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Would a Federal Requirement to Buy Insurance Be Constitutional?
I didn't have much space in my column about the proposed individual health insurance mandate to discuss its constitutionality. Given the way the Supreme Court has interpreted the Commerce Clause since the New Deal, it probably would uphold a federal requirement that every American buy medical coverage, on the theory that individual decisions about whether to buy insurance, in the aggregate, have a substantial impact on interstate commerce. But that does not mean such a mandate would be constitutional—i.e., that it should be upheld. The misbegotten idea that regulating interstate commerce includes regulating (or prohibiting) any activity (or inactivity) that might affect interstate commerce gives Congress carte blanche to do anything not explicitly prohibited by the Constitution and renders its enumerated powers superfluous.
Even given the Supreme Court's rulings in this area, it would break new ground to say that the decision to refrain from engaging in intrastate commerce (by going without health insurance) triggers the clause authorizing Congress to regulate interstate commerce. Misguided as they were, both Wickard v. Filburn, the 1942 case involving wheat, and Gonzales v. Raich, the 2005 case involving medical marijuana, at least dealt with production of a commodity traded in interstate commerce (although both the wheat and the marijuana were grown for personal use and never crossed state lines). In this case, by contrast, the "act" triggering federal involvement is not commerce, not production, and not even an act. It is the failure to engage in a particular transaction. The difference might not give pause to a majority of the Court, but it is discernible.
In a Washington Post op-ed piece last month, Bush administration lawyers David Rivkin and Lee Casey argued that the health insurance mandate would exceed the power granted by the Commerce Clause as the Supreme Court has defined it. Washington and Lee law professor Timothy Jost and Georgetown University law professor Randy Barnett (who represented Angel Raich in the medical marijuana case) debated that proposition at The Politico last week. Barnett, Ilya Somin, and Jonathan Adler discuss the proposed mandate's constitutionality at The Volokh Conspiracy here, here, and here. Peter Urbanowicz and Dennis G. Smith deal with the issue at greater length in a recent Federalist Society paper (PDF).
Layman|9.23.09 @ 3:37PM|#
The misbegotten idea that regulating interstate commerce
includes regulating (or prohibiting) any activity (or inactivity)
that might affect interstate commerce gives Congress carte blanche
to do anything not explicitly prohibited by the Constitution and
renders its enumerated powers superfluous.
Why not fight it on Ninth Amendment grounds?
MNG|9.23.09 @ 3:41PM|#
"In this case, by contrast, the "act" triggering federal
involvement is not commerce, not production, and not even an act.
It is the failure to engage in a particular transaction."
Nice point. I would point out this though, I wouldn't see commerce
in insurance as the thing upon which a substantial effect would
occur to if people did not buy, but interstate commerce in health
care.
MNG|9.23.09 @ 3:44PM|#
I think the problem with Wickard is that there was too much deference to the government in its claim that the home grown wheat would undercut the effective regulation of interstate commerce in wheat. Contrary to some people's imaginations around here I think there has to be some limit to the IC power, I just think it's a broader limit than most here do.
Layman|9.23.09 @ 3:45PM|#
the 9th is pretty much a eunuch
They're doing amazing things in medicine right now.
Maybe they can sew the 9th's balls back on.
Dan|9.23.09 @ 3:49PM|#
The drafters of the legislation could probably figure out a creative way to make the premiums on a health insurance policy part of a 100% (or 105%) refundable tax credit/deduction. Pay the premium and get coverage, or else pay the exact amount of the premium to the government and get nothing in return. It would be "virtually" compulsory, but well within the taxing power, as amended.
|10.6.09 @ 7:35PM|#
This is what I believe WOULD be constitional, not what the Democrats are illegally proposing (and what Obama promised us he would not even consider)
Justice Robert H. Jackson, dis|9.23.09 @ 3:50PM|#
The physical power to get the money does not seem to me a test of the right to tax. Might does not make right even in taxation.
|9.23.09 @ 4:05PM|#
You know, I don't understand why some people have enthusiasm for an expansive view of the Commerce Clause or, really, any other federal power. Isn't anyone concerned about federal overreach and tyranny? The right is freaked out now, and the left was freaked out for most of the Aughts. Can no one see the problem but we mad, raving libertarians?
|9.23.09 @ 4:06PM|#
While the commerces clause can be used for many things, I doubt
it can be used to support the notion of mandatory purchasing
services from a private company because someone is alive.
While they can try to make health care a public good arguemnt, it's
not. If that arugment wins, nothing is private. If wart on your
penis isn't a private affair, what is?
|10.6.09 @ 7:37PM|#
You are right on, and this is what I have been screaming about to Congressmen. Contact the Senators on the Finance Committee! They think they can tell us to do anything. We are not in a totalitarian nation
Geotpf|9.23.09 @ 4:08PM|#
It simply could be a tax on people who don't have health
insurance. No constitutional problem there.
But this whole discussion is moot. Even though the President seems
to be in favor of such, I seriously doubt that liberal Democrats in
either the House or Senate would vote for something like this, and
without their votes (combined with no votes from all or nearly all
Republicans), such a provision would fail.
It's not going to happen.
|10.6.09 @ 7:38PM|#
there IS a constitutional problem. Govt. has NO POWER to tax people for NOT doing something! The Constitution says that Congress needs constitutional authority to do anything
|9.23.09 @ 4:09PM|#
"""Isn't anyone concerned about federal overreach and tyranny?
"""
Of course they are, they are fighting about who gets to rule.
"""In a Washington Post op-ed piece last month, Bush administration
lawyers David Rivkin and Lee Casey argued that the health insurance
mandate would exceed the power granted by the Commerce Clause as
the Supreme Court has defined it. """
LOL, they are asking the wrong ones. What would Bybee and Yoo
say?
|9.23.09 @ 4:18PM|#
Agree with Geotpf--ain't gonna happen. Especially if community rating (e.g. charging everyone the same premium regardless of history or current health status) is a part of the proposed plan. And it pretty much has to be, if insurance will be affordable for those with expensive conditions. If so, I think all the young people who heretofore supported BHO will finally figure out how screwed they would be under such a proposal.
|9.23.09 @ 4:18PM|#
"""It simply could be a tax on people who don't have health
insurance.""'
Can they? I know they can tax you when you receive something, but
they can tax you if you didn't?
Like Dan suggests, they can create a tax that applies to everyone,
then give credits for those who play along. Sinister, but probably
constitutional.
|9.23.09 @ 4:19PM|#
TrickyVic,
Indeed, but the first true tyrant will be the one who wins. Why
keep increasing and handing over the power if it's eventually going
to be kept by your political opponents?
Say, that's an argument for the ruling party to eventually seize
power, isn't it? Maybe I should delete this post.
|9.23.09 @ 4:25PM|#
Dan, a tax credit would be constitutional. It does not violate rights, and has a rational basis to be used in the regulation of interstate commerce.
horsewithnonick|9.23.09 @ 4:27PM|#
What is this "Constitutional" of which you speak? That's not a real thing, is it?
|9.23.09 @ 4:28PM|#
Can no one see the problem but we mad, raving
libertarians?
Nope. Remember, the true test of sanity is not how much you'd
rather be left alone as long as you aren't hurting anyone, but how
often you should have a boot stomping on your neighbor's face
forever.
Taxing/fining/boning up the ass someone for doing *nothing* and
*harming no one* is just fucking insidious; we're talking Palpatine
levels of insidiousness.
If nothing else, this is the behavior of middle school thugs
shaking down a wimpy kid for his lunch money.
The Angry Optimist|9.23.09 @ 4:30PM|#
Although it just so happens that most of my views align with
Barnett's, I am willing to put that aside and say that Jost
still has a shit argument, from a legal standpoint.
He cites the fact that Morrison and Lopez were decided by 5-4
Rehnquist decisions, as if that is somehow relevant. Jost cannot
clear the analogy of "How can the government require everyone in
the United States to grow marijuana?" and that's why he's full of
bluster.
Hacha Cha|9.23.09 @ 4:31PM|#
according to the constitution this should be left up to the states and individuals. also, since health insurance can't be bought or sold outside of a state how does that fall under interstate commerce?
|9.23.09 @ 4:32PM|#
Given the tortured reasoning in Raich, suffice it to say, that the majority will decide ahead of time what their ruling is and then scramble to find legal theory thin enough to stuff in all the cracks of the opinion to back up their personal preference.
|9.23.09 @ 4:33PM|#
I see the argument that we all have to buy health insurance
related to the requirements that we carry insurance on our cars.
The requirements for car insurance cover liability insurance only,
plus if you don't drive or own a car there is no requirement.
The other thing that most arguments miss is that there is a
difference between "health care" and "health insurance". Health
care is available by several paths, but insurance is by purchasing
some policy that "spreads the cost of a few to payment by
many"
Now Mr Obama tells us insurance companies are "evil" to look at the
odds of an individual needing to collect. Just try to build a home
with a flammable roof and dried weeds against the walls in one of
California's high fire danger areas and see how much an insurance
policy will cost you.
I have health insurance and I have "collected" lung surgery from
years of smoking the same cigarettes that were issued to me with my
rations during WWII. So, I was either lucky or un-lucky, but what
ever Health Insurance is NOT a guarntee of good and adiquate Health
Care.
Hacha Cha|9.23.09 @ 4:34PM|#
car insurance requirements are set by state governments, not the federal government. for example, New Hampshire does not require car insurance.
|9.23.09 @ 4:41PM|#
Hacha, regulating health insurance would be justified as
interstate commerce because the main purpose of health insurance is
to pay for health care, which is an interstate market. Drugs are
interstate, as are medical devices, etc.
Since no rights are being violated, which would require stricter
review, the only test to pass is rational basis. That's a really
easy hurdle that basically says there needs to be some logical link
to the legislation and a desired outcome that Congress has the
power to pursue.
|10.6.09 @ 7:42PM|#
But the Commerce Clause can only regulate persons engaged in commerce. If a person does not access the health care system, they are not involved in the commerce and Congress cannot constitutionally reach them
Hacha Cha|9.23.09 @ 4:45PM|#
also, how could they force someone with no income to buy something? I could definitely see people with no income, who aren't considered by the state to be disabled, and live with someone who has a decent or high level of income being forced to buy insurance. kind of like the requirements to get on medical assistance or receive SSI benefits are based on household income levels.
|9.23.09 @ 4:45PM|#
The thing is of course that you have the right to refuse medical
care. It would seem strange that you have such a right, but you
have no right to refuse to pay for said care.
Of course I also think if you have the right to refuse medical care
you also have the right determine what sort of medical care is
best, which would include the right to take whatever medicine you
want. So the heck with the FDA.
MNG,
Like most things the government does, this particular move is a
deep violation of personal autonomy. Indeed, like almost anything
the government does it treats persons as if they are objects, as if
they are means to something, not ends. It is no better than a draft
or similar types of coercion in fact.
The Angry Optimist|9.23.09 @ 4:51PM|#
Hacha, regulating health insurance would be justified as interstate commerce because the main purpose of health insurance is to pay for health care, which is an interstate market.
But it isn't "regulation" when you make every single person in the
United States participate in economic activity. Again, if you want
to make an analogy to Raich and, by necessity, Wickard, you have to
ask this key question: "Is this activity economic"? It's
unprecedented to ask the question as "Is this
nonactivity economic"?
If the federal government can make you buy something on the theory
that not doing so affects interstate commerce,
there is nothing they cannot do. I don't think I am overstating
when I say that a finding of constitutionality here would be the
end of what's left of the Republic. I am...super serial about
that.
|10.6.09 @ 7:43PM|#
No, you are not weird. In fact this is what they are trying to do -set precedent to legally justify requiring us to do whatever they want, no matter how personal or private. They do not believe in individuals or private property
|9.23.09 @ 4:52PM|#
Hacha, more important than an example of a state not requiring
car insurance is the fact that "The powers not delegated to the
United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people."
(10th amendment)
Arguing something a state does is similar to proposed federal
legislation is literally trying to say "someone with the powers I
lack can do it, so I can also do it."
As for your example of someone without income, they would be
covered by medicaid.
Hacha Cha|9.23.09 @ 4:59PM|#
Richard, I'm not quite following what you meant. I was just
pointing out that state governments have the constitutional power
to pass laws on insurance requirements but the federal government
does not.
and that is not true. in my example I said the person lived in a
mid-high income household and was NOT considered disabled by the
state. someone like that is currently not eligible for medicare and
in many states is also not eligible for state medical
assistance.
|9.23.09 @ 5:00PM|#
Angry Optimist, may I recommend you review my 4:25 comment to
learn the appropriate context?
Rest assured that such a mandate would be challenged, and I believe
the courts would find it unconstitutional. If you have objections
that would still exist with a tax + credit, the constitutionality
argument is not your friend.
|9.23.09 @ 5:01PM|#
Hacha, regulating health insurance would be justified as
interstate commerce because the main purpose of health insurance is
to pay for health care, which is an interstate market.
Of course, the commerce clause doesn't say anything about having
the authority to regulate an activity because its purpose is to pay
for something else which has an interstate market.
But lets just back up a minute. How much of your healthcare is
interstate?
None of the physician, nurse, or other individual provider services
are, except in very rare cases. Most hospital services are also
rendered to in-state residents as well (again, with a few
exceptions).
A lot of the "stuff" used in providing these services travels
interstate, sure, but that's all commerce in stuff, not the
provision of healthcare.
So on just what basis is me seeing my doctor in my hometown
"interstate commerce"? And no, I don't buy the "well, there's
interstate commerce somewhere, in something similar, so we can
regulate what you do" line.
|9.23.09 @ 5:03PM|#
Again, if you want to make an analogy to Raich and, by
necessity, Wickard, you have to ask this key question: "Is this
activity economic"?
Of course, if you care about the actual words in the Constitution,
you ask "is this commerce?" because not all economic activity is
commerce, and it took a brazen disregard for plain English for the
Wickard court to rule otherwise.
|9.23.09 @ 5:05PM|#
"""I see the argument that we all have to buy health insurance
related to the requirements that we carry insurance on our cars.
"""
You can't dismiss the fact that if you don't have a car, insurance
is not required. To say you must purchase X service because you
exist is a new ball game.
|9.23.09 @ 5:06PM|#
Hacha, the first two paragraphs of my 4:52 was in response to
your 4:34.
The low income solution proposed in the current legislation is
medicaid (extended to cover all individuals making less than 133%
of poverty), meaning someone with no income would be fined $950 (or
$1900 if a family, after the amendment changes it from $3800) if
they did not obtain medicaid coverage. That would probably be the
most broad standing one could obtain for filing suit.
nicole|9.23.09 @ 5:08PM|#
The thing is of course that you have the right to refuse
medical care. It would seem strange that you have such a right, but
you have no right to refuse to pay for said care.
Good point. Just think of all the Christian Scientists who will be
forced to buy "good" insurance policies, i.e., ones that cover all
sorts of prescription drugs and procedures they will never use.
|9.23.09 @ 5:09PM|#
"""So on just what basis is me seeing my doctor in my hometown
"interstate commerce"? ""'
Throw in that you are paying cash for the visit too. That rules out
the payment as interstate comm.
Which brings up a different issue. If I want to pay cash, assuming
I can, for my health care, why should the government force me to
pay a fine.
Hacha Cha|9.23.09 @ 5:09PM|#
it just doesn't make any sense how they could require someone who has no income to buy insurance OR pay a fine of $950+. what would happen if you didn't pay the fine?
|10.6.09 @ 7:45PM|#
One of the Democratic bills provides for a year in jail for those poor folks, basically legalizing debtor's prisons
|9.23.09 @ 5:10PM|#
Why not fight it on Ninth Amendment grounds?
Because, if the Ninth has been determined to have been incorporated
by the Fourteenth, it could just as easily be justified on Ninth
Amendment grounds by Congress declaring a "right" to
healthcare.
The Angry Optimist|9.23.09 @ 5:13PM|#
Just think of all the Christian Scientists who will be forced to buy "good" insurance policies, i.e., ones that cover all sorts of prescription drugs and procedures they will never use
Ah, alas, a First Amendment challenge would never fly, though one
could dream.
|10.6.09 @ 7:46PM|#
the Finance Committee bill does have a religious exemption, but that opens the door to an Equal Protection violation claim for everyone else
Abby Martin|9.23.09 @ 5:14PM|#
One could argue that taxpayers are already required to buy insurance...for the members of the public sector. Those of us not fortunate to receive benefits provided for by the taxpayers need to join together and represent our private sector. We can do so with The Free Enterprise Nation (http://www.thefreeenterprisenation.org)
|10.6.09 @ 7:47PM|#
If Congress wants to tax us for health care ,they should have the political balls to call it a tax, and not try to tell us what to buy with after tax earnings
|9.23.09 @ 5:14PM|#
""it just doesn't make any sense how they could require someone
who has no income to buy insurance OR pay a fine of $950+. what
would happen if you didn't pay the fine?""
They would have access to your IRS returns, if you really have
little to no income, you would be subsidised or it would be free
for you. The fines suppose to offset the cost for people with no
income.
|10.6.09 @ 7:48PM|#
No, the bills specifically say that even people with NO money have to pay for a percentage, and before there is any subsidy
Hacha Cha|9.23.09 @ 5:16PM|#
also someone with no income may have an 8th amendment argument against paying a fine or buying insurance.
|9.23.09 @ 5:16PM|#
"""it could just as easily be justified on Ninth Amendment
grounds by Congress declaring a "right" to healthcare."""
Can Congress really declare rights? I thought that took an
amendment to the Constitution.
|9.23.09 @ 5:17PM|#
R C Dean, I admit I am making the assumption overturning Wickard
v Filburn and Gonzales v Raich would fail. The precedent set by
those rulings show regulating interstate is broad, indirect
connection meets rational basis, and some strictly intrastate
activities can be caught in the regulatory net.
If you prefer to think of it this way, the law would be regulating
specific interstate activities involved in providing health care,
and casting a wider umbrella that covers many non-interstate
activities and uses control over health insurance as a means to
accomplish the desired effect. So long as no constitutional rights
are violated, the test to meet is merely rational basis.
(reminder: this post assumes the mandate + punishment is replaced
by a tax + credit)
The Angry Optimist|9.23.09 @ 5:19PM|#
They would have access to your IRS returns, if you really have little to no income, you would be subsidised or it would be free for you. The fines suppose to offset the cost for people with no income.
Ah, but someone who makes so little money isn't required to file
tax returns, so far as I know. I think, technically speaking, you
are not required to file a return if you don't owe taxes.
|9.23.09 @ 5:19PM|#
If I can waive my fourth amendment rights, why can't I waive right to health care?
Hacha Cha|9.23.09 @ 5:20PM|#
TrickyVic, yes but what if you've never filed income tax? if a fine system because law I wouldn't doubt that household income plays some role in determining eligibility. I also would assume that if you are not considered disabled and are not looking for employment you would be required to buy or pay the fine. I really hope I'm wrong, but more than anything I hope health insurance requirement never become a reality in the first place.
Hacha Cha|9.23.09 @ 5:23PM|#
also, if a person was working and did file taxes but suddenly loses their job and doesn't qualify for unemployment then there would be another good reason to argue that they are violating the 8th amendment.
Hacha Cha|9.23.09 @ 5:24PM|#
in my second to last post I meant BECOMES law not BECAUSE law. in my last post I meant there would be an 8th amendment violation if that person was fined.
|9.23.09 @ 5:27PM|#
The eighth amendment is applicable if it is a fine, but a fine already violates due process. This is why it is called an excise tax. Since you'd have to establish the fine is unreasonable, it's easier to just point out due process. I suppose you could argue both to hedge your bets, but I sort of doubt a lawyer would even bother.
Layman|9.23.09 @ 5:33PM|#
Can Congress really declare rights?
No. Our fundamental rights are just that. Natural. Some
would say (incorrectly) "god-given." The Constitution protects
those rights. The Ninth Amendment covers the almost infinite number
of unenumerated rights that the Framers in their
collective genius anticipated.
|9.23.09 @ 5:35PM|#
Can Congress really declare rights? I thought that took an
amendment to the Constitution.
I don't see what could keep them from it. There are a lot of folks
here who think a court can do it. As I've said here before, the
Ninth as understood through the lens of original intent is a
perfect complement to the Tenth. As understood today, it's an open
invitation to Leviathan.
The Angry Optimist|9.23.09 @ 5:44PM|#
Jeffersonian - has the court ever declared a positive right under the Ninth Amendment? So far as I am aware, they have not.
|9.23.09 @ 5:53PM|#
No. Our fundamental rights are just that. Natural. Some
would say (incorrectly) "god-given." The Constitution protects
those rights. The Ninth Amendment covers the almost infinite number
of unenumerated rights that the Framers in their collective genius
anticipated.
What's to keep someone from declaring health care as one of those
almost infinite rights? Granted, the BoR is a list of rights that
one can largely define as negative, but nothing in the Ninth
prevents positive rights from being declared.
|9.23.09 @ 6:09PM|#
Jeffersonian - has the court ever declared a positive right
under the Ninth Amendment? So far as I am aware, they have
not.
I'm not sure the rulings have stated the actual Amendment, but
civil rights rulings have been rife with the idea that things that
belong to some can be claimed by others: Jobs, apartments, website
access, club memberships, etc.
The Angry Optimist|9.23.09 @ 6:11PM|#
I'm not sure the rulings have stated the actual Amendment
They have not.
the BoR is a list of rights that one can largely define as negative,
Well, they are wholly negative, unless you consider say, the right
to confront witnesses as a positive right, but even then, it's
negative in the sense that it (denying the ability to confront
witnesses) is something the state cannot do.
So far as I know, the Ninth has always been read in parii
materia with the other Amendments, which are all negative
rights. I understand your concern, but the SCOTUS is a
fundamentally conservative (in the traditional sense) institution.
I doubt they are going to find a positive right in the Ninth.
|9.23.09 @ 6:17PM|#
The courts declared a positive right to privacy in Roe v Wade. The district court used the 9th, while SCOTUS used the 14th. SCOTUS did not, however, deny the 9th would apply if the 14th did not already enumerate the right.
|9.23.09 @ 6:33PM|#
So far as I know, the Ninth has always been read in parii
materia with the other Amendments, which are all negative rights. I
understand your concern, but the SCOTUS is a fundamentally
conservative (in the traditional sense) institution. I doubt they
are going to find a positive right in the Ninth.
See my post @ 6:09
The Angry Optimist|9.23.09 @ 6:39PM|#
Jeffersonian - those are statutorily-created "rights". Granted, they have been affirmed as constitutional, but not under the Ninth Amendment. I believe that they have all been affirmed under the Fourteenth alone.
|9.23.09 @ 6:46PM|#
Then exactly where did Congress get this authority to declare rights via statute? Nothing in A1S8 empowers it do so. If it didn't claim that power under the Ninth Amendment, then where?
The Angry Optimist|9.23.09 @ 7:03PM|#
Their remedial measures to ensure that the Fourteenth Amendment isn't violated. Stupid, I know, but not from the Ninth.
Gene Berkman|9.23.09 @ 8:10PM|#
One of the reforms proposed by libertarians and conservatives to
make health insurance more competitive is to allow people to buy
insurance across state lines.
If this reform is enacted, then insurance will come under the
interstate commerce clause, and a mandate to purchase insurance
might be upheld on this basis.
The Angry Optimist|9.23.09 @ 8:47PM|#
Gene - doubtful. For one, the invocation of the interstate
commerce clause to prevent trade barriers is a proper invocation of
said clause. Secondly, where the Court or Congress has invoked the
commerce clause properly, no mandates on individuals have
followed.
If you could elucidate your thinking a bit more, I'd appreciate it,
but so far, invoking "Dormant Commerce Clause" jurisprudence does
not lead to "Micromanagement Commerce Clause" law.
|9.24.09 @ 1:55AM|#
"If the federal government can make you buy something on the
theory that not doing so affects interstate commerce, there is
nothing they cannot do."
Reading through this entire thread, I find the comment by The Angry
Optimist, above, to be the most succinct summation of the main
danger in the situation under discussion.
What is being contemplated, paraphrased in the abstract: "Because
of some bad apples, you are damned if you do, and damned if you
don't, but always for your own good."
Kafka himself could not concoct a more absurdly accurate operating
principle for hell. Or, now that I think about it, a more
frightening one.
MNG|9.24.09 @ 7:28AM|#
I tells ya, as a purely textual matter, I'm not sure why the power "to regulate" would not include the making of rules requiring acts as well as regulating actions once someone is already engaging in them...Since "to regulate" means essentially "to make rules concerning." Imagine when you were a kid telling your parents "your power to make rules concerning me does not include compelling me to take part in something I don't wish to."
MNG|9.24.09 @ 7:34AM|#
RC Dean
Some health care is interstate. Person A goes on vacation in
another state, hurts himself, and goes to the emergency room.
Person B is referred by his doctor to a specialist in another
state. Etc. In regulating that commerce, say in an attempt to
control the costs involved, certainly intra-state commerce would
affect that regulatory goal and scheme (it would help set the
"going rate" that would apply to in and out of state patients) so
any regulation of the purely inter-state commerce would have to
address the in state stuff too.
Besides, under current precedent I can recall a case where a BBQ
joint fell under inter-state commerce because half the food they
served was shipped in from out of state. Certainly the stethoscopes
and such are probably supplied inter-state and the same rule would
apply.
MNG|9.24.09 @ 7:37AM|#
"If the federal government can make you buy something on the
theory that not doing so affects interstate commerce, there is
nothing they cannot do"
It's not a bad point, but I would throw out there that under
current precedent there is the economic/non-economic distinction,
they can't regulate the latter.
But this is pretty thin stuff. For example, I guess they could not,
say, require everyone to buy a gun on the justification that it
would make people safer and safer neighborhoods=economic
development. On the other hand if they used the justification that
buying guns stimulates the economy, bolsters certain industries,
etc., then they could make everyone buy a gun. Liberals should
think about that before embracing too big of a commerce
clause...
|10.6.09 @ 7:50PM|#
or pass a law requiring every citizen to pay dues to the Democrat party - SAME thing
|9.24.09 @ 8:26AM|#
Greg Mankiw wants us to call this penalty for not buying health insurance a Pigouvian tax. Isn't it really a sumptuary tax?
|9.24.09 @ 12:24PM|#
"""If this reform is enacted, then insurance will come under the
interstate commerce clause, and a mandate to purchase insurance
might be upheld on this basis."""
Just because something falls under the commerce clause doesn't mean
it's constitutional for government to force you to purchase
it.
Many things fall under the commerce clause, too many, that doesn't
mean the feds can mandate you buy that which falls under the
clause.
Taxes are not punitive. Paying money as a result of non-compliance
is called a fine. They can't say do x or you are subject to a tax
which is applies only to those who don't do x. What they can do is
raise the tax on everyone, then give tax credits for those who do
X, therefore not punitive because the tax was levied on
everyone.
I don't think they would be successful raising the tax on everyone,
and that would be a break of his pledge.
I'm pretty sure SCOTUS would know the difference between a tax and
a fine, and if Congress uses the wrong language then they will find
themselves with an underfunded program after SCOTUS sets them
straight.
wait a minute|9.26.09 @ 2:54AM|#
wouldn't that be the best outcome? "health care reform" gets
enacted and implementation begins. scotus pulls the rug out. the
whole thing crashes and burns, spectacularly.
if all that happens everyone is welcome for popcorn and beer at my
house.
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