In The New Republic Purdue University political science professor Frank J. Colucci, author of Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty, ponders whether Justice Kennedy will vote to uphold the individual mandate. Colucci writes:
The question of the individual mandate’s constitutionality is closely tied to two competing values that Kennedy believes in deeply: a judicial duty to enforce limits on the federal government, and acceptance of a practical post-New Deal conception of the federal power to regulate a national economy. His record contains repeated defenses of both commitments, and when confronted with cases that pit them against each other, he often tries to have it both ways. With the mandate, though, Kennedy will have to choose.
Colucci goes on to identify three concerns defenders of the mandate will have to address in order to prevail, most significantly whether the arguments proffered in the mandate’s defense have meaningful limits.
to address Kennedy’s commitment to restraining federal powers, mandate defenders will have to formulate a plausible theory of congressional commerce authority that remains subject to meaningful, judicially enforceable limits. This is a line of argument that, to date, mandate defenders have been less successful in articulating. They cannot simply ridicule mandate opponents’ contention that the law would open the door to legislation requiring people to eat their broccoli: They must provide realistic examples to demonstrate that principled limits on federal power to regulate commerce among the several states remain meaningful and are not merely words on parchment. Were Kennedy to vote to strike the mandate, it will most likely be because its defenders could not present a principled, enforceable stopping point to federal power under the Commerce Clause.
It is fashionable in some academic quarters to dismiss the need for a justiciable limit on federal power. The argument that the principle limit on federal power is, and should be, political has a long pedigree. (See, e.g., Herbert Wechsler’s 1954 Columbia Law Review article, “The Political Safeguards of Federalism.”) For a period of time the Court embraced this argument, most recently in Garcia v. SAMTA. The Court’s more recent federalism decisions, however — including United States v. Lopez, United States v. Morrison, Alden v. Maine, New York v. United States, and Printz v. United States, among others — have thoroughly rejected this view, have rejected this view. These decisions, in which Justice Kennedy has joined, have held that there must be meaningful, judicially enforced limits on federal power — and a judicially enforceable limit requires drawing a line beyond which federal power may not reach.
This, in the end, is why mandate defenders need to be able to provide a doctrinally satisfying answer to the broccoli question: If the federal government may require everyone to purchase qualifying health insurance plans from private companies, why can’t it also require everyone to purchase broccoli? Suggesting that Congress would never seek to do such a thing is insufficient, as citing political safeguards on federalism is no answer and does not respond to Justice Kennedy’s concern.
It is notable in this regard that some mandate defenders, such as former Solicitor General Charles Fried, argue that Congress could mandate that everyone present in the country purchase broccoli, at least as part of some broader economic or regulatory scheme (though Fried would add he does not believe Congress could mandate anyone eat the broccoli, albeit on substantive due process, rather than enumerated powers, grounds). This is a perfectly respectable view held by many judges and academics. But it is also a view that implicitly rejects the idea embedded in the Court’s post-1990 federalism jurisprudence that the judiciary must safeguard federalism. For that reason, it is a view of the individual mandate that might prove difficult for Justice Kennedy to swallow (or so opponents of the mandate hope).
[On a somewhat related note, VC readers may be interested in this brief paper, based on a presentation I gave at a symposium on federalism and health care reform sponsored by the Kansas Journal of Law & Public Policy. It does not discuss the individual mandate, but does address some other constitutional and policy issues.]
Dilan Esper says:
The court’s post-1990 federalism jurisprudence IS the limit. No regulation of the non-economic sphere absent a sufficient relationship to commerce, and no commandeering of state resources.
That may not be the limit you WANT, but it is a limit.
March 29, 2011, 5:32 pmSo, Where Is Justice Kennedy Likely to Fall on the Individual Mandate Issue? says:
[...] the rub. Cancel [...]
March 29, 2011, 5:33 pmNo Theory of Jurisprudence says:
Please let me know if I have misstated your argument:
P1: “United States v. Lopez, United States v. Morrison, Alden v. Maine, New York v. United States, and Printz v. United States, among others — have thoroughly rejected [the view that the limits on Congressional powers are purely political].”
P2: “Justice Kennedy has joined, [these opinions which have] held that there must be meaningful, judicially enforced limits on federal power — and a judicially enforceable limit requires drawing a line beyond which federal power may not reach.”
C: “mandate defenders need to be able to provide a doctrinally satisfying answer to the broccoli question[.]”
If so, I think you are missing a premise.
March 29, 2011, 5:41 pmalkali says:
My answer: Congress could do that. Stupid legislation does not become unconstitutional by reason of being stupid.
Also, nothing in the Constitution prevents us from declaring war on Canada, or from electing Charles Manson president.
March 29, 2011, 5:42 pmMike Rappeport says:
I suggest the following judicial limit makes sense for the health care case. Health care is different because of Congresses requirement to provide for the general welfare, under which providers are obligated (i.e. mandated) to treat everyone who walks into an emergency room whether or not that person has a demonstrated ability to pay for the care. The judicial limit is then that only where there is such a mandate to provide a product or service without dmonsrtrated ability to pay can there then be a mandate for everyone to have an ability to pay for the service. Thus I could not force you to buy broccoli because the sellers of brocoli don’t have to give me any of their brocoli even when I do not have a demontrated ability to pay for it.
March 29, 2011, 5:47 pmJonathan H. Adler says:
No Theory . . .
The missing premise — and one that is certainly contestable (and Justice Kennedy may or may not accept in the end) — is that if Congress could force everyone in the country to purchase any desired good or service from private companies, then its powers are not meaningfully limited.
alkali –
As I note in the post, there is a principled argument that the primary limits on over-reaching federal legislation are political, but this argument has been rejected by the Court repeatedly in the past twenty years. Perhaps the Court was in error — at least two justices on the current court clearly think so — but that is what it has held.
JHA
March 29, 2011, 5:52 pmJonathan H. Adler says:
Mike Rappeport –
Under your theory, isn’t the limit then dependent upon what other laws Congress chooses to enact? If so, how is this not just a more sophisticated variant of the political safeguards argument?
JHA
March 29, 2011, 5:54 pmSteveMG says:
Instead of the broccoli question, can opponents of the mandate give us clear cut, substantive and realistic examples of how Congress can and likely will abuse this power? I.e., what is next if this law is upheld?
I view the argument by opponents of the mandate favorably; but the flavor, if you will, be better if it wasn’t broccoli.
March 29, 2011, 5:58 pmalkali says:
I don’t disagree, but I don’t see why the limit necessarily has to exclude your hypothetical broccoli mandate.(*)
(* Particularly if you imposed the annual purchase requirement only on persons who earned income in interstate commerce, thereby excluding hermits, infants, etc.)
March 29, 2011, 6:08 pmD.O. says:
From what I read before the answer to the question given by proponents of ACA is “health care is special”. They go to some length to show that the parts enacted in the law are really necessary for this special case. In all truthfulness though, it seems like all those special arguments point to the most clear solution — introduce health care tax to buy insurance for unwilling to do so, give relief for those who purchase health insurance themselves. In terms of broccoli, government can made everybody to buy broccoli if it structures it as a tax: tax everybody $100 a year, send everyone a (named) coupon for $100 to redeem for broccoli, buy coupons from producers with tax proceeds. So if the goal is to limit government through the Commerce Clause it is defeated through tax power. If the goal is to establish proper constitutional procedure of enacting “broccoli laws” it might work (on political level, taxes have a special layer of unpopularity, so the decision to squeeze rational from the Commerce clause to tax is just a modification of political limits argument).
March 29, 2011, 6:10 pmHumboldter says:
“can opponents of the mandate give us clear cut, substantive and realistic examples of how Congress can and likely will abuse this power?”
How about every homeowner must buy solar panels?
March 29, 2011, 6:10 pmODB says:
The limit is right there in the text of the Constitution. “Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” If the law does not regulate commerce among the several States, it is outside Congress’ power. If it does, it is in Congress’ power, unless the law violates one of the Amendments to the Constitution.
The Constitution does not say “Congress shall have Power to regulate commerce among the several States, but not in situations which are analogous to mandating the purchase of broccoli.” Until the Constitution is so amended, the whole premise of this post is flawed.
March 29, 2011, 6:13 pmJeff Wilson says:
Every citizen must have certain physical metrics measured each year, including body mass index, blood cholesterol level, blood pressure, etc. Every citizen must meet “healthy” targets in each category or pay a fine.
This is crucial to controlling health care costs, after all. We have to ensure that the whole scheme runs smoothly!
March 29, 2011, 6:15 pmDilan Esper says:
“Let the end be legitimate…”
March 29, 2011, 6:27 pmalkali says:
Assuming this is a really bad idea, what makes it unconstitutional?
Examples that stand a reasonable chance of being unconstitutional for some other reasons (here, substantive due process) don’t work. Likewise, the obvious reason that Congress can’t require us all to buy Methodist hymnals is the First Amendment, not some strained reading of the Commerce Clause.
March 29, 2011, 6:28 pmBruce Hayden says:
But you are back to the political response – that we shouldn’t worry about Congress mandating eating broccoli because that would be silly. And that is what the author here is pointing out has been rejected by the post 1990 Court.
Maybe one response though is that a couple of decades ago, before HillaryCare, probably few in this country would have thought that Congress would have passed a law penalizing people who refused to engage in this type of commerce. So, if scientists decide that people will consume fewer health care resources if they consume more broccoli, or will help our economy, then maybe it should be Constitutional to require such.
March 29, 2011, 6:29 pmNo Theory of Jurisprudence says:
Professor Adler,
I am very appreciative that you are willing to take the time to respond to commenters, as this provides us a valuable opportunity to challenge our own views. Thank you.
Here is what I disagree with. You’ve argued that Justice Kennedy has rejected an interpretation of the Commerce Clause that contemplates no meaningful limit on Congressional power, and that Justice Kennedy’s rejection of such a theory is articulated in cases like Lopez and Morrison. You then posit that health care proponents will have to explain some constitutional theory that would reject the broccoli mandate, otherwise Kennedy will reject their theory, ostensibly for the same reasons he rejected unlimited powers in Morrison and Lopez.
But what if Morrison and Lopez would provide no meaningful basis for rejecting a broccoli mandate? If Kennedy rejects X theory on the basis that it would permit Y, why must proponents produce not-X theory in order to demonstrate that Z would be prohibited?
Lopez and Morrison provide “meaningful limits” to Congressional theory and yet may not provide any basis for rejecting Congressional power to “force everyone in the country to purchase any desired good or service from private companies[.]“
March 29, 2011, 6:30 pmSteveMG says:
Every citizen must have certain physical metrics measured each year, including body mass index, blood cholesterol level, blood pressure, etc. Every citizen must meet “healthy” targets in each category or pay a fine.
Thanks but that, for me, is sort of the “broccoli” example, er dressed up (yeah, enough with the food metaphors).
I can hear during oral arguments a Justice Ginsburg or Breyer asking: “What’s the harm here? How will this be dangerous? What will the government do next?”
I think opponents of the mandate will need something “good” in response.
March 29, 2011, 6:31 pmStitch Jones says:
Every citizen must have a Federally approved “Disaster Preparedness Kit” if they wish to live in, or visit, an area subject to earthquakes, fires, floods, tornadoes, and/or hurricanes.
While most of the items (though not all) contained in the kit are of a general nature and could easily be procured without an “approved kit,” only by mandating approved kits- and having the IRS check for compliance- can the Federal government be sure that each and every citizen has certain necessities in place when a disaster occurs. Not only will the kit help citizens protect themselves, but more importantly, the kits allow for sufficient independence in most cases to relieve some burden on emergency services such that said services can be focused responsibly. In short, the kits are important so that you don’t further burden the Federal response to any disaster.
DP Kits are available at either halliburton.com or kochbrothers.com (subject to further vendor approval of course) and the price is $4,999.99 per citizen. But don’t worry, there’s no broccoli in them.
March 29, 2011, 6:34 pmNo Theory of Jurisprudence says:
I do not think I was very clear. My problem is that even if Justice Kennedy has accepted that there must be limits on Congressional power, none of the limits he’s actually recognized would have any impact on a broccoli mandate. That being the case, why does anyone need to produce a novel constitutional theory that would make a broccoli mandate unconstitutional? The only thing health care proponents would need to win over Kennedy is articulate a constitutional theory that makes the laws at issue in Morrison and Lopez unconstitutional, but permits the health care mandate, right?
March 29, 2011, 6:36 pmJesse-Az says:
Mike Rappeport –
Hospitals are not required to treat anyone who walks through the door. They are only required to do that if receiving federal dollars for other patient care such as Medicaid/Medicare. This is the same gaming of the system used to establish DUI laws. Your basic premise is flawed due to your misrepresentation of the law.
Likewise, the federal government does not have the power to provide for the General Welfare. The clause you are misconstruing is the taxation clause, it does not grant power for the government to do whatever it deems good for the general public. Read the Federalist Paper 41 for Madison’s refutation of your very argument.
March 29, 2011, 6:58 pmZack says:
This is the most succinct and persuasive rebuttal of the broccoli argument I’ve seen. I would be interested to read Adler’s response, if he’s still reading the comments.
The only counter-argument I’ve seen so far is that the “economic sphere” is so nebulous that it could encompass anything. While I agree with the basic principle, this argument is undercut by the fact that the court has indeed defined the limits of the “economic sphere” in cases like Lopez and Morrison. Just because a concept could be defined in a way that causes any appreciable limit to disappear, doesn’t mean that it will, in fact, be defined that way. Our legal system is full nebulous concepts like “reasonable” or “compelling governmental interest,” and yet we’re still able to use these terms to enforce appreciable limits.
March 29, 2011, 7:02 pmSimon says:
Alkali, unless you intend to prove that this theory leads to the conclusion that Congress can do anything, you’re not really helping your case with these “so what? Congress could also do x” comments. The defenders of the individual mandate need to articulate some principle which limits Congress—they have to tell us what, under their theory, Congress can’t do. (This point was made at argument in both Lopez and Morrison, forcefully so by Scalia in one or the other.) And it’s not good enough to identify rights-based limits arising from this amendment or that amendment because that would imply that the original unamended constitution does not create the government of limited powers that we know it did. The problem is that there isn’t such a principle. That’s why so much smoke has been blown over this.
Nor is there parity: The folks who are against the mandate say “you can’t point to anything that Congress couldn’t do under your theory,” and the folks on the other side say “if your theory is right, this that and the other are also out.” Both of these are true, but the valences are different. There isn’t any problem in saying that a theory of restricted government restricts government; there’s a serious problem in a purported theory of restricted government failing to restrain anything at all.
March 29, 2011, 7:02 pmJustin says:
JHA appears to think that this question is a clever one:
If the federal government may require everyone to purchase qualifying health insurance plans from private companies, why can’t it also require everyone to purchase broccoli?
The reality is, the question is not clever at all. The entire emotional appeal of the question is based on due process, rather than federalism – presumably we would be equally outraged if the state of California required everyone to purchase broccoli. Plus, you know, wheat.
The additional premise that JHA adds in the comments:
“that if Congress could force everyone in the country to purchase any desired good or service from private companies, then its powers are not meaningfully limited”
is simiarly false. One could have meaningful limits (see Lopez and Morrison) without this limit being one of them. The Commerce Clause does not mandate liberterianism, and this appears to have nothing to do with federalism. Either forcing people to buy broccoli (or wheat) violates due process or it’s permissible for a government to do. If it is permissible for *a* government to do, there doesn’t seem to be any particularly good reason under the Constitution for it not to be permissible for the *federal* government to do.
March 29, 2011, 7:08 pmRagebot says:
But as you point out “taxes have a special layer of unpopularity”. I could easily defend the claim that Obamacare would never have passed if funding was based on raising taxes to pay for more health care. Even with the sleigh of hand use of the CC the mid terms seem to indicate many dem House members who voted for Obamacare lost; not to mention a real chance the dems will lose the Senate and Obama will not be re-elected.
This is a huge problem with Obamacare. Nelson and Landrieu are back peddling; not to mention McCaskill. I doubt if any of them, and lots of others would welcome defending a straight up tax increase as opposed to defending some kinda individual mandate under the CC; what ever that means. If well informed lawyers have problems agreeing on just what the CC means what do you think the average Joe thinks about it.
Lots of peeps are against a tax increase, but a whole lot more peeps have their eyes glaze over when they here the term Commerce Clause.
March 29, 2011, 7:09 pmA. Zarkov says:
Nothing in the Constitution explicitly prevents us outlawing abortion. Nothing in the Constitution explicitly prevents us from outlawing sodomy. If we are going to depend on the political process as the ultimate safeguard, then why have a written constitution?
Could it be that our wise framers didn’t trust the political process?
March 29, 2011, 7:09 pmNo Theory of Jurisprudence says:
What do you think was happening in Lopez and Morrison? Those cases did create limits on Congressional power, did they not?
That’s what makes Professor Adler’s argument so beautiful. It is premised on the recognition by Justice Kennedy that X and Y are not permissible under the Commerce clause, and then argues that no theory will be acceptable to Kennedy unless it prohibits Z as well, even if the original theory accepted by Kennedy would be silent as to Z.
You can’t simply say that any constitutional theory that permits a broccoli mandate is unconstitutional unless you’ve some reason for concluding that the broccoli mandate is unconstitutional. The reason repeated over and over again is that a broccoli mandate is the absolute last thing the government can do, after which there are no limits on Congressional power. This is of course wrong, because Congress could mandate broccoli consumption but could not, consistent with Morrison, criminalize rape.
March 29, 2011, 7:12 pmKenB says:
If that does not seem to you an excessive deprivation of liberty, how about, in addition to taxes, every person in the United States must pay not less than X% of his income to a federal Bureau of Purchasing, which will use our money to buy us things it thinks we ought to buy for the good of ourselves and the economy?
At what level does X% make us indentured servants of the federal government? Why can’t the government just move us all into government barracks, determine our work, and issue us ration chits for a level of incidentals it thinks adequate for proles?
March 29, 2011, 7:12 pmNo Theory of Jurisprudence says:
No, at least not for the reasons you’ve stated, because the framers never prevented the states from outlawing sodomy and abortion. That Constitutional moment arrived, if at all, only after every framer was dead.
March 29, 2011, 7:15 pmJustin says:
KenB (and presumably JHA),
“If that does not seem to you an excessive deprivation of liberty”
Can you provide ANY evidence that the Commerce Clause was designed to protect against the deprivation of liberty? Assuming it was, why does it not apply equally against the States through the 14th Amendment?
March 29, 2011, 7:16 pmJeff Wilson says:
You are going to have to help me out here – I am not a lawyer. How is it OK to require people to buy insurance (thus depriving them, in part, of their property), but it is not OK to require them to exercise or eschew fatty foods (in essence – thus depriving them of some measure of their liberty)?
When the nationalized health care system runs into the inevitable problems of cost and availability of resources, anything that reduces cost and use of the system will be justified as having a crucial nexus to the commerce being regulated.
March 29, 2011, 7:17 pmSteveMG says:
But you are back to the political response — that we shouldn’t worry about Congress mandating eating broccoli because that would be silly
No, I’m back to the real world. As I state above, I can clearly imagine a Justice asking: “What’s the danger here with the mandate? What will Congress do next if this is upheld? How is this inactivity vs. activity difference going to be used harmfully?”
Saying, “They’ll make you buy (or eat) broccoli” isn’t going to be persuasive.
March 29, 2011, 7:17 pmalkali says:
I’m not sure the burdern is on the defenders of duly-enacted legislation to prove it constitutional. But in any event, see the first comment:
The only thing my previous comments really add to that are the points that (i) stupid legislation is not necessarily unconstitutional; and (ii) there is no particular reason that we should insist that legislation that is evidently unconstitutional for some other reason must also be outside the scope of the Commerce Clause.
March 29, 2011, 7:18 pmJustin says:
Exercising or eschewing fatty foods, unlike buying broccoli, not buying fatty foods, or buying memberships in private gym memberships, does not directly regulate economic activity and are thus more difficult questions.
Once again, I’m not saying that the broccoli hypo doesn’t raise an interesting due process concern with the individual mandate – it might (but then conservatives are going to have to adopt substantive due process for everyone, not just well off economic liberterians). It just doesn’t raise a COMMERCE CLAUSE concern.
March 29, 2011, 7:21 pmA. Zarkov says:
Were there not anti-sodomy laws at the time the framers were alive?
Churchill once said, “we should no more recognize the USSR than legalize sodomy.”
March 29, 2011, 7:26 pmStating The Obvious says:
Jonathan,
March 29, 2011, 7:33 pmShouldn’t it be up to those challenging the law to explain what stops the government from penalizing people who fail to purchase health insurance, but doesn’t prevent the government from penalizing people who fail to get married? I understand those penalties are structured differently to appear to one is a tax break you are missing out on, but the method of implementation doesn’t effect the challenger’s accusation that it is unprecedented to have the government coerce us into making a private decision through monetary means.
So if this was restructured to act the same way as the negative marriage penalty (read: as a tax break), you would have no constitutional issues with it? Because none of the arguments I have heard from proponents of repeal are that it should be re-structured as a tax break.
alkali says:
I’m really not sure what your point is here.
To quote Number Two, “That already has happened.” I don’t want to give big farms subsidies or buy Ospreys for the armed forces, yet there goes my tax money.
There are limits to Congress’s powers in the sense that there are things that are not within Congress’s enumerated powers. There are also limits to Congress’s powers in the sense that even if they are within Congress’s enumerated powers, Congress is nevertheless forbidden from doing them. For example, even if Congress could dictate the content of religious tracts sold in interstate commerce under the Commerce Clause, the First Amendment forbids Congress from doing that.
The Supreme Court has held — not without controversy — that certain kinds of state action that violate your bodily integrity and medical privacy are inconsistent with due process of law under the Fifth and Fourteenth Amendments (e.g., laws forbidding adults to buy contraception). Accordingly, even if the Commerce Clause allowed Congress to compel you to exercise or to eat certain foods, it is likely that those laws would be held to be inconsistent with due process and therefore unconstitutional. Purely economic regulations are generally not held to fall within that rule: accordingly, I suspect that Congress could make us buy broccoli (if it wanted to pass such a stupid law), but it couldn’t make us eat it.
March 29, 2011, 7:37 pmMike says:
I don’t understand why this is hard at all. The health care act is really a piece of economic regulation, unlike Lopez and Morrison which were criminal statutes. If health care is 17% of the national economy, it is very hard to say, given the post-New Deal understanding of the Commerce Clause, that Congress can’t regulate it in just about any half-way sensible way that doesn’t violate the due process or equal protection clauses. It is not as though the connection between the individual mandate and the rest of the bill is merely pretextual.
March 29, 2011, 7:41 pmJesse-Az says:
Stating The Obvious -
Your use of the Marraige tax hit is a bad one to choose. It lowers AGI for some, raises it for others. It’s a wash across the board.
But you probably are hitting on why can the Government tax equally and then give tax breaks, but not vice versa. The simple answer is that is how the amendment on taxation was written. Is the end result the same? Sure. Are the methods the same? No.
If p->q and r->q, and if q, it does not mean p=r. Simple logic exercise.
March 29, 2011, 7:46 pmJustin says:
” But it is also a view that implicitly rejects the idea embedded in the Court’s post-1990 federalism jurisprudence that the judiciary must safeguard federalism.”
Why, JHA? I think this is what your detractors are completely missing. What principle of federalism is eradicated by or even related to, a broccoli mandate?
March 29, 2011, 7:51 pmAnderson says:
The argument that the principal limit on federal power is, and should be, political has a long pedigree.
Indeed, it goes back to both Hamilton and Madison in the Federalist. Why stop at 1956 when you could go back to 1788?
March 29, 2011, 7:53 pmAnderson says:
What principle of federalism is eradicated by or even related to, a broccoli mandate?
I think he means that the federal gov’t has only enumerated powers, so the allegedly excessive power of the mandate encroaches on the powers reserved to the states or the people. Essentially Tenth Amendment vs. Necessary & Proper Clause.
March 29, 2011, 7:56 pmNo Theory of Jurisprudence says:
I have no idea and won’t speculate. I am saying that the framers never included anything in the Constitution that would prohibit the states from criminalizing sodomy, and to the extent anything in the Constitution does prohibit the states from so doing, that anything didn’t exist until all the framers were worm-food.
March 29, 2011, 7:56 pmJustin says:
Anderson,
First of all, that’s not directly a principle of *federalism*, that’s a principle of * libertarianism.” It’s only indirectly a principle of federalism *through the Tenth Amendment.* Is Adler’s position that only states should be allowed to mandate the purchase of broccoli, so that somehow the federal government’s decision to mandate this purchase infringes on state sovereignty?
If JHA wants to make a compelling federalism argument, then the hypothetical should embody something where states actually occupy the field, such as, I don’t know, domestic violence or local schools.
One can think of a NUMBER of restrictions on the government that presume the permissibility of a broccoli/wheat mandate, many of which actually touch on state sovereignty. Thus, the flaw of the broccoli mandate should be obviously apparent.
March 29, 2011, 8:06 pmAnderson says:
I don’t understand why this is hard at all.
Because it was enacted by President Obama and the Dems, not President McCain (or President Romney) and the GOP.
That is all there is to it.
Oh sure, Randy Barnett would still be fulminating, but no one except some law profs and their blog commenters would be paying any attention.
March 29, 2011, 8:07 pmJonathan H. Adler says:
If this were restructured as a tax credit — specifically, if marginal tax rates were increased, and then tax credits were given for the purchase of qualifying health plans — it would be difficult to challenge the constitutionality of the mandate. As structured, however, the mandate is not a tax. While federal courts are split on the mandate’s constitutionality, they have unanimously (and rightly) concluded the mandate is not a tax.
Justin –
There is ample historical evidence that the Constitution created a federal government of limited, enumerated powers, while allowing for states to have a residual, plenary police power, and that the point of this structure was to protect liberty. This means there are many, many things that states may do but that the federal government may not (e.g. ban guns in schools, punish domestic violence, and (perhaps) mandate the purchase of health insurance) You may believe this was a bad idea, that this structure is outdated and has been supplanted by subsequent events (or precedents), or that it fails to protect liberty if the states are not restrained to the same extent as the federal government, but that’s not the way the Constitution was written.
No Theory . . . –
You are correct that Justice Kennedy’s willingness to embrace a judicially enforceable limit on the regulation of non-commercial intrastate conduct (Lopez, Morrison), the abrogation of sovereign immunity (Seminole Tribe, Alden, etc.), the expansive use of the Section V enforcement power (Boerne, Garrett) and commandeering (New York, Printz), does not necessarily mean he will or should embrace an equivalent limitation against the unprecedented use of the commerce and N&P clauses to mandate the purchase of a privately provided good or service. It does, however, suggest a degree of suspicion of an argument for the mandate that rests on a political safeguards premise. (But see, Gonzales v. Raich)
JHA
March 29, 2011, 8:08 pmAnderson says:
Justin, I’m not trying to defend JHA, just to understand him.
But I disagree that enumerated powers is irrelevant to federalism. Can Wikipedia err???
March 29, 2011, 8:12 pmBruce Hayden says:
You are essentially ignoring Adler’s proposition, that Justice Kennedy, in particular, is looking to find limitations on the Commerce Clause, and esp. as it relates to Necessary and Proper. Without limitations, then Congress is essentially empowered to pass whatever it wants, despite the Constitution specifically granting specific enumerated powers to Congress, and retaining the rest for the states and the people.
Your argument though that Lopez and Morrison were criminal statutes and this is not may be the sort of thing that Justice Kennedy is looking for – but, then, where do you draw the line with other criminal statutes that are based on the Commerce Clause? I am pretty sure that insider trading laws, as one example, are based on the Commerce Clause. Assuming that you don’t want to eliminate all Commerce Clause justified criminal offenses, where do you draw the line then?
March 29, 2011, 8:13 pmJustin says:
JHA,
Your position is becoming quite mercurial.
You go from:
The missing premise — and one that is certainly contestable (and Justice Kennedy may or may not accept in the end) — is that if Congress could force everyone in the country to purchase any desired good or service from private companies, then its powers are not meaningfully limited.
to
This means there are many, many things that states may do but that the federal government may not (e.g. ban guns in schools, punish domestic violence, and (perhaps) mandate the purchase of health insurance)
If you amend your “and perhaps” to “but not” (which the very word perhaps presumes possible) isn’t your own 2nd statement an adequate rebuttal to your first?
March 29, 2011, 8:15 pmSpeculum says:
Because it was enacted by President Obama and the Dems, not President McCain (or President Romney) and the GOP.
That is all there is to it.
Oh sure, Randy Barnett would still be fulminating, but no one except some law profs and their blog commenters would be paying any attention.
Projection…it’s not just for movie theaters.
March 29, 2011, 8:18 pmAnderson says:
There is ample historical evidence that the Constitution created a federal government of limited, enumerated powers, while allowing for states to have a residual, plenary police power
One of the many problems with JHA’s argument is that a mandate to buy insurance does not look anything at all like a traditional police power, and, in context of the PPACA, looks very much more like a Necessary & Proper Clause enactment pursuant to a Commerce Clause ban on excluding preexisting conditions.
If Congress decided, for instance, that affordable health insurance required a ban on marriages between people with certain genetic conditions, then that would look much more like it was bumping up on a legal territory — marriage — traditionally reserved to the states.
March 29, 2011, 8:20 pmZack says:
Neither does it mean that he will embrace an ad hoc distinction between activity and inactivity in commerce clause to find that Obamacare is unconstitutional
I think the point made by No Theory and others is that the central point underlying the broccoli argument (i.e. if a broccoli mandate is permissible, there is no limit) is patently false. It is entirely possible to draw a line limiting the commerce clause but still place a broccoli mandate on the “OK” side of that line.
Of course, whether that line is the right limit or not is an entirely different question. It’s entirely possible to reject the validity of the broccoli mandate argument without supporting Obamacare.
EDIT: Ultimately, I think Mr. Adler’s argument is flawed because it presumes without justification that any argument for Obamacare that would allow a broccoli mandate rests on a political safeguards premise.
March 29, 2011, 8:23 pmJustin says:
Anderson,
I wasn’t trying to take the position that the enumerated powers principle does not (indirectly) fulfill principles of federalism by preventing the federal government from regulating in areas where the state’s power is plenary. And we have seen this evolve into functional federalism, most obviously in the area of criminal law. But the broccoli hypothetical doesn’t seem rationally related to federalism – are we keeping the federal government from telling us what we have to eat so the state can have plenary authority in the sphere of mandating our grocery purchases?
The reality – this is where, as they say, the sleight of hand occurs – is that individual liberty, and not federalism, principles are what conservatives are both concerned about and try to vindicate. But substantive due process doesn’t have a prayer, because conservatives would look absurd arguing it, because the liberal majority will reject the existence of a due process concern, and because some of the conservatives have rejected or attempted to narrow substantive due process as a whole.
March 29, 2011, 8:24 pmStating The Obvious says:
I understand that it is not a tax. The point is the exact same “mandate” could be structured as a tax. The tangible effects on people would remain the same, but suddenly it’s constitutional. This is important for people to understand when they hear rhetoric stating that the mandate is unprecedented. It is not. It’s structure, or implementation may be novel but the effects it produces are not, nor is it more intrusive than many existing mandates such as the marriage penalty.
Liberals need to pay closer attention to this detail, because those arguing against the constitutionality of the affordable health care act are not arguing that it is wrong to mandate someone to do something. They are arguing that it is wrong to mandate someone to do something by penalty as opposed to increasing taxes, and providing tax breaks for those who purchase health insurance. It’s semantics, and nothing substantial.
March 29, 2011, 8:25 pmDemocrats should put a bill up that changes the semantical difference and demonstrate that republicans and the tea party care more about the politics of the situation than the constitutionality.
Anderson says:
Mark Field quoted Hamilton a while back:
The moment the literal meaning is departed from, there is a chance of error and abuse. And yet an adherence to the letter of its powers would at once arrest the motions of government. It is not only agreed, on all hands, that the exercise of constructive powers is indispensable, but every act which has been passed, is more or less an exemplification of it. One has been already mentioned that relating to lighthouses, etc. that which declares the power of the President to remove officers at pleasure, acknowledges the same truth in another and a signal instance….
It leaves, therefore, a criterion of what is constitutional, and of what is not so. This criterion is the end, to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority.
There’s your criterion. Permit me to suggest that if it was good enough for Alexander Hamilton, it should be damn well good enough for Anthony Kennedy.
March 29, 2011, 8:27 pmBruce Hayden says:
I don’t think that is quite right.
I think that Adler is hypothesizing that Justice Kennedy has indicated that he believes that with a government of enumerated powers, the powers have to be limited, somewhere, for the exception not to, essentially, swallow the rule, and the Commerce Clause (combined with Necessary and Proper) not be essentially unlimited. We know that they are not unlimited, from the cases cited.
But, for a power to be limited, there must be a limit to it. And this case of mandating economic activity is on the fringe here, so he is suggesting that in order for Kennedy to accept it as justified by CC + N&P, the supporters of the IM may need to articulate a limit to CC + N&P and includes the IM, but does not include something else (such as eating broccoli).
Saying that the question is political begs the question, since the purpose of having enumerated powers in the first place was to limit what Congress could do. So, saying that the limit on the CC is what Congress is willing to do ignores that the Constitution was designed the other way around.
March 29, 2011, 8:28 pmZack says:
+1
March 29, 2011, 8:32 pmBruce Hayden says:
You can claim that the difference is not substantial all you want. But the question is whether or not Justice Kennedy will find that persuasive.
Also, keep in mind something that is implied here, but not made explicit. Not all taxes are Constitutional either. Income taxes are only Constitutional by amendment. So, merely applying a tax without regard to income, might not be Constitutional, whereas offsetting against income, giving an income tax credit and then taking it away, etc. would most likely be Constitutional.
March 29, 2011, 8:35 pmJoe says:
My apologies for a reprint of my earlier post on a prior thread –
I may be worth noting the real purpose of the mandate. The common belief is to eliminate the current population that chooses not to carry insurance (the self insurers) and who thereby get free health care via trips to emergency rooms. A recent article by Doug Kahn (missing citation — my apologies) show that approx 1/3 of that population pay for their health care. Most of the remaining 2/3 cant afford health insurance and will be subsidised under the ACA. There is a very small percentage that can afford paying for their health care that do skip out, but that percentage is relatively small in grand scheme. The ACA actually does very little to address this issue.
The real purpose of the mandate is to shift health costs from the old and unhealthy to the young and healthy. A 22–25 year old male can get good health insurance for $80-$100 per month and a 22–25 female can get similar pricing w/o maternity coverage. A 60 year male or female monthly cost will range for a low of $1,500-$4,000 per month and significantly more if the individual has pre existing conditions. This pricing reflects the actuarial costs of insurance.
Three provisions under the ACA force the use of the mandate to prevent a mass exodus from obtaining health insurance especially from the young and healthy. 1) the requirement to have essentially “full and comprehensive” coverage which is more costly, 2) pricing that restricts more than 3/1 price ratio difference between the old and the young (contrary to the actuarial costs) and 3) the restriction on denying coverage based on pre-existing conditions.
In essense, the primary purpose of the mandate is to shift health costs to the young and healthy.
March 29, 2011, 8:36 pmNot sure how the justices will react to forcing some one to pay for someone else’s health care, though they are surely astute enough to recognize the real intent of the mandate — most likely this will factor into their opinion.
Stating The Obvious says:
As Jonathan noted in reply to me, the issue is not if the government has the power to make you eat broccoli. The issue is if the government can make you pay a penalty for not eating it. He agrees that we the people can force you to pay a penalty if it’s disguised in the form of a tax-break-for-others. The action of mandating is not at issue, unless you somehow can distinguish the effects of mandate-by-penatly from mandate-by-tax (aside from their method).
March 29, 2011, 8:36 pmStating The Obvious says:
So then how is the penalty for being single or homosexual (marriage tax break) constitutional?
March 29, 2011, 8:39 pmJonathan H. Adler says:
Mike –
Morrison did not involve a criminal statute. VAWA created a civil remedy for gender-motivated violence.
JHA
March 29, 2011, 8:43 pmZack says:
This argument seems to go something like this:
There must be a limit to commerce clause. Therefore, a broccoli mandate is prohibited by the commerce clause. Accordingly, proponents of Obamacare must distinguish Obamacare from a broccoli mandate.
What’s missing, I think, is the link between the first prong and the second prong. Why is it a fait accompli that a “buy broccoli” mandate must be prohibited by the commerce clause?
March 29, 2011, 8:45 pmJoe says:
A follow to my post above with the citation.
citation to study Doug Kahn & jeffery Kahn article “Free Rider – A Justification for Mandatory Medical Insurance Under Health Care Reform”
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1784495
The question is How will the justices react to mandate when the purpose is not to insure the health of the individual but to ensure the insurance companies dont go bankrupt. To expound on the hypothetical – the broccoli mandate is not to force people to buy broccoli because it is good for you but to ensure a viable broccoli market or to prevent the broccoli farmers from going bankrupt. the mandate is not to buy a GM car because you may use transportation some day but to ensure that government motors does not go bankrupt.
March 29, 2011, 8:49 pmNo Theory of Jurisprudence says:
Here’s a line. The Commerce Clause permits the regulation of any:
“commercial enterprise of any kind which conducts its activities across state lines.” 322 U.S. 533.
This sounds somewhat like a kind of test articulated by Kennedy in his Lopez concurrence:
The issue then is whether the actors or conduct regulated by the health care mandate has a commercial character, or whether the purpose or the design of the PPACA has an evidence commercial nexus. I think it almost certainly does, but do you? Congress has said as much as well.
I would say his analysis in Lopez ultimately focuses on the “traditional state powers” distinction, which I likewise don’t think is at stake in either the hypothetical broccoli mandate, or the health care mandate.
Do you think that’s a fairly accounts for some of the prefatory language found in Kennedy’s Lopez concurrence?
I am cherry-picking, but there’s plenty in his concurrence to indicate that Kennedy is not “in particular… looking to find limitations on the Commerce Clause.”
March 29, 2011, 8:51 pmStating The Obvious says:
Because it seems that it should be prohibited.
March 29, 2011, 8:53 pmReally, most of the confusion here is the word “force”, as in forced to purchase health insurance. If in either cases you were literally forced to do one or the other it would certainly be bad. But to not get a tax break, or to pay a penalty.. that isn’t force (or even much of a mandate).
scattergood says:
What is idiotic about the whole issue is this:
If you do the math by averaging out the numbers and generalizing them, the respondents indicate that they face abut a 3-4% bad debt load in their health care revenue.
Since the mandate is basically the government’s answer to the bad debt free loaders, aren’t there other, more effective ways of reducing bad debt? And that is assuming that ALL bad debt described is based on free loaders who consume medical care because the hospitals are required to give it to them, a not very likely situation.
Hospitals may have to provide medical care to all, IF they take federal money, but the medical care required is a) only that needed to stabilize the patient (i.e. no elective surgery) and b) they can seek payments for that healthcare from the patient themselves.
So for all a few percent of total revenue, the best solution is to create this cockamamie scheme? No wonder nobody has faith in Congress and the Federal Government.
March 29, 2011, 8:55 pmJoe says:
It is fashionable in some academic quarters to dismiss the need for a justiciable limit on federal power.
Supporters of the “mandate” around here ad nauseam list a myriad of “limits on federal power,” including involving limits to the Commerce Power. For instance, you can’t use it to abridge First Amendment freedoms.
Is it that the limit has to be purely a limit on the specific power w/o a reference to another liberty interest? Fine. The Commerce Clause itself, again people have said this repeatedly, has Lopez level limits. The limits are not violated here as compared to a general murder statute. BTW, general federalist principles such as not being able to commandeer state employees (other than state judges) to carry out the federal scheme is YET ANOTHER limit.
This, in the end, is why mandate defenders need to be able to provide a doctrinally satisfying answer to the broccoli question: If the federal government may require everyone to purchase qualifying health insurance plans from private companies, why can’t it also require everyone to purchase broccoli?
[1] “Everyone” does not have to “purchase” health insurance. For instance, children don’t have to do so. Young adults can qualify by being on someone’s plan. Spouses also can be on someone else’s plan. etc. Is this THAT complicated?
[2] Why requirements to purchase broccoli suddenly means there is no limits is unclear. See first point made.
It is notable in this regard that some mandate defenders, such as former Solicitor General Charles Fried, argue that Congress could mandate that everyone present in the country purchase broccoli, at least as part of some broader economic or regulatory scheme (though Fried would add he does not believe Congress could mandate anyone eat the broccoli, albeit on substantive due process, rather than enumerated powers, grounds). This is a perfectly respectable view held by many judges and academics. But it is also a view that implicitly rejects the idea embedded in the Court’s post-1990 federalism jurisprudence that the judiciary must safeguard federalism.
First, the part about not being able to force people to eat broccoli is A LIMIT. Second, the part that it is likely has to be part of a wider scheme is A LIMIT. Third, fail to see how the requirement to buy broccoli if there is a reasonable scheme in place (and not being able to if there is not) does not safeguard federalism. Unless it commandeers, isn’t probably economic or such.
There are “principled limits” that are “meaningful.” A national economic scheme is being regulated here. No liberty interests or 10A type interests are being violated. In any number of cases, they can be. When they are, the courts properly step in to strike the laws down.
March 29, 2011, 8:57 pmSammy Finkelman says:
It would be OK if structured in the form of a tax credit.
http://www.energystar.gov/index.cfm?c=tax_credits.tx_index
Tax Credit: 30% of cost with no upper limit
Expires: December 31, 2016
Details:
Existing homes & new construction qualify. Both principal residences and second homes qualify. Rentals do not qualify.
*
Geothermal Heat Pumps
o
Geothermal Heat Pumps
Tax Credit includes installation costs.
*
Small Wind Turbines (Residential)
Tax Credit includes installation costs.
*
Solar Energy Systems
Solar Panels (Photovoltaic Systems)
Solar Panels or Photovoltaic Systems are solar cells that capture light energy from the sun and convert it directly into electricity.
File IRS Form 5695 with your tax return.
http://www.ehow.com/way_5437654_irs-form-5695-instructions.html
I think maybe it can complicate filling out other parts of your tax return. Sometimes tax credits need to be excluded from certain calculations
March 29, 2011, 8:57 pmJustin says:
JHA,
Although the penalties in the VAWA were civil, I am not sure that the court relied on that distinction:
Like the Gun-Free School Zones Act at issue in Lopez, § 13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress’ power to regulate interstate commerce. Although Lopez makes clear that such a jurisdictional element would lend support to the argument that § 13981 is sufficiently tied to interstate commerce, Congress elected to cast § 13981′s remedy over a wider, and more purely intrastate, body of violent crime.5
In these cases, Congress’ findings are substantially weakened by the fact that they rely so heavily on a method of reasoning that we have already rejected as unworkable if we are to maintain the Constitution’s enumeration of powers. Congress found that gender-motivated violence affects interstate commerce
“by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved in interstate commerce; … by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products.” H. R. Conf. Rep. No. 103-711, at 385.
Accord, S. Rep. No. 103-138, at 54. Given these findings and petitioners’ arguments, the concern that we expressed in Lopez that Congress might use the Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority seems well founded. See Lopez, supra, at 564. The reasoning that petitioners advance seeks to follow the but-for causal chain from the initial occurrence of violent crime (the suppression of which has always been the prime object of the States’ police power) to every attenuated effect upon interstate commerce. If accepted, petitioners’ reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption. Indeed, if Congress may regulate gendermotivated violence, it would be able to regulate murder or any other type of violence since gender-motivated violence, as a subset of all violent crime, is certain to have lesser economic impacts than the larger class of which it is a part.
5-Title 42 U. S. C. § 13981 is not the sole provision of the Violence Against Women Act of 1994 to provide a federal remedy for gender-motivated crime. Section 40221(a) of the Act creates a federal criminal remedy to unish “interstate crimes of abuse including crimes committed against spouses or intimate partners during interstate travel and crimes committed by spouses or intimate partners who cross State lines to continue the abuse.” S. Rep. No. 103-138, p.43 (1993). That criminal provision has been codified at 18 U. S. C. § 2261(a)(I), which states:
“A person who travels across a State line or enters or leaves Indian country with the intent to injure, harass, or intimidate that person’s spouse or intimate partner, and who, in the course of or as a result of such travel, intentionally commits a crime of violence and thereby causes bodily injury to such spouse or intimate partner, shall be punished as provided in subsection (b).”
The Courts of Appeals have uniformly upheld this criminal sanction as an appropriate exercise of Congress’ Commerce Clause authority, reasoning that “[t]he provision properly falls within the first of Lopez’s categories as it regulates the use of channels of interstate commerce-i. e., the use of the interstate transportation routes through which persons and goods move.” United States v. Lankford, 196 F.3d 563, 571-572 (CA5 1999) (collecting cases) (internal quotation marks omitted).
[/Morrison] In other words, the Court specifically noted that the VAWA regulations infringed on the state’s plenary powers in regulating intrastate crime (as well as its authority to regulate family issues, in the immediately-following text). What plenary power of the state does the health care or broccoli mandates infringe upon?
March 29, 2011, 8:57 pmNo Theory of Jurisprudence says:
Besides the fact that Justice Kennedy joined the majority in Lopez and Morrison, neither of which had anything to do with, nor addressed, Congressional limits on mandating economic activity, what has Justice Kennedy said specifically that makes you think he agrees that “mandating economic activity is on the fringe”?
I think we can all agree that if Justice Kennedy has already concluded that the health care mandate is unconstitutional, then its proponents have their work cut out for them. But the only evidence we have that Justice Kennedy’s “judicial duty to enforce limits on the federal government” (Colucci’s theory) involve Congressional legislation that are distinct from the health care mandate in precisely the kinds of ways Kennedy has distinguished those laws from prior Congressional commerce clause regulation. The issue is thus whether the health care mandate has more in common with the legislation in Lopez and Morrison, and it is my opinion that, if you read what Kennedy says, he would be on-board for the health care mandate.
Here is him on the Lopez legislation:
Doesn’t that help explain which side of the fence he will sit with regard to the health care mandate, at least as well as broad appeals to Kennedy’s general jurisprudential outlook on Federalism?
March 29, 2011, 9:01 pmAnderson says:
Since the mandate is basically the government’s answer to the bad debt free loaders, aren’t there other, more effective ways of reducing bad debt?
You know, nobody should even try to talk about this issue without having read McCulloch v. Maryland.
… and neither the purposes nor the design of the statute have an evident commercial nexus
Thanks, NTOJ. That is really all anyone needs to say about Kennedy’s jurisprudence and the Commerce Clause.
… Joe, ALL TAXES are getting person A to pay for something that benefits person B. It doesn’t matter if I want a Tomahawk missile or not; the feds are going to buy one for me and shoot a Libyan tank with it.
March 29, 2011, 9:02 pmJoe says:
Scatter – to further elaborate on your point –
As I noted above, the mandate is really due to the following:
March 29, 2011, 9:06 pmNo Theory of Jurisprudence says:
I respectfully disagree, as I think you’re also missing a premise. Even if the Constitution is designed to limit what Congress can do, it does not follow that Constitutional questions are judicial rather than political. I think that’s a separate matter, though, and every time I raise it people get pissed off.
March 29, 2011, 9:06 pmJoe says:
You know, nobody should even try to talk about this issue without having read McCulloch v. Maryland.
I guess they are quasi-Jacksonsians on the question.
See, Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes by Gerard N. Magliocca.
Unfortunately for them, according to the book, William Harrison died, resulting in the bank question not being faced again when Tyler vetoed a new bank bill. Presidential vetoes etc. of the era assumed McCulloch was bad law but it never was retried in the courts, safeguarding the precedent.
[per another comment, political checks are a limit on federal power; I don't think it is the only limit -- I think judicial review is included as well. But, along with everything else, the Commerce Clause is restrained by political limits]
March 29, 2011, 9:09 pmAnderson says:
Even if the Constitution is designed to limit what Congress can do, it does not follow that Constitutional questions are judicial rather than political.
BINGO. As a unanimous Supreme Court said almost 200 years ago:
But were its necessity less apparent, none can deny its being an appropriate measure; and if it is, the degree of its necessity, as has been very justly observed, is to be discussed in another place. Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground. This Court disclaims all pretensions to such a power.
The *political* nature of the limit on the N&P Clause is an essential part of the limits on the *judiciary*.
For the love of God, do we REALLY want the judicial branch deciding “the degree of its necessity”? Are there any CONSERVATIVES out there, or have you all lost your minds because there’s a black Democrat in the White House?
March 29, 2011, 9:15 pmjrose says:
Two possible distinctions:
1) The insurance mandate is permissible without relying on the substantial effects doctrine because it is N&P for the regulations concerning pre-exisiting conditions. In contrast, the broccoli mandate (either purchasing or eating) can only be justified under the substantial effects doctrine.
2) If the insurance mandate is upheld under the substantial effects doctrine, the economic/non-economic distinction articulated in Morrision and Lopez is still good law. A mandate to purchase broccoli would survive as being economic, but a mandate to eat broccoli would not.
March 29, 2011, 9:45 pmAndrew says:
Professor Adler, this looks like an error in the blog post:
“have thoroughly rejected this view, have rejected this view.”
March 29, 2011, 9:58 pmDilan Esper says:
Professor Kerr, where are you? You are needed over here. :)
March 29, 2011, 9:59 pmAlan says:
A perfectly respectable view? How is that respectable? If the Constitution had meant to give Congress the power to regulate all kinds of commerce, plus noncommercial activities of all conceivable types as long as they have some ripple effects on any kind of commerce, then why does Article I, Section 8, Clause 3 specify three types of commerce that Congress may regulate?
There’s nothing respectable about an argument so plainly incompatible with the constitutional text. The Fried view is nothing less than constitutional law without the Constitution.
March 29, 2011, 10:24 pmAJ says:
Morrison and Lopez do not address the question of compelled economic behavior. Is forcing someone to “consume” regulating an economic activity or creating an economic activity? If the N&P clause can be invoked to create economic activity which then congress can regulate via the commerce clause, then a citizen has no practical means to evade the reach of government – this I believe is the point of questioning what limit is there to this power. As of this point, an individual can select to what level he/she wishes to comport with government rules by deciding what commodities to produce, distribute, or consume. Once government can compel consumption, it both imposes on us rules on that consumption and strips us of our ability to consume other items. The demonization of people who pay for health care out of pocket is quite disturbing because it is disconnected from the separate question of free-riding. How about focusing the regulation on people who acquire health care and don’t pay for it?
March 29, 2011, 10:34 pmNo Theory of Jurisprudence says:
To remove any doubt that the Commerce clause authorizes Congress to regulate any conceivable form of Commerce?
March 29, 2011, 10:42 pmNo Theory of Jurisprudence says:
Which Constitutional provision guarantees American citizens the practical means of evading the reach of government?
March 29, 2011, 10:46 pmJoe says:
Morrison and Lopez do not address the question of compelled economic behavior.
Except when it sets forth certain categories of allowable regulation, some of which in various cases could include some sort of compelled economic behavior, such as selling to black people.
Is forcing someone to “consume” regulating an economic activity or creating an economic activity?
It can be both.
If the N&P clause can be invoked to create economic activity which then congress can regulate via the commerce clause, then a citizen has no practical means to evade the reach of government
The sale of notary stamps is created to notarize federal documents of a certain type. Most citizens don’t need said stamp. Most citizens can evade the reach of the government. Just one hypothetical where some market can be created without the sky falling.
BTW, aren’t we concerned with unlimited power as applied to persons too? Aliens, e.g., can’t be enslaved. Overall, of course, everyone is in some fashion regulated by the government in today’s society.
an individual can select to what level he/she wishes to comport with government rules by deciding what commodities to produce, distribute, or consume
except when the government requires purchases such as to serve in the militia, to go to jury duty (e.g., if the duty is somewhere that requires transportation to get to), to do a few hours of road work, etc. some things like food are necessities. government rules have to be followed too. Why insurance is different in kind is unclear.
Once government can compel consumption, it both imposes on us rules on that consumption and strips us of our ability to consume other items.
People have a range of health care options here. There are religious exemptions. If they don’t buy insurance (while having health care in emergency situations and so forth) they can pay a small tax or fee. That is if they are covered by the ‘mandate’ in the first place. Tyranny is not upon us.
The demonization of people who pay for health care out of pocket is quite disturbing because it is disconnected from the separate question of free-riding. How about focusing the regulation on people who acquire health care and don’t pay for it?
“Demonization” implies some sort of fantastical “demon.” It is not “demonization” to say that not having insurance and thinking paying a small alternative amount is tyrannical is problematic in practice. Why not only have people who need police services pay tax dollars to police departments? In practice, it is determined a general requirement makes more sense.
March 29, 2011, 10:57 pmthirdeblue says:
I think Mr. Adler has hit on the best way to frame the mandate. Pretend like the law is obviously unconstitutional and shift the burden to the government to prove it is.
You could even concern troll for the other side and offer pointers in how they could hope to salvage the case.
March 29, 2011, 11:11 pmAJ says:
What part of the constitution gives you the idea that government can compel purchases so it can then impose regulatory conditions on the purchaser? There are very few instances when the federal government can compel a citizen to actively go do something or face a penalty (jury duty, selective service, taxes, or census forms). To say that building the health insurance pool is on par with any of these misses the unique character of the items on the list. You can build the insurance pool through tax incentives, subsidies, or a public option. The country has survived world wars, depression, natural disasters, and a civil war without forcing citizens to make private sector purchases, the health insurance situation is neither unique nor historic.
March 29, 2011, 11:13 pmNo Theory of Jurisprudence says:
The Commerce Clause.
Why is this relevant?
The same is true of virtually every single significant legislative act in the Country’s history, including some from your list (selective service). There is no constitutional test, nor has there ever been, authorizing Congress to pass only those laws which are “unique” or “historic.”
March 29, 2011, 11:23 pmD.O. says:
Of course they did. The mandate is not structured as tax and it would be strange for the courts to declare that it is. But that is not the point. The point is that striking ACA because of the mandate does not limit the power of federal government on a basis of enumerated powers principle. It simply shifts governmental political burden to higher level. Compare this to, say, second amendment. Suppose government would like to undermine ownership of some particular gun for no good reason. If the Court strikes down direct prohibition (based on 2nd am.) then government might try to impose say 1000% excise tax (or, if you like, processing fee) on purchase of that particular gun. Would the Court swallow it? Of course not. That is, if government to be really prohibited form doing something it must be barred from doing it under whatever pretext.
March 29, 2011, 11:31 pmAJ says:
Hearts of Atlanta always gets twisted about when someone mentions compelled economic activity. The better comparison is can the government make YOU rent out a room of your house because a traveler needs it? No. A hotel on the other hand is a producer, when it secures its license, the operator becomes subject to congressional regulation.
This is not a very compelling example. The health insurance mandate applies to everyone with money (and their dependents). Those without much money already qualify for Medicaid. How would you react if everyone had to get at least three items notarized per year or face a fine (or jail)? That is more in line with what we are talking about here.
March 29, 2011, 11:31 pmAJ says:
Even in Wickard, no court has come close to suggesting this broad power.
The items on my list are crucially tied to the government’s ability to fund itself, properly apportion, have a workable justice system of one’s peers, and defend the country. Your purported “mandate to purchase” power is simply a short-cut around raising taxes and instituting a spending program. Commandeering the individual should be predicated on issues that are critical to the very operation of the government and have few if any alternatives. I think that is at the heart of why the list of mandates on the citizen is so small.
March 29, 2011, 11:42 pmNo Theory of Jurisprudence says:
Under the health care mandate, a person mandated to purchase health care is a producer, and the Government only compels producers to purchase health insurance.
This is false.
The Constitutional test is “how would [people] react”?
March 29, 2011, 11:43 pmBruce Hayden says:
Interesting concept – deeming the objects of a mandate by Congress to be producers of something, and then, voila, that activity can be regulated. So, if we define those being mandated to buy broccoli to be producers of, say, money, and money moves in commerce, then obviously mandating that they buy broccoli affects interstate commerce, and is thus within the ambit of the Commerce Clause.
Or, did I miss something there?
March 29, 2011, 11:56 pmBruce Hayden says:
I think that the question was whether you would think that that would fall under the Commerce Clause or not? (and if it wouldn’t, then why would the individual mandate?)
March 29, 2011, 11:59 pmNo Theory of Jurisprudence says:
I disagree, I think the tests articulated in existing court cases incorporate this expansive power, which is probably why both houses of Congress passed it; legislatures don’t typically or intentionally pass unconstitutional laws.
There is no “crucially tied” test; the test is what is permissible under the Necessary and Proper Clause. The Constitution doesn’t tier the different permissive functions of Government; Article I Section 8 authorizes Congress to collect taxes and regulate commerce and provide for the common defense. There is no hidden Constitutional provision that limits the commerce clause to governmental concerns AJ deems crucial or critical, but that ceases operating when we’re talking about something really important, like apportionment.
If you have some textual, historical, or judicial explanation for why Congress can mandate military service but not broccoli purchases, please share. Both implicate involve enumerated powers.
First, it’s not mine, I didn’t vote for it. Second, assuming the above is true, so what? Everyone in the United States understands that the Federal Kidnapping Act is not designed to regulate commerce, but rather to catch kidnappers and free their victims. You and I both know pretty well that the Federal Lottery Act was never designed to regulate commerce, but rather to legislate the moral theory that gambling is a corrupting influence. And yet the Supreme Court said, in Champion v. Ames (which is a pretty good case on the expansive power bestowed by the Commerce Clause):
The point is, merely because a law claims the expansive grant of Congressional power under the Commerce Clause as a mere pretext doesn’t mean it is unconstitutional; if it be commerce, and the law regulates the same, case-closed.
As a matter of good governance, politics, and right, I happen to agree with your first point here. That isn’t a judicial argument, though, but rather a political one. And I certainly recognize that reasonable minds disagree, and that some people do think the moral implication of millions of uninsured Americans implicates the governmental function in a way that compels action.
But this disagreement has nothing to do with the Constitution. It has to do with how best to prioritize and strike a balance between the liberty interest and the public good. We don’t need judges to resolve this debate.
March 30, 2011, 12:15 amNo Theory of Jurisprudence says:
Don’t you think that would depend on what three things you had to get notarized every year?
March 30, 2011, 12:22 amNo Theory of Jurisprudence says:
No, you’ve gotten it precisely. The activity/inactivity distinction purportedly prevents Congress from mandating activity. Hearts of Atlantis is a counterexample. The rejoinder to Hearts of Atlantis is that the people being regulated are engaged in an activity. But then again, so are people who are mandated to purchase health insurance. Do you see how that works?
March 30, 2011, 12:26 amCornellian says:
If the federal government may require everyone to purchase qualifying health insurance plans from private companies, why can’t it also require everyone to purchase broccoli?
Why don’t people who claimed to be concerned about the federal government’s power to impose a “broccoli law” ever go on to say that, constitutionally, they’re perfectly OK with such a law as long as it’s imposed by a state, rather than the feds?
March 30, 2011, 2:39 amBruce Hayden says:
No. I still don’t get why you believe that intentional inactivity is activity, or, maybe that mandating activity that would be intentional inactivity absent the mandate would be activity.
In other words, you seem to be arguing that since the activity is mandated, it is now activity that can be mandated through the Commerce Clause. Which seems a bit circular to me.
March 30, 2011, 3:44 amAJ says:
You need to refocus on my list of mandates that a citizen faces, based solely on being a citizen. If the government had no power to compel individuals to fill out their tax forms and pay their taxes, the government would starve for funds and slowly shut down (or collapse from the weight of accumulated debt). If no one returned their census forms, state populations would be uncertain and there would be controversy on how to divide up the 425 house representatives. If no one made themselves available for federal jury trials, the option of being judged by your peers would be non-functional. Finally, in times of war, if the government could not compel citizens to serve, the government itself could fall. You misrepresent these as striking a balance between liberty and the public good. These mandates, tightly tethered to enumerated powers by the necessary & proper clause, make government and the practical execution of a constitution possible.
When we contrast these with the individual mandate, it pales in significance. It is simply one of many competing policy choices as I outlined above (i.e., subsidies, tax incentives, or public option). However, this specific policy option provides little individual choice: purchase or be fined. The individual is commandeered without any great constitutional question being at play. You also mistakenly claim that some would consider this a “moral” question. This point is irrelevant to keeping government operational. Issues of what is the best policy are determined at the ballot box.
March 30, 2011, 6:49 amAJ says:
But here the commerce does not exist without congress mandating it. Filburn and Raich were at least producers and consumers of the contested commodity. Saying that someone at sometime in the next year will buy health care can simply be wrong. Without the hook into economic activity, you can’t regulate them. Case closed.
March 30, 2011, 6:59 amjrose says:
I don’t follow what principle allows us to classify what is “intentional inactivity” in your argument. Why is a hotel owner who purposely refuses to rent to blacks not intentionally inactive, while a person who refuses to purchase health insurance intentionally inactive?
March 30, 2011, 7:28 amDavid M. Nieporent says:
We really want the legislative branch doing so; unfortunately, it abdicated its responsibility to consider the constitutionality of laws before passing them long ago, and just figured it would pass whatever it wanted, giving itself as much power as it could, and would let the courts step in if it went over the line. So therefore, the courts need to step in.
March 30, 2011, 8:07 amJustin says:
David,
So liberterians are now a suspect class? Man, if only they had the political influence of the gay lobby, they could have protected their interests and defeated the individual mandate through the political process!
March 30, 2011, 8:22 amAJ says:
An “inactive” hotel operator is one who is not renting ANY rooms. Once you offer a public accommodation (and acquire an operating license), you lose your right to discriminate. If YOU wish to rent out a room in your house, you are allowed to use any criterion that you wish to identify a suitable renter (the public/private association distinction is pretty clear). In a sense with the individual mandate, you are proposing to “license” consumption (of future health care) via insurance.
As consumers, we are either FREE to decide how much government regulation we wish to encounter in the free market or we’re not. There’s a difference between setting rules for voluntary consumption and forcing involuntary consumption. If PPACA would have said that when you attempt to make a certain class of health care purchases, then that voluntary choice will trigger a requirement to also purchase health insurance, I believe that regulation would be valid. However, it didn’t and now you are stuck with hypothesizing about future purchases.
March 30, 2011, 8:44 amJoe says:
Joe: Except when it sets forth certain categories of allowable regulation, some of which in various cases could include some sort of compelled economic behavior, such as selling to black people.
AJ: Hearts of Atlanta always gets twisted about when someone mentions compelled economic activity. The better comparison is can the government make YOU rent out a room of your house because a traveler needs it? No. A hotel on the other hand is a producer, when it secures its license, the operator becomes subject to congressional regulation.
Back to what I was responding to, Lopez and Morrison set forth categories of allowable regulation, categories which can include requiring activity of some sort.
HOA was cited as an example. No “twisting.” You cite the context of the regulation. Doesn’t change that the government can require certain activity.
The implication is that certain activity existed already, which is a required criteria. Not really seeing that as true, but even granting this, activity is in place already here. People who buy health insurance are economic actors in many ways relevant to the scheme.
The house reference is a bad example too given that has 3/4A implications that are more troubling than requiring someone to spend money.
Joe: The sale of notary stamps is created to notarize federal documents of a certain type. Most citizens don’t need said stamp. Most citizens can evade the reach of the government. Just one hypothetical where some market can be created without the sky falling.
AJ: This is not a very compelling example. The health insurance mandate applies to everyone with money (and their dependents). Those without much money already qualify for Medicaid. How would you react if everyone had to get at least three items notarized per year or face a fine (or jail)? That is more in line with what we are talking about here. (Quote)
Back to what I said, without selective quotation or using it as a platform to make some further assertion.
The argument was that if the government created a market that people would have no means to avoid it’s reach. My example was meant to show that the government can create many a market [e.g., transit systems] that only a limited amount of people use, so no, creation of economic activity isn’t necessarily troubling.
That is “in line” with what we are talking about. I don’t know how the Medicaid point — which only underlines the “mandate” doesn’t reach everyone (it also doesn’t reach everyone with money; minors don’t get fined or taxed, they have money etc.). Food regulation is more intrusive.
As to getting three things notarized, why exactly am I supposed to be upset about that? Is the $6 required if I had to get each of my income tax forms [state and federal] and something else (let’s say some proof I was a jury duty or whatever) supposed to upset me?
It also again ignores what I said. If you don’t want to actually read what I said, fine. But, it helps if you want to be truly responsive.
March 30, 2011, 8:50 amJoe says:
If PPACA would have said that when you attempt to make a certain class of health care purchases, then that voluntary choice will trigger a requirement to also purchase health insurance
I’m unsure why being required to pay ahead a time for police and fire protections [including the FBI or other federal personnel] is acceptable — this “insures” as much as paying ahead for the possible need of health providers, including in case of emergency and the chance I’ll need major surgery I have no ability to pay for — while health insurance is not. The government can also very well mix private with public here, like our tax dollars pay for private mercenaries like Xe.
March 30, 2011, 9:02 amPersonFromPorlock says:
I wonder. Unless it can be argued that a law can be both stupid and necessary, a stupid law would seem not to be authorized by the Necessary and Proper Clause. Of course, so long as the Court defers to the judgement (such as it is) of Congress, the point is moot.
March 30, 2011, 9:02 amAnderson says:
We really want the legislative branch doing so; unfortunately, it abdicated its responsibility to consider the constitutionality of laws before passing them long ago, and just figured it would pass whatever it wanted, giving itself as much power as it could, and would let the courts step in if it went over the line. So therefore, the courts need to step in.
This is soooo wrongheaded:
(1) The constitutionality isn’t an issue. Read McCulloch. The only *constitutional* issue is the “end” of the law; the “means” is up to the legislature.
(2) If the legislature is enacting laws that are obnoxiously ill-advised, the solution is for the people to elect new legislators.
Nieporent’s comment amounts to “screw democracy, let’s have judges run the country.” An astonishing view for anyone to hold, but given the GOP’s strong hold on the federal bench, I imagine we’re going to hear much more of that.
I mean, really: “giving itself as much power as it could.” Why do people act like Congress is some remote tyrant in a palace on Mars, controlling the country by radio transmissions? Congress isn’t “them”; Congress is *us*.
March 30, 2011, 9:16 amJoe says:
Unless it can be argued that a law can be both stupid and necessary
Necessary to a legitimate congressional power, which very well might be stupid. For instance, some might think copyrights are “stupid.” It still is a congressional power and laws “necessary” to it are legitimate.
March 30, 2011, 9:18 amAJ says:
I am not sure what government spending money to establish a transit system and then charging passengers to recoup the operating costs has to do with forcing people to purchase a private sector product. The fact that government can induce voluntary economic activity is not at question. The “power” that is at question is whether government can force me, for example, to rent a car from Hertz. I say, not exactly.
If “many” is accurate, then listing one would be useful. It is not unheard of for young healthy people to go a year without making health care purchases that would otherwise be covered by insurance. Your argument falls limp if you assume that simply buying a bottle of aspirin over the counter creates a “substantial effect” on the interstate health insurance or health care market.
Government has no general constitutional power to mandate. The power to regulate commerce does not imply a power to compel commerce. I was trying to draw this distinction, not quibble over the wisdom of the notary requirement.
March 30, 2011, 9:23 amepluribus says:
I apologize for coming very late to this thread. It has, in my opinion, been conducted on a high level, with good ideas advanced in favor of and in opposition to the so-called “mandate.” (I consider the word “mandate” inappropriate in this context—I think “minimum insurance requirement” is a better description–but that’s another issue entirely.) The distinction between “activity” and “inactivity” seems to me constitutionally valid. Congress has power under the commerce clause to regulate interstate commerce, and interstate commerce consists of “commercial activity” that crosses state lines. In my opinion, however, healthcare in the United States is the “commercial activity” that Congress is regulating. Virtually everybody obtains healthcare all their lives long—starting with their birth and continuing on up to their death. The population of the country is already engaged in an “activity.” The “activity” is not required (or, if you prefer, “mandated”) by Congress. It already exists. The issue that Congress has addressed is how the healthcare that people are already obtaining will be paid for. Should “freeriders” be permitted to obtain healthcare that they don’t pay for? Should healthcare be provided in emergency rooms where some people pay and most don’t? Or should it be paid for by people obtaining the “minimum insurance requirement” defined in the ACA? Congress has decided that it should be paid for by obtaining the “minimum insurance requirement.” The limit that Justice Kennedy is looking for will be “economic activity,” and obtaining healthcare across state lines is that “economic activity.” This is the principled, constitutional limit that will reassure him that the new commerce clause rule isn’t “anything goes.” The commerce power is limited to the regulation of “commercial activity,” and healthcare in the United States is clearly “commercial activity.”
March 30, 2011, 9:41 amAnderson says:
The power to regulate commerce does not imply a power to compel commerce.
Says who? Says AJ?
Where Congress is forbidding the exclusion of preexisting conditions — which falls squarely within the Commerce Clause — then that *has* to imply everyone buys health insurance. Congress has more than ample expert opinion to support that. And thus the mandate falls within the N&P Clause.
One could argue that even the police powers of the state don’t compel anyone to buy groceries or to get a job. But they do compel a parent to support his children, and I don’t think anyone in this country in the past 100 years has gotten out of a cash child-support obligation by saying “hey, I’ll just grow the kid’s food and spin my own fabric to make him clothes.”
This activity-inactivity stuff is bunk. It’s the legal equivalent of arguing that vaccines cause autism.
March 30, 2011, 9:44 amAnderson says:
The commerce power is limited to the regulation of “commercial activity,” and healthcare in the United States is clearly “commercial activity.”
This ignores the fact that the scope of the N&P Clause exceeds that of the Commerce Clause. It’s the same mistake the Virginia district court made.
March 30, 2011, 9:47 amyankee says:
This is a misleading way of phrasing the question, because the view mandate supporters are committed to is that the federal government can require people to purchase things in at least some circumstances. Mandate opponents are promoting the view that there are no circumstances whatsoever when the federal government can require people to purchase things.
In other words, your question implies that we’re talking about a freestanding broccoli purchase mandate, but that’s not an appropriate analogy. This isn’t a freestanding health insurance purchase mandate. The appropriate analogy is to a comprehensive regulatory scheme that would fail without a broccoli purchase mandate. What such a scheme would look like is beyond me, but we will assume one exists. Mandate opponents have not shown that Congress could not require people to purchase broccoli under those circumstances.
In other words, the broccoli hypothetical is attacking a stronger view (Congress can enact freestanding purchase mandates) when proponents are advocating a logically weaker one (Congress can enact purchase mandates that are part of a comprehensive regulatory scheme that would fail without the mandate). It’s a classic attack on a straw man.
March 30, 2011, 9:49 amreasonsformoving says:
I’d just like to make the simple observation that it seems… odd and sad that such an important issue may be decided by one or two people.
March 30, 2011, 9:54 amBlue Neponset says:
Why are you putting a a one year limit on health care purchases?
The hospital Mr. Healthy Young Person visits when he falls off a ladder and breaks his leg on day one of year two has been paid for by everyone who paid into the system. By not paying anything into the system Mr. Healthy Young Person is just acting as a free rider. The longer he waits to pay into the system the more of a free ride he gets. How is it unconstitutional for Congress to address this very real problem?
March 30, 2011, 9:56 amNo Theory of Jurisprudence says:
I see why you are confused. The Health Care Mandate only applies to people engaged in a preexisting activity — making money. If you have no or little income, you don’t have to purchase health care. Thus the idea that people who are not engaged in any activity are being mandated to purchase health care is wrong.
It’s also wrong because, and Congress has already said this in the act, not purchasing health care is an activity. Under existing constitutional case law, Congressional findings are given significant deference by the Supreme Court.
March 30, 2011, 10:03 amjrose says:
All people consume health care, whether or not they purchase health care.
March 30, 2011, 10:03 amyankee says:
I think every so often a bus turns a Christian Scientist into a pancake. Same with the healthy young people who keep being mentioned on these threads.
People suffering instant death before they have a chance to consume any health care is pretty rare though.
March 30, 2011, 10:11 amCJColucci says:
Churchill once said, “we should no more recognize the USSR than legalize sodomy.” A. Zarkov(
England and the United States have now done both (one of them during Churchill’s watch), and we are better off for it.
March 30, 2011, 10:26 amcecil kirksey says:
I know that the DC is not a state and is totally controlled by acts of congress directly or through delagated authority. But the DC has mandatory school attendance policies. Thus parents are required to send their children to public schools, or home school (with some implicitly required expenses), or to a private school (buy a service from a vendor). Now it is not at all clear where the constitutional authority comes from for congress to do this. We are not talking CC but perhaps general welfare. Not sure.
March 30, 2011, 10:30 amNo Theory of Jurisprudence says:
While true, it’s not relevant. Although your mandates “make government and the practical execution of a constitution possible” there is no constitutional provision or theory (that you’ve pointed me to) that limits the “mandate” power to only those enumerated powers which also make possible the practical execution of our constitution.
If you are sitting on some tomb of constitutional wisdom that would distinguish between some enumerated powers and others, relating to the “mandate” power, please share. I do agree with you that the enumerated powers authorize Congress to mandate behavior.
Yes it does as health care predates the mandate.
I didn’t say that.
We can agree to disagree, then. EDIT: What I mean here is, I disagree that there is no economic hook, as did Congress.
March 30, 2011, 10:35 amAJ says:
Certainly it implies that insurance companies need to be compensated for the extra cost of limiting premiums for those with pre-existing conditions. Congress has many ways to do this including direct subsidies of insurance companies, subsidies for the uninsured to purchase insurance, tax incentives for the uninsured to purchase insurance, or the mandate. Certainly rational basis review gives Congress some latitude here but not complete (see Kennedy’s concerns about federalism in Comstock). Further, the means must be proper (see McCulloch). Mandating purchases for involuntary consumers will not be found to be proper — and yes, because AJ and five justices say so.
Some of us agree that the 10A does give some power to the states that the federal government cannot wield. Romneycare is a perfect example — car insurance another.
March 30, 2011, 11:06 amAJ says:
So if you examine your scrotal sac for lumps tonight, that is a sufficient activity nexus to trigger a substantial effect on interstate health care? Give me a break. The attenuated link between “no-cost health care” and “over the counter health care” and the interstate markets for either health care or insurance renders this analysis moot. It’s not simply a question of ANY activity.
March 30, 2011, 11:14 amepluribus says:
reasonsformoving says:
Well, yes and no. 535 members of Congress did vote on the ACA. And it is their responsibility, as well as that of the courts, to make judgments about the constitutionality of what they do.
March 30, 2011, 11:15 amI R A Darth Aggie says:
Given that I can not purchase health insurance across state lines, how does the Commerce Clause come into play in the first place?
March 30, 2011, 11:22 amjrose says:
It’s sufficient to establish you are engaging in activity that substitutes for purchasing insurance.
As I read the precedent, the economic/non-economic distinction is the judicially administrable rule for determining whether the link is too attenuated. In this case, people consuming healthcare as a substitute for purchasing insurance is economic, and hence not too attenuated.
March 30, 2011, 11:31 amAJ says:
Free-rider implies that Mr. Broken Leg does not pay his bills and that if he doesn’t, that a collection agency cannot be used to force some payment. In a free-market system, the capital outlays of the hospital are not some shared community responsibility. I limit the analysis to a year because that is the interval of time used for assessing the fine. Each year you have the choice between insurance premium and fine. So the appropriate question is whether you will use health care over that period. Saying that Mr. Young Healthy Person will probably become Mr. Old Cancer Person does not seem to place a fair link between the economic activity and the imposed regulation.
March 30, 2011, 11:32 amepluribus says:
AJ says:
Did you come into this life without the assistance of medical care? The number of people who are born without a doctor or a nurse or at least a midwife in attendance, and outside of a hospital, must be infinitessimally small. All that has to be paid for. And your need for and consumption of medical care continues through childhood, puberty, and adulthood. It doesn’t end until death knocks at your door. Far more than examining your scrotal sac.
March 30, 2011, 11:36 amjrose says:
If Mr. Old Cancer Person can buy insurance only after becoming old and sick, and at a rate that does not depend on how old or sick he is, the link seems obvious to me.
March 30, 2011, 11:38 amepluribus says:
It isn’t a fine at all. The only–absolutely only–legal consequence of failure to maintain the required minimum insurance is an addition to your income tax liability. No levies. No jail or imprisonment. No legal actions to collect. You simply owe more income tax. Call it what you will, income tax is not a “fine.”
March 30, 2011, 11:39 amNo Theory of Jurisprudence says:
I think this is misstated, as the regulation should be defined more broadly as “health care” which can and is purchased across state lines. I think your statement is also empirically false, as I know at least one person (me) who purchases health insurance from a national health insurer that sells health insurance across state lines.
March 30, 2011, 11:50 amAnderson says:
Some of us agree that the 10A does give some power to the states that the federal government cannot wield. Romneycare is a perfect example — car insurance another.
You are missing my point, which is not about federal vs. police powers but about the use of implied powers. Assuming arguendo that a state cannot require its residents to buy $200 of groceries per month, the state *can* require that a parent pay $200 in child support so that the custodial parent can buy groceries, because the state does have the power to require parents to support their children.
Because Congress can prohibit excluding preexisting conditions, it can enact a mandate necessary to that prohibition, even if the mandate itself exceeds the bounds of the Commerce Clause.
March 30, 2011, 11:55 amDilan Esper says:
Yeah. The republicans got their base to swallow a big load of BS on this issue and the base now repeats the lie.
What the Republicans were proposing was eliminating state insurance regulations by allowing insurers to set up in a state with lax regulations and sell to other states without obeying the other states’ regulations.
you can sell insurance across state lines now, and the health care bill makes it easier by allowing states to harmonize their regulations in compacts.
March 30, 2011, 12:33 pmBlue Neponset says:
I think it does. The only way most of us can afford to pay for serious medical care is by purchasing insurance. If Mr. Young Healthy Person doesn’t purchase insurance until he gets sick then he isn’t paying the true cost of his care. The mandate to purchase insurance is one way to make sure everyone pays for the true cost of their health care.
I am having a hard time understanding why people disagree with this.
March 30, 2011, 12:35 pmjosh says:
You understand that is what is happening now and is the basis for the argument that the mandate is constitutional — we (those with insurance) are paying the health care costs for those w/o insurance.
March 30, 2011, 12:43 pmjosh says:
study proposal:
A comparison between the comments in these ACA threads with the comments in the Wisconsin/union threads. See if there are any anti-mandate folks arguing that the Wisc GOP won and elections have meaning (or vice versa).
I’ll start the over at 5 commenters. Any takers?
March 30, 2011, 12:55 pmRagebot says:
Suppose the govt would like to stop peeps from smoking pot and imposed a tax and a required tax stamp on pot, but refused to issue any tax stamps for pot. Would the Court swallow it?
March 30, 2011, 12:58 pmByomtov says:
JHA,
If this were restructured as a tax credit — specifically, if marginal tax rates were increased, and then tax credits were given for the purchase of qualifying health plans — it would be difficult to challenge the constitutionality of the mandate. As structured, however, the mandate is not a tax. While federal courts are split on the mandate’s constitutionality, they have unanimously (and rightly) concluded the mandate is not a tax.
Do you realize how nonsensical this is? A one-step process is unconstitutional, but a two-step process with the same result is just fine. I know I’ve made this comment before, but it is utterly beyond me how that can possibly be right.
As for defining limits, I think way too much of the focus is on the word “mandate.” A mandate is only as strong as its enforcemnet mechanism. If you don’t buy insurance no one is going to draw money out of your bank account and buy a policy for you. Instead you will pay a tax penalty which, for some, would actually be less than the cost of insurance. That’s not exactly like a “mandate” to pay your income taxes,which carries a much harsher penalty.
Second, the broccoli question omits a key premise. Of what legitimate regulatory scheme is it a necessary part? After all, the basic argument for the mandate is that you can’t have the requirement that insurers ignore pre-existing conditions without it. That requirement is surely constitutional, so the constitutionality of the mandate follows.
If you don’t posit a similar situation for broccoli then the comparison is irrelevant.
March 30, 2011, 1:18 pmRagebot says:
I am not sure about this. I know there are big national companies selling insurance, but the policies they sell have to conform to state regs. NY and CA have a lot more regs than some other states, and one of the arguments is that some coverage required (acupuncture is often cited as an example) are a waste of money for some peeps.
Just because you buy a policy from Nationwide Insurance Company does not mean that policy is available in every other state.
March 30, 2011, 1:26 pmscattergood says:
All people consume health care whether they purchase INSURANCE or not. Health care is not the same as health insurance.
The mandate presumes that one MUST buy health INSURANCE to use health CARE. This is clearly factually incorrect.
March 30, 2011, 1:52 pmscattergood says:
What happens if you send the IRS a check for your base tax amount only and don’t include the, as you put it, ‘addition to your income tax liability”?
March 30, 2011, 1:54 pmepluribus says:
I live in Arizona. My health insurer is Humana, Inc. According to Wikipedia, this is a Fortune 100 company that has a customer base of more than 11.5 million. It is headquartered in Kentucky, but provides insurance in all 50 states, D.C., and Puerto Rico. It is headquartered in Kentucky. When I make a claim on my insurance, it is processed in and paid from Kentucky. The largest hospital chain in Arizona is operated by Banner Healthcare. It is one of the largest nonprofit hospital systems in the country and operates in Alaska, Arizona, California, Colorado, Nebraska, Nevada and Wyoming. It operates hospitals and provides physician services. It has more than 35,000 employees nationwide. To argue that the healthcare industry in the United States it not engaged in interstate commerce is simply fallacious.
March 30, 2011, 2:00 pmepluribus says:
The bill is explicit. You will simply owe more tax. If you have a refund coming, the additional tax amount will be deducted from your refund. Beyond that, nothing–absolutely nothing–will be done to collect the tax or enforce your liability.
March 30, 2011, 2:03 pmAnderson says:
Saying that Mr. Young Healthy Person will probably become Mr. Old Cancer Person does not seem to place a fair link between the economic activity and the imposed regulation.
Cue Derek Parfit and the issue of whether one’s future selves need to be protected from oneself.
March 30, 2011, 2:04 pmNo Theory of Jurisprudence says:
Your theory is very strange to me, unless I’m confused, which often happens: if I purchase a good (let’s call it a “policy”) constructed out-of-state, by a person who lives and resides and works out-of-state, which policy is mailed to me from out-of-state, which policy I contact people out-of-state for assistance, but which is used exclusively in-state and is governed by in-state regulations, this thing is not interstate commerce?
California and Texas, I’m told, have different emissions standards for vehicles. Does that mean cars cannot be sold interstate? Marijuana cannot be purchased legally in Texas at all, but can be in California. Does that mean marijuana is not sold interstate? Legal services are always subject exclusively to the home state’s laws in which the services are performed. Is it your position that legal services are not interstate commerce?
In any event, considering that the commerce clause extends to many goods and services that are sold exclusively intrastate, of what consequence would it be that you really could truly only purchase an insurance policy in state? That fact alone wouldn’t take health care regulation outside the purview of the commerce clause.
March 30, 2011, 2:05 pmepluribus says:
Ragebot says:
If an interstate activity or business is subject to both state and federal laws, the federal laws take precedence under the supremacy clause. It doesn’t work the other way around.
March 30, 2011, 2:18 pmjoe says:
The current health insurance market prices policies somewhat close to the actuarial cost of the insurable risk. That is why a 25 year male can purchase a good policy for just under $100 per month while a 60 year male in good health is priced closer to $1,000 to $2,000 (or more) per month. (which is reasonably close to the actuarial risk).
The ACA restricts the price differential to no more than a 3to1 ratio. It also requires guaranteed issue without regard to pre existing condition. The ACA is massive shift of cost to the young without regard to the actuarial risk. This massive shift in the cost creates the incentive for a mass exodus from the health insurance market until the person becomes sick. It is for this reason that the mandate exists.
If the purpose of the the 3/1 ratio was to put money away (ie a savings account for future health care) then there would be some justification. However, it may more clearly resembles the social security ponzi scheme.
March 30, 2011, 2:43 pmThe second problem with your argument ie, the young paying today for the future health care – is that you are taking money away from the younger generation at a time when they have other obligations based on their time in life ie, new family, child care, purchase of new home, raising children, paying for college, etc.
Dilan Esper says:
Note though that this nonetheless completely demolishes the GOP talking point– “how can insurance be interstate, you aren’t allowed to buy it across state lines?”.
Being able to buy it across state lines so long as your state’s regulations are followed is different than not being able to buy it across state lines at all.
March 30, 2011, 2:43 pmjrose says:
It isn’t a presumption, it’s a statutory requirement.
March 30, 2011, 2:46 pmAJ says:
Think about having a regulation or excise tax triggered by behavior that may occur years from now. It’s kind of hard to think of a credible example. The Medicare tax is possibly the closest, but it is simply an income tax with a cap (used to fund current beneficiary expenses). With the individual mandate, the fine is a penalty for going uninsured for 1 year’s time. The penalty is not structured for a lifetime of being uninsured, so why would you gauge the economic activity from cradle to grave? The fair assessment is what is the likelihood that the individual would buy health care over that year?
March 30, 2011, 3:10 pmFurther, the test from Lopez/Morrison is that the economic activity must substantially affect the comprehensive regulatory scheme (possibly using aggregation). Does purchasing a bottle of aspirin substantially affect the success of the ban on pre-existing conditions? No. Does paying out of pocket at the doctor’s office substantially affect the success of the ban? No. What affects the regulatory scheme is the status of being uninsured and not having enough people in the insurance pool to subsidize those with pre-existing conditions. Status is not an economic activity. This fails the test. If you then argue that N&P does not require the economic hook, then you must rationalize what the new practical limit is. But as I mentioned previously, the power to mandate purchases may not be proper.
No Theory of Jurisprudence says:
What test? You’ve yet to provide any test for distinguishing activity from inactivity. The only explanation you’ve provided (“Status is not an economic activity”) is unpersuasive. Employment is a status which is properly within the purview of the commerce clause.
March 30, 2011, 3:16 pmjrose says:
You are confusing the substantial effects doctrine and the N&P argument.
The substantial effects test is whether the economic activity, when taken in the aggregate, substantially affects commerce. Purchasing aspirin or paying out of pocket, when taken in the aggregate, substantially affects commerce.
The relation to the regulations on pre-exisiting conditions is the N&P argument – and no link to an economic activity is required.
March 30, 2011, 3:20 pmjosh says:
Can I play devil’s advocate to my like-minded pro-mandate comrades (or at least to those taking issue w the anti-mandate arguments being made)?
On the issue of policies being sold across state lines, I do have one nit. From my experience, even though “Humana sells policies in all 50 states”, it in reality has subsidiaries in each state that sell the policies pursuant to each state’s insurance codes. I can’t speak to epluribus’ experience of having his claim process by the parent company’s home office, but i’d be willing to bet his policy was sold to him by an arizona sub.
i agree that the interstate commerce argument is a side show, but if that were all we were dealing with (would it were!), i need a bit more on the fact side to say that the sale of the insurance policy is really crossing state lines.
March 30, 2011, 4:07 pmByomtov says:
Joe,
You are overlooking something. The young healthy buyer is not merely paying for health insurance. She is also paying for the option to buy insurance in the future without having pre-exisiting conditions taken into account. This is a substantially more valuable package than just health insurance alone. In fact, the value of the option may well exceed that of the insurance in this case.
March 30, 2011, 5:07 pmDavid M. Nieporent says:
Right, but we don’t. We’re a discrete and insular minority.
March 30, 2011, 5:33 pmDavid M. Nieporent says:
It is? Then someone has been forgetting to send me my paychecks, let alone my federal pension. Hell, they won’t even let me into the offices without an appointment.
Congress is some remote tyrant in a palace in DC, controlling the country by, well, not radio transmissions so much as mounds of paper. Congress is them, not us.
March 30, 2011, 5:39 pmJoe says:
AJ: I am not sure what government spending money to establish a transit system and then charging passengers to recoup the operating costs has to do with forcing people to purchase a private sector product.
Again, the references I made was in response to this statement by you: “If the N&P clause can be invoked to create economic activity which then congress can regulate via the commerce clause, then a citizen has no practical means to evade the reach of government.”
The government “creates economic activity” by creating a transit system or a market in notary stamps. This can be done via the N/P in the appropriate case. For example, a transit system for an army base for visiting family members. Again, citizens (and persons in general) repeatedly are able to evade such governmental creations.
The fact that government can induce voluntary economic activity is not at question. The “power” that is at question is whether government can force me, for example, to rent a car from Hertz. I say, not exactly.
It is in question. Again, you said that if they could create the economic activity (there would be none here if the transit system or notary requirement wasn’t in place) their reach would be boundless. This is false. The government can “force” you to buy certain things. For instance, a gun to serve in the militia. But, that isn’t the matter I was directly addressing.
Joe: People who buy health insurance are economic actors in many ways relevant to the scheme.
AJ: If “many” is accurate, then listing one would be useful.
Just one? The health of the workforce is important to the smooth running of the national economy and this includes having insurance to provide for the health needs of the employees. Insurance spreads risk. Like police services — people pay taxes for police services which will be overwhelmed if only paid for when someone needed them.
If someone isn’t working, btw, it is hard to see where they have the minimum income required to have a need to pay for insurance or pay some alternative. Again, just listing one thing. There can be other connections, as others have suggested.
It is not unheard of for young healthy people to go a year without making health care purchases that would otherwise be covered by insurance. Your argument falls limp if you assume that simply buying a bottle of aspirin over the counter creates a “substantial effect” on the interstate health insurance or health care market.
Millions of bottles of aspirins as well as the affects of young people who don’t obtain health care that later results in negative health affects (some of which can’t be paid for) in aggregate does have substantial effects. Among other things. The fact such and such requirement won’t be put in place for “a year or so” doesn’t make the requirement (such as a seatbelt) illegitimate. It is a matter of overall aggregate potentialities.
Government has no general constitutional power to mandate. The power to regulate commerce does not imply a power to compel commerce. I was trying to draw this distinction, not quibble over the wisdom of the notary requirement.
A “general power” is not being proposed here. I don’t know why the power to regulate commerce doesn’t involve in suitable cases the power to compel commerce, particularly if it is necessary and proper to the overall regulation in question. It is an artificial limitation, one not necessary to limit the power in question.
You said I should for some reason be concerned about the notarization requirement. Again, why?
March 30, 2011, 5:56 pmAJ says:
This requires the theory that “any activity that substitutes for a market activity is economic”. This is not what the court relied upon in Raich (or Wickard). Instead it took a more traditional view that “economic” behavior includes production, distribution, or consumption. So Angel Raich’s behavior was reachable because she was both a producer and consumer of marijuana, not because she was substituting homegrown marijuana for commercial marijuana.
With regards to health insurance, you then cannot apply the same substitution logic. You can’t say that acquiring health care without insurance substitutes for buying health care with insurance and so the former can be regulated. Your scrotal self exam is not an economic act: it is not production, distribution, or consumption. OTC medicines can be regulated but PPACA does not precondition the purchase of Aspirin on having insurance. You are allowed to not have insurance and make the purchase. So the purchase of health care commodities is not contingent on insurance (you can still go to the doctor and pay out of pocket and pay the government a fine).
The only item that is being regulated is insurance and one’s decision to not purchase it. Since this decision is not an activity of producing, distributing, or consuming, it is not an economic activity and is not reachable by the substantial affects doctrine.
March 30, 2011, 6:12 pmNo Theory of Jurisprudence says:
This was the same argument that lost over a hundred years ago, if you replace “mandate” and “compel” with “prohibit.” Champion v. Ames 188 US 321. The arguments against prohibitions being authorized by the Commerce Clause were actually pretty convincing, as it is difficult to imagine that the founders had ever contemplated such a thing; the Articles of Confederation were abandoned, the Commerce Clause adopted, to encourage commerce that otherwise would not exist under the ruinous protectionist policies of the former government.
Then again, the history of the Commerce Clause, properly understood as the history of expanding rather than contracting Federal powers, also militates towards an expansive judicial interpretation, as Marshall noted in, I think, Brown v. Maryland.
March 30, 2011, 6:26 pmepluribus says:
josh says:
Josh, a large national health insurance company cannot take itself out of interstate commerce by the simple expedient of creating subsidiaries in different states. On its own website, Humana states that it provides health insurance in all 50 states plus the District of Columbia and Puerto Rico. If creating subsidiaries were sufficient to escape regulation under the interstate commerce clause, you can be sure that companies of all sorts would do it all the time. But it isn’t. Whether it does its business through a single corporation, or through many, Humana (and many other large national health insurance companies) are clearly engaged in “commerce among the several states,” which is what the Constitution requires. If Humana wanted to avoid commerce clause regulation, it would have to confine its business to a single state. It wouldn’t do that because its profits would be drastically reduced by such a measure. Even fierce opponents of the health care law like Randy Barnett admit that these large insurance companies are engaged in interstate commerce.
March 30, 2011, 6:57 pmSalmon P. Mousse says:
“It is fashionable in some academic quarters to dismiss the need for a justiciable limit on federal power. The argument that the principle limit on federal power is, and should be, political has a long pedigree.”
Unfortunately for the author of this sentence, one of those quaint “academic quarters” is, and has long been, the United States Supreme Court.
Some of the examples cited for Justice Kennedy’s alleged “show me the line” shift are less than compelling. For example, take Alden v. Maine. In that decision, the Court explicitly said that while the federal government is currently subject to certain limits, it would acquire the absolute right to abrogate states’ sovereign immunity should Congress authorize it to do so. You know, kind of like they just did with the health care law.
March 30, 2011, 7:32 pmDilan Esper says:
Why? Many chain stores and restaurants are franchised, which means that the individual retail outlets are independently owned and operated. Does that defeat a claim that the operate in interstate commerce?
It may be true that the state-by-state separate incorporation of health insurers may defeat an attempt to sue the parent company. But that doesn’t mean that the parent company doesn’t sell insurance in interstate commerce; it just does it through subsidiaries.
By your logic, the Roman Catholic Church is not a multinational entity– all of its archdioceses are set up as separate entities.
March 30, 2011, 7:37 pmjrose says:
In effect and purpose it does because 1) everyone engages in health care economic activity (*), and 2) it is impractical to enforce the precondition at the time people engage in such economic activity.
(*) A medical examination is a commodity/service. A self-exam is thus economic activity, as is any home remedy (or home-grown wheat).
March 30, 2011, 8:13 pmAJ says:
There is no doubt some interesting parallels between the power to mandate and the power to ban. Certainly many conservatives are happy with bans on partial-birth abortion, gay marriage, drugs, porn, cloning, and assisted suicide. Most if not all of these items are issues perhaps best left to the state. In defense of bans I would argue that the excise tax power does enable a regulatory function that could function in essence as a ban without the need to resort to substantial effects arguments (which work on many of the above).
I would further argue though that the differences between a ban and a mandate are that the ban does not institute an affirmative duty to do something, nor does it act as a quasi material taking. The Constitution has several places that restrict government commandeering the individual. Restrictions on eminent domain, self incrimination, quartering soldiers, and forced slavery are the most notable. Coupling that with the short list of mandates I discussed earlier (taxes, census, jury, and draft) of “significant link” to the successful operation of government, I see the argument against mandates as being a bit better supported than an argument against bans (though I do share some sympathies with it).
You are probably correct that there is some inertia at play here with regards to the drift of federal power. The current court may hold the line for a bit but me thinks that “progress” is too often associated with a greater level of centralized control. We shall see.
March 30, 2011, 11:05 pmAJ says:
Wheat is a fungible commodity. If you define a self exam as an economic activity (production of a sort?), then just about every activity from vacuuming your carpets to washing your dishes at home become economic activities (you are substituting your labor for professional cleaners). This is why I think your “substitution” theory from Raich fails because it truly opens the door for a rationale for pretty much everything being “economic” and regulateable via aggregation.
March 30, 2011, 11:14 pmjrose says:
Yes, cleaning your house is an economic activity. But, possessing guns in a school zone, committing violence against women, eating broccoli and exercising are not.
March 31, 2011, 7:34 amAJ says:
I’m not quite sure about that conclusion. If I exercise at home as a substitute for paying for a gym membership or hiring a personal trainer, then home-exercise would seem to be regulateable under the substitution doctrine, provided that aggregation leads to a substantial affect on commerce. I could also plausibly argue that one carries a gun for personal protection as a substitute for hiring a body guard. Further, home cooking is a substitute for going to a restaurant, hiring a cook, or ordering takeout. So if any of those are being regulated, then what you are cooking in your kitchen seems to be fair play, as it enables you to avoid the intended regulation.
The problem with the “substitution theory” is where there is a need, there is a service or product that is economic that satisfies it. It enables the commerce clause to be stretched to reach activities that few would consider economic in nature.
March 31, 2011, 11:53 amjrose says:
No. The substitute, in and of itself without reference to being a substitute, must be economic in nature (as defined in Raich). Exercise is not a commodity or service (nor is gun possession or eating broccoli). A medical exam (whoever does it) is.
March 31, 2011, 12:46 pmAJ says:
So we change exercise to purchase home exercise equipment as a substitute for joining a gym, it then seems to work. Still, when you get to the point of your doctrine implying that “cleaning your house” is an economic activity that is conceivably regulateable by congress, you lose Kennedy and Roberts. When you argue that doing a scrotal sac self exam is economic activity because you apparently produce “information”, I just don’t see that result being echoed in Raich or in Scalia’s concurrence. Which section of the Raich opinion leads you to believe that they were agreeing with the government’s substitution theory?
March 31, 2011, 2:36 pmjrose says:
It’s Wickard, not Raich:
To be clear the government’s substitution theory doesn’t require that everyone without health insurance consumes health care:
I again just add it is impractical, if not impossible to require insurance “after-the-fact” on only those who consume health care and shift costs in the process of doing so.
March 31, 2011, 3:29 pmStephen Lathrop says:
Nice point. The “cheating the young” argument needs to at least factor that in. More generally, is it clear that people compelled by the mandate in fact give up value? They pay something, they get something. Value for value? Seems like any argument to the contrary must prove that the insurance delivered isn’t worth the mandated amount. Byomtov’s point would figure in that.
March 31, 2011, 9:06 pmStephen Lathrop says:
There seems to be a line of argument saying that the power of Congress must have a definite limit, and that limit can be neither political self-restraint, nor merely the other specifically enumerated limits in the Constitution. In short, the limit must lie outside politics and outside the Constitution. The demand is made that that limit be imposed against the Congress by the Supreme Court. Why isn’t that a system consisting of a subordinate Congress and an unlimited Court?
March 31, 2011, 9:19 pmShaggy says:
I have no idea what are you saying here. But at least you manage to be insulting while saying it. Good job.
March 31, 2011, 9:55 pmAJ says:
In actuary terms, most uninsured will pay more in premiums than they would have paid in out-of-pocket health care costs. It is this cost delta that the whole mandate is predicated on. You can’t add those with pre-existing conditions at below-market premium rates and enable insurance companies to remain profitable without bilking the young and healthy who choose to self insure. Since this duty “to pay” is not shared by all, I’m not quite sure how noble this legislation is.
March 31, 2011, 10:05 pmAJ says:
You will get pretty lonely waiting for Justice Kennedy to support the notion that the commerce clause has no limit other than political and perhaps some 5A restrictions. If we are forced to submit to mandate after mandate, we transform from citizen to subject, or so I’ve heard.
March 31, 2011, 10:17 pmStephen Lathrop says:
A proposition that you found in the Constitution? Or one you would prefer to see added?
April 1, 2011, 12:48 pmAJ says:
The question of mandates has been addressed up thread. Simply put, as citizens, we are commandeered by the government to do very few things – actions that are vital to government functioning as intended (i.e., if we do not report our income and pay our taxes, government shuts down). Further, there are places in the constitution where commandeering the individual is expressly forbidden: self incrimination, slavery, and the limits on eminent domain. With the individual mandate (IM), the uninsured are being forced to spend their money in the private sector on a product that they do not want. Unlike in eminent domain where the allowable commandeering is for the public benefit only, here we are muscling the individual for the benefit of a private insurance company. I am not claiming that IM is a taking, just that it is far closer in structure to a taking than a fundamental citizen responsibility like reporting/paying taxes. Once we submit that commerce plus N&P clause yields a general power to compel economic activity, it is likely that we will see more of it rather than congress using its more traditional taxing/spending powers.
April 1, 2011, 1:11 pm