Of all the judges tasked with assessing the constitutionality of the individual mandate, the one to watch so far has been Judge Jeffrey Sutton of the Sixth Circuit. As some readers know, Judge Sutton is a Federalist Society favorite, one of Justice Scalia’s favorite former clerks, and a regular “feeder” judge to the Supreme Court. As a result, what Judge Sutton thinks about the constitutionality of the mandate actually matters a lot to the future debate over the mandate. In light of that, I think the important aspect of today’s opinion from the Sixth Circuit is that Judge Sutton concluded that the mandate is constitutional.
I think Judge Sutton’s separate opinion is excellent, but then it’s easy for me to say: Judge Sutton’s views closely match what I’ve been saying here and elsewhere for a long time, so maybe this just proves once again that brilliant people agree with me. In any event, in light of our many debates here on whether the proposed action/inaction distinction is clear and obvious (as Randy argues), or is actually quite complex and uncertain (as I have contended), I thought it would be worth posting Judge Sutton’s discussion of why he finds it quite confusing:
Level of generality is destiny in interpretive disputes, and it remains unclear at what level plaintiffs mean to pitch their action/inaction line of constitutional authority or indeed whether a workable level exists. Does this test apply to individuals who have purchased medical insurance before? Those individuals have not been inactive in any sense of the word when it comes to the medical-insurance market, yet plaintiffs say that Congress may not regulate them.
What of individuals who voluntarily have insurance on the day the mandate goes into effect? One of the plaintiffs in this case, Jann DeMars, now has insurance, yet she claims Congress has no right to require her to maintain that coverage. It is not clear what the action/inaction line means in a setting in which an individual voluntarily (and actively) obtains coverage and is required only to maintain it thereafter. As to this group of individuals, why can’t Congress regulate them, even under plaintiffs’ theory of the case? We no longer are talking about a mandate imposed on the mere status of “existence” in the United States but on individuals who have voluntarily purchased medical insurance in an interstate market and who must maintain only what they chose to buy. At a minimum, this application of the law is constitutional.
How would the action/inaction line have applied to Roscoe Filburn? Might he have responded to the Agricultural Adjustment Act of 1938 by claiming that the prohibition on planting more than 11.1 acres of wheat on his farm compelled him to action—to buy wheat in the interstate market so that he could feed all of his animals? And is it any more offensive to individual autonomy to prevent a farmer from being selfsufficient when it comes to supplying feed to his animals than an individual when it comes to paying for health care? It seems doubtful that the Wickard Court would have thought so. See Wickard, 317 U.S. at 129 (acknowledging that the law “forc[ed] some farmers into the market to buy wheat they could provide for themselves”). How would the action/inaction line apply if someone like Angel Raich sold her house, marijuana plants and all? The Controlled Substances Act would obligate the new owner to act (by removing the plants), see 21 U.S.C. § 844, but it seems doubtful that he could sidestep this obligation on the ground that the law forced him to act rather than leaving him alone to enjoy the fruits of inaction.
There is another linguistic problem with the action/inaction line. The power to regulate includes the power to prescribe and proscribe. See Lottery Case, 188 U.S. 321, No. 10-2388 Thomas More Law Center, et al. v. Obama, et al. Page 45 359–60 (1903). Legislative prescriptions set forth rules of conduct, some of which
require action. See, e.g., 18 U.S.C. § 2250 (sex-offender registration); id. § 228 (childsupport payments); see also United States v. Faasse, 265 F.3d 475, 486–87 (6th Cir. 2001) (en banc). The same is true for legislative proscriptions. Take the drug laws at issue in Raich, where Congress regulated by prohibiting individuals from possessing certain drugs. A drug-possession law amounts to forced inaction in some settings (those who do not have drugs must not get them), and forced action in other settings (those who
have drugs must get rid of them).An enforceable line is even more difficult to discern when it comes to health insurance and the point of buying it: financial risk. Risk is not having money when you need it. And the mandate is one way of ensuring that all Americans have money to pay for health care when they inevitably need it. In this context, the notion that self-insuring amounts to inaction and buying insurance amounts to action is not self-evident. If done responsibly, the former requires more action (affirmatively saving money on a regular basis and managing the assets over time) than the latter (writing a check once or twice a year or never writing one at all if the employer withholds the premiums). What is more, inaction is action, sometimes for better, sometimes for worse, when it comes to financial risk. When Warren Buffett tells shareholders that “[w]e continue to make more money when snoring than when active” or that “[i]nactivity strikes us as intelligent behavior,” Chairman’s Letter to Shareholders (Feb. 28, 1997), ¶¶ 72–73, available at http://www.berkshirehathaway.com/letters/1996.html, he is not urging the Board of Directors to place him in a Rip Van Winkle-like stupor for the next year. He is saying that, of the many buy and sell recommendations that came across his desk that year, the best thing he could have done is the informed, even masterful, inaction of saying no to all of them.
No one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk. Each requires affirmative choices; one is no less active than the other; and both affect commerce. In affidavits filed in this case, the individual plaintiffs all mention the need
to make current changes in their spending and saving practices to account for the need to pay for medical insurance in the future. Saving to buy insurance or to self-insure, as these affidavits attest, involves action. E.g., Ceci May 27, 2011 Decl., ¶ 7 (“Due to the added financial pressure [of the mandate], I have cut back on discretionary spending, such as costs associated with entertainment, like going to the movies, a restaurant, or sporting events.”); Hyder May 28, 2011 Decl., ¶ 8 (same).
Constitutional « Gerry Canavan says:
[...] UPDATE: Orin Kerr says this is important. [...]
June 29, 2011, 3:54 pmPaul Horwitz says:
Orin, that’s all well and good, but what did Bingham think?
June 29, 2011, 3:55 pmguest says:
Could this line of argument be overcome by Plaintiffs who willfully refuse all health care (e.g. Christian Scientists). Then, isn’t their inaction different from plaintiffs who decide how to account for the risk of future health costs?
June 29, 2011, 4:03 pmSuperSkeptic says:
SUTTON, Circuit Judge. The National Government is “one of enumerated” and limited “powers,” a feature of the United States Constitution “universally admitted” in 1819, McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405, and still largely accepted today.
He begins his opinion like this, and I wonder what he means by it? (my emphasis)
June 29, 2011, 4:42 pmcitizen says:
Suddenly I feel very cold.
June 29, 2011, 4:48 pmSteve says:
Following the oral argument, Ilya Shapiro from Cato called Judge Sutton “one of the more conservative jurists nationwide.” Certainly he is someone liberals and conservatives alike would have viewed as a possible Supreme Court candidate down the road, and I will refrain from the sort of instant analysis that claims his chances are now doomed. But I do think we are going to see quite a bit of “no true Scotsman” arguments in the near term, since opposition to Obamacare has somehow become the quintessence of conservatism.
June 29, 2011, 4:50 pmR Richard Schweitzer says:
There is really no such activity as “Self-Insurance.””
“Self-Insurance” is simply jargon-terminology to indentify or classify retention of risk.
Insurance is the transfer of risk.
NO transfer of risk; no insurance.
June 29, 2011, 4:50 pmJeff Wilson says:
For those who believe that the “individual mandate” is Constitutional, assume the following:
That Congress has established a comprehensive regulatory regime for the “national market in food.” (I am not sure if the FDA qualifies as such.)
That Congress has established a comprehensive regulatory regime for the “national market in energy.” (DOE?)
That Congress passes a law mandating extensive use of ethanol in gasoline, which adversely affects the national market in food by making food much more expensive, due to corn being used to make ethanol rather than corn syrup, etc.
Now, in order to control food prices, Congress decides that the problem is insufficient supply of corn, and that everyone uses corn eventually, since it is so prevalent in the national food supply. People are consuming more corn than they produce, thus harming the national markets in both energy and food.
Congress thus mandates that everyone farm corn, and produce an amount proportional to their arable land holdings, to be collected by government agents at certain set periods.
Is this Constitutional?
June 29, 2011, 4:53 pmR Richard Schweitzer says:
There is really no such activity as “Self-Insurance.””
“Self-Insurance” is simply jargon-terminology to identify or classify retention of risk.
Insurance is the transfer of risk.
NO transfer of risk; no insurance.
R Richard Schweitzer
June 29, 2011, 4:54 pmJeff Wilson says:
For those who believe that the “individual mandate” is Constitutional, assume the following:
That Congress has established a comprehensive regulatory regime for the “national market in food.” (I am not sure if the FDA qualifies as such.)
That Congress has established a comprehensive regulatory regime for the “national market in energy.” (DOE?)
That Congress passes a law mandating extensive use of ethanol in gasoline, which adversely affects the national market in food by making food much more expensive, due to corn being used to make ethanol rather than corn syrup, etc.
Now, in order to control food prices, Congress decides that the problem is insufficient supply of corn, and that everyone uses corn eventually, since it is so prevalent in the national food supply. People are consuming more corn than they produce, thus harming the national markets in both energy and food.
Congress thus mandates that everyone farm corn, and produce an amount proportional to their arable land holdings, to be collected by government agents at certain set periods.
Is this Constitutional?
June 29, 2011, 4:55 pmArmen says:
Kind of weird that Sutton used the action/inaction of buying you a beer as another example.
June 29, 2011, 4:56 pmJeff Wilson says:
For those who believe that the “individual mandate” is Constitutional, assume the following:
That Congress has established a comprehensive regulatory regime for the “national market in food.” (I am not sure if the FDA qualifies as such.)
That Congress has established a comprehensive regulatory regime for the “national market in energy.” (DOE?)
That Congress passes a law mandating extensive use of ethanol in gasoline, which adversely affects the national market in food by making food much more expensive, due to corn being used to make ethanol rather than corn syrup, etc.
Now, in order to control food prices, Congress decides that the problem is insufficient supply of corn, and that everyone uses corn eventually, since it is so prevalent in the national food supply. People are consuming more corn than they produce, thus harming the national markets in both energy and food.
Congress thus mandates that everyone farm corn, and produce an amount proportional to their arable land holdings, to be collected by government agents at certain set periods.
Is this Constitutional?
June 29, 2011, 4:56 pmJoe (not that one) says:
He begins his opinion like this, and I wonder what he means by it?
Probably that some academics (and at least Justice Breyer) believe that the limits to federal governmental power are not judicially enforceable.
June 29, 2011, 4:57 pmJeff Wilson says:
For those who believe that the “individual mandate” is Constitutional, assume the following:
That Congress has established a comprehensive regulatory regime for the “national market in food.” (I am not sure if the FDA qualifies as such.)
That Congress has established a comprehensive regulatory regime for the “national market in energy.” (DOE?)
That Congress passes a law mandating extensive use of ethanol in gasoline, which adversely affects the national market in food by making food much more expensive, due to corn being used to make ethanol rather than corn syrup, etc.
Now, in order to control food prices, Congress decides that the problem is insufficient supply of corn, and that everyone uses corn eventually, since it is so prevalent in the national food supply. People are consuming more corn than they produce, thus harming the national markets in both energy and food.
Congress thus mandates that everyone farm corn, and produce an amount proportional to their arable land holdings, to be collected by government agents at certain set periods.
Is this Constitutional?
June 29, 2011, 4:57 pmR Richard Schweitzer says:
It would seem that what this jurist is trying to get at is that under the powers of the “Commerce Clause,” Congress can dictate HOW individuals may (shall?) pay for healthcare IF they pay at all, because the HOW involves (affects) interstate commerce.
So, why not say so?
June 29, 2011, 5:06 pmR Richard Schweitzer says:
It would seem that what this jurist is trying to get at is that under the powers of the “Commerce Clause,” Congress can dictate HOW individuals may (shall?) pay for healthcare IF they pay at all, because the HOW involves (affects) interstate commerce.
So, why not say so?
June 29, 2011, 5:06 pmNo Theory of Jurisprudence says:
I think he means that a proposition–that the Constitution created a Federal Government of limited powers–is still largely accepted, at least on the day he wrote his opinion.
What did you think he had in mind?
June 29, 2011, 5:21 pmAnderson says:
Sutton: How would the action/inaction line have applied to Roscoe Filburn?
That’s always been (part of) the problem with Barnett’s active/inactive shtick — OF COURSE it’s supposed to result in Wickard‘s being mistaken, and yet, the Sixth Circuit does not have the luxury of overturning Supreme Court precedent.
So, any analysis that contradicts settled constitutional law is unreliable.
Barnett, being an ideologue, wants to prove too much.
June 29, 2011, 5:27 pmDonweberist says:
I know that many who post and comment on this blog think the IM portion of the ACA is unconstitutional. Ok. Do you agree, though, that uninsured Americans constitute a problem? Not only for themselves, but also in the “free-rider” context?
If you don’t think it’s a problem, again ok. We can agree to disagree. But, if it is a problem, do you believe that there’s a constitutional way to deal with it? Or, is it simply unsolvable from a government standpoint?
June 29, 2011, 5:28 pmDonweberist says:
I know that many who post and comment on this blog think the IM portion of the ACA is unconstitutional. Ok. Do you agree, though, that uninsured Americans constitute a problem? Not only for themselves, but also in the “free-rider” context?
If you don’t think it’s a problem, again ok. We can agree to disagree. But, if it is a problem, do you believe that there’s a constitutional way to deal with it? Or, is it simply unsolvable from a government standpoint?
June 29, 2011, 5:28 pmpdxnag says:
If I do not have a right to self-insure then what authority would I have, in cooperation with others, to incorporate an private entity to offer insurance to myself or others? It creates a circular argument that there can be no private insurance companies unless one first acknowledges an individual right to self-insure. Look up reductio ad absurdum.
June 29, 2011, 5:29 pmNo Theory of Jurisprudence says:
It might be.
June 29, 2011, 5:30 pmfrankcross says:
Jeff, sure it is. There are lots of really stupid ideas that are constitutional. Many of them involve the commander in chief power, though that oddly doesn’t seem to much bother the libertarians over here.
There is such a thing as self-insurance, corporations consciously choose to do it all the time. The only quibble would be a semantic one. The dissent really doomed itself when it said self insurance was noncommercial. It clearly isn’t and it’s quite like Wickard. A farmer who chooses to grow his own food, rather than purchase it, is engaged in interstate commerce. Just as a person who chooses to self-insure, rather than purchase insurance, is engaged in interstate commerce.
June 29, 2011, 5:30 pmAdam says:
He left himself a fair amount of wiggle room to argue that it wasn’t his role as circuit court judge to announce a new rule, but gee, he sure does like the one the Supreme Court announced on appeal.
That’s probably why Judge Martin included a footnote saying that and that “self-insurance” was used for convenience.
June 29, 2011, 5:34 pmdimocracy says:
Does this mean that people who never have decided to buy health insurance in an interstate market and that others who only buy insurance in an intrastate market aren’t subject to this individual mandate?
And why must previous insurance consumers maintain what they once chose to buy– what if they decide the premium payments aren’t worth the outlay and would rather be on a pay-as-they-go basis, or come to believe that insurance distorts the market and thus it is a political decision not to consume a med insurance product?
Did the genius jurist Sutton address any limits as to what Congress can and cannot mandate as it pertains to an infinitely expandable definition of interstate commerce? What can’t the concepts of free-riders and negative externalities be applied to in order to control citizens, grow the government, and Europeanize us into debt and irrelevance?
June 29, 2011, 5:36 pmHoward Friedman says:
It is fascinating to read Judge Sutton’s opinion in light of the comments that Democrats who opposed his nomination were making at the time of the lengthy fight over it. For example, the Leadership Conference on Civil and Human Rights said: “Mr. Sutton’s record as a lawyer and advocate revealed him to be an extremely ideological and conservative activist with a particularly troubling record in many areas important to a range of communities and constituents.”
What I hope this shows is– as many of us have vainly argued for years– that Constitutional Law involves doctrine, not just politics.
June 29, 2011, 5:38 pmnoblesse says:
Sutton included a helpful reminder to the liberty pearl-clutchers that the government indisputably can force you to buy health insurance: “States have authority under their general police powers to enact minimum coverage provisions similar to the one in the Affordable Care Act. See Mass. Gen. Laws Ann. ch. 111M, § 2 (West 2011).” (Slip op. at 14.)
The only question is whether the federal government can do so. (And obviously he answered that question in the affirmative as well.)
June 29, 2011, 5:38 pmguest says:
What about individuals (e.g. Christian Scientists) who do not choose to engage in the health care market at all. Under this analysis, how can they be deemed to be market participants by self-insuring, when there is no chance they will ever incur health care costs in the future?
June 29, 2011, 5:39 pmPaul Horwitz says:
Jeff Wilson, I’m not really sure what question or intuition tour hypo is designed to get at. That the law would be absurd or bad policy? That it is so bad and/or intrusive that it must be unconstitutional? Or more specifically that it must be unconstitutional under the Commerce Clause in particular? And moreover that such a CC violation is judicially manageable? I take it you’d agree that the first two propositions could be true without that saying anything about the third or fourth.
June 29, 2011, 5:39 pmJustin says:
No, under the Takings (and probably Due Process) clauses of the 5th Amendment.
June 29, 2011, 6:04 pmepluribus says:
Judge Sutton’s argument seems substantially similar to an argument I have made here, and that others have made in slightly different terms. The business of providing and using healthcare and health insurance in the United States already involves a tremendous amount of activity. For almost everybody, it is a lifelong activity, beginning with birth (or even before, in the case of prenatal services) and not ending until death. People are obtaining healthcare all the time, and making provisions to pay for that healthcare. Sometimes they pay out of pocket. Most often they pay with health insurance. ACA does not require activity where it does not already exist. ACA merely regulates a pervasive activity that is already well established.
June 29, 2011, 6:12 pmWild Oats says:
No. http://en.wikipedia.org/wiki/Thirteenth_Amendment_to_the_United_States_Constitution
June 29, 2011, 6:17 pmAdam says:
Judge Martin’s opinion suggested to me an even shorter form of analysis. Whether one thinks it was rightly decided or not, Raich involved an essentially unchallenged assertion that the commerce power includes the power to ban a particular type of commerce.* To my recollection, it was undisputed that Congress could ban commerce in marijuana. Thus why should it seriously be in dispute that Congress can ban self-insurance?
*I would argue that this is, in fact, an appropriate limit to federal commerce power, and that anything beyond banning a particular type of commerce is outside the scope. Which, of course, would avoid the rather awkward position that Raich gets to in finding that private non-commerce conduct has a substantial effect on commerce even where banning such non-commerce only increases demand and thus makes the banned commerce more likely rather than less.
June 29, 2011, 6:18 pmjosh says:
I do recall reading sutton’s opinion and thinking he clearly had been reading OK’s posts (or D Esper’s, M Field’s, Justin’s, et al’s comments). It’s nice to at least see a GOP appointee going against party. I believe I’ll feel the same way if an when a Dem appointee sides with the plaintiffs in any of these cases, even though I still believe the government has the better of the argument and precedent.
June 29, 2011, 6:18 pmwolfefan says:
I posted this on the other thread, but on reflection maybe it fits better here. It seems that no one on the panel likes Randy’s new idea, per Adam Serwer at The American Prospect:
Still, even Graham wrote of previous Commerce Clause decisions, “I do not interpret those cases as drawing a constitutional line between activity and inactivity.” Not a single judge on the panel accepted the inactivity/activity distinction most frequently cited by the ACA’s opponents.
June 29, 2011, 6:24 pmSkeptical Reader says:
The constitutional way to deal with the problem is to handle it same way as motor vehicle insurance: leave it to the states.
June 29, 2011, 6:24 pmCyrus says:
There is really no such activity as “Self-Insurance.””
There is if you’re forced to concede you can’t regulate people without insurance otherwise.
The fact that the preferred rationale for the mandate forces one to refer to their own existence as “self-insurance,” is a victory of sorts. But not the one I was looking for.
At the same time, since watching certain PPACA proponents try to argue that forcing you to buy health insurance from private companies- and thereby forcing you to turn over the entirety of your medical records to said companies- doesn’t run afoul of one’s “Right to Privacy,” the SDP challenges to PPACA are likely to produce comedic masterpieces. They’ll almost be worth it. Almost.
June 29, 2011, 6:25 pmAnon321 says:
While I agree with you, Orin (and am pleased to see Judge Sutton on the same page), I don’t think it’s entirely accurate to say that Randy’s view is that the activity/inactivity distinction is “clear and obvious.” My recollection is that he and Jonathan (and probably others) were saying, in essence, “The distinction has intuitive and common sense appeal. It may be difficult to articulate the distinction with precision, and there will undoubtedly be cases in which its application is disputed. But that minor problem won’t dissuade courts from adopting it. Don’t worry, courts will accept the distinction now with the expectation that its contours will be worked out down the road. That’s just how law works.”
I think it’s fair to say that they were off base in that prediction, and that the lack of clarity was one of the main reasons that Judge Sutton rejected the proposed distinction. As was noted the last time this subject came up, appellate judges are awfully hesitant to adopt novel constitutional tests when the proponent of the test can’t even tell them how to articulate and apply it in a way that won’t be in direct conflict with canonical cases.
The good news for Randy from Judge Sutton’s concurrence is that he now has a clearer sense of the things he needs to do to persuade judges to adopt his distinction. One of those things is to sharpen it up so that a judge can say, “Here’s a test that makes sense, can be applied predictably, and doesn’t lead to the invalidation of Wickard or Raich.” (He could also take the alternative tack of arguing that the distinction would invalidate those cases and that this is a feature, not a bug, but I gather that that approach would be very unlikely to succeed.)
June 29, 2011, 6:27 pmMAM says:
Did anyone find Sutton’s writing a little odd? It seemed almost whimsical the way he wrote…very informal.
I also had a hard time following his reasoning at times, even when I agreed with it. It could be that he’s a superb writer and I, an average joe, just had to read his opinion a few times to get what he was saying — which I for the most part agreed with — or that his writing style is idiosyncratic.
Don’t know what to think about his writing style.
June 29, 2011, 6:29 pmIspep Teid says:
It could hardly be any easier. All the government has to do is impose a single-payer system that gives healthcare to everyone.
June 29, 2011, 6:29 pmguest says:
But isn’t that the weird part? The states can require you to buy insurance, and PPACA opponents don’t argue the federal government can’t regulate health insurance once people buy it (i.e. forcing people to buy a certain level of coverage, assuming they buy it in the first place). So wouldn’t it be a odd result to say that PPACA is constitutional as applied to residents of Massachusetts (even those who never wanted health insurance, but were compelled by Massachusetts to buy a policy), but unconstitutional as applied to residents of Alabama who don’t want to buy insurance? Sounds like a triumph of half-baked formalism over substance.
June 29, 2011, 6:34 pmflenser says:
No one is inactive when deciding how to pay for candy, since even those who decide not to buy candy are making an economic decision.
Furthermore, the power of Congress to regulate interstate commerce not only allows it to regulate how much candy any one person may purchase, it also allows Congress to mandate that every American purchase some specific amount of candy each year, that amount to be determined by legislative fact finding.
It’s what the Founders would have wanted.
June 29, 2011, 6:36 pmNoticias NBA. NBA en español says:
Skeptical Reader:
The Constitutional way to deal with the problem is to handle it same way as motor vehicle insurance: leave it to the states
Yes!!!
June 29, 2011, 6:36 pmflenser says:
Speak for your own beliefs and positions and let other people speak for theirs.
June 29, 2011, 6:39 pmBallchinian says:
I’ve come around to the idea that the action/inaction argument is navel-gazing.
The proper way to attack the individual mandate is to go after the “substantial effects” doctrine, root and branch.
June 29, 2011, 6:41 pmAsher Steinberg says:
Before he makes it to the Supreme Court (not sure if a GOP President will ever nominate him after this), he might want to cut down on all the usages of “how strange,” and, “is it not strange?”
June 29, 2011, 6:42 pmepluribus says:
The healthcare and healthcare insurance markets are hardly analagous to the candy market. Everybody needs and almost every uses healthcare from birth (or even before) to death. The healthcare is paid for in one way or another. Most is paid for by insurance. The cost of healthcare is rapidly rising to 20 opercent of GDP. Without healthcare, people are in danger of dying or becoming permanently disabled. They can suffer agonizing pain. Hardly the same thing as sucking on a lollipop.
June 29, 2011, 6:45 pmSkeptical Reader says:
It’s not weird at all. The Constitution limits the powers of the federal government but does not do the same to the States. State governments, as long as they do not violate the Constitution, can legally exert many more powers than the federal government. I guess people are confused about this issue because generations ago the federal government went far beyond its enumerated powers while most of the States became subservient.
June 29, 2011, 6:47 pmflenser says:
Nowhere does Judge Sutton explain where Congress or the federal government derives the power to ensure that all Americans have the money to pay for health care when they “inevitably” need it. That may be a very noble goal, but if he’s determined to shoehorn it into the constitution then the “general welfare” is better grounds than the fig leaf of interstate commerce.
When he acknowledges that the purpose of the legislation is to ensure that “all Americans have money to pay for health care when they .. need it”, he’s also admitting that it really has nothing to do with interstate commerce.
June 29, 2011, 6:51 pmJoe says:
For those who believe that the “individual mandate” is Constitutional, assume the following:
I’ll try to say this only once.
I find the example artificial and not really comparable to the ACA. I realize scenarios sometimes do that, but still.
That Congress has established a comprehensive regulatory regime for the “national market in food.” (I am not sure if the FDA qualifies as such.)
I don’t think so for your purposes. The FDA in my mind is mainly a food and drug safety agency. It is not “comprehensive” regarding a “national market” of food. In fact, clearly other agencies regulate the national food market, including energy, agriculture and so forth.
That Congress has established a comprehensive regulatory regime for the “national market in energy.” (DOE?)
Again, not really. I don’t know if it matters exactly, but again, artificial …
That Congress passes a law mandating extensive use of ethanol in gasoline, which adversely affects the national market in food by making food much more expensive, due to corn being used to make ethanol rather than corn syrup, etc.
I think Congress has the power to do this under its commerce power. I don’t actually know if “food much more expensive” is really true. There are lots of kinds of food. Again, very artificial. For some people, the fit of this law will be a harder one to justify than the ACA.
Now, in order to control food prices, Congress decides that the problem is insufficient supply of corn, and that everyone uses corn eventually, since it is so prevalent in the national food supply. People are consuming more corn than they produce, thus harming the national markets in both energy and food.
Everyone probably doesn’t consume corn eventually and if they do, it amounts to a minimal fraction of the cost of the health care they use. The fit is therefore much less apparent.
Congress thus mandates that everyone farm corn, and produce an amount proportional to their arable land holdings, to be collected by government agents at certain set periods.
Few people actually have “arable land holdings” and it isn’t very rational of a law. Mandating everyone to farm also has clear Thirteenth Amendment problems. This is quite different from some people needing to buy insurance (“everyone” doesn’t need to buy it) or paying a tax/penalty given the alternative is they will partake of lots of expensive health services, which results in billions of dollars of unpaid bills.
Is this Constitutional?
Probably not, since forcing people to farm is involuntary servitude, while purchase of insurance is not. The case is harder to make on Commerce Clause grounds as well, but some sort of regime might be constitutional is the rule is that you might have to pay a tax or fee if you have arable land holdings fit for corn and you don’t use it for that purpose.
June 29, 2011, 6:56 pmepluribus says:
The constitutional powers of states are limited by their borders. Congress has no such limits–its power to regulate commerce extends to commerce “with foreign nations and among the several states.” This is a far greater and more extensive power than is held by any state or combination of states. Under the Constitution, only Congress can regulate the interstate commerce in healthcare and healthcare insurance, which is now approaching 20 percent of GDP. No state or combination of states can constitutionally do that. And none has ever tried. That’s why Congress felt the necessity to act. That’s why presidents since Theodore Roosevelt have called upon it to do so.
June 29, 2011, 6:57 pmDonweberist says:
June 29, 2011, 6:58 pmJoe says:
I guess people are confused about this issue because generations ago the federal government went far beyond its enumerated powers while most of the States became subservient.
No, I think the problem is that thinly veiled liberty arguments are set forth as enumerated powers arguments. The reason you can’t leave it to the states is that health insurance is a federal problem, particularly with a highly mobile population and a national insurance / health market. It’s somewhat akin to why we don’t leave bankruptcy (which touches upon this issue) to the states.
June 29, 2011, 7:00 pmJustin says:
“The Constitution limits the powers of the federal government but does not do the same to the States.”
But it doesn’t do so by weird coincidence. It does so under a theory of dual sovereignty. The need for an enumerated power is so that certain regulatory power is retained by the state; it keeps the federal government from intruding on state sovereignty. But here, the idea that, notwithstanding McCarran-Ferguson, health insurance markets are within the core sovereignty of state governments is both historically and pragmatically silly. Only a few isolated people actually believe otherwise (including at least one person on this blog), and their argument is based on a completely erroneously conflation of health and safety laws (which are part of a state’s core sovereignty) and insurance laws (for which the state only plays any substantial role in due to McCarran-Ferguson).
June 29, 2011, 7:00 pmflenser says:
This “self-insurance” stuff is a novel proposition. Supposedly the purpose of the legislation was to cover people who are NOT currently paying for insurance. This court argues that there are no such people, that everybody falls into some “insured” category, whether it be public insurance, private insurance, or this new “self insured” group.
Given that everybody in America already has insurance according to the court, what is the purpose of the legislation everybody is arguing about?
June 29, 2011, 7:01 pmflenser says:
But it is not regulating commerce, it wants to regulate the absence of commerce. It is saying “There is no commerce talking place here, and we think there should be, so we order it to be so”. It’s as if Congress decided that not enough New Yorkers were buying Florida oranges, and ordered that all New Yorkers must now purchase at least ten Florida oranges each month.
June 29, 2011, 7:08 pmTed says:
From wiki:
I wonder if that could apply to your comment?
June 29, 2011, 7:09 pmSixth Circuit decision could signal future of Affordable Care Act challenges | Hotspyer – Breaking News from around the web says:
[...] is that so important? Orrin Kerr puts his finger on it: Sutton is a “regular ‘feeder’ judge to the Supreme Court. [...]
June 29, 2011, 7:11 pmepluribus says:
An industry that provides healthcare and healthcare insurance in all fifty states, touching the lives and affecting the deaths of almost 300 million people, all the while consuming nearly 20 percent of GDP is not “commerce?” Is this sarcasm?
June 29, 2011, 7:15 pmflenser says:
You’ll have to explain that to me. How, exactly, is health insurance a federal problem? You’re taking as an axiom the central point of contention. The US has somehow managed to become the wealthiest country on Earth without the federal government solving the alleged “problem” of health insurance. It’s far from obvious that there exists some pressing need that it do so now.
And of course even if such a need did exist, that would not make it constitutional for the federal government to take action. If the constitution can be set aside whenever the government feels there is a need then we don’t have a constitution at all.
June 29, 2011, 7:17 pmTed says:
Let’s say we enter into a contract in which I agree to repair your car whenever it breaks for x dollars. However, as a condition of performing my obligations under the contract, I have the right to require you to prove that you said vehicle. We agree that a title is sufficient proof of ownership.
Do you have an obligation under the contract to provide a title to me? Or only when you expect me to perform repairs? Does the contract prohibit you from performing repairs yourself? Does it prevent you from obtaining repairs from other persons, who do not require proof of ownership? Hint: No.
Same with the mandate. If you don’t want to fork over the records, don’t. Pay for your minimum required level of insurance, keep you records, go to a private physician, and pay your own medical costs. Look ma! No privacy violation!
June 29, 2011, 7:20 pmflenser says:
Your faux “question” was sarcasm. My point was that the millions of people who are not currently paying for health insurance are not part of that vast industry you describe. Their not being part of that industry is the “commerce” which Congress claim to want to regulate. But it’s obvious to anyone who is familiar with the English language that this is not “commerce” at all. Congress wants to order people not currently engaging in commerce do do so.
It’s as if Congress not only claimed the right to limit how much wheat Filburn could grow, it also claimed the right to tell him that he must grow crops, and how much, and of what sort.
June 29, 2011, 7:25 pmBallchinian says:
The fact that the healthcare industry itself is of national scope is entirely irrelevant to whether an individual’s failure to purchase health insurance amounts to commerce.
June 29, 2011, 7:26 pmTed says:
But they can’t make me eat it!
June 29, 2011, 7:28 pmTed says:
5th amendment problems?
June 29, 2011, 7:31 pmJoe says:
You’ll have to explain that to me. How, exactly, is health insurance a federal problem?
Sure, since no one else has, right?
You’re taking as an axiom the central point of contention.
The central point of contention is not that [see ep. at 7.15] is in various ways a federal problem (or let’s say matter open to congressional regulation in diverse ways). It is the specific way it is being dealt with here is problematic.
The US has somehow managed to become the wealthiest country on Earth without the federal government solving the alleged “problem” of health insurance. It’s far from obvious that there exists some pressing need that it do so now.
Various ways to go here. First, the U.S. is not top (even close to it in some cases) in rankings in various cases, including regarding health care. Second, being wealthy doesn’t mean a lack of problems, particularly for those who are not wealthy. Saudi Arabia is quite wealthy. The fate of women there leave something to be desired. Third, lots of problems have lingered on in this country, that doesn’t mean it is a good thing. etc.
And of course even if such a need did exist, that would not make it constitutional for the federal government to take action. If the constitution can be set aside whenever the government feels there is a need then we don’t have a constitution at all.
I apologize for not providing boilerplate comments like “of course it can’t violate the Constitution” on everything I say.
To forestall confusion, if we leave it to the states, states can’t do anything they want either, or we wouldn’t have state and federal constitutions.
June 29, 2011, 7:35 pmTed says:
Uh, perhaps that certain “maverick” individuals are not “sufficiently” insured. I’ll hazard a guess that most 20-somethings do not have sufficient reserves to cover even moderately expensive emergency treatment/hospitalization.
June 29, 2011, 7:35 pmJoe says:
Ted, what 5A problems would you think would arise?
June 29, 2011, 7:36 pmBRM says:
Retention of risk is not the same thing as self-insurance. In the latter, you amass a separate fund to pay your losses rather than hiring someone else to do so. Retention of risk just means you haven’t convinced someone else to indemnify you. One who self-insures does retain the risk, but so does one who keeps no insurance and takes his chances that he’ll either be able to pay or get out of paying.
I don’t know what the ACA says about it, but I would think that someone who truly wanted to self-insure for health risks while satisfying the mandate would be able to do so if they set up a sufficiently large fund and satisfied a few formalities.
June 29, 2011, 7:37 pmChrisHo says:
So by his reasoning the Congress could compel all of us to buy fuel efficient cars as well as prevent out from buying certain types of cars because they cause harm. While they could not compel us to buy from a specific manufacturer it could end that way if only one manufacturer could meet the requirements set forth.
Since I am nearly a dense as a pile of bricks, what of the penalty for not buying insurance let alone the issue that the penalty is not equal to the cost of buying insurance?
June 29, 2011, 7:38 pmDan Hamilton says:
Some people before Obamacare was passed said that it would be impossible to get rid of once on the books.
More and more I see they were right.
Congress makes a NEW power grab, doing something it has never done before and far to many people just say OK, no problem, of course Congress can do that.
To many people see no limits to what Congress can do.
They will keep walking down that road, singing Power to the Congress till the day Congress does something they can’t stand then they will cry foul but nobody will listen to them and they will deserve what will happen to them no matter what that is.
The Founders wanted a LIMITED federal government. Orin and the rest seem to believe there are no limits.
This will be decided after 2012. If Obamacare isn’t repealed it will only be a matter of time. The Founders KNEW that all governments go bad. It is not if but when. If Obamacare can’t be overturned. There is no hope. The founders were right.
June 29, 2011, 7:40 pmJustin says:
“So by his reasoning the Congress could compel all of us to buy fuel efficient cars as well as prevent out from buying certain types of cars because they cause harm.”
Doesn’t Congress already do this?
June 29, 2011, 7:43 pmTed says:
Consider taking a “moving-picture” of the economic landscape, rather than a “snap shot,” this is the 21st century. Almost everyone will consume health care, even those not paying for insurance. Many of those without any form of insurance, will often not be able to afford to pay for it? What do you suggest we do? I only two options without a preventative front-end solution: Debit them into bankruptcy, in which case we pay for it anyway, or refuse care, in which we really show our libertarian spirit by letting people die in the street.
Am I missing something, or do you see those as sufficient options?
June 29, 2011, 7:43 pmTed says:
Imposing limited uses on land is a violation of the takings clause, is it not?
June 29, 2011, 7:46 pmYant says:
The 3rd fn in the opinion reads “We use the term self-insurance for ease of discussion. We note, however, that it is actually a misnomer because no insurance is involved, and might be better described as risk retention.”
June 29, 2011, 7:49 pmepluribus says:
I agree, of course. But it is also true that almost everyone is presently consuming healthcare, even those who don’t pay for it. Is there a baby born in the US today that doesn’t have medical care–even during the prenatal stage? Are there kids who don’t break their arms and need doctors to set them? Who don’t get measles or chicken pox? Who don’t need vaccinations? Is there anybody who is seriously injured in an auto accident who gets up and walks home without first making a trip to the emergency room at the hospital? Are there any mothers who don’t have medical care during and after pregnancy? Is there anyone in the US today who dies without medical care? Perhaps some Christian Scientists (although I know from personal experience that many of them use healthcare when they really need it, religious objections to the contrary notwithstanding). The use of healthcare and healthcare insurance is absolutely pervasive. All of this must be paid for. It is now paid for, in one way or another. ACA requires that certain minimum levels of insurance be maintained to pay for healthcare that is presently being consumed and that will unquestionably be consumed in the future.
June 29, 2011, 7:54 pmmartha says:
Christian Scientists don’t consider their behavior to be a refusal of all health care. In fact, Christian Science “sanitoria” regularly collect from Medicare to pay for nonmedical nursing care. Christian Scientists argue that insurance companies should be required to reimburse for their “spiritual care.”
I believe the only religious groups given an opt-out to the mandate are those groups that self-insure.
June 29, 2011, 7:55 pmJoe says:
Imposing limited uses on land is a violation of the takings clause, is it not?
Congress would be taxing the land or the use of it, providing exemptions for those who use it in a certain way. I assume, to please Judge Sutton and so forth, the law would have to say in big letters “THIS IS A TAX LAW” or the like, though I don’t agree with his reasoning on that subject in his concurrence.
Imposing limits on property also are allowed in many ways, such as regulating wetlands and so forth. I also think the regime would focus mainly on those already farming the law, so would be comparable in some ways to Mr. Filburn.
The likely result is that raising corn will result in a major tax break. It will be clearly constitutional under the tax power.
June 29, 2011, 8:00 pmgeokstr says:
When pigs fly through snowstorms in Hades, that’ll happen, and I think you know that.
The right is always the one that gets disappointed by the Souters and O’Connors and Kennedys. I believe it’s because the right has separated religion and politics into relatively distinct areas of their lives, allowing for much variation in ideology. For the left, politics is their religion, and adherence to dogma is pretty universal on their side on every important issue. They don’t have to have a litmus test for nominees because it is taken for granted there will be no wavering from doctrinaire leftism.
On a different post several years ago here, I asked those on the left who on the SCOTUS in modern history had turned into a swing vote and disappointed them as often as not. The best they could do was the Whizzer, but he was appointed so long ago that the Democrats had many decades to move much farther to the left and leave him with the only mildly liberal opinion of the era he was nominated in, not the near Marxism that passes for Democratic policy preferences these days.
June 29, 2011, 8:02 pmJoe says:
ACA requires that certain minimum levels of insurance be maintained to pay for healthcare that is presently being consumed and that will unquestionably be consumed in the future.
Sure thing. And, it goes further than even that. Healthcare is a major aspect of a successful national economy. The effect of medical bankruptcy alone suggests this. This doesn’t only affect those who use healthcare. Those unsecured debts come out of someone’s pocket. Negatively affects them.
The law also promotes more insurance by requiring acceptance of those with pre-existing conditions and by means of subsidies for those along the margins. It allows low income twenty-somethings to be on their parents insurance. This expands the workforce by allowing various people to work who otherwise might not be able to given their health needs. Again, significant effects on interstate commerce. Somewhat akin to civil rights laws and blacks.
Other examples probably can be considered.
June 29, 2011, 8:09 pmwolfwalker says:
Mister Kerr:
… your judgement is as corrupt as his is. There’s simply no way that the mandate can be permitted under the spirit of the Constitution. This endless hairsplitting about “is it really most sincerely unconstitutional, or can we find a way to let it stand” is a corruption of the entire spirit of the Constitution, and the LIMITED FEDERAL GOVERNMENT that it was intended to create. The United States federal government is not a Windows system where anything that is not expressly forbidden is allowed. It’s a Unix system, where any action that is not expressly permitted is forbidden.
If you can point me to the clause in Article 1 Section 8 that explicitly authorizes Congress to order me to buy health care that I don’t need, don’t want, and can’t afford, then do it. Otherwise … your concept of the Constitution is corrupt beyond redemption, and I see no reason to listen to anything you have to say on the subject.
June 29, 2011, 8:14 pmBallchinian says:
That “unquestionably” is doing an awful lot of heavy lifting.
June 29, 2011, 8:16 pmJoe says:
geokstr’s last post is a rather um interesting inference of current realities. The “the right has separated religion and politics into relatively distinct areas of their lives” part, for instance. Really now? Doesn’t quite seem that way with Bush, Palin, Bachman, et. al.
As to Democrat appointees, Breyer and others repeatedly have voted in ways the left are disappointed in. In U.S. v. Comstock, Roberts joined an opinion overruling a more restrictive rule on federal power written by a Democratic appointee. Democratic appointees have upheld the death penalty, free speech limits and so forth in disappointing ways. There is some limit, admittedly, so none so far struck down a patently constitutional health law. One did reject the tax argument.
June 29, 2011, 8:21 pmneil says:
“If you choose not to decide, you still have made a choice.” Peart, N. 1980
June 29, 2011, 8:23 pmMalvolio says:
A lot of believe believe things that aren’t true.
For example, there are people who believe that health insurance is gambling and that gambling is immoral. That isn’t true, but if they have that belief, they have a colorable claim to be exempt from the insurance mandate (although they have to waive some Social Security claims as well to get that exemption).
June 29, 2011, 8:31 pmAnon321 says:
And I assume that unless someone can point you to the clause that explicitly creates a National Bank, you’ll conclude that John Marshall’s (and George Washington’s, James Madison’s, and Alexander Hamilton’s) concept of the Constitution is corrupt beyond redemption?
June 29, 2011, 8:33 pmflenser says:
That’s not compatible with the other language used in the ruling, such as:
That’s like saying that the person who uses his legs as his primary means of transportation and owns no automobile is just as “active” in the transportation market as the one who owns several cars and trucks. Hey, it’s all getting around, right?
It would be better for the court to say “These people are engaging in risk retention, and we have decided that they do not have the right to retain those risks. It’s better than the government take over their risks for them.”
The court is saying this anyway, but they hide it behind the usual legal gobbledygook.
June 29, 2011, 8:42 pmJustin says:
“The United States federal government is not a Windows system where anything that is not expressly forbidden is allowed. It’s a Unix system, where any action that is not expressly permitted is forbidden.”
This actually comes from Federalist 26. What people don’t realize is Cato was actually Steve Jobs and Brutus was Tim Cook.
June 29, 2011, 8:44 pmJustin says:
“No one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk. Each requires affirmative choices; one is no less active than the other; and both affect commerce.”
How about
“No one is inactive when deciding how to pay for health care, as deciding to retain the risk oneself and obtaining private insurance are two forms of action for addressing the same risk. Each requires affirmative choices; one is no less active than the other; and both affect commerce.”
Or will you only be satisfied with the intellectual honesty of the Court if they agree your position is right but they’re just ignoring the law? I feel like Orin already wrote a post about this.
June 29, 2011, 8:48 pmNick056 says:
The Constitution does not describe what specific actions the government may take. It describes the powers it exercises, and its actions must fall within those powers.
June 29, 2011, 8:49 pmBallchinian says:
Retaining the risk oneself in no way, shape, or form necessitates an affirmative choice.
Thanks for playing.
June 29, 2011, 8:58 pmHazel Meade says:
Everyone needs and uses food and water, and shelter, from birth.
Health care is not unique.
If we mandated that businesses supply food and water to anyone who asks, we’d have a huge freerider problem again. So would it be constitutional to require everyone to pay into a monthly food fund that reimburses businesses for the supply of free food ?
And what would happen if we did? Wouldn’t *everyone* start using the “free” system, and stop paying for their own food?
June 29, 2011, 8:58 pmmartha says:
Sure, various groups can argue that they should be exempt. But I was referring to the groups that are specifically exempted from the ACA, which are essentially those also exempt from Social Security and Medicare.
“RELIGIOUS CONSCIENCE EXEMPTION — Such term shall not include any individual for any month if such individual has in effect an exemption under section 1311(d)(4)(H) of the Patient Protection and Affordable Care Act which certifies that such individual is a member of a recognized religious sect or division thereof described in section 1402(g)(1) and an adherent of established tenets or teachings of such sect or division as described in such section. ”
(got that from Snopes, it was quicker)
June 29, 2011, 9:06 pmMike says:
Well if we agree that all will eventually use the healthcare system and the way to pay for it is to force Americans to buy insurance from a private company who does not supply healthcare but rather takes your money and agrees to pay an amount of money equal to the limits of the insurance then who is responsible for paying the deductibles after the private company pays thier share? Seems like thier could still be the same problem here, quick we need the federal govt to solve it by imposing more laws.
June 29, 2011, 9:09 pmcecil kirksey says:
You are not understanding the rationale for the IM. Under the ACA insurers are required to cover preconditions and to eliminate other restrictions. To make this requirement economically viable for the insurers, they will be able to insure the low risk group that currently opts out of insurance coverage thus spreading the risk pool. There is no risk pool in your hypo just a wild “what about scenaio”.
Have a good day.
June 29, 2011, 9:11 pmrb1971 says:
You know this in fact happens vis a vis automobiles that are able to be sold in the US, right?
June 29, 2011, 9:12 pmguest says:
I’m not saying it’s weird that the states have some powers that the federal government doesn’t. Clearly, the state can criminalize some things that the federal government can’t, for instance. The goofy thing in my example is that you have a person in one state that doesn’t want insurance, but has to get the insurance the federal government tells him to get, and a person in a different state who can’t be told what kind of insurance to get by the federal government. What kind of sense does that make? Isn’t that kind of absurd result a sign that the activity/inactivity test is unworkable?
June 29, 2011, 9:13 pmBallchinian says:
In other words, everyone who has ever characterized the mandate as an “individual responsibility” provision is a contemptible liar; it’s really just a wealth transfer from healthy people to sick people.
June 29, 2011, 9:21 pmBrett Bellmore says:
Watching the debate over the mandate, I think I’ve identified the real problem here: The legal community have just about convinced themselves that the only people whose opinion matters are their own: As long as they think what they’re doing is legitimate, it’s all good, and the peons will just have to suck it up.
I think they’re going to be in for an awful surprise on that front, one day soon.
June 29, 2011, 9:24 pmMike says:
Possibly a suggestion that actually assumes we are a free people who are responsible for our actions.
June 29, 2011, 9:29 pm1. Pass a law which states each person using the healthcare system is reponsible for paying for that service.
2. Provide for banks to handle the payment plans through loans which the people apply.
3. For people with bad credit have the IRS handle collection efforts by government guarantees on the high risk loans.
4. Offer health insurance as an option
5. Change the way health insurance premiums are calculated to entice people to purchase health insurance when they are young in order to take advantage of years worth of payments which will offset the high costs for medical care as that person ages.
6. Concentrate efforts to actually fix the issue which people are engaged in related to interstate commerce mainly health care and not health insurance. Health insurance is not the problem.
guest says:
I was thinking about this. There’s no reason to think that Sutton’s decision wasn’t 100% on the merits, but this would leave him in a good position as a court nominee from a Republican president if he had to get through a Democratic senate (or filibuster).
June 29, 2011, 9:31 pmJoseph Slater says:
Yes, I can hear the chants now: “In upholding a democratically-enacted law, the Supreme Court has exceeded its mission / Return us to the days when insurance can be denied for pre-existing conditions!”
June 29, 2011, 9:50 pmBRM says:
Justices appointed by Democrats, going back to Kenedy:
Justice White was a moderate and he dissented in Roe.
Justice Goldberg quit after three years to go be UN Ambassador.
Justice Fortas resigned in scandal.
Justice Marshall was a true believer.
Justice Ginsburg is somewhere between Marshall and White.
Justice Breyer is a weird pragmatist who doesn’t believe in the First Amendment.
Not very many that would be considered a success if the goal were rigid partisan ideology.
June 29, 2011, 9:58 pmClark says:
Do you have metaphysical certitude on this, Brett? I only ask because you have taken the position that you don’t and can’t have metaphysical certitude on Obama’s birthplace since you weren’t physically present to see the birth. How then can you infer what exactly is happening in the legal community’s brains, and even more interestingly, how can you have any metaphysical certitude about the future – unless you’re Dr. Who, that is.
June 29, 2011, 10:00 pmMike says:
Yes, I can hear the chants now: “In upholding a democratically-enacted law, the Supreme Court has exceeded its mission / Return us to the days when insurance can be denied for pre-existing conditions!”
Private health insurance was never designed to cover pre-existing conditions. The challenge is to provide healthcare options for those who have pre-existing conditions without mandating everyone buy insurance themselves.
June 29, 2011, 10:01 pmHazel Meade says:
Why is the economic viability of the insurers business a valid justification for the individual mandate?
June 29, 2011, 10:06 pmThe insurers are private entities. If the government wishes to make some company economically unviable, what does that have to do with me? Why should I be forced to take some positive action because someone else (namely the government) has created an ecoomic harm?
Joseph Slater says:
My point was that I doubt that people — or at least most folks — are going to be as outraged in general or even at the legal profession in particular as B.B. predicted if the ACA is not struck down.
As to what you say the “challenge” is, that would have been met by a single-payer system, which I supported. Unfortunately, Senate rules permitted Senators from a minority of states to block that. So here we are.
June 29, 2011, 10:30 pmRicardo says:
Right, which is exactly the challenge PPACA was intended to meet.
Socialized medicine? That is, in effect, what mandate opponents seem to be arguing. The government could effectively nationalize the health insurance industry by starting up a state-run insurer and drive most private insurers out of business and that would be Constitutional even according to the arguments of most mandate opponents.
June 29, 2011, 10:38 pmRicardo says:
How does greatly expanding the power and scope of the IRS and essentially nationalizing the loan collection business with respect to health care “assume we are a free people”? You lost me on this one.
Who is going to be implementing these changes? The government (which is exactly what PPACA does, by the way)? What makes you think private companies have an interest in selling long-term health insurance contracts? They do not currently — what makes you think they will in the future? Signing a lifetime contract with someone to provide health care means taking on a huge amount of long-tail risk concerning the individual’s health as well as the long-term trajectory of health expenses in the U.S.
June 29, 2011, 10:48 pmHazel Meade says:
Actually I’ve got a pretty straightforward simple solution for most people with pre-existing conditions. Namely, make insurers cover “existing” conditions, even if you change jobs or switch insurers for some other reason. Or more accurately, hold them financially responsible for any changes in expected long-term costs that occur while the individual has maintained coverage. They can transfer that legal responsibility to another company with the agreement of the policy holder. (Basically, let them pay off the next insurer, so the insurer will cover the condition in the future).
It doesn’t cover people who get ill while uninsured, but it would cover the majority, who are people that lost coverage due to employment changes. It’s simple. It maintains the incentive to buy insurance before you get sick, and it doesn’t require a mandate.
June 29, 2011, 11:06 pmAndrew J. Lazarus says:
If, like me, you found Flenser’s arguments a tad oversimplified, perhaps he is another avatar of Sarcastro. The handle reminded me immediately of John Scalzi on Randbots.
June 29, 2011, 11:27 pmrpt says:
You need to lay off the Grundrisse.
June 29, 2011, 11:51 pmrpt says:
Quoting a libertarian band, I see. NP believed in the unlimited growth of his drum kit.
June 30, 2011, 12:08 amRicardo says:
But this is, in fact, precisely what HIPAA — passed in 1996 — does for group health insurance. As has been explained, you cannot impose the same requirement on individual health insurance without eliminating the individual health insurance market entirely.
We’ve had 15 years to observe the consequences of that law and it is still apparent that a lot of people who need or want insurance cannot get it. Hence the compromise that is PPACA.
June 30, 2011, 12:18 amRicardo says:
Let me amend my last comment for clarity. Under pre-PPACA law, individual insurers had to offer an extension of coverage to existing clients when the existing policy is set to expire and premium increases were regulated. So in that sense, existing law mandated that even individual insurance cover all existing coverage. However, if you want to change insurers, then they don’t have to cover anything nor could they practically be required to.
The point here is that Congress has been tweaking the rules on health insurance for decades now (before HIPAA there was ERISA, COBRA and various laws on Medicare and Medicaid) and still not getting anywhere close to the goal of universal coverage. People have to understand what has already been tried in the U.S. and what problems remain to understand the current health care debate.
June 30, 2011, 12:32 amRobert says:
By not opening the shrink wrap, you are now subject to the terms and conditions expressed herein….
Actually the US Controlled Substances Act and similar state laws have grandfathering provisions that apply under at least some conditions whereby someone who had possession of a substance at the time controls were applied to them are allowed to continue to possess them.
June 30, 2011, 12:33 amHazel Meade says:
Well, that may be because the goal of “universal coverage” under private health insurance is impossible. You simply can’t get expect private companies to pick up unlimited health care expenses of everyone in the entire country. Not without some mechanism for forcing the population to subsidize that expense. Which is the real purpose of the mandate.
My suggestion, of course, was not intended to acheive “universal” coverage. Just to solve the “job lock” problem caused by the employer-based system, by allowing people to switch insurers more readily.
June 30, 2011, 1:31 amBallchinian says:
There are any number of available mechanisms to force the population to subsidize that expense, though. Congress settled on this particular mechanism because it had the virtue of not negatively impacting the CBO scoring of the bill. In other words, the mandate allows the Democrats to claim with a straight face that they didn’t actually raise anybody’s taxes in order to achieve universal coverage.
It’s all transparent bullshit, of course.
June 30, 2011, 2:05 amRicardo says:
Medicare, Medicaid, Social Security, VHA and various implicit and explicit subsidies from federal and state governments to hospitals and other providers also “force the population to subsidize” other people’s health expenses. Which is really just a necessary part of guaranteeing everyone a certain standard of care.
Some people will go through life with minimal health expenses. Others will blow through $1 million before the age of 21. Lifestyle accounts for some of that difference but so do genetics and plain old bad luck. And no, it would simply not be right to say that subsidizing catastrophic care would not be expensive: that’s where most public and private health care dollars are, at the moment.
June 30, 2011, 3:53 amHazel Meade says:
I said for PRIVATE heath insurers to cover the expense.
June 30, 2011, 4:02 amThe bill is designed to acheive “universal” health care, at the private expense of private health care insurers. Which it can’t. So it has to force people to buy insurance policies that they don’t need, don’t want, and are overpriced relative to their actuarial risk.
Ricardo says:
None that both leave the health insurance industry in private hands while also guaranteeing some level of cost control, though. Lobbyists would drool over the prospect of direct subsidies to health insurance companies from the federal government and the opportunities for “waste, fraud and abuse” would be monumental. The mandate at least requires most people to fork over some of their own money toward their own health insurance and also helps to eventually provide people with alternatives to employer-sponsored coverage.
Incidentally, where was all this opposition to government’s forcing people to contract with private companies back when Bush’s Social Security proposal was being debated? It was certainly present on the left — most want the SS status quo to remain and want a public option for health care, too — but I don’t recall seeing any of it among conservatives or libertarians except for anarchists and hard-core Randians.
June 30, 2011, 4:04 amHazel Meade says:
Right. They didn’t want to make it appear that people were getting health care at public expense, because that would sound like socialism. So they came up with an alternate mechanism: Force insurance companies to pay for the health care of *everyone* who asked for it, then force individuals to subsidize the insurance companies by buying insurance policies.
The issue of free riding off emergency room care really has nothing to do with the actual reasons for the mandate.
June 30, 2011, 4:08 amRicardo says:
This statement has to be qualified. 21-year-olds may be overpaying for health insurance while 40-year-olds will be underpaying. Guess what? Most 21-year-olds will be 40 approximately 19 years from now. On net, it’s a wash unless the population starts shrinking.
The new law does not just guarantee coverage to people who don’t expect to need it but also gives them an unlimited call option on future health insurance. That option is extremely valuable and there is no indication the market can provide it for the reasons I gave above.
June 30, 2011, 4:11 amSixth Circuit Opinion on Obamacare « The Lure says:
[...] Sutton’s reasons for rejecting as unworkable the activity/inactivity distinction excerpted here. Paroxysms of libertarian anxiety here. Money quote from the latter: Any failure to purchase a [...]
June 30, 2011, 4:14 amRicardo says:
Who exactly is “they”? The Heritage Foundation?
–Stuart Butler, 1990
June 30, 2011, 4:31 amscott says:
How is this analogous to the requirement to purchase health insurance? The AAA did not require Filburn to buy a single grain of wheat. Weak.
June 30, 2011, 8:38 amscott says:
Did the plaintiffs actually argue that the government could not force a citizen to simply act in some circumstances, and not act in others? Is he really suggesting requiring a citizen to merely call the police and say,”come get this pot somebody left at my house,” is analogous to forced economic activity? Wow.
June 30, 2011, 8:48 amcecil kirksey says:
No it is spreading the risk from low to high so that the high risks can be covered. Simple insurance economics
June 30, 2011, 8:50 amcapmotion says:
Of course, to try to tie an argument of constitutionality of this illicit police power measure to Wickard and Reich fails for true originalists, because nobody in his right and balanced mind think the Framers, suspicious of national power and purposely making the national government one of enumerated powers to prevent this sort of tyrannical national imposition, would ever have permitted national regulation of what a person grows in his own backyard for his own consumption in the contorted name of “commerce”: Wickard, and its curious spawn Reich, are flatly unconstitutional, if originalism means anything, and Scalia proved that he is not a faithful originalist by not condemning Wickard when he had the chance in Reich.
June 30, 2011, 8:53 amBen P says:
This omits the other half of the problem.
For about 30 years the US has solved the emergency care problem by achieving “universal” emergency care at the private expense of hospitals providing that care.
The hospitals have to charge everyone else more to recoup the expenses, which raises the cost of care for everyone, and raises the subsequent actuarial expenses.
June 30, 2011, 9:30 amBen P says:
If Fillburn wished to maintain his livestock, and was legally forbidden from growing enough wheat to feed them himself, he absolutely was required by the law to purchase sheep.
June 30, 2011, 9:33 amAnderson says:
Hazel’s arguments for single-payer are persuasive, but more relevant to Congress than to the courts.
June 30, 2011, 9:57 amscott says:
Key qualifier bolded. AAA only required Fillburn to buy wheat if he wanted more than he could grow. It didn’t require him, or anyone else, to buy it if they didn’t want to.
June 30, 2011, 12:04 pmguest says:
So you’re admitting that there’s no bright-line rule regarding activity/nonactivity. It’s fine for the federal government to require you to take an affirmative act (making a phone call) in the name of Commerce Clause regulatory power. The real question is whether or not the act is excessively onerous and necessary in pursuit of a valid commercial objective. Wickward and Raich have made it very easy for the government to satisfy that question.
June 30, 2011, 12:06 pmscott says:
Raich was engaged in an action (possession). Sutton hypothesized if someone else bought Raich’s house, plants and all, they would be compelled to act or face penalty for inaction. Inaction in this case leads to action (possession). Not calling the police or not throwing the plants in the trash is not inaction.
June 30, 2011, 12:24 pmguest says:
scott:
Good lord, are you making a legal argument or reciting a koan? Inaction leads to action? I act by doing nothing? I thought the practical appeal of the action/inaction test was its simplicity? How is the the “act” of passive possession of marijuana any less speculative than the majority’s view of the “act” of being a person who takes the risk of self-financing health care with the opportunity to impose large costs on the government and hospitals down the road?
June 30, 2011, 12:48 pmPublius Daily Digest says:
[...] Read the rest for an excerpt of the opinion. Ilya Somin has several related posts. In his first, he notes some not-so-great implications of Sutton’s approach: Martin and Sutton’s opinions highlight a central weakness of the pro-mandate position in even more blatant form than previous opinions upholding the mandate. Their reasoning has extremely radical implications. Unlike previous decisions upholding the mandate, which ruled that failing to purchase health insurance is “economic activity,” Martin and Sutton conclude that Congress has the power to regulate inactivity as well, so long as the inactivity has some kind of “substantial” economic effect. [...]
June 30, 2011, 12:59 pmPublius Daily Digest says:
[...] Read the rest for an excerpt of the opinion. Ilya Somin has several related posts. In his first, he notes some not-so-great implications of Sutton’s approach: Martin and Sutton’s opinions highlight a central weakness of the pro-mandate position in even more blatant form than previous opinions upholding the mandate. Their reasoning has extremely radical implications. Unlike previous decisions upholding the mandate, which ruled that failing to purchase health insurance is “economic activity,” Martin and Sutton conclude that Congress has the power to regulate inactivity as well, so long as the inactivity has some kind of “substantial” economic effect. [...]
June 30, 2011, 12:59 pmscott says:
“Passive possession?” Where in Sutton’s hypothetical can I find that? If Sutton’s hypothetical buyer is an example of the government forcing a citizen to act, wouldn’t knowngingly be a given? If you’d like to reframe my argument to better fit yours, by all means, indulge yourself. Time better spent elsewhere.
June 30, 2011, 2:10 pmHazel Meade says:
Congress could solve this problem by paying the hospitals directly to compensate them for the uncompensated care it is forcing them to provide.
June 30, 2011, 3:40 pmHazel Meade says:
You don’t understand the concept of actuarial risk.
When you calculate the expected cost of someone’s healthcare long-term, you usually apply a discounting factor that weights the near term more heavily. This is due to the fact that all sorts of things change over th lon term, including inflation rates, and your ability to plan for future events.
So younger people have lower premiums not because their lifetime healthcare expenses are lower, but because those events are further in the future so they are discounted more heavily.
But in fact, risk based pricing DOES take them into account – it just discounts them because they are a long way off. If you stick with the same insurance company however, you’re still going to be paying commensurate with your risk.
June 30, 2011, 3:47 pmBallchinian says:
As long as the ACA also mandates community rating and guaranteed issue, it is in no sense “simple insurance economics.” It’s welfare, pure and simple.
June 30, 2011, 3:52 pmBallchinian says:
Setting aside your delusions about the efficacy of the ACA in guaranteeing some level of cost control, how is this meaningfully different from what I wrote above? Every other mechanism for coercing the populace to fund universal coverage involves nationalizing the health industry, substantial tax increases, or both — policies that most Americans reject. The sole purpose of the mandate is plausible political deniability: it provides a funding mechanism that, as long as you don’t look at it too closely in good light, isn’t a tax or a pure government takeover.
June 30, 2011, 4:07 pmBallchinian says:
Consider the context. Bush’s proposal for partially privatizing Social Security was, to libertarians, imperfect but still meaningfully better than the status quo. Obamacare, to libertarians, is imperfect and meaningfully worse than the status quo.
June 30, 2011, 4:15 pmRicardo says:
In other words, “libertarians” are happy to set aside constitutional arguments when it suits their policy and ideological agenda. Just like most people, I would add. I think that’s true and is exactly why few people should be impressed with the constitutional arguments now being put forth against the mandate.
June 30, 2011, 10:23 pmRicardo says:
No, what you don’t understand is that individual insurance contracts are limited in term. Have you bought one before?
June 30, 2011, 10:26 pm