powers over these three/four areas, from where do the punishment/police/penalty powers in the other areas derive?
Where are the other grants of punishment/police/penalty powers related to commerce, etc?
February 23, 2011, 12:11 pmprogressoverpeace says:
It’s an expression, Einstein.
Of course, the Constitution gives Congress the explicit power over the monetary system, and responsibility for it. It does no such thing for health care. It mentions that the federal government should “promote the general welfare”, but that doesn’t say “provide for” and it is not even an actionable command. It’s just an expression of the goal kept in mind as the following enumerated powers are exercised.
February 23, 2011, 12:13 pmGene Madison says:
Eh… that’s getting into another conversation altogether. The constitution authorizes congress to coin money, but never mentions anything about papering money.
February 23, 2011, 12:23 pmfwb says:
The Constitution is a whitelist of functions not a blacklist. Within the granted whitelist, there is a limited blacklist (Article I, Section 9).
If one wishes to control email spam, the smart one makes a whitelist. The rest of the ID-ten-Ts make blacklists. Why? The blacklist will never be complete and expands to a level of unmanageable size in a very short time. The whitelist is always manageable. The Framers built a whitelist and included a few limitations that restricted that whitelist authority. The Framers never developed a blacklist. Those who think everything that is not disallowed is allowed fail to comprehend.
February 23, 2011, 12:32 pmErik says:
What about choosing to do (or not do) something that when multiplied (as in Raich/Wickard/etc) has the potential to adversely affect millions of people (through higher premiums, higher healthcare costs, etc.)? Is this situation with the mandate not very different from the simplistic broccoli argument?
February 23, 2011, 12:38 pmPersonFromPorlock says:
Eating involves buying or growing, even if you’re being fed by someone else. Buying is clearly economic activity – and so is growing, courtesy of Wickard.
February 23, 2011, 12:39 pmprogressoverpeace says:
That’s very true, and it’s an interesting debate, but there is nothing even remotely approximating that for individual health insurance or health care. Nothing of the sort.
And, quite frankly, these sorts of individual expenditures are bottomless pits (as the Founders were fully aware) and you never place the power to spend on bottomless pits at the level of government where money is created. That’s always a sure recipe for disaster.
February 23, 2011, 12:45 pmAdam says:
You guys are supposed to be smarter than this.
Choosing not to buy broccoli is economic activity. Choosing not to eat broccoli is not, because it’s not “economic.” To paraphrase an old saying, Congress can mandate the purchase of broccoli, but it can’t make you eat.
Moreover, where in the constitution is the “Congress shall make no law respecting the purchasing of broccoli?” Why is whatever fantastic slippery slope example sufficient rebuttal to the argument that choosing to pay for health care out of pocket is an economic activity?
As much as you would like it to be, the test isn’t “does this lead to unlimited federal power?” Especially because the answer is always no because there are other limits on federal power not contained in the commerce clause. Or, to put it differently, the federal power to regulate interstate commerce is not intrinsically limited in any way. The only internal limits are “interstate” and “commerce” and you have to look elsewhere for other limits.
In other words, I think it’s telling that the argument is not that individual’s consumption of health care is not interstate (to which I’m sympathetic, even if the precedents aren’t), or that choosing to pay for health care out of pocket is not economic (because it obviously is) but that choosing to pay for health care out of pocket is not one of the two words in a phrase the the Supreme Court has used to describe “commerce.” It amazes me why more commentators (as opposed to the advocates that write this blog) fail to recognize just how weak that argument should be.
February 23, 2011, 12:51 pmjrose says:
As I understand their argument (particularly as voiced by Randy Barnett), a federal mandate to “commandeer the people” should usually be found unconstitutional (even if it does not violate due process) unless it is tied to an obligation of citizenship.
February 23, 2011, 12:53 pmNaG says:
Let’s get past the “broccoli” example. How about the constitutionality of the following (leaving aside First Amendment objections by those who would refuse to abide by the law on account of religion):
1. A law mandating that all people take a particular medicine/vaccine that is issued free of charge, in the wake of a terrible and rampant virus.
2. Same as #1, except you have to pay for it.
3. Same as #2, but there is no viral threat, it’s just to promote good health and prevent obesity.
4. Citizenship is predicated on compliance with #3.
February 23, 2011, 1:02 pmCommentor says:
This is so silly. Clearly, only Congress can decide what is “necessary” and “proper.” If the Court’s can make that determination, then they have completely usurped the role of the Legislature.
Just as with eminent domain law, the Legislature decides what taking is necessary, and the Court’s should only intervene if there is a suggestion of fraud or arbitrary and capricious action.
Clearly, the health care law does not involve fraud or arbitrary and capricious action and the Court’s role should therefore not be deciding what is necessary and proper.
February 23, 2011, 1:03 pmKazinski says:
I realize that this thread went into a swamp a long time ago, but no serious constitutional scholar, nor even very many unserious ones think Congress has the authority to direct your purchases because they are interstate commerce. Just because Congress can do scarier things, doesn’t mean they can do everything.
I am not even sure state police power extends that far, I would consider it a taking under the 5th amendment. And there are other reasons it is suspect, after all if state state police power cannot tell you which consenting adults to have sex with, or ban contraception, it is a stretch to say those rights are more fundamental than making the day to day decisions on how you will spend your own money. So I’d say state police power doesn’t extend to forcing you to buy broccoli or a GM car either.
February 23, 2011, 1:14 pmDilan Esper says:
To the extent that health care is “commerce among the several states”, this statement is emphatically false.
February 23, 2011, 1:16 pmArkady says:
So, the situation is akin to the mandate to purchase flood insurance if your house is on flood plain and the mortgage is federally-backed?
February 23, 2011, 1:19 pmgooners says:
When you’re talking about limits to government, you can’t just “leave aside” other parts of the constitution to make your argument. Like Adam writes above, there are other limits written in that the last stand doesn’t have to be made on the CC.
Number 4 seems to be a of the 14th Amendment. Wouldn’t 1, 2, and 3 would depend on interpretation of the 14th too, like Roe? Seems like there would have to be compelling state interest in the vaccine, and more compelling as you move from 1 to 3.
February 23, 2011, 1:22 pmallouchsit says:
So, when I drove less than a mile over to see my doctor last week and he took my blood pressure and sent an electronic prescription to my pharmacy, what part of that medical exam was “commerce among the several states”? How does your answer NOT expand the power of Congress over the American people?
February 23, 2011, 1:29 pmgooners says:
Anti-drug laws?
February 23, 2011, 1:29 pmMark Field says:
So it’s your view that Madison and Jefferson were wrong substantively on the Bank, but made a good interpretive argument in a bad cause?
What if, though, the majority of the Founders didn’t just reject their substantive argument, they rejected the interpretive argument?
February 23, 2011, 1:31 pmAvik Roy says:
Hi Ilya,
You write above: “Judge Kessler does break some new ground relative to previous rulings by arguing that health care is special because providers are required to provide emergency services to the uninsured, which is not true of most other markets.”
This requirement is not inherent to health care, but a result of a 1986 federal law called EMTALA that forced hospitals to give free care to the uninsured. Read my Forbes piece on the topic here:
http://blogs.forbes.com/aroy/2011/02/02/myths-of-the-free-rider-health-care-problem/
February 23, 2011, 1:34 pmRashnak says:
If ‘mental activity’ can be regulated under the commerce clause, then what purpose does the first amendment serve?
February 23, 2011, 1:36 pmKazinski says:
I didn’t say Congress couldn’t ban things, but they can’t tell you that the money you didn’t spend on drugs now has to be spent on Oreos, broccoli, a GM car, or health care insurance.
They can tell you what you can’t buy, they can’t tell you what you have to buy.
February 23, 2011, 1:38 pmnick056 says:
Where does the Constitution give the government explicit power over and responsibility for “the monetary system” to the extent that the BUS exercised such power?
February 23, 2011, 1:38 pmKazinski says:
Congress said flag burning wasn’t speech, the court said it was; Congress said insulting a public official wasn’t protected speech, the courts said it was. Congress said a T-shirt saying “fuck the draft” wasn’t free speech, the courts said it was.
That is just a few examples where the silly courts interferred with Congress.
February 23, 2011, 1:45 pmSeaDrive says:
See “Waiting for Godot.”
I think it’s more accurate to say they declare A is always true, not-A is always false.
February 23, 2011, 1:46 pmgooners says:
Why not? Is it just activity vs inactivity? Or does it just seem like they shouldn’t be able to? Would you say that Congress can’t tell you which side of the road to drive on, only which side you can’t drive on?
Familiar with “Congress will make no law…”?
February 23, 2011, 1:51 pmB-Rob says:
This is, of course, the central weakness in the “broccoli argument”: you are using a parade of horribles to undercut the rationale of a very specific policy determination, i.e., there should be no “free riders” on the non-Medicare/Medicaid health care system. Judge Kessler deals with this head on, the free rider problem, but you continue to duck it. Which is “Does the Constitution provide a ‘right’ to freeload?” You say, in essence, that it “should”, based on the inaction/action distinction. Her point is rather simple: inaction, in this case, socializes the costs of your health care on other people, insurance companies, and hospitals, requiring others to expend funds on your behalf. I compare it to a person allowing their secptic tank to rot, then permitting an accumulation of waste from their septic tank to flow onto their neighbor’s property. Theirs was an exercise of “inaction” that visited damage and costs on others. Socializing the costs of your care does the same thing.
February 23, 2011, 1:56 pmErik says:
#1 and #2 would likely be necessary in order to promote the well being of the people, but keep in mind that forcing one to physically take medicine is much more intrusive than forcing one to pay money (remember, we all pay taxes, buy car insurance, etc.). #3 is almost certainly unconstitutional because forcing people to get vaccinated is not the crutch upon which the entire well-being of the nation depends (or even if there were some Act of congress in place specifically intended to improve the health of the country). The individual mandate, however, is the glue that keeps the much of the ACA together, without it the Act would not be nearly as effective in addressing the healthcare needs of this country that it identifies. This was part of the reasoning in Raich: while growing marijuana for personal use may not “affect commerce,” exempting individual cases would undermine the effectiveness of federal drug law. It follows then that #4 is unlawful as well.
February 23, 2011, 1:56 pmMichael Benson says:
Some more thoughts on broccoli:
I take it that everyone agrees that under current doctrine all of the following except 5 would be clearly constitutional (IE under current commerce clause jurisprudence not under what one might or might wish is constitutional:
1) Congress can decide that broccoli is a dangerous substance and ban its growth or sale including growth by individuals for their own private use.
2) Congress can pass a “truth in green produce marketing act” requiring all broccoli be clearly labeled as “asparagus” and all asparagus be clearly labeled “broccoli.”
3) Congress can pass a “keep our broccoli orange” act requiring that all broccoli sold for human consumption be orange.
4) Congress can pass an act to fight obesity that requires that all products made with high fructose corn syrup need to incude a separate serving of 5 pounds of broccoli.
5) Congress can mandate that every adult purchase 1 pound of broccoli per year.
Why is it, precisely, that 5 is supposed to be the example that tips me over the edge into thinking that any theory of constitutionality that finds it to be a valid Congressional power must be inadequate? Why is 5 anymore absurd than any of the others?
Edit: And would 5 bother anyone any less if it were passed by a state legislature rather than congress? Is this a commerce clause issue, or do we think people ought to have some sort of right not to be forced into purchasing items they don’t want?
February 23, 2011, 1:58 pmB-Rob says:
No, the “broccoli argument” does not work because it amounts to answering a question with a question. In the absence of insurance, hospital, insurers and the general public have to suffer the cost of emergency care to the uninsured. The “inaction” of failing to meet your financial responsibilities works to socialize the costs of medical care. A failure to purchase or eat broccoli, in contrast, works no such hardship on society as a whole. Which is why the broccoli argument is so dumb — Congress is NOT, with the mandate, requiring anyone to do something that has no financial impact on society as a whole. Rather, Congress is forcing people to be responsible for their own health care, instead of socializing that cost on others, AND Congress is giving many mechanisms to do that, too (high risk pools, health care exchanges, subsidies to businesses, etc.) The fact that the anti-mandate people answer this statutory scheme with a fanciful and non-comparable analogy shows the weakness in their arguments.
February 23, 2011, 2:10 pmKazinski says:
I think Congress can tell you which side of the road to drive on, at least on interstate highways, and by extension roads and streets leading to them. I think that is clearly commerce, but I don’t think they can tell you you have to drive to Denver, when you want to go to Dallas, even though that clearly affects commerce too. Or that you have to drive at all, if you don’t want to.
“Commentor” said that only Congress can define “necessary and proper”, by that same extension of logic, only Congress should be able to define what constitutes speech. Otherwise by his reasoning the courts are usurping Congressional authority, that of course is ridiculous. According to Commentor’s reasoning when Congress said flag burning is not speech, then the courts had no more role to play, because the law did not infringe free speech as Congress defined it.
That is pretty simple, but wrong.
February 23, 2011, 2:12 pmJohn Fever, MD says:
And would 5 bother anyone any less if it were passed by a state legislature rather than congress?
Yes. Because if a state legislature did it, it wouldn’t be unconstitutional. Or, rather, it might not be unconstitutional depending upon other factors. When the feds do it, it appears to be unconstitutional no matter how many times one includes the word “clearly” in support of it.
You can argue the policy all day if you want with respect to states versus the feds doing similar or identical things, but nothing said in that context has anything at all to do with constitutionality. It is fair to say that the confusion regarding the state v. fed issue is extremely illustrative with respect to other inquiries, but it has nothing to do with constitutionality.
More generally, the reason people here won’t argue the same way against 1-4 in your list is that the case law is those areas is largely settled (with respect to your examples at least.) In your 5, it’s not “clearly” settled. No matter how desperate people would like to pretend the reverse.
February 23, 2011, 2:16 pmDilan Esper says:
The expansion you condemn happened in Wickard v. Filburn.
February 23, 2011, 2:18 pmDilan Esper says:
You can assert this, but the text of the Constitution would seem to indicate that in fact Congress CAN tell you what to buy, so long as it is necessary to a broader scheme of regulating commerce among the several states.
Now, perhaps there’s some due process limitation on this, but that is what the document says.
February 23, 2011, 2:20 pmMichael Benson says:
John:
But you see the problem don’t you? If reducto ad-broccoli is supposed to actually work as a *counter argument* specifically to the individual mandate, but it *also* works as a counter argument to basic current commerce clause doctrine, then it isn’t really going to be very effective. The trick is 1) distinguishing the mandate from settled doctrine, and then 2) defending the distinction. I fail to see how broccoli accomplishes either.
February 23, 2011, 2:22 pmAJ says:
Items 1-4 deal with requirements on producers/sellers ostensibly involved in interstate commerce or on matters involving the general welfare. Item 5 imposes an affirmative duty on all Americans.
February 23, 2011, 2:29 pmCommentor says:
Let’s not ignore my example.
The Bill of Rights limits the power of Congress. Under the Fifth Amendment, property cannot be taken for public use, unless just compensation be paid. The limits placed by the Fifth Amendment require public use, and thus the Court decides what is a public use. Otherwise, the Legislature acting within its powers may decide what takings are necessary to meet that use. The Legislature suggests that building roads is a public use, and the courts agree. The Legislature then decides what property is necessary for the building of roads and the Courts cannot interfere unless the legislatures actions are fraudulent or arbitrary or capricious.
The default rule is that the Legislature can act within its express authority in the Constitution. Amendments such as the First Amendment restrict Congress’s ability to act. The Constitution says that Congress shall make no law abridging the freedom of speech. Thus, the Courts must interpret the Constitution and determine what is speech.
Here, however, we are not talking about a limitation on Congressional power such as the First Amendment, but an express grant of Congressional power. The Constitution gives the Congress the power to regulate interstate commerce and further, the power to make all laws which are necessary and proper to execute its express powers. In essence, the clause empowers Congress to act within the confines of the “Forgoing Powers.” The question, then, is whether health care is interstate commerce. If the Court so finds, then it should defer to the Legislative process to determine whether its acts were necessary and proper.
To turn grants of legislative power to limitations of legislative power is an especially insidious version of judicial activism. The court decides that the act of elected representatives within their express powers is, in the court’s opinion, not “necessary” or not “proper.” The Court would be making a policy decision – which is exactly what Judge Vinson did. This is certainly a pragmatic approach to the Constitution coming from a group of people who label themselves originalists.
February 23, 2011, 2:41 pmDavid Schwartz says:
Lifting the requirement would not eliminate the free riding. Many facilities would still provide such care and would still pass on the costs. To eliminate free-riding, Congress would have to *prohibit* medical facilities from providing care to those who chose not to purchase health insurance and require medical practitioners to watch people bleed to death.
February 23, 2011, 2:55 pmJohn Fever, MD says:
The trick is 1) distinguishing the mandate from settled doctrine, and then 2) defending the distinction. I fail to see how broccoli accomplishes either.
Both of those are fairly simple. There is an obvious distinction between setting the rules of a game for those playing it and forcing people to play a game they prefer not to play. No one disputes that once you get into the broccoli game (1-4) you’re stuck with whatever nonsense the feds dream up (with some limited exceptions of course.) The distinction here is whether the feds can force you to play the broccoli game, just as PPACA forces you to play the (federally acceptable) insurance game.
The distinction may not be important to you, or rather, it may not be important to you until Congress obligates you to buy “Defense Insurance” from Raytheon, but denying the distinction seems a bit silly IMO.
February 23, 2011, 3:23 pmDilan Esper says:
The only relevant question is whether the distinction is embedded in the commerce and necessary and proper clauses, such that it can NEVER be the case that “forcing you to play the game” is necessary to a scheme of regulation of commerce among the several states.
February 23, 2011, 3:28 pmGuy says:
They can draft me but not force me to pay money to a defense contractor? Seems odd.
In any event, the existence of a distinction does not make it a distinction that makes sense, You can argue Congress can’t pass laws that apply to people who wear yellow, but it’s not obvious what that has to do with the meaning of the relevant clauses. On another thread, I brought up the example of Congress hypothetically being granted the power “to regulate the public school systems, and the education of children”, could Congress pass compulsory attendance laws with that power?
More to the point, I think the outcome in Raich is harder to swallow as an original matter than the abstract principle that Congress can, under a grant of power to “regulate” thing x, mandate anything they can prohibit – a principle that I had always thought to be so obvious as to be beyond question until this dispute arose.
February 23, 2011, 3:49 pmjrose says:
True, eating requires prerequisite economic activity. But, that doesn’t make eating economic activity. For example, possessing a gun in a school requires prerequisite economic activity, but is itself not economic.
February 23, 2011, 3:50 pmGuy says:
And invent a magic, free, dowsing rod that can tell whether or not people have health insurance. The one time I went to the emergency room I recall it taking something like an hour as the hospital tried to confirm that I was insured, even though I had already provided them with my card, fortunately they started treating me first, like any sane person would do.
My guess is that Congress’ emergency care mandate only really changes the facts on the ground with respect to homeless and other obviously poor individuals.
February 23, 2011, 3:56 pmRob Natelson says:
I find the RFRA part of the decision alarming because although it is a statutory issue it has ominous constitutional implications. According to Judge Kessler, the purposes served by the mandate further “compelling governmental interests.” Since when is increasing insurance coverage (or other forms of economic regulation) a “compelling” governmental purpose, as opposed a merely legitimate, or perhaps “important,” one?
Does this mean that Congress can trump the First Amendment or other fundamental rights with a law that is narrowly tailored to promote government health care?
And why was Mead’s lawyer silent “when pressed at oral argument to name a less restrictive means of lowering health insurance premiums or otherwise improving access to health care?”
Couldn’t he merely have said that the best way to cut costs or increase access would have been to get the federal government, which created the mess, out of the business? Or at least mumbled something about tax-exempt HSAs?
I suspect this case was not well handled.
February 23, 2011, 4:01 pmAJ says:
You are commandeering the individual in lieu of accomplishing the same result through an exercise of the taxing and spending powers. Though we allow commandeering of the individual for military service with the draft or for jury service, we don’t allow it for base economic situations (other than taxes) and most assuredly not for the private benefit of certain companies. The reasons ought to be obvious: if no one chose to serve in the military, then the very existence of the country could be placed in jeopardy. This seems to be a logical place to draw a line with the implied N&P clause powers. The alternative might be a future where a citizen spends much of his time responding to the “economic duties” of the State.
February 23, 2011, 4:02 pmKazinski says:
OK, then if you think the broccoli arguement is dumb, let’s not just use the abbreviated argument and flesh it out a little. There are people who eat at McDonalds three times a week, and get take out from Domino’s the the other 4 days and don’t eat any broccoli at all. That has a disparate “financial impact on society as a whole”. In fact a insured 400lb’er that smokes will have a much greater financial impact on society than an uninsured 175lb bike messenger.
In fact you could probably make a good case that unhealthy lifestyle choices have a greater “financial impact on society as a whole” than the uninsured. Especially if the unhealthy insured are paying community rates.
So of course the answer to stop them from “socializing that cost on others” is that Congress decides to cut off their fast food and make them buy broccoli.
February 23, 2011, 4:19 pmPersonFromPorlock says:
But the broccoli is (arguably) the extreme example, the one reached after you’ve been commanded to buy potatoes, hamburger and so on: it represents your last food dollar. And having spent your last dollar on mandated food, you will eat it. The power to dictate purchasing flows seamlessly into the power to dictate consumption and the distinction between economic and non-economic activity disappears.
February 23, 2011, 4:20 pmGuy says:
Under Raich, do you think Congress could prohibit the purchase of unhealthy food? If so, why can’t Congress assign people “quotas” of what they can purchase, and prohibit buying anything else (without mandating any purchases)?
My point is that the proposed “activity” rule has no logical connection to the scope of Congressional power. If you think current jurisprudence reaches people’s diets (which is not obvious to me), and that that is absurd, the proper response is to tighten the required connection to commerce, not to create an activity rule that fails to eliminate your reductio ad absurdume and has no logical connection to the text or meaning of the Constitution.
February 23, 2011, 4:31 pmAJ says:
I think the distinction is clear. With fielding an army, you have three options: volunteers, mercenaries, or a draft. If you don’t get volunteers and it is impractical to bring in a sufficient number of foreign fighters, then only one pragmatic option emerges. With the health mandate, one of the goals is to ensure that health insurance companies remain profitable. This can be achieved by incentivizing insurance purchases with tax credits, providing vouchers to the uninsured to make insurance purchases more affordable, or direct subsidies to the insurance industry. There is a myriad of ways that could be tried in lieu of commandeering the individual. The advantage of the mandate is that it avoids the unattractive options of raising taxes and passing legislation that clearly benefits a selected industry.
February 23, 2011, 4:41 pmDilan Esper says:
No, it isn’t, because it has nothing to do with the necessity of the legislation, and also because it is inconsistent with the tests that the Supreme Court already uses to determine necessary and proper issues.
February 23, 2011, 4:44 pmAdam says:
This is not a great example as your e-prescription was almost certainly routed across state lines.
February 23, 2011, 4:45 pmMichael Benson says:
I don’t think you are fully understanding the point I’m trying to make about drawing and justifying a distinction. One could make a distinction for my example (1) between broccoli and pot based on the fact that–well it’s broccoli and congress ought not to have infinite power over broccoli! But that wouldn’t be satisfying because the distinction you are drawing (IE between broccoli and pot) is not clear enough and is not justified well enough. In particular it isn’t justified by any robust constitutional argument. What is it about in-action/action or mandates that makes them unconstitutional, that’s the real question. In order for broccoli to do that, there must be something worse or more absurd about 5 than 1-4, but I can’t really see what it could be.
And, perhaps I should have drawn this out more clearly, but (4) would probably force most people to buy far MORE broccoli against their will than (5). So it can’t just be that in (5) I get all of this worthless disgusting broccoli.
February 23, 2011, 4:51 pmCommentor says:
AJ,
The necessary and proper clause, by its express terms, applies to the “Forgoing Powers,” including the Commerce Clause. Thus, on its face, it is not limited to the those situations where the country would be placed in jeopardy, but explicitly applies to the regulation of commerce.
More fundamentally, where to draw the proverbial line is a question that every member of Congress must ask himself or herself. Where the majority of the duly elected representatives of the people place that line is the official policy of this country. It is not the place of an appointed judge to decide where the “logical line” must be drawn.
If citizens do not like responding to the “economic duties” of the State, then they can elect new representatives who can change the law. When is that citizen’s liberty more truly infringed, when the Legislature – whom is at some level answerable to him – passes a law, or when an appointed judge decides that the citizen’s representatives no longer have the power to act?
February 23, 2011, 4:52 pmAdam says:
Okay, but the “game” is health care, everyone plays it, and the rule is you have to pay for it with insurance. Where’s the issue?
The entire analysis turns on the frame of reference. The anti-mandate side take the narrowest possible view, and says, voila! it’s not activity, but that seems like begging the question to me.
February 23, 2011, 4:54 pmGuy says:
Doesn’t Congress get the choice of means? That’s what McCulloch said, Maybe they want to reduce overhead by telling me to give the money to Raytheon directly. They’re still doing something necessary and proper to supporting an army, aren’t they?
Also, setting aside whether the mandate is a tax for Constitutional purposes, it’s essentially functionally identical to a tax incentive as far as the mechanics of it goes, so I don’t see how it’s a more “narrow” means of achieving the ends (assuming Congress is required to choose the most narrow means, which they are not).
February 23, 2011, 4:58 pmAJ says:
If you consider that mandates are only allowed on individuals already engaged in economic activity, then nothing else is required. Quotas (and bans) act on individuals that choose to buy a specific product and engage in commercial activity. Mandates act on individuals who are not voluntarily in the market.
February 23, 2011, 5:00 pmGuy says:
But the question, textually, under the Constitution is what effect the law has, not the effect the people affected by the law would be having, if, hypothetically, the law were not passed. I feel like the “mandates aren’t regulation” argument is just the flipside of the old “prohibitions aren’t regulation” arguments from the 19th century.
Do you disagree that the power “to regulate the education of children” would cover compulsory attendance laws, coupled with the N&P Clause, if necessary? What about a compulsory test for all children, so that Congress could evaluate the quality of the education in the country, compare it to other nations, and adjust the school system accordingly?
February 23, 2011, 5:08 pmGuy says:
Also, I don’t see what voluntariness has to do with anything. Could be relevant under substantive due process, but why does the Commerce Clause care if something is voluntary?
February 23, 2011, 5:16 pmAJ says:
Certainly congress has broad latitude to choose the means, but not every means. The minting of money, storage of tax revenues, the borrowing of money, and the payment of national debts does strongly suggest a traditional banking function. Keeping the general public safe from federal inmates that are deemed sexually dangerous does suggest a shared civil commitment power with the states. Here, you are asking for the power to compel individuals not wishing economic activity to establish a contract with a third private party (insurance provider). In 221 years, that is unprecedented. Even since 1937 with the lurch in commerce clause jurisprudence, that is unprecedented until today. Unprecedented does not prove unconstitutional but it is suggestive, especially in lieu of other mandates that are specifically forbidden (self incrimination, slave labor, and takings for private use or without just compensation). When you consider situations such as war, depressions, and natural disasters have not required mandates to activity, why now?
February 23, 2011, 5:16 pmKazinski says:
Your point is the government can compel people to do what it wishes them to do, in this case buy health insurance, in the next case, who knows?
My point is that the Congress can regulate commercial activities that people chose to participate in. However if they decline the opportunity to participate, Congress can’t compel them.
A good analogy, Congress can set the speed limit and rules of the road on the interstate highway system, but they can’t tell you you have to drive.
And it is worth noting that Kessler’s opinion acknowleges that Congress can only regulate activities, she gets around that by mental gymnastics and institutes a thought control regime, that states Congress can regulate the mental activity of choosing not to buy health insurance.
I think your view is more coherent than her’s, but it is still wrong.
February 23, 2011, 5:21 pmGuy says:
But surely Congress could compel sef-incrimination, slave labor, and takings of property without compensation under the Commerce Clause without those negative guarantees. Protecting personal autonomy is an SDP issue, the Commerce Clause only cares if Congress is ultimately regulating interstate commerce, wich, in the abstract, can be done by a mandate just as well as a prohibition.
Suppose a state passes a health insurance mandate, and Congress doesn’t like the effect that has on the national market, so they pass a law pre-empting it, Constitutional?
February 23, 2011, 5:22 pmAJ says:
Voluntariness goes to the reach of the power. If I wish to avoid income taxes, I don’t work. If I wish to avoid excise taxes, I don’t buy certain products. Like registering for selective service, there is no way to avoid the mandate/fine except by leaving the country (those with no income already qualify for Medicaid so let’s not be distracted by them). If regulating interstate commerce requires reaching people not involved in commerce, there is no way to avoid the affirmative regulation (in comparison to bans). When you consider that there is not even a mandate to vote for citizenship, it would be curious to imagine that government can commandeer the individual so health insurance providers stay profitable.
February 23, 2011, 5:28 pmGuy says:
Are you sure she wasn’t just assuming that arguendo?
But why not? I asked about the compulsory attendance laws above to try to figure out the root of the activity rule, do you consider it inherent in the word “regulate”? Does it arise from tradition? Does it have to do with the unique nature of interstate commerce, as opposed to, say, supporting an army?
It seems that many people are arguing that the rule is administrable, but skipping the part where they explain where it comes from, and what it has to do with interstate commerce.
February 23, 2011, 5:31 pmGuy says:
This sounds like a substantive due process argument to me, and I don’t see how it connects to the Commerce Clause. Also I think your characterization of the income tax as voluntary is a stretch – if you want to avoid the mandate, you pay the penalty, or alternatively, if you want to avoid the penalty, buy health insurance (also, not having the minimum income for the penalty to apply is also an option). Laws always reduce the available options to anyone who exists, and that reduction in the available options cannot be avoided, saying “oh, you can take this other alternative that isn’t the one Congress has made unavailable” doesn’t change that.
February 23, 2011, 5:40 pmCommentor says:
AJ,
How does the fact that something is unprecedented even suggest that it is unconstitutional? That something is unprecedented merely suggests that it has not been tested by the Courts. Keep in mind, the Acts of Congress are presumptively Constitutional (although that presumption can certainly be rebutted). In fact, courts should attempt to interpret a statute in a Constitutionally acceptable way.
“Especially in lieu of other mandates that are expressly forbidden;” this is a non-sequitur. That other mandates are expressly forbidden, if anything, suggests that those things not expressly forbidden are allowed. No sui generis argument can apply, things expressly forbidden cannot suggest meaning for things expressly allowed.
You make cogent policy arguments, but they are not grounded in the Constitution. What Constitutional provision does the individual mandate violate?
February 23, 2011, 5:43 pmMark Buehner says:
Whats forgotten is that Congress has imposed this mandate as well. There is nothing in the health care market per se that demands we give free care away. As laudable as it is, this was a political decision. By this logic, Congress could so instigate a demand for any product and then impose a mandate to buy it. IE- if you’re about to starve to death, we will feed you, and hence since not eating will create a free rider burden on the market, we can force you to buy food.
February 23, 2011, 5:52 pmruddyturnstone says:
“1) Congress can decide that broccoli is a dangerous substance and ban its growth or sale including growth by individuals for their own private use.”
Can it? No rational basis for the conclusion, thus falling afoul of Fifth Amendment due process.
“2) Congress can pass a “truth in green produce marketing act” requiring all broccoli be clearly labeled as “asparagus” and all asparagus be clearly labeled “broccoli.””
See above.
“3) Congress can pass a “keep our broccoli orange” act requiring that all broccoli sold for human consumption be orange.”
Again, no rational basis for law.
“4) Congress can pass an act to fight obesity that requires that all products made with high fructose corn syrup need to incude a separate serving of 5 pounds of broccoli.”
Closer case.
“5) Congress can mandate that every adult purchase 1 pound of broccoli per year.”
“Why is it, precisely, that 5 is supposed to be the example that tips me over the edge into thinking that any theory of constitutionality that finds it to be a valid Congressional power must be inadequate? Why is 5 anymore absurd than any of the others?”
I don’t see one through 3 as constititional. Four might be. But notice in four the only burden, in the first instance, is on the seller, not the buyer. Marketing brocolli can legitimately seen as interstate commerce. Not buying it can’t.
“Edit: And would 5 bother anyone any less if it were passed by a state legislature rather than congress? Is this a commerce clause issue, or do we think people ought to have some sort of right not to be forced into purchasing items they don’t want?”
How many times does this have to be explained? States have general police powers, the Fed doesn’t. Yes, both sovereigns have other constitutional limits (inclduing rational basis), but the Fed has no general police powers.
As a matter of policy, one can oppose both laws, but as a matter of constitutional law, the Fed version is open to attack as beyond the enumerated powers, the State one isn’t. Is that so hard to understand?
February 23, 2011, 5:52 pmJohn Fever, MD says:
What is it about in-action/action or mandates that makes them unconstitutional, that’s the real question.
The relevant cases perhaps? If you’ve read Raich-Lopez-Morrison and you still can’t find the relevance of the activity distinction (despite the test articulated in those cases specifically referencing activities) nothing anyone can write or say will help you becasue you’ve decided to ignore the text of those cases where you’ve no answer for it/them. Pretty hard to have a discussion of constitutionality in that instance. If you want to proffer an argument that the distinctions are irrelevant (or simply not dispositive) in this context, I think that could be reasonable. Pretending the distinction just appeared out of thin air, is not.
February 23, 2011, 5:59 pmruddyturnstone says:
“To turn grants of legislative power to limitations of legislative power is an especially insidious version of judicial activism. The court decides that the act of elected representatives within their express powers is, in the court’s opinion, not “necessary” or not “proper.” The Court would be making a policy decision — which is exactly what Judge Vinson did. This is certainly a pragmatic approach to the Constitution coming from a group of people who label themselves originalists.”
Under that theory, there are no limits at all on the power of the Federal government, save those found in the Bill of Rights. All Congress need do is ASSERT that such and such act is authorizized, and that would be the end of it. Funny, that, because when Madison and Hamiltion et al were arguing for the ratification of the Const, and there was no Bill of Rights, they were all quite clear that the Fed would be limited to certain, enumetated powers, and would NOT have general, police powers. History has shown that the States can’t enforce that limitation, so who is left to do it but the Federal Courts? How is the ultimate original intent, that the Fed be confined to certain spheres only, to be enforced?
February 23, 2011, 6:01 pmMark Buehner says:
The correct example is that Congress mandates buying broccoli due to a dearth of purchasing in the broccoli market. The ill is the lack of sales of broccoli (certainly interstate commerce), the cure is more people buying it. Agricultural commerce is a legitimate government interest, increasing its sales is rationally related to its lack of sales.
If you open this door you assume a command economy is constitutional, which I find a big red flag, but many people don’t. Assumedly our system was hence designed to give government sweeping powers limited by a small number of enumerated rights instead of vice-versa, and apparently fears of the tyranny of the majority disappear when contemplating a command economy, as the political process is all the prevents near infinite extension of federal power over how we make a living and spend our fruits.
February 23, 2011, 6:05 pmruddyturnstone says:
“Well, the Constitution expressly grants that power [to regulate interstate commerce] and its broad scope has been settled law for almost 200 years.”ma
Really, the “broad scope” of this power has been “settled law for almost 200 years?” That would come as quite a surprize to the Justices who decided the Carter Coal case (“manufacturing is not commerce”) in 1935.
“I am shocked that so many educated Americans don’t know that the entire purpose of the Constitution was to greatly expand federal power because the Articles had been a failure.”
I’m NOT shocked that so many smug commenters don’t know squat about constitutional law and history.
February 23, 2011, 6:07 pmJohn Fever, MD says:
Okay, but the “game” is health care, everyone plays it, and the rule is you have to pay for it with insurance. Where’s the issue?
Okay, but the “game” is nourishment, everyone plays it, and the rule is you have to pay for it at WalMart. Where’s the issue?
February 23, 2011, 6:10 pmMichael Benson says:
Ruddy:
Rational basis has nothing to do with whether something is justifiable under the commerce clause. You are missing the point in order to try to play gotcha, and that’s just silly. I also really appreciate your condescending closing. Yes, I understand the distinction between federal and state powers. That distinction is my point. If (5) bothers you just as much if a state passes it, that suggests the problem isn’t really the commerce clause, but something else (such as due process).
John:
My narrow point was that the broccoli argument does nothing to really advance the argument. If you think the (relatively) recent commerce clause cases make the distinction clear, then that would advance the point regardless of whether or not the broccoli argument works. As to your broader, only an idiot or the intentionally obtuse couldn’t see how Raich, Lopez and Morrison make the activity/in-activity argument, well I guess all those circuit judges and law profs must be morons eh? Clearly when they say “activity” they meant “my psychic powers tell me that in about a decade we will have the individual mandate and I mean–by using the word activity–to endorse the activity inactivity distinction.” Yup.
February 23, 2011, 6:14 pmJohn Fever, MD says:
Under that theory, there are no limits at all on the power of the Federal government, save those found in the Bill of Rights.
The best part of this “theory” is that the BoR “limits” didn’t even exist when the CC powers were drafted. If your Commerce Clause (or N & P) limits exist only in reference to parts of the Constitution that didn’t exist when the CC/NP were drafted- you’re really not even trying anymore.
February 23, 2011, 6:14 pmMichael Benson says:
Final note:
I actually kind of like the activity/inactivity distinction. I don’t like the broccoli argument. The things I like about it are:
1) Unlike the recent commerce clause cases it’s fairly easy to articulate what the distinction is so that one could tell whether or not it applies.
2) It manages to help–sort of–preserve the idea that Congress has enumerated powers, which is a nice idea.
3) Perhaps most importantly, unlike other clear standards one could articulate, it doesn’t invalidate huge swaths of federal law in one stroke.
On the other hand I’m not sure how easy it is to justify in the text of the constitution, and it would force the court to enter a highly charged partisan debate, which has some big downsides. And I’m not sure how hard it would really wind up being for Congress to just get around.
February 23, 2011, 6:32 pmruddyturnstone says:
“Rational basis has nothing to do with whether something is justifiable under the commerce clause.”
Actually, that’s not entirely accurate. For any law to be constitutional, including those enacted under the commerce clause, it must have a rational basis.
“You are missing the point in order to try to play gotcha, and that’s just silly.”
Who’s the one being silly? You attacked the broccoli hypothetical, and did so in a way that involved “silly” laws. All that does is cloud the water. All of you hypos, particularaly the first three, are “silly” in a way that the brocolli hypo is not. Your “point,” apparently, was to show that the Constitution allows for “silly” laws (which the mandatory purchase of broccoli would be only one expample), but it doesn’t, actually. Yes, we all understand that Congress could make non silly laws relating to how broccoli, or any other product, is marketed. But how does that justify Congress forcing anyone to buy any product? Your hypos don’t help answer that question, becasuse they are silly, and even if they weren’t, they just beg the question. What Congress is attemtpting to do here is not simple run of the ranch marketing regulation but something quite different, ie mandatory purchase.
“If (5) bothers you just as much if a state passes it, that suggests the problem isn’t really the commerce clause, but something else (such as due process).”
Why can’t there be more than one problem? I would oppose a State or Federal mandatory purchase of broccoli (or health insurance) law on policy grounds. I would also oppose both on due process grounds. But, in the case of the Fed, I would also oppose it as beyond the scope of the enumerated power.
Also, it doesn’t “bother” me quite as much as if a State were to do it. I have more influence in my State than I do in DC, so it might be easier to get the law repealed. And, if my State passes a lot of laws that I see as bad and oppressive, I do have the option of moving to another State, without too much trouble. It would be much more of a hardship for me to emigrate out of the USA entirely.
That was kind of the point of having the Fed limited to the enumerated powers. The idea was (when the Const was sold to the people), that the Fed would NOT be passing a lot of laws that impacted ordinary people in their day to day lives. People feared (rightly, as it turned out), a faraway central government beholden to powerful interests, passing uniform laws that would apply everywhere (including States where they were not wanted), with no real opportunity for repeal or escape.
February 23, 2011, 6:44 pmMichael Benson says:
It’s possible for a law to both be 1) a valid exercise of Congressional power under the commerce clause and 2) unconstitutional.
As to the rest of your post, I don’t see any arguments worth responding to. Thanks for reading, and I’m sorry you didn’t find my post helpful.
February 23, 2011, 6:54 pmruddyturnstone says:
“It’s possible for a law to both be 1) a valid exercise of Congressional power under the commerce clause and 2) unconstitutional.”
No kidding. The point was that “silly” laws are not relevant here. The you must purchase broccoli law hypo is no sillier than the actual law under discussion, ie that you must purchase health insurance. That’s what makes it OK to use as a hypo. Your hypos are silly in other ways, and that’s what make them worthless.
“As to the rest of your post, I don’t see any arguments worth responding to”
Now who’s being condescending? Federalism is “not worth responding to?” OK then.
February 23, 2011, 7:06 pmHealth Care Law Update « Absurd Results says:
[...] Ilya Somin and Peter Suderman have responded, pointing out some of the flaws in this reasoning. [...]
February 23, 2011, 7:13 pmBrian Larkin says:
Defense insurance whose components are mandated by the Secretary of Defense and set up on special Defense insurance exchanges at that!
February 23, 2011, 7:14 pmStash says:
I think Prof. Somin gives too short shrift to the free rider argument contributing to the uniqueness of the health care issue.
1. It invalidates all analogies of “you must buy” broccoli, GM cars etc… Because, to be accurate, the analogy would have to be “you must buy X product, because otherwise it would be provided to you free whenever you want it.” Thus the mandate “power” would be limited to such circumstances and not implicate the vast expansion of federal power claimed.
2. It ties the mandate to the acceptance of federal largess, just as other mandates, e.g., the requirement of hospitals to provide free care is tied to their eligibility to receive medicare reimbursement. Of course, the problem with this is point is that it arguably does not take into account those who do not purchase health insurance and do not accept or use free health care.
3. Yet, I think the landscape would be much different if the uninsured, particularly the voluntarily uninsured whose liberty interest is most invaded, knew that they would likely be left untreated if they were in a car accident, or contracted a serous/life-threatening illness.
Absent this government benefit, as a practical matter, hospitals could and would refuse care to uninsured on a blanket basis, or at the least, delay treatment until a credit report was had and analyzed. (Think of the possible liability for inaccurate credit reports in this context.)
4. Thus, Prof. Somin’s suggestion that, “If it wanted to, Congress could have eliminated such free riding simply by lifting the requirement with respect to anyone who had enough income to purchase health insurance but chose not to do so.” Seriously? And that income determination is supposed to take place while someone is unconscious and bleeding in the emergency room—including those people who forgot their purse or wallet, or are waiting for receipt of their new insurance card? Either the exclusion would effectively exclude no one (and therefore not prevent the free rider problem), or the health care provider would have to be granted some sort of privilege to delay care until the financial determination was made.
February 23, 2011, 7:49 pmThen there is the problem of determining what income should be deemed to be “enough income to purchase health insurance.” Seems to me, it would require creating a gov’t bureau to keep track of what constitutes “enough income”—which would fluctuate with insurance prices and vary by State, age and general health. And what about “enough assets,” aside from income? And, wouldn’t it have to be “current” income to include the recently unemployed, rather than the more reliable gross income/adjusted gross income of the previous year? I think it’s pretty clear Prof. Somin’s suggestion is not a viable or workable method of eliminating the free rider problem. At the least, Congress could not have “simply” eliminated the free rider problem. Absent a viable alternative, the “free-rider” issue seems to me to be a substantial distinction that sets it apart from the other hypothetical mandates.
allouchsit says:
No, it did not. Wickard dealt with the substantial affect of growing extra wheat on the interstate commerce of wheat. My doctor exam had no affect at all on interstate commerce. Wickard involved Congress prohibiting Filburn from growing more than a set amount of wheat. The individual mandate compels people to buy a product they may not want. Wickard has nothing to do with the individual mandate. The power to regulate is not the power to compel. The USDA regulates beef production, but Congress cannot compel all Americans to buy hamburger.
February 23, 2011, 8:10 pmDilan Esper says:
The expansion you were condemning was that your going to a local doctor could be considered part of “commerce among the several states”. That’s EXACTLY the expansion that occurred in Wickard. Your growing your own wheat, or pot, on your own property can be considered part of commerce among the several states. Because instead of considering your conduct in isolation, we now analyze the larger regulatory scheme enacted by Congress. So long as that larger scheme regulates interstate economic activity, any mundane local event can be regulated.
Now, of course, you have changed and made a different point. In fact, you are wrong in this point as well– Wickard also approved mandates, saying that stimulating commerce is regulating commerce. But the more important issue is, it’s a different point than the one you were making before. Going to the doctor’s office became, at least potentially, interstate commerce under Wickard.
February 23, 2011, 8:44 pmDilan Esper says:
You ignored what that post was responding to. It was responding to the argument that the NECESSARY AND PROPER clause didn’t grant Congress the power to pass whatever laws that it determines are necessary and proper to implement whatever law they want to pass under one of their enumerated powers. That issue was settled under McCulloch and has, in fact, been settled almost 200 years.
As for your comment about constitutional history, enlighten us. The Articles of Confederation were NOT considered to have granted insufficient power to the federal government? The Commerce and Necessary and Proper Clauses were NOT intended to allow the federal government to act against “national” problems?
Cite specific sources, please. I’d be especially interested in your analysis of the words of the drafting committees at the convention.
February 23, 2011, 8:47 pmruddytunstone says:
“You ignored what that post was responding to. It was responding to the argument that the NECESSARY AND PROPER clause didn’t grant Congress the power to pass whatever laws that it determines are necessary and proper to implement whatever law they want to pass under one of their enumerated powers. That issue was settled under McCulloch and has, in fact, been settled almost 200 years.”
Yes, that language has survived for 200 years, but the point is that the commerce clause power, even as enhanced by the n and p clause, was NOT broadly construed during the whole of that 200 years. Hence the Carter Coal case, in which the n and p clause is mentioned, but the elaborate scheme of federal regulation was struck down anyway.
“The Commerce and Necessary and Proper Clauses were NOT intended to allow the federal government to act against “national” problems?”
That’s the very argument that was rejected in Carter, namely that if a problem was “national” (ie could not be solved by the States), it was automatically within the scope of Congress’ authority.
In other words, despite what you imply,it has NOT been the case for 200 years that Congress could simply do whatver it wanted, invoke n nad p and an enumerated power, and avoid judicial scrutiny altogether.
February 23, 2011, 9:44 pmBob says:
Any argument about the interstate commerce power that makes Congress’s other 1.8 and 1.9 powers superfluous (because similarly derivable) means the committee that drew up that language was wasting their time. We all know committees can do some dumb things, but one thing assembling a bunch of minds does not do is increase the chance of overlooking redundancies or omissions. So the better conclusion is that the interstate commerce power does not mean what this argument would say it means.
February 23, 2011, 10:48 pmBrian Hodgman says:
Why not point to the Massachusetts system where religious conscience objecters can obtain waivers to that state’s minimum coverage requirement by filing affidavits asserting the sincerity of their religious objection and averring they have not – nor will not – seek medical treatment?!?
But then again, I’m writing my law review Note on the mandate and RFRA concerns, so at least I now have a definitive ruling to criticize :-)
February 23, 2011, 10:57 pmPatrick Keeler says:
If I get into my car, and decide I don’t want to turn right. Can whomever I eventually hit sue me for my inactivity?
February 23, 2011, 11:02 pmDilan Esper says:
Ruddy:
Next time read more carefully. I did not say the commerce clause extends to any national problem. I said it was intended to ensure that Congress could regulate national problems. And the drafting history is actually very clear about this.
Since I am not an originalist, I don’t quarrel with the dictum in Carter. But the original understanding is quite explicit in the drafting history.
February 23, 2011, 11:21 pmKazinski says:
Don’t confuse yourself. There is no federal compulsorily attendance law. There is a completely different scope, and origin of power between Constitutionally conferred Congressional power, and the general police power of the states. See the Tenth amendment:
Congress has only powers that are conferred, the State has powers that are not forbidden, or traditionally held by the people.
Conflating state compulsorily attendance laws with the federal insurance mandate, is worse than apples and oranges, it’s antelopes and cantaloupes.
February 24, 2011, 1:10 amdon says:
Easy.
Not buying a car: Economic inactivity.
Not buying a car while obligating the federal government to drive you around when necessary: Economic activity.
February 24, 2011, 3:31 amAJ says:
The original purpose of the commerce clause, in response to what occurred under the articles of confederation, was to give congress the power to breakdown trade barriers between the states. Gibbons extended the power via the necessary and proper clause to cover intrastate trade that substantially affected interstate commerce. It is not clear to me why the “power to regulate” would necessarily include the power to commandeer. If there is founding era evidence that “to regulate” had the broad meaning you suggest, I will happily revise my analysis.
February 24, 2011, 9:03 amMark Buehner says:
But it was Congress that created the mandate to give free healthcare to those who don’t buy it anyway (as good and necessary a policy as that is).
Following that logic, Congress could create a mandate to give away any product and then follow up by mandating people buy it in order to prevent them from getting it free. Healthcare is only a special case in the sense that Congress made it so to begin with.
February 24, 2011, 9:13 amAJ says:
See my comment directly above. I don’t believe that a power to commandeer is easily rationalized based on the originalist understanding of the words “to regulate” or the fact that the necessary and proper clause was not a backdoor to evading the limitation of enumerated powers. Once you believe that the N&P clause provides basically any avenue of power (limited only by those rights specifically enumerated in the Bill of Rights and some implied rights of the 14A which appear to no longer include economic rights), then much notion of limited federal government evaporates. History tends to support my conclusion, not yours.
February 24, 2011, 9:20 amMark Buehner says:
N&P can only be invoked in support of an enumerated power. This entire debate is about the scope of the commerce clause as an enumerated power. Hence it either falls within its scope or it doesn’t, but invoking necessary and proper is just assuming your conclusions.
February 24, 2011, 9:24 amjrose says:
Kessler separately analyzed the CC by itself, and N&P-applied-to-CC. The mandate might fail the former, yet be permissible under the latter.
February 24, 2011, 10:03 amCommentor says:
Rudyturnstone:
I’m not sure I understand your response to my comment which discussed the framers focus on specific, enumerated powers. Those specific, enumerated powers included granting the Congress the power to regulate interstate commerce. The Necessary and Proper clause grants Congress the power to enforce the “Forgoing Powers,” including the regulation of interstate commerce. The question then is whether health care and the insurance industry fall within the purview of interstate commerce. I assume that you agree that they do.
AJ:
I never suggested that the Necessary and Proper clause grants unlimited general power with its only limits being the Bill of Rights; instead, the Necessary and Proper clause grants Congress the power to act within its specifically enumerated rights under the Constitution. One of those specifically enumerated rights is the regulation of interstate commerce. Thus, the question is whether health care is interstate commerce. I assume that you agree that it is. This does not mean that the acts of Congress within its enumerated powers cannot be reviewed by Congress; they can. But that review must be deferential in nature.
Further, you reference history, but Justice Marshall wrote: “sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people.”
February 24, 2011, 10:19 amMark Buehner says:
Rightly so. I don’t think there is any question that the mandate passes the rational basis test. The question is, is the mandate ‘within the scope of the constitution’.
My point is that SCOTUS is going take these cases and likely either decide that it is within the purvey of CC, or else establish a ‘new’ boundary for CC (which several of the justices including Kennedy have said must exist, even if may be undefined).
I think there is an argument to be made that Congress created the situation that allows for their remedy. IE- an individual, through no fault of their own, can sit home and not buy insurance, get sick, and then receive free healthcare… but only because Congress itself mandated the free healthcare. The idea that this creates a rational basis to cure this ill by forcing the individual )who again has done nothing ubt exist) to buy a product extends congresses power to an area it has never been tested against. Worse it defines a method for Congress to essentially set up its own problems and then solve them at the expense of the free individual.
February 24, 2011, 10:29 amAJ says:
Maybe my concept of N&P is off. Certainly at a minimum it brings in the ability to write laws, enforce the laws, and punish law-breakers in support of the various enumerated powers. It also facilitates powers that are “related” to other powers: the power to operate a bank is closely tied to the federal government’s powers to borrow money, mint money, pay its debts, and store its tax revenues. The power to raise an army is tightly related to an implied power to conduct a draft. Comstock seems to then argue that powers that might be required to augment other related powers are permissible under some circumstances. So, if your federal penitentiary facility results in sexual predators being released, then a concurrent power of civil commitment is appropriate. Why do you think that the power to commandeer the individual to engage in commerce is sufficiently related to the other powers that congress has to control commerce? Guy has argued that mandates are simply the flip side of bans, but they also carry with them an affirmative obligation/duty. Is compelling commerce similar enough to encouraging commerce?
February 24, 2011, 10:38 amjrose says:
Or, they might find the mandate is permissible as N&P to carry into execution the existing boundaries of the CC.
I am persuaded that argument should be rejected, as Justice Alito stated in his Comstock concurrence.
February 24, 2011, 10:49 amjrose says:
The N&P argument is based on making the pre-existing condition regulations work, which all agree are within the CC power.
February 24, 2011, 10:53 amAJ says:
No one questions congress’ power to write laws to mandate rules on how health insurance is sold as it is in the direct line of interstate commerce (since the 1940’s). Also, I would agree that Comstock extends N&P to include corrective actions. My question stands though as to the nature of the power used to perform the corrective action. Since congress can commandeer the individual for military service, does this infer a general commandeering power for other matters? Certainly the 5A and 13A place limits on this assertion. The common “theme” for the commandeering limits is “for the public good.” One could argue that the success of the pre-existing mandate is for the public good, but commandeering those without insurance is principally for the good of health insurance providers (as that is who is directly receiving their money – not the general public). I suppose this distinction is what must be resolved.
February 24, 2011, 11:58 amFederal Judge Upholds Individual Mandate By Eviscerating The Constituition says:
[...] Somin notes: This argument suffers from the same flaws as the very similar “economic decision” [...]
February 24, 2011, 3:31 pmLe Poisson says:
There seems to be a very strong but somewhat questionable underlying assumption that, sooner or later, everyone will ‘consume’ formal (doctors & hospitals) healthcare. Once past the age of majority, though, a not unreasonable individual could elect to forgo formal healthcare. I imagine there are any number of Americans of surprisingly advanced age and good health who have successfully avoided doctors their whole life.
February 24, 2011, 4:54 pmplopez says:
On the requirement that hospitals free emergency service to the uninsured, Ilya wrote:“If it wanted to, Congress could have eliminated such free riding simply by lifting the requirement with respect to anyone who had enough income to purchase health insurance but chose not to do so.” So when somebody comes to the emergency room with a heart attack or major traumatic injuries from a car accident or bullet wound to the head, we’re going to first check and see if they have “enough income to purchase health insurance” and then leave them to die if they “chose not to” buy insurance??!
February 24, 2011, 5:48 pmMike Hansberry says:
Why is it not commercial activity? Surely buying any item is commercial activity.
February 24, 2011, 6:05 pmGuy says:
Yes, that’s what makes it a hypothetical. So do you have a response to it?
February 24, 2011, 6:39 pmMike Hansberry says:
If it is proper for government to compel purchase of insurance by way of the CC+N&P, why would it not be the case that Congress has this power directly through the CC?
If decisions are activity, then decisions about buying of goods are commercial activity which Congress could regulate directly through the CC with no need of N&P, aggregate effects, or a larger regulatory scheme.
So why all the smoke and mirrors? Judge Kessler laid down a smokescreen and simply ran away from plaintiff’s applying the government’s theory to Wickard and asking why Congress does not have the power to compel purchase of wheat to regulate that market.
If we eat, must we buy wheat?
February 24, 2011, 7:00 pmjrose says:
It would be permissible directly under the CC if “regulate” includes “mandate”, but I’m not aware of precedent to support that claim.
February 24, 2011, 8:01 pmMike Hansberry says:
How then does Congress power to regulate economic decisions which in the aggregate have an effect on commerce include mandates?
February 24, 2011, 8:20 pmjrose says:
Some argue that is directly under the CC, others say it is N&P applied to CC. Precedent is a bit unclear about that. Either way, it is the substantial effects doctrine which is distinct from the argument that “mandate” falls within “regulate”.
February 24, 2011, 8:29 pmMike Hansberry says:
If an activity has a substantial effect on interstate commerce, Congress can regulate it, but we are still talking about regulation, not mandates.
There is no suggestion that Congress could compel the growing of wheat(Wickard) or marijuana(Raich), in fact Judge Kessel refused to discuss that argument.
February 24, 2011, 8:45 pmSteverino says:
Not true. CA, TX, and VA also provide for alternative means of demonstrating financial responsibility (in VA the alternative to a liability policy is a $500 Uninsured Motor Vehicle fee, and the driver is personally liable). I somehow can’t believe the only states I’ve lived and registered cars in happen to be 3 of the only 4 states that don’t have a liability insurance requirement, but I’m not going to waste my time exploring the DMV websites of the other 46 states. Which is really the only way to know with any certainty.
I don’t follow the logic. I consented to meet state-imposed requirements to engage in a purely voluntary activity, you can imagine a situation where the federal government can impose additional requirements upon me if I wish to continue to to engage in that voluntary activity, therefore the federal can force me to buy things unrelated to any activity I voluntarily engage in and with no need for my consent?
I also don’t see any analogy to car insurance. The individual health insurance mandate is more akin to the federal government deciding that since many states make people buy liability insurance if they decide on their own they wish to drive, it has the power to force me to buy a similar liability policy whether I want to or not, whether or not I own a car, bike, ride a bus or just walk, because at some point I might be engaged in some form of interstate commerce.
Actually, come to think of it, that’s almost exactly what the individual health care mandate is. And it’s a whole new, different type of beast.
February 24, 2011, 9:04 pmjrose says:
I think you mean economic activity. Kessler reasoned that the decision not to buy “X” is an economic activity because the decision to buy “X” is economic.
Why does it trouble you that she did not discuss those hypotheticals?
February 24, 2011, 10:21 pmDilan Esper says:
Jrose:
wickard holds stimulation of commerce is regulation of commerce, and Heart of Atlanta Motel and McClung both upheld mandates as regulations.
Further, the plain meaning of regulate includes prohibitions, restrictions, conditions, and mandates. Indeed, one of the dumbest aspects of the inactivity argument is that it contradicts the meaning of regulate.
February 24, 2011, 11:02 pmAJ says:
Samuel Johnson’s 1785 edition of the Dictionary of the English Language defines “to regulate” as to adjust by rule or method; whereas “to mandate” is equated with to command. Thus if you are going to engage in commerce, here are the rules that you must play by. This is quite different then being able to command the performance of commerce. The argument is brought home when one looks closer where else regulate is used in the constitution. For instance, congress is given the power to regulate the time, place, and manner of elections. No one takes this to mean that congress has the power to mandate someone participate in an election as either a voter or candidate. Only that if you choose to participate, here are the rules. Dilan needs a new dictionary!
February 24, 2011, 11:48 pmMike Hansberry says:
You missed the slieght of hand, on page 38 Judge Kessler switches to “consumption” of a commodity to make the decision an economic decision rather than a commercial desision. But the mandate is not about consuming insurance, it is about purchasing insurance.
Instead of answering the plaintiffs’ hypothetical, Judge Kessler says such an argument is not relevant because healthcare is distinguishable because healthcare is special, though elsewhere the Judge says the facts in Wickard are very similar to PPACA as both involve a larger regulatory scheme, aggregate effects, substantial effects, economic decisions, and a desire on the government’s part to have people buy a commodity rather than provide it for themselves. The importance of healthcare goes to necessity, but it does not got to whether the mandate is proper, or whether the power to regulate include mandates.
Kessler sidesteps the hypothetical for the same reason she first talks about decisions concerning buying insurance(commercial decisions), then changes tracks and talk about decisions concerning consuming insurance(economic decsions).
The judge uses sleight of hand in characterizing a decision not to buy insurance as an economic decision rather than a commercial decision. The bait and switch is necessary because the Mandate must be presented as constitutional only as part of “special” well developed regulatory scheme to enable discussion of the consequences of such a decision to be swept aside as merely a parade of horribles.
February 25, 2011, 12:19 amNot Just Breathing: Now the Feds Can Regulate Thinking | Cato @ Liberty says:
[...] See also Ilya Somin's reaction. [...]
February 25, 2011, 2:37 amAJ says:
However, nothing in Wickard suggests that congress has the power to stimulate commerce by going outside of commerce and compelling participants. In fact, Wickard makes clear that congress may regulate those engaged in commerce for the benefits of others. If your curious formulation is correct, then it is odd that no judge has yet adopted the simple ruling that Wickard allows the health insurance mandate
February 25, 2011, 7:38 amjrose says:
Oh, I thought you had said she didn’t discuss it at all. But now I see she did. And I agree with you that her arguments aren’t well formulated.
If she felt the hypothetical was beyond the CC power she could have either 1) relied only on the N&P argument without discussing the substantial effects doctrine, or 2) made an argument as to why the special nature of health care alters the substantial effects doctrine analysis.
I don’t see the use of “economic decision” instead of “commercial decision” as a sleight of hand, or having any relevance to her dismissal of the wheat-mandate hypothetical.
None of the judges or the parties in these cases have claimed the mandate is a direct regulation of commerce – likely because they don’t feel precedent supports such a claim (Dilan Esper’s argument notwithstanding). Instead, they rely on economic regulations that substantially affect interstate commerce, and it is clear that a commercial decision is also a economic decision.
February 25, 2011, 8:07 amAdam says:
The chances that this will remain true for anyone through there death are next to zero. People in this country tend to die in hospitals, or at least after having been treated for the diseases associated with old age.
February 25, 2011, 11:46 amAdam says:
Sorry, but why do you think “economic” is different from “commercial” and what is the basis for that “distinction?”
February 25, 2011, 11:53 amHazel Meade says:
I’ve come up with a “trolley case” that eludicates the moral difference between action and inaction.
Think of it this way.
Situation A) A trolley is heading for a person on a track. You can push a button to save them.
Situation B) A trolley is NOT heading for a person on a track. You can push a button and divert it into their path.
Now, the question is, is NOT pushing the button in A the same as PUSHING the button in B. I would argue NO, for some reasons I’m npot going to get into right now.
However, one MIGHT plausibly argue YES. But if you do, then you have to answer the second question:
IF NOT pushing the button in A is equivalent to PUSHING it in B, then why isn’t PUSHING the button in A equivalent to NOT pushing it in B.
In other words, is refraining from killing someone in B morally equivalent to saving their life in A. If you think the action/inaction distinction is irrelevant, aren’t you compelled to say yes, and doesn’/t think imply that EVERY inaction in which you refrain from harming someone amounts to a positive action to benefit them? Am I saving lives every second by refraining from killing people?
February 25, 2011, 1:00 pmHazel Meade says:
The better way of phrasing this is to point out that not every person’s expected cost is going to exceeed the premiums he or she would have paid into the system.
In fact, what the bill is intended to do is to force low risk people to buy insurance at rates that exceed their expected costs. This is the effect of the ban on risk-based pricing. A low risk person necessarily will have on average lower health care expenses than a high risk person. Therefore a low risk person is actually NOT a free rider if he does not buy health insurance, since his costs are going to be on average less than the cost of his insurance. In fact, the real free riders are the high-risk people who will now be permitted to buy insurance at below market rates. THEIR expected health care costs will EXCEED their premiuums. In effect the people refraining from buying insurance under this scheme are not free-riders, but people who are refusing to be free-ridden upon.
February 25, 2011, 1:25 pmAdam says:
Why do you think the extent of the commerce clause’s reach is a moral question?
February 25, 2011, 3:08 pmDilan Esper says:
AJ:
First of all, most of us don’t think the meaning of the Constitution is limited to what one dictionary said in 1785. When Scalia pulls that shit, he gets two votes.
But second of all, your argument proves too much. The modern regulatory state includes a plethora of mandates, prohibitions, conditions, rules, etc. If you want to claim that the only things that fall within the commerce clause are adjustments by rule or method, most of the regulatory state is unconstitutional. Now, you might actually think that– but you don’t have the votes for that proposition on the Supreme Court. In any event, any definition of “regulate” you choose to use has to be consistent with all the various forms that regulation takes in the modern era. Otherwise, you are just engaging in mental masturbation, not providing any sort of a practical rule for Americans to live under (as the Constitution was intended to do).
February 25, 2011, 5:32 pmMike Hansberry says:
Relevance: if an activity is commercial, Congress can regulate it w/o need to rely on a claim of a “special” character, substantial effects, etc. which simply provide a fig leaf for Judge Kessler’s holding (decision not to buy = activity). Note that the supposed special nature of healthcare is what distinguishes this case from Wickard according to Judge Kessler.
If a decision not to buy a commodity is activity, and buying is commerce, why is a decision not to buy not a commercial activity which would fall squarely within the bounds of Congress’ plenary power under the CC?
Can Congress mandate that we buy a commodity which is the product of interstate commerce? Note that such a formulation need not rely on a wider scheme of regulation, N&P, or a claim of specialness.
Can Congress mandate that we engage in interstate commerce(fill in th blank) on the theory that(fill in the blank) is interstate commerce and a decsion not to engage in (fill in the blank) directly affects interstate commerce?
Can you see that if a decision not to purchase a commodity is an activity in the CC sense, Dilan Esper is essentially correct(though “plain meaning” might be stretching it)
February 25, 2011, 9:06 pmjrose says:
Dilan might ultimately be proven correct by SCOTUS, but no judge nor party in any of these cases has interpreted precedent to support his argument.
February 25, 2011, 9:30 pmMike Hansberry says:
Judge kessler said that precedent supports her finding that decisions not to purchase are activities in the CC sense. What she is hiding(or choosing not to discuss if you prefer) is that her finding leads basically to Dilan’s position (see my previous post). So while I agree with you that she did not articulate Dilan’s interpretation, I see that as a lack of candor rather than a lack of agreement.
February 25, 2011, 10:59 pm» The totalitarian nature of mandatory insurance | Independence Institute: Patient Power Now » says:
[...] Somin comments: This argument suffers from the same flaws as the very similar “economic decision” doctrine [...]
February 26, 2011, 1:50 amAJ says:
You’ve failed to grasp my point. No, rules can require a shipper to acquire and use a certain type of crate, a seller may be mandated to only operate during certain hours, and a producer might be required to obtain certain types of protective gear. All of this still falls in line with, “if you wish to play this game, here are the requirements.” What you are saying is that “to regulate” means that if you choose not to play the game, government can compel you to play the game. That is the aspect of “mandating” that clearly does not relate to any common usage of the word regulate. Since government regulates the manner in which elections are held, can congress mandate that an individual vote?
February 26, 2011, 5:56 amjrose says:
Dilan’s position requires one more finding: a mandate to engage in commerce is a regulation of commerce. Apparently she (and everyone else besides Dilan) believes precedent hasn’t established that additional element.
February 26, 2011, 7:43 amMike Hansberry says:
AJ,
Congress has put in place a well developed scheme to regulate the marketplace of ideas. And as ideas are commodities, Congress has excersized its authority to require that we buy from the market(Wickard) rather than to provide them ourselves.
Home grown notions (i.e. free will, self determination) in the aggregate have sustantial effects on the market place of ideas, and thus fall squarely within Congress’ authority to regulate.
Do you imagine you still have free will? Seriously, Seruiously?
February 26, 2011, 8:08 amMike Hansberry says:
Jrose,
Unlike Dilan’s argument that one line from Wickard (“The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon”) provides precedent that Congress has the authority to compel commerce, Judge Kessler’s holding in Mead that decisions not to buy = activity does lead directly to that conclusion.
Please reread pages 38 and 39 of Mead. Also the below excerpt from page 63, in addition to the farcical least restrictive = compelling people to do exactly as told assertion, shows that the Mandate is regulation of the decision not to buy.
A key holding of Mead is that decisions not to buy a commodity are activities in the CC sense, and by definition buying of commodities is commerce, so it follows directly that decisions not to buy commodities are commercial activities and so within Congress authority to regulate without need of wide scheme of reguilation, aggregate effects. etc. Judge Kessler also finds that the Mandate is appropriate regulation under both the CC and CC+N&P.
That Judge Kessler does not articulate the end result (a mandate to engage in commerce is a regulation of commerce) of her two findings above, and in my opinion takes pains to avoid disclosing, does not mean that such precedent is not established by Mead.
February 26, 2011, 9:19 amjrose says:
I believe she held that such decisions are activities in the CC sense only in that they are economic activities, not commercial activities.
You may believe the implication of her reasoning is that such decisions are also commercial activities, and therefore Congress can prohibit those decisions directly without appealing to the substantial effects doctrine. I suspect she didn’t go there because she didn’t want to ground her decision on theories that aren’t as well established as the substantial effects doctrine.
February 26, 2011, 9:59 amMike Hansberry says:
Is it even remotely conceivable that Congress’ authority under the Commerce Clause would reach economic decisions but not commercial decisions?
Is buying not commerce? Or is it decisions = activities that gives you pause?
Judge Kessler took the long way around in focusing on consumption/economic activity in order disguise the full impact of her holding that decisions are activity in the CC sense.
February 26, 2011, 10:32 amjrose says:
I think it is much more likely she wanted to ground her decision in well-established precedent.
February 26, 2011, 10:35 amMike Hansberry says:
Jrose,
Even if you are correct about motive, the consequence of Judge Kessler’s holdings still lead to Dilan’s view.
Does that trouble you?
February 26, 2011, 11:56 amHazel Meade says:
Well, the argument that there is no distinction between action and inaction is a moral one, in my opinion. They are saying that NOT buying health insurance amounts to a positive action that imposes costs on other people, much like not pushing the button in the trolley case A. That’s an argument about the moral equivalency of taking an action and not taking an action. Their argument that inactions are just as regulatable as actions PRESUMES a moral equivalency between them; it takes it for granted in a way that ios actually not supported by moral philosophy.
February 26, 2011, 3:00 pmjrose says:
I’m not convinced that Kessler’s holdings necessarily gets you to Dilan’s conclusion that mandates to engage in commerce are a plenary Congressional power. On the other hand, I’ve seen no good argument that counters the conclusion that Congress can mandate purchases under the substantial effects doctrine (assuming Congress legitimately wishes to influence a market rather than to control behavior), and that does not trouble me.
February 26, 2011, 5:09 pmMike Hansberry says:
Here’s a few.
1) There is no precedent that decisions are activity in the CC sense.
2) Buying/selling are commercial activities, decisions to buy/sell are commercial decisions, and thus commercial activities if Judge Kessler is correct regarding #1.
3) #1 and #2 lead to Dilan’s view. What do you see wrong with this formulation?
Here, Congress enacted § 1501 based on its understanding that (1) all individuals inevitably consume medical services and (2) when they do consume those services, the way in which they pay for them substantially affects market prices.
Kessler admits the obvious, what is really at stake is the way in which health care services are paid for, and purchasing a service is quintessential commercial activity. If compeling purchase of health insurance can be reached by economic activity(where decision=activity) + substantial effects, then surely it can be reached directly as a regulation of the commercial activity (the purchase of health insurance or decision not to purchase health insurance)that is admittedly the object of the mandate legislation.
February 26, 2011, 6:27 pmAJ says:
Let’s review jrose’s position: Filburn was substituting home-grown wheat for market-place-wheat that the government was attempting to regulate. Here, an individual is substituting making future health care purchases without health insurance for making health care purchases with health insurance (a “commodity” that government is trying to regulate to make the pre-existing condition requirement work). Undoubtedly buying health care is an economic activity so it would satisfy any Lopez-Morrison-Raich economic/non-economic qualms. So the argument is predicated in part on the unique character of health care products/services being required by everyone.
February 26, 2011, 7:09 pmMike Hansberry says:
AJ,
Well yes, the argument is presented that way, but the whole house of cards relies on the novel decision=activity holding. Moreover, the HC market is not inherently unique, its quirks are imposed by Congress’ regulatory scheme.
However, if decisions really are activity in the CC sense, then it is within Congress’ power to compel purchase of commodities in general. Surely Congress has broad authority to regulate the purchase of commodities, the buying and selling of commodities is the very definition of commerce. But absent decision=activities, Congress can only regulate purchases/transactions a person willing enters into or which have a connection to some wider scheme of regulation such as in Wickard or Hearts of Atlanata.
With decision=activity in place, Congress can regulate commercial “activites” which are nothing more than a “decision not to purchase”, and thus can mandate purchase of commodites in general(meaning no need for a wider scheme of regulation, substantial effects, aggregate effects, or N&P).
It is rational toconsider whether decisions could be “activity” in the CC sense. But on its face decisions=activity seems quite unnatural, decision regulation sounds very much like thought control, and finding that it transforms the power to regulate commerce into a power to compel commerce, which is well beyond the normal meaning of the word regulate, a rational person ought to reject extending CC activity to include decisions. When a theory doesn’t fit the text, it is the theory that must give.
February 26, 2011, 9:15 pmjrose says:
Your argument hasn’t been put before a court nor briefed. I prefer to withhold judgment until such time.
February 26, 2011, 10:18 pmjrose says:
The decision=activity argument was relied upon by the three district courts that upheld the mandate. What AJ describes is a different argument as explained on the ACA litigation blog:
February 26, 2011, 10:25 pmAJ says:
Let’s apply the substitution formulation to another example: suppose an individual were to substitute using home exercise equipment for using a public/private fitness facility. So if there was a comprehensive commerce clause regulatory scheme involved in improving people’s fitness in order to reduce health care costs that would only succeed if fitness facility enrollment were “stimulated”, then this constitutional analysis would seem to enable mandating individuals to purchase health club memberships.
Let’s try again: suppose someone uses public transportation in lieu of owning a car. If the government wishes to stimulate the auto industry (a clear commerce clause allowable goal), could they mandate that everyone purchase a car? In jrose’s formulation: could the government prohibit them from substituting transportation without an auto for transportation that uses an auto (since everyone requires some sort of transportation and the regulatory scheme would fail if more people did not purchase autos). So if I have jrose’s analysis correct, then this naturally leads to a rather broad power to compel economic activity provided the person’s original choice (home work out equipment, train passes, etc) also involves economic activity.
I suspect the general flaw here is that by lumping items into broad classification categories (health care, transportation, nutrition, fitness) that individuals spend any money on at all, you could then use substitution analysis to rationalize any number of mandates. The problem is that Wickard/Raich placed mandates on producers who willingly chose to be in the wheat/marijuana production arena. Here, you are boot-strapping onto the fact that all individuals consume health care/transportation/food products to be able to place them into general consumer classes to be regulated. I believe that this sets into motion multiplying the number of affirmative citizen duties/mandates and moves the congress’ power toward that of a general police power.
February 26, 2011, 11:10 pmMike Hansberry says:
Jrose,
Thanks for the link.
I see the government in its most recent filing is moving away from the “decision=activity” meme and moving towards basing the regulation on actual activity. Judge Kessler’s opinion struck me as a phyrric victory as portions had an absurd quality.
February 27, 2011, 12:21 amThe more one hears a judge trying to justify “decision=activity”, the more one understands the deal, and the worse it sounds.
Brian Hodgman says:
I realize that the Commerce Clause debate is much more in vogue, but regarding the RFRA claims – was anyone else shocked that Judge Kessler ruled that the plaintiffs failed to meet their prima facie ‘substantial burden’ requirement, yet nonetheless went on to state that even if they HAD, that the mandate withstands strict scrutiny?!?! (compelling interest + least restrictive means).
For one, I think she is WRONG – it does NOT satisfy a proper “least restrictive means” analysis – but worse, to reach this issue – let alone at the Summary Judgment state (dismissal under 12(b)(6)) – is extraordinarily improper in my opinion…
February 27, 2011, 12:29 amjrose says:
That’s a good summary.
The counter argument is the constitutional analysis in Wickard did not rely on Filburn being a producer – and hence you are inventing a non-existent problem.
February 27, 2011, 8:01 amMike Hansberry says:
Jrose,
In the broadest sense, the constitutional analysis is whether his actions affected the market.
In Wickard, the disposition of home grown wheat was the issue, so I am not sure how “being a producer” is not relevant to finding whether Filburn’s actions affected the market.
This is where the plantiffs in Mead point out that had Filburn not grown wheat, there is no hint in the Court’s decision that, though it had been established that a wide regulatory scheme was in place and there had been a finding that consumption of wheat grown on the farm where consumed had substantial effects and aggregate effects on the interstate market, Congress could have compelled him to grow wheat, or could have compelled Filburn to purchase wheat on the basis that the actions of not growing wheat and/or not purchasing wheat affects the market.
Judge Kessler’s attempt to distinguish the prsent case from Wickard ignored that the finding of authority to regulate home grown wheat was a done deal in Wickard. Her discussion of the supposed unigue quality of the HC market is a diversion. Plantiff’s hypothetical was meant to press the issue -either Congress has authority under the CC to compel home growing of wheat or they do not.
February 27, 2011, 10:19 amjrose says:
The disposition of grown wheat was the scope of the statute. But, I don’t think that scope played any role in the constitutional analysis.
I think that viewpoint misinterprets Wickard.
February 27, 2011, 10:44 amAJ says:
I suppose the counter builds on the following two observations by the court in Wickard:
“Whether the subject of the regulation in question was “production,” “consumption,” or “marketing” is, therefore, not material for purposes of deciding the question of federal power before us…. 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 if it exerts a substantial economic effect on interstate commerce”
So a broad analysis would say that if you are involved in any of the economic activities of production, consumption, or marketing that substantially affects the regulated interstate market, then the behavior is reachable by regulation.
But again, regulation does not necessarily imply commanding any activity. I believe that there is a clear distinction between setting a rule that says “you may not purchase health care traditionally covered by insurance without insurance” and commanding a transaction “you must buy health insurance”.
The latter seems to imply that government can commandeer the resources of producers, shippers, sellers, and consumers to do government’s bidding with little to no recourse. This does not strike me as a power that the court would rubber stamp.
February 27, 2011, 11:10 amjrose says:
SCOTUS could set up such a doctrine, but it does not now exist, and for good reason. SCOTUS has avoided micromanaging classes of activities that may or may not impact interstate commerce. Your distinction is such judicial micromanaging which ignores, for example, people who brew a home remedy to avoid going to the doctor they cannot afford because they don’t have insurance.
February 27, 2011, 11:50 amMike Hansberry says:
How so?
Do you think Congress could compel a person to grow wheat in case with same facts as Wickard?
It is in the interset of the pro-mandate side to say that HC is unique market, and so a finding that Congress has the authority to compel purchase of health insurance does not result in broad police power. But why should such aa authority to mandate be unique to ACA?
February 27, 2011, 11:56 amMike Hansberry says:
Which is why if the power to mandate would result in broad police power if applied to mental activity rather than actual activity.
February 27, 2011, 12:06 pmAJ says:
My distinction simply points out one way to transform an authoritarian command into an administratable rule that provides consumers with practical options. The legislature is responsible for fashioning the latter while the judiciary is responsible for protecting the consumer from the former. Again, whether the “power to economically commandeer” derives from an over-expansion of the substantial effects doctrine or over-extending the necessary & proper clause, in either case it creates a chilling precedent for what it would mean to be a citizen. At what point do we simply become puppets in a government’s comprehensive regulatory scheme?
February 27, 2011, 12:36 pmjrose says:
I do (*), assuming Due Process or some other part of the Constitution (that applies equally to the states) does not prevent Congress form doing so.
(*) You might want to alter the facts so that Congress wants to hold prices down rather than keep them up.
February 27, 2011, 2:19 pmjrose says:
I think your rule is administratable only if the courts micromanage.
February 27, 2011, 2:23 pmjrose says:
Even accepting Kessler’s “mental activity” argument, non-economic decisions (such as possessing guns in a school zone or eating broccoli) would be beyond Congress’s power.
February 27, 2011, 2:27 pmMike Hansberry says:
1) Comstock undercuts the assurance that only economic activity will be reached in future cases.
2) Extending reach to Mental activity is a huge leap in itself, I will not sleep better knowing Congress can micromanage my grocery list while graciously leaving me the choice to eat what I wish.
Was it Nancy Pelosi who said -Seriously, Seriously, Let them eat cake?
3) Also I am not sure that being compelled to economic activity that I do not want to do is any better than being forbidden to do non-economic activity I wish to do. Why should the Court allow the former, when it has rejected the latter?
February 27, 2011, 3:05 pmjrose says:
That would require reversing Lopez and Morrison, and the insurance mandate plays no part in such a consideration.
Because 1) it already has allowed the former in Heart of Atlanta, and 2) the reason for rejecting the latter is to insure Congress’s laws aren’t too attenuated from commerce.
February 27, 2011, 3:20 pmAJ says:
The test is pretty straightforward: congress has no power to command economic activity. It can set rules but once the rules have the effect of compulsion, the legislation is unconstitutional. Again, it should be illustrative to consider that the federal government really only compels me to do 4 things: fill out a census form every ten years, register for selective service once, serve on a jury (never had to for the federal gov), and fill out and pay my taxes once a year. Note, there are no contractual obligations with other citizens or corporations or requirements to purchase any products. I believe that this is a residual of economic liberty of contract that persists. We as citizens have the right to decide with whom and for what we want to establish a purchase contract. Your rule leaves the minority consumer at the whims of big-government regulator. Today the fine is modest, tomorrow?
February 27, 2011, 6:46 pmMike Hansberry says:
I was referring to compelling economic actvity w/o a nexus, I thought it unnecessary to write out the qualifier, but whatever. Hearts of Atlanta plainly has a nexus -operating a hotel. But the mandate is only on the person running the business, not the (potential) consumer. Sure we all travel, some more than others.
Some time ago I asked if travelers (consumers in Hearts of Atlanta)could be reguired under the CC to purchase hotel rooms rather than stay with family or friends. Orin would not answer, will you?
I am not very good with links, so I am crossing my fingers that it works.
February 27, 2011, 7:12 pmhttp://volokh.com/2011/01/21/barnett-and-kerr-debate-the-constitutionality-of-the-individual-mandate/#comment-1118210
Mike Hansberry says:
Thanks for responding directly.
Why do you suppose the pro-mandate side is not making the argument openly that Wickard supports mandate of home growing of wheat, so it follows directly that the health care mandate is constitutional given the cases are strikenly similar?
Instead we are being fed a line about health insurance market being unique -nothing to see here folks, just some libertarian kooks with a parade of horribles. However this supposed “parade of horribles” results from reading the well known CC precedents with the expansive view of the CC that is urged by the government.
February 27, 2011, 7:50 pmjrose says:
Which means either Heart of Atlanta must be reversed or …
… judges will be left to micromanage what constitutes an acceptable nexus (e.g., is “acquiring health care services without insurance” a sufficient nexus)
February 27, 2011, 7:53 pmMike Hansberry says:
So are you rethinking Dilan’s assertion that mandates w/o a nexus falls within the meaning of regulating commerce?
It seems to me that mandates on people not engaged in an activity (i.e travelers who are merely potential consumers in Hearts of Atlanta, as opposed to the hotel operator; potential patients as opposed to insurance companies or hospitals) is also outside the meaning of regulating commerce.
February 27, 2011, 8:00 pmjrose says:
I don’t know, although former Solicitor General Fried (under Reagan) did so.
However, there is a special aspect of health care that distinguishes it from the so-called “parade of horribles”: courts can uphold the mandate as N&P for the preexisting condition regulations without reaching the substantial effects doctrine.
February 27, 2011, 8:06 pmMike Hansberry says:
Judges will have to judge, I am not seeing a problem with that. Right now the activity in question is a key part of CC analysis. Judge Kessler wants to add mental activity but I do not see how it is difficult to distinguish mental from actual -in fact it is a no-brainer!
February 27, 2011, 8:16 pmMike Hansberry says:
But the pre-existing conditions is not inherent in health care market, it is a creation of Congress, and I do not think bootstraping could reasonably be seen as proper. Since we are doing this, we will also have to do that to make our overall scheme work, thus doing that is constitutional. Bootstrapping worked for Baron von Munchhausen, but Judge Kessler must know “in reality” it does not.
I couldn’t get the C-span video to play, however I did watch that hearing on C-span when it first aired, but do not recall the Wickard reference from Fried, and do not find it in the below transscript.
http://judiciary.senate.gov/hearings/hearing.cfm?id=4964
However, as I read Fried’s view, it is nearly Dilan’s, so maybe I am just missing Fried’s reference to Wickard.
February 27, 2011, 9:02 pmjrose says:
I do.
February 27, 2011, 9:22 pmMike Hansberry says:
So now you want Judges to micromanage what is pretext and what isn’t?
Congress can’t muster the politcial will for Single Payer, so it goes with the preconditions+mandate to accomplish nearly the same result, and that does not fit your meaning of pretext?
Golly -who could have guessed that a requirement to cover preconditions would have such ramifications.
February 27, 2011, 10:30 pmjrose says:
John Marshall did:
February 27, 2011, 11:47 pmMike Hansberry says:
Jrose,
I was being sarcastic, should’a used a smiley.
February 28, 2011, 1:03 amSteverino says:
As a practical matter, Kessler’s decision may well become law of the land. And ObamaCare may well be ruled constitutional.
But as a practical matter, what’s the next step? Reinstituting slavery? Because unless the government forces people into involuntary servitude, it’s not going to be able to provide or pay for or what it promises.
Some have suggested I’ve been less than responsible as I don’t have health insurance. To them I say, you haven’t seen nothing yet. Impose ObamaCare on me, and I’ll really go to town.
All my life Chuck and Bill and a few other nameless faces have been getting together to discuss how they’re going to rob Peter to pay Paul. Naturally, Peter is outvoted as Paul votes with Chuck and Bill and Peter’s out of luck.
I’m sick and tired of playing my assigned role of Peter. No more. I consider it my civic duty to stop paying the ransom money. At least then I won’t be underwriting the expensive illusions of others.
So who’s going to pay for this? Because I’m not. I can and will adjust my affairs so I am being subsidized, not providing a a subsidy.
Who’s silly enough to make this scheme even appear to work?
February 28, 2011, 6:13 pmAJ says:
No, no. My reference was to not being able to command economic activity when there is no clear connection to a stream of commerce. You attempt to get around this by saying that “future medical care purchases” are a sufficient hook because they are inevitable. You further argue that by purchasing care without insurance, the uninsured frustrate the government’s desire to increase the insurance pool so that the mandate to cover pre-existing conditions is matched by new insurance customers.
First, it’s unclear how the court will view regulating purchases that have not yet occurred. How specifically does the court craft a rule to limit government’s reach into hypothetical purchases? You suggest that any health care consumption, including homebrews and over-the-counter medicines, is sufficient to trigger the economic nexus, even though these items are not even traditionally covered by insurance. So if person A purchases a bottle of aspirin without owning insurance, person A can be viewed as substantially affecting the interstate health insurance market. This is an inconvenient stretch since most will see that it is not the “purchase” but the “status” that creates the substantial effect. In fact by broadening the arena of health care purchases, you inadvertently attenuate the economic activity link.
Second, I find the regulatory scheme unusually burdensome to the uninsured. The plan is predicated on the fact that the currently uninsured are relatively healthy so that their health care costs to the insurance pool will be less than their premium payments. This is the entire basis for how insurance companies can stay profitable. Thus in effect you are compelling a purchase that by design will leave the individual economically disadvantaged so that the currently insured premiums will not rise, those with pre-existing conditions will not go without, and insurance companies can operate profitably. Further an insurance policy does not make health care free, there remain co-pays, deductibles, exclusions, and caps so an individual will still have out-of-pocket expenses on top of the cost of the premium. So the question becomes is there a due process violation that emerges from an insurance mandate that provides no other economic option other than paying a fine? It is interesting to consider the due process analysis in Wickard:
“It is agreed [p131] that, as the result of the wheat programs, he is able to market his wheat at a price “far above any world price based on the natural reaction of supply and demand.” We can hardly find a denial of due process in these circumstances, particularly since it is even doubtful that appellee’s burdens under the program outweigh his benefits. It is hardly lack of due process for the Government to regulate that which it subsidizes.”
So there is at least some precedent to assess the impact of the mandate on the individual. Here by design, the average uninsured individual’s burdens will outweigh his benefits to advantage the rest in the country. Since the individual cannot avoid hypothetical future health care purchases, there is no way to extract himself from the regulated condition. Certainly this regulatory approach is an end-run around an impermissible direct tax on the status of being uninsured and should not be allowed.
March 1, 2011, 9:44 am