ObamaCare, the Mandate, and the Limits of Congressional Power Under the Commerce Clause

Last week’s 11th Circuit appeals court ruling that individual mandate to purchase health insurance is unconstitutional begins its discussion of the provision’s constitutionality by stressing that the Constitution grants Congress limited powers, and that the Commerce Clause, which the mandate’s defenders say gives Congress the power to compel individuals to purchase health insurance, does not offer Congress unlimited power to regulate human activity:

In enforcing these limits, we recognize that the Constitution established a federal government that is “‘acknowledged by all to be one of enumerated powers.”...In describing this constitutional structure, the Supreme Court has emphasized James Madison’s exposition in The Federalist No. 45: “‘The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.’”

In what looks suspiciously like a rebuke to the recent decision by a 6th Circuit appeals court to uphold the mandate largely out of deference to Congress, the judges point that it is their task to explain and define those limits if it appears that Congress has breached them:

While the substantial growth and development of Congress’s power under the Commerce Clause has been well documented, the Court has often reiterated that the power therein granted remains “subject to outer limits.” When Congress oversteps those outer limits, the Constitution requires judicial engagement, not judicial abdication.

The court further notes, however, that the goal of those limits isn’t merely to protect the rights of state governments to do as they please: “While these structural limitations [on the power granted by the Commerce Clause] are often discussed in terms of federalism, their ultimate goal is the protection of individual liberty.” So far, so good.

How, then, to determine the exact borders of the clause’s outer limits? Critics of the mandate have argued that the line can be drawn by distinguishing between “activity,” which has been a factor in every prior exercise of the Commerce Clause’s power, and “inactivity,” which Congress has never attempted to regulate before.

And that’s where the decision takes a slightly odd turn: The court agrees that upon examination of of “the diverse fact patterns” of all the relevant court precedents, it’s clear that “all involved attempts by Congress to regulate preexisting, freely chosen classes of activities.” It’s a clear-enough acknowledgment that the mandate’s regulation of inactivity is not just unusual but unprecedented. Yet the court nonetheless it declares that it doesn’t view the distinction as an effective measure of whether the mandate is truly out of bounds:

Nevertheless, we are not persuaded that the formalistic dichotomy of activity and inactivity provides a workable or persuasive enough answer in this case. Although the Supreme Court’s Commerce Clause cases frequently speak in activity-laden terms, the Court has never expressly held that activity is a precondition for Congress’s ability to regulate commerce—perhaps, in part, because it has never been faced with the type of regulation at issue here.

Yet later, the ruling seems to suggest that the novelty of regulating inactivity by forcing individuals to engage in commerce when they otherwise might not have done so, is important. The court notes that the Supreme Court’s precedent-setting decision in Wickard v. Filburn, widely viewed as lying “at the outer bounds of the commerce power” was nonetheless a “limitation” rather than a mandate, and still left open a variety of individual choices. Not so with the mandate:  

“The Act’s economic mandate to purchase insurance, on the contrary, leaves no choice and is more far-reaching....Individuals subjected to this economic mandate have not made a voluntary choice to enter the stream of commerce, but instead are having that choice imposed upon them by the federal government.”

Perhaps this is quibbling, but this seems rather like an admission that when considering the regulation of commerce, the distinction between activity and inactivity matters. When Congress regulates commercial activity, it’s regulating an individual’s affirmative decisions. But in the case of the mandate, it is compelling an individual to engage in commercial activity. The heart of the activity/inactivity distinction is the question of whether an individual can be forced to either engage in commerce or not.

So why did the 11th Circuit ultimately reject the mandate? The Obama administration’s case rests on the notion that it is not compelling economic activity so much as regulating when and how individuals pay for health care. But the administration’s legal team was never able to persuasively make the case that a health insurance mandate would not eventually justify compulsory purchase of other sorts of private products. As the majority writes:

Given the economic reality of our national marketplace, any person’s decision not to purchase a good would, when aggregated, substantially affect interstate commerce in that good. From a doctrinal standpoint, we see no way to cabin the government’s theory only to decisions not to purchase health insurance.

...Every day, Americans decide what products to buy, where to invest or save, and how to pay for future contingencies such as their retirement, their children’s education, and their health care. The government contends that embedded in the Commerce Clause is the power to override these ordinary decisions and redirect those funds to other purposes. Under this theory, because Americans have money to spend and must inevitably make decisions on where to spend it, the Commerce Clause gives Congress the power to direct and compel an individual’s spending in order to further its overarching regulatory goals, such as reducing the number of uninsureds and the amount of uncompensated health care.

The mandate, in other words, was defeated by the broccoli argument: If Congress can make someone purchase health insurance, then what can’t it make them buy? The Obama administration has argued repeatedly that the broccoli argument has no merit: The market for health insurance is unique, they say, because most everyone will need health care at some point, and because the government already bears the burden of “uncompensated care”; mandating the purchase of health insurance merely regulates when and how it is purchased. The court responds that the government's "uniqueness" argument is not relevant because it is based in the health insurance market's "ad hoc factors" and not "rooted in any constitutional understanding of the commerce power."

Where the 6th Circuit appeals court that upheld the mandate stressed deference to Congress, the 11th Circuit stresses Congress's legislative limits. It's a ruling that says that although the Constitution gives Congress many powers, each must have clear boundaries: Even powers that have been interpreted expansively, such as the power granted by the Commerce Clause, require limits rooted not merely in convenient circumstances but in broadly applicable constitutional principle.

The odd thing, then, is that the 11th Circuit declines to accept the activity/inactivity standard, and instead rules against the mandate primarily because of the administration's inability to come up with a standard of its own. Indeed, at one point, the majority actually suggests methods by which Congress might achieve similar effects to the mandate that pass constitutional muster. It's a subtler sort of deference, but deference all the same. 

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  • Nancy Pelosi||

    "and the Limits of Congressional Power Under the Commerce Clause"

    There are some?

  • Nancy Pelosi||

    I ask myself - Am I serious? Am I serious?

  • Ray||

    No matter how bad I'm feeling, I always make myself feel better by reminding myself that somewhere out there, there is a Mr. Pelosi.

  • Rachel Maddow||

    "PRESENT!"

  • prolefeed||

    Sixth Circuit: "Yes, we will lick your boots, both of them, until they gleam."

    Eleventh Circuit: "We will only lick one of your boots, and do so grudgingly. There are limits, dammit, even for servile creatures like us."

  • ||

    Yup. That about sums it up.

  • ||

    "Critics of the mandate have argued that the line can be drawn by distinguishing between “activity,” which has been a factor in every prior exercise of the Commerce Clause’s power, and “inactivity,” which Congress has never attempted to regulate before."

    Couch potatos, after another fistful of cheetos, and a swig of Budweiser, nap in fear at the thought of their inactivity being challenged...

  • AT||

    Threadjack!

    Kruggie calls for aliens to save the economy: http://www.youtube.com/watch?v.....r_embedded

  • Adrian Veidt||

    I have a plan to save the American economy! Just as a heads-up, those of you who live in NYC may want to relocate.

  • Walter Joseph Kovacs||

    Hurrrrrrmm.

  • Art-P.O.G.||

    I approve of this reference.

  • Tman||

    John Adler at the Volokh Conspiracy discussed the implications of the Wickard case in the 11th circuit ruling.

    http://volokh.com/2011/08/14/d.....g-wickard/

    As widely hated as the Wickard decision was, it is generally regarded as one of the most far reaching defenses of Congress Com. Clause powers. But that decision was in regards to a commodity that had already been grown and harvested, not some insurance that hasn't even been bought yet.

    Wickard is striking not for its similarity to our present case, but in how different it is. Although Wickard represents the zenith of Congress’s powers under the Commerce Clause, the wheat regulation therein is remarkably less intrusive than the individual mandate.

    Despite the fact that Filburn was a commercial farmer and thus far more amenable to Congress’s commerce power than an ordinary citizen, the legislative act did not require him to purchase more wheat. Instead, Filburn had any number of other options open to him. He could have decided to make do with the amount of wheat he was allowed to grow. He could have redirected his efforts to agricultural endeavors that required less wheat. He could have even ceased part of his farming operations. The wheat-acreage regulation imposed by Congress, even though it lies at the outer bounds of the commerce power, was a limitation—not a mandate—and left Filburn with a choice. The Act’s economic mandate to purchase insurance, on the contrary, leaves no choice and is more far-reaching.
  • MNG||

    "But that decision was in regards to a commodity that had already been grown and harvested, not some insurance that hasn't even been bought yet."

    Maybe. Another way to look at it is that the regulatory scheme forced Wickard into a market he wanted to be out of.

  • Tman||

    Another way to look at it is that the regulatory scheme forced Wickard into a market he wanted to be out of.

    You are so desperate to spin this it's pathetic. The 11th CLEARLY explained that the mandate is completely different than what happened in Wickard. You can look at it your way if you want, but you'd be consciously ignoring their own words.

    In case you missed it the first time-

    The wheat-acreage regulation imposed by Congress, even though it lies at the outer bounds of the commerce power, was a limitation—not a mandate—and left Filburn with a choice. The Act’s economic mandate to purchase insurance, on the contrary, leaves no choice and is more far-reaching.

  • Shorter MNG||

    Herp Derp Derp

  • ||

    You can always get out of the program in Wickard by not growing wheat. There is no way to get around the mandate. The guy in Wickard may not have wanted to be a part of the market, but he made himself a part by choosing to grow the wheat. Under the mandate, everyone is subject to it, not just those who chose to grow a product. That is a big distinction.

  • MNG||

    Well, the idea is that everyone gets health care at some time, so they are in that market. The mandate makes them get health insurance so that when they get health care the costs won't be thrown on everyone with insurance.

    The better analogy would be making someone buy food in general. You are as likely to opt out of buying food as you are health care.

  • ##||

    So, you live in a world populated solely by deadbeats that no one can ever get to pay for the services that they use? Everyone may use health care at some time but that does NOT mean that everyone will use insurance. Does Bill Gates need to buy insurance? Also, if I use a service and can't pay for it then I don't expect that debt to just be excused. I expect to be up to my eyeballs in debt for it with a lien on everything I own.

  • Tman||

    MNG lives in a world where the mandate is constitutional because, well, because he says so.

    He refuses to differentiate between the choices that Wickard was given in regards to his wheat (albeit horrible choices, but a choice nonetheless) as opposed to the non-choice of a mandate, which REQUIRES YOU UNDER PENALTY OF LAW to purchase health insurance.

  • ||

    note that even car insurance (which involves driving on public roadways, a privilege, not breathing/living, a right, is not mandatory in most states)

    with vehicle insurance (at least in my state), you can put up a bond and then you don't have to buy any insurance. or you can self insure (many PD's self-insure)

    whatever one says about the ridiculously overexpanded commerce clause UP to this point, the MANDATE of inactivity is a new low in congressional overreach

  • kinnath||

    You don't even have to register a car to drive it on private property. The mandate to buy car insurance is tied to the mandate to register a car for use on public thoroughfares.

  • ||

    correct. on private property you don't need a

    1) license
    2) insurance
    3) registered car

    nor does a car need to meet safety standards (bumpers, etc.)

    interestingly, in my state, if your license/right to drive is SUSPENDED/REVOKED, you can be cited/arrested for driving even on private property. DUI, reckless etc.also apply on private property.

  • bosty||

    If you don't need a license to drive on private property, why would a suspended/revoked license be cause for arrest or citation?

  • ||

    because that's the way the state wrote the law. in brief, the "reasoning" is that absent a license, one can drive on private property.

    however, if one commits an offense such that one's license to drive has been suspended/revoked, then the state says it can restrict your driving privilege even on private property, where a license is not required.

    the suspended statute makes it unlawful to drive IN THE STATE (iow anywhere) with a suspended/revoked license.

    the driving w/o a license law references a "highway" which the courts interpret to mean a PUBLIC way.

    driving w/o a license as long as one has SOME sort of id is just a nonarrestable infraction

    without id, it's a misdemeanor

  • CatoTheElder||

    Not if it's a farm in Obama's America.

    http://www.gazettevirginian.co.....led-absurd

    "The proposed rule change would mean that anyone who drives a tractor or operates any piece of motorized farming equipment would be required to pass the same tests and complete the same detailed forms and logs required of semi-tractor trailer drivers."

  • George||

    Not even close doofus.

    No one buys food insurance. They either buy food or they get hand outs or they starve.

    No one needs to buy medical insurance either. They can buy medical treatment or get hand outs or do without.

    "We" have decided collectively that people shouldn't starve in a land of plenty. So we implement a safety net and give people food stamps. We also place limits on what people can buy with those food stamps. And of course, "we" all pay for these food stamps by sending tax dollars to the federal government.

    "We" are edging towards a decision that people shouldn't suffer from treatable medical conditions. The natural next step would be to provide a safety net so that people without means can buy basic medical services, but this would not cover everything availabe in the medical market, just like food stamps don't cover every consumible in the food market. And like food stamps, this medical safety net could be funded through taxes sent to the feds.

    But Obamacare is an abhorent cluster fuck that does nothing properly. First it guts the concept of insurance by requiring "insurers" to cover people after the fact (pre-exisiting conditions). This is not insurance, it is welfare by alertnate means. Then it mandates that everyone buy insurance to cover up the damage it caused by requiring insurers to "insure" everyone. Even if you're a wild-eyed progress, Obamacare is a disaster.

    So MNG, kindly go fuck yourself and keep your disengenuous arguments to yourself.

  • bosty||

    easier Obamacare: expand Medicaid. The end.

  • pmains||

    Glenn Beck listeners do. Apparently.

  • mad libertarian guy||

    There is a difference between the "health care market" and health insurance, you fucktard.

  • CatoTheElder||

    America: Love It or Leave It!

    There's still one way to get around the mandate.

  • Zeb||

    That interpretation doesn't make any sense at all. In what way was Filburn forced into any kind of market? What market are you thinking of? The rule was simply a limitation on how much wheat could be grown.

  • MNG||

    There was a market for wheat. He wanted out of the market so he grew his own. The Court said "you can't do that."

  • ##||

    Wrong! He didn't want out of the market. He wanted to grow more than his allotment and keep the excess for personal use.

  • ||

    Just as someone who doesn't want to buy health insurance doesn't want out of the healthcare market, they just want to pay for it out-of-pocket, or via government programs.

    The Wickard case stands for the proposition that, if you want to more what than the government allows you to grow, you are required to buy it. Its a mandate (albeit conditional) that you enter the wheat market above a certain level.

  • bosty||

    this must be that "free" market, right?

  • mad libertarian guy||

    +1 internetz

  • Shortest MNG||

    [::prostrates self before giant wicker Obama idol::]

  • Nicolas Cage||

    "How'd it get burned? HOW'D IT GET BURNED -- ?!?"

  • Jersey Patriot||

    Under this theory, because Americans have money to spend and must inevitably make decisions on where to spend it, the Commerce Clause gives Congress the power to direct and compel an individual’s spending in order to further its overarching regulatory goals, such as reducing the number of uninsureds and the amount of uncompensated health care.

    Sadly, I think that's an accurate reading of current Commerce Clause jurisprudence. I don't think The Court can overturn Obamacare without attacking Wickard in some sense. Activity/inactivity is the sort of formalistic definition that the Supreme Court no longer trucks in (which this court noted). The further argument that "Congress can't do this because it's never done this before" isn't very good.

    If the Court drops Obamacare, it's going to have to attack the "substantial effect" or "aggregate effects" doctrines in some sense. Here's hoping.

  • MNG||

    +1

    I can't see Kennedy going for an overly formal, abstract distinction given the mischief that kind of thing played in Commerce jurisprudence in the past. But this idea that it goes against the spirit of the Constitution is made for Kennedy.

  • Abner||

    "If Congress can make someone purchase health insurance, then what can’t it make them buy?"

    Abortions?

  • People's Republic of China ||

    Government here has that power. Why not there? After all, plenty of your politicians in the USA want to emulate us. And you haven't followed your own Constitution in decades.

  • T||

    No, you guys just make them get the abortion and then charge them for it. It's a subtle distinction, but court cases hinge on these details.

  • ||

    does china still make the executed prisoner's family pay for the bullet?

    or is that/was that some kind of myth?

  • ||

    A key aspect of the ruling that you are overlooking is that the courts decision identifies the mandate (correctly) as a means of counteracting the costs and adverse effects of the regulations imposed upon the insurance industry.

    The court basically said that just because the Congress has imposed certain costs on one private entity does not mean it can compell another private entity to purchase their products to make up the difference.

    This is really a wonderful point, and I am glad that the court saw through the government's smokescreen on the issue of cost-shifting from the uninsured. That is really a small problem compared to the cost-shifting they would be compelling via the mandate.

  • MNG||

    Interestingly Hazel the Court doesn't seem to rest much of its opinion on this vaunted action/inaction distinction which you said anyone other than a rotten partisan would have to acknowledge. It rested it, as Suderman notes, on the idea that granting such a power would be anti-thetical to the "spirit" and "structure" of the Constitution as a whole.

  • ||

    It rests on the principle that the constitution is one of limited and enumerated powers.

    I'm amused to hear that your only problem was with the activity/inactivity distinction, and that you're perfectly happy to accept a ruling that strikes down the mandate, as long as it doesn't include that *particular* legal argument.

  • MNG||

    Oh no, I'm skeptical of arguments about the "overall intent" or "spirit" of the Constitution. As the debate I point to below discusses there is evidence that the overall intent of the Art. I was to create a more powerful government to address collective action problems at the federal level.

    I'm just saying your "self evident to anyone who is not a rank partisan" distinction didn't seem to impress any of the judges. I guess they were all rank partisans or something.

    Or maybe you were?

  • ||

    I'm not certain I ever said that it's self-evident to anyone who isn't a rank partisan. Although I do think that rank partisanship is involved in all those claiming that the mandate is self-evidently constitutional.

  • Paul||

    . It rested it, as Suderman notes, on the idea that granting such a power would be anti-thetical to the "spirit" and "structure" of the Constitution as a whole.

    That the Constitution has implied limits to government reach?

  • juris imprudent||

    Must be in one of the penumbral emanations.

  • ||

    A key aspect of the ruling that you are overlooking is that the courts decision identifies the mandate (correctly) as a means of counteracting the costs and adverse effects of the regulations imposed upon the insurance industry.

    Why aren't the regulations imposed on the health insurance industry necessary to allow the mandate to be implemented without undue disruption, rather than they other way around?

    If you have a mandate imposed on individuals, then you just about have to have rate controls and "shall-issue" requirements imposed on insurers, after all.

  • ||

    Well, no, you really don't. The government could just subsidize the difference, if it wanted to. It's already subsidizing a large percentage of the cost.

    The government has been pretty clear that the mandate fits under the "necessary and proper" clause, in that it is "necessary" to the implementation of the insurance regs. Not the other way around.

    Uninsured cost-shifting may be the superficial argument for the mandate, but it doesn't fit under any constitutional principle. There is no constitutional principle that says government can make people pay for their own health care. The constitutional principle they want to use is that it is "necessary and proper" to enforcing other regulations. Regulations that actually shift costs in a totally different direction - from healthy uninsured people to unhealthy ones. From uninsured people to insurance companies.

  • ||

    The government has been pretty clear that the mandate fits under the "necessary and proper" clause, in that it is "necessary" to the implementation of the insurance regs. Not the other way around.

    That's because they aren't making their best argument. Better, I humbly submit, to argue that the shall-issue requirements are a necessary and proper adjunct to the mandate.

    The government could just subsidize the difference, if it wanted to.

    Actually, it couldn't. The government can't solve the problem of a mandate to buy a product no one will sell you with a subsidy; it can only do so with a shall-issue requirement on the other side.

  • ||

    Well, if the mandate justifies the insurance regs, how do you get to the mandate?

    Can you get to the mandate on uncompensated care to uninsured people alone?

    I don't think you can. Until someone actually purchases health care services and doesn't pay for them, I don't see how you can say they are adversely impacting the health care market, or the insurance market by extension.

  • Gilbert Martin||

    "Although the Supreme Court’s Commerce Clause cases frequently speak in activity-laden terms, "

    Yeah - seeing as how activity is INHERENT IN THE DEFININTION OF THE WORD "COMMERCE" ITSELF.

  • MNG||

    Nah.

    You could say that activity is inherent in the definition of the word "recreation." But if I had a power to regulate the recreation of my wards I could certainly mandate that they engage in x or y recreational activity without doing any violence to the definition.

  • ||

    So we're all "wards" then?

  • PIRS||

    What else would you call people who have to be sexually molested to go from point A to point B.

  • Paul||

    So we're all "wards" then?

    It pretty much comes down to that.

  • MNG||

    Hazel, I know any people are not here, but certainly you're smart enough to not go into the stupid "oh, see, you see us as wards, how paternalistic" spiral. I mean, you do know an analogy when you see one, right? The analogy here focuses not on "citizens=wards" but on the meaning of the word regulate.

  • Destrudo||

    Which you managed to also fail at understanding.

  • MNG||

    Do you have a point other than the one on your head?

  • MNG||

    Hazel

    Sigh.

    My point is that in any other context the word "regulate" in front of another word, even one that has activity inherent in its definition, would comfortably be read to include a power to mandate the activity in question.

    So when we say a person has the power to regulate the recreation of his wards (or employees, or prisoners, or fellow churchmembers, see how this part is not the key?) most people would say "oh yeah, he has the power to mandate they engage in some form of recreation, not just the power to order any recreation they may choose to engage it."

    Most people would read it that way, unless of course they had a strong ideological reason to object to some policy involved.

  • ||

    No, actually what you are missing is that by using the word "wards" you implied that you have some sort of general supervisory power that would *justify* commanding specific activities in the first place. Your regulatory over the recreation of a "ward" is distinct from regulatory power over the recreation of an independent adult.

    Just for example, if someone is a "ward", you can certainly order them to engage in morning calisthenics, since,as a ward, you are legally responsible for their health. But if you're regulatory power is over (say) people who have gym memberships, you CANNOT mandate that all gym members participate in exercise classes.

    By using the word "ward" you introduced, without explicitly saying it, a legal and ethical of responsibility that is not inherent in the general word "regulation", and which encompasses police powers where "regulation" does not.

  • MNG||

    The problem Hazel is we're talking about government's power, and government's power naturally falls over all its citizens.

    In your gym member example if the gym owner has the power to regulate the recreation of the members then anyone in the gym can rightly be mandated to do X or Y. You think there is a distinction to be made with government because you can leave the gym. But this distinction tells us nothing about what the word "regulate" means; in both cases whoever the operative body that is granted "the power to regulate" can mandate over whomever that power applies to. With gyms its members, with government it is citizens.

  • MNG||

    In other words you are taking a philosophical point that is concededly critical to your political philosophy, that is that people can't be forced to do something they don't want, and you are reading it into the interpretation of a provision which doesn't necessarily share that philosophy. For you it MUST be this case, because it is so fundamental, if government can mandate us to do X then we are little more than wards and that CAN'T be right in your view, because governments don't have that power.

    You're begging the very question.

    You seem to concede that in every non-governmental context the word "regulate" in front of an activity laden word like "commerce" or "recreation" would imply a power to mandate activity. But in the governmental realm suddenly the word cannot mean that. the reason is you don't believe governments should have that kind of power.

    But that says more about you than it does the meaning of the Constitutional text.

  • ||

    You used the word "wards", MNG, and you used it intentionally, because the word "wards" implies a degree of power over someone that is NOT entailed by the word "regulate" alone.

    You would NEVER have written "But if I had a power to regulate the recreation of my gym members I could certainly mandate that they engage in x or y recreational activity without doing any violence to the definition."

    You would not have written that because you know perfectly well that the response would have been "gym members can leave".

    You specifically used the word wards into order to INJECT the implication of police power over subjects to get to the ability to mandate specific actions.

    Stop pussyfotting.

  • kinnath||

    The problem Hazel is we're talking about government's power, and government's power naturally falls over all its citizens.

    The government has no power that is not granted by the consent of the governed.

  • MNG||

    Again, you're positing a political philosphical idea, which is nice and all, but we are talking more mundanely about what the concept "regulate" means. The text, man, the text.

    Jesus, I'm supposed to be the house liberal and here I'm the one that keeps pointing to the text!

    You're saying "well it can't mean X because the government has no power that hasn't been given by the governed" and x would mean....WTF? Just look at the text and the meaning (at the time) of the words therein. Does the word "regulate" in front of an activity word imply a power to mandate activity? Hazel seems to concede that in other contexts it does. The only reason to change that with government is to smuggle in your philosophy of what government rightly has the power to do, but that's the very thing being debated!

  • kinnath||

    The meaning of the words "regulate interstate commerce" should be readily apparent even to a grade school student. It takes a century or so of legal scholars to torture the words into something else.

    So yes, I agree that under the curret paper trail left by SCOTUS, the individual mandate could be seen as constitutional (as RC Dean makes so scarily apparent). But I disagree absolutely that the plain meaning of of the Constitution itself allows the individual mandate.

    And it cannot be said often enough that the government exists only to serve our needs, we are not here to serve the government's needs.

  • Tony||

    the government exists only to serve our needs, we are not here to serve the government's needs.

    You are the anti-Christ.

  • ||

    Does the word "regulate" in front of an activity word imply a power to mandate activity?

    No.

    Examples:

    Governments have the power to regulate driving on public roads, but they do not have the power to mandate driving on public roads.

    The FDA has the power to regulate the selling of food and drugs, but it does not have the power to mandate that someone sell food or drugs.

    The EPA has the power to regulate the production and emission of certain pollutants, but it does not have the power to mandate the production or emission of those pollutants.

  • ||

    The gym owner does not have the power to "regulate" the recreation of his members. he has the right to control his property in the manner he sees fit.

  • MNG||

    and government's power naturally falls over all its citizens.

    [::Orgasms violently. Again. And AGAIN.::]

  • Shorter MNG||

    Derp!

  • Gilbert Martin||

    Well you're wrong as usual.

    Commerce is activity.

    There is no such thing as commerce without activity.

  • MNG||

    That sound you hear is my point flying waaay over your head Martin.

  • Gilbert Martin||

    No it isn't.

    It's the sound of you bluffing that you have a point.

  • MNG||

    Look, I've given you the argument (it's called an 'argument by analogy'). If you want to contest it, feel free.

  • juris imprudent||

    MNG - analogously and vigorously waving his hands.

  • kinnath||

    But if I had a power to regulate the recreation of my wards.......

    MNG finally gets to the heart of the matter. If the government can force us to buy health insurance, then we are not free. We are conscripts, the property of the state, to be cared for and to be herded around.

  • MNG||

    See Hazel, I expect this from kinnath.

    But you can do a little better.

  • kinnath||

    MNG would rather live as the canary in the gilded cage that live as the sparrow subject to the whims of nature.

  • MNG||

    You and I differ in this respect (and likely many more) kinnath.

    I can oppose something like Obamacare without feeling I have to buy into and defend every objection to it.

    I think it's stupid. It's immoral.

    But when I look at the words of the Constitution, I don't see it violating them. I've explained why throughout this thread, to be honest there is no need to add to it further.

  • kinnath||

    I think it's stupid. It's immoral.

    Credit given where credit is due.

  • Zeb||

    So, do you believe that congress has the power under the constitution to require people to buy a new GM car every year and if they can't afford to or don't want to they can be imprisoned for the rest of their lives?

  • MNG||

    What is this example supposed to prove? I've seen enough of your comments to know that many things that you would concede Congress has the power to do under the Constitution would allow legislation you would abhor.

    What this demonstrates to me is that so many of you here are of course not interested in a disinterested attempt to get at what the text and history of the Constitution means, you just want a result. You want the result of this legislation being thwarted. And you go from that result and work backwards to manufacture a theory that gives you that result.

  • Gilbert Martin||

    "to get at what the text and history of the Constitution means"

    We already know what it means.

    You are the one who doesn't.

  • ||

    ---"so many of you here are of course not interested in a disinterested attempt to get at what the text and history of the Constitution means"---

    The fact that you can argue that the mandate is within the governments power to regulate commerce is ample evidence that you have no idea what the text and history of the Constitution are.

  • MNG||

    I've made my argument via the text upthread if you feel like contesting it, feel free.

    As far as the history, take a look at the Volokh debate I mentioned downthread.

    I hate to tell you, but you popping in to simply say "you're wrong!" doesn't impress me regarding your mastery of Constitutional text and history.

  • ||

    ---"As far as the history"---

    Read the arguments published at the time of the proposal of the Constitution, both pro & con. Read what the Framers intended for the Constitution to mean. It's isn't hard to determine the limited powers of Gov't that they were trying to lay out. The "Commerce Clause" was put in the Constitution to prevent the individual states from punitively taxing the products of other states, either during transit through to shipping points or to protect the industry in the taxing states. With each state having an individual tax regime for internally and externally produced goods, commerce was hampered.

    Art IV, Sect 2 dealt with the same issue. Prohibiting states from favoring residents over non-residents.

  • MNG||

    Dude, you should read the debate on Volokh. It addresses exactly what you are talking about. Here's a brief summary, but you should really check it out:

    We had a much more limited government under the Articles. There seemed to be many of these "collective action" problems that the states seemed "incompetent" to handle. A Constitutional Convention was called to address that. A resolution was introduced which essentially was to grant the Feds a broad power to tackle anything like that, the resolution became the enumerated powers of Art I. There is some debate about whether that change entailed an acceptance or rejection of that broad power. Several people refused to sign the resulting document because they certainly felt the former was true.

  • ||

    ---"Dude, you should read the debate on Volokh"---

    Federalist #7

    The opportunities which some States would have of rendering others tributary to them by commercial regulations would be impatiently submitted to by the tributary States. The relative situation of New York, Connecticut, and New Jersey would afford an example of this kind. New York, from the necessities of revenue, must lay duties on her importations. A great part of these duties must be paid by the inhabitants of the two other States in the capacity of consumers of what we import. New York would neither be willing nor able to forego this advantage. Her citizens would not consent that a duty paid by them should be remitted in favor of the citizens of her neighbors; nor would it be practicable, if there were not this impediment in the way, to distinguish the customers in our own markets. Would Connecticut and New Jersey long submit to be taxed by New York for her exclusive benefit? Should we be long permitted to remain in the quiet and undisturbed enjoyment of a metropolis, from the possession of which we derived an advantage so odious to our neighbors, and, in their opinion, so oppressive? Should we be able to preserve it against the incumbent weight of Connecticut on the one side, and the co-operating pressure of New Jersey on the other? These are questions that temerity alone will answer in the affirmative.

  • ||

    Actually the fear was that the articles of confederation made the system too weak to defend itself from being reconquored by the English.

    Interestingly many people felt that the commerce clause plus "necessary and proper" was too broad and would ultimately give the government a police power. The supporters insisted that would never happen. Essentially the mandate proves the opponents were correct.

  • Neu Mejican||

    Yeah - seeing as how activity is INHERENT IN THE DEFININTION OF THE WORD "COMMERCE" ITSELF.

    Activity is inherent in the definition of the word commerce, but not in the way that you seem to think. "Commerce" is a noun describing a large scale endeavor made up of many, many individual decisions (each one an "activity"). To have the power to regulate commerce, you have to have the power to influence those decisions. Inherent in that would be the ability to compel certain types of decisions and restrict other types of decisions. As such the "choice/decision" to NOT BUY INSURANCE is an "activity" that influences commerce. If the government has the power to regulate commerce, it has the power to regulate that activity.

    Not that the approach Obamacare takes is one I support. But this activity/inactivity distinction just doesn't hold semantic water, imho.

  • Gilbert Martin||

    "Activity is inherent in the definition of the word commerce, but not in the way that you seem to think. "

    It is in exactly the way I think.

    Commerce is the activity itself. Whether you use the word commerce to refer to one explicit transaction of the aggregate result of billions of transactions makes no difference. It STILL has to involve a voluntary transaction to do something before government can tell you HOW you will be allowed to do it.

    It has no authority whatsover to tell you that you are required to do it.

  • MNG||

    "It STILL has to involve a voluntary transaction to do something before government can tell you HOW you will be allowed to do it."

    Another example of this, this tells you a lot about Glibert Martin's political philosophy. But not much about the concept of "commerce." Martin makes no attempt to address NM's points about the concept, he just restates his beliefs about what the concept SHOULD entail.

  • Gilbert Martin||

    "Martin makes no attempt to address NM's points about the concept, he just restates his beliefs about what the concept SHOULD entail."

    I am stating a fact about the words regulate commerce means.

  • MNG||

    you're right about one thing, you are stating. Stating and stating. No arguments, but lot's of stating, each as conclusory as the last one.

    I gave you an argument analogizing regulate recreation with regulate commerce. NM gave you one about commerce including decisions about the activity involved.

    Your 'response' has been to simply re-assert your conclusion.

  • Gilbert Martin||

    "I gave you an argument analogizing regulate recreation with regulate commerce"

    And you were just a wrong about recreation as well.

    It does not matter what the activity happens to be - whether it be commerce, recreation or whatever - there is distinction between a power to regulate and a power to compel one to engage in the activity.

    In order for the commerce clause to include a power to compel one to engage in activity, it would have to explicitly say exactly that.

  • Neu Mejican||

    there is distinction between a power to regulate and a power to compel one to engage in the activity.

    The power to compel is inherent in the definition of the world "regulate" itself.

    You seem to prefer this not to be the case, but if we are sticking with the semantic argument, you are up a creek without a paddle. To regulate means to rule, to govern, to have control over, etc...this includes, inherently, the ability to compel. It is one of the reasons that the idea of limited government is important...because it inherently includes compulsion.

  • Gilbert Martin||

    "The power to compel is inherent in the definition of the world "regulate" itself"

    No it isn't.

  • Gilbert Martin||

    "To regulate means to rule, to govern, to have control over, etc...this includes, inherently, the ability to compel"

    It can only compel is what form the transaction can take AFTER one has voluntarily chosen to enter into such a transaction to begin with.

    Furthermore, in the case of the commerce clause, it has to be an interstate transaction - not just any transaction.

  • Neu Mejican||

    Commerce is the activity itself.

    While engaged in "commerce" you decide to buy from X instead or Y, or to wait until the price falls to Z before purchasing, or decide to go into debt to buy, or to save up money before buying so as to avoid debt. The commerce you speak of is a series of decisions. Some are decisions to wait. If government has the power to regulate commerce, it has the power to take certain choices off the table. The mandate takes the choice of waiting off the table, essentially.

  • Gilbert Martin||

    "While engaged in "commerce" you decide to buy from X instead or Y, or to wait until the price falls to Z before purchasing, or decide to go into debt to buy, or to save up money before buying so as to avoid debt"

    No.

    I am not "engaging" in commerce until I actually, explicititly enter into a contract with someone else to buy or sell something.

  • MNG||

    So commerce only exists at the moment of contract formation? How long does it last after that moment? Does it include the exchange of consideration (that's after contract formation often)?

    You've now created a commerce power where the only thing the federal government can regulate is this instance of contract formation? WTF would that even mean?

  • Gilbert Martin||

    Commerce it the execution of entering into the contract and the activity necessary to perform on the contract.

    Commerce is NOT sitting around thinking about maybe entering into a contract sometime in the future.

  • Neu Mejican||

    Commerce it the execution of entering into the contract and the activity necessary to perform on the contract.

    It is more than that.

    Commerce is NOT sitting around thinking about maybe entering into a contract sometime in the future.

    You are treating commerce as a verb here (commercing?). Commerce includes disengaging and waiting until a later date to engage. You may not necessarily be engaged in commerce when you are thinking about maybe entering a contract sometime in the future, but at the point you decided to WAIT UNTIL X HAPPENS AND THEN ENTER THE CONTRACT, you are actively engaged in commerce.

  • Gilbert Martin||

    "You are treating commerce as a verb here (commercing?). Commerce includes disengaging and waiting until a later date to engage. You may not necessarily be engaged in commerce when you are thinking about maybe entering a contract sometime in the future, but at the point you decided to WAIT UNTIL X HAPPENS AND THEN ENTER THE CONTRACT, you are actively engaged in commerce."

    Commerce consists of explicit, discrete transactions. Whether it is one transation or billions makes no difference. The power to regulate commerce is nothting other than the power to reguluate to those transactions - at the time they occur. It does not include the power to force someone to initiate a transaction.

    Furthermore, inaction can never be "actively" "engaging" in anything.

    I may be setting in my house and decide to drive to the grocery store after a particular TV is over but that does not mean that I am "engaging" in either driving or "commerce" with the grocery store at that instant I make that decision.

  • Neu Mejican||

    Commerce consists of explicit, discrete transactions. Whether it is one transation or billions makes no difference. The power to regulate commerce is nothting other than the power to reguluate to those transactions - at the time they occur.

    Wrong. Regulation happens to the aggregate, not to the individual transaction. Regulations determine what range of choices are possible. It suppresses certain choices and encourages or compels other choices. It sets the conditions in which you make your choices. There are effects at the level of individual transactions, but the power to regulate commerce functions at the level of commerce, not at the level of transactins.

    that does not mean that I am "engaging" in either driving

    Stay on topic

    or "commerce" with the grocery store at that instant I make that decision.

    But you have made that commercial decision within a regulatory framework that allows you to wait until your show is over (hours aren't say, restricted by law).

  • Gilbert Martin||

    "Wrong. Regulation happens to the aggregate, not to the individual transaction. "

    No, you are wrong. Regulaton does happen to the individual transaction.

    The aggregate would not exist at all without individual transactions.

  • Gilbert Martin||

    "But you have made that commercial decision within a regulatory framework that allows you to wait until your show is over (hours aren't say, restricted by law)."

    The operating hours of stores is irrelavant. I have not engaged in any "commmerce" unless and until I have explicitly bought or sold something.

  • Gilbert Martin||

    "the power to regulate commerce functions at the level of commerce, not at the level of transactins"

    There ISN'T any level of "commerce" other than transcations. Commerce is merely a term that refers to multiple transactions.

  • ||

    the 11th Circuit . . . rules against the mandate primarily because of the administration's inability to come up with a standard of its own.

    What? I have to respectfully disagree. In footnote 103 of its opinion, the 11th Circuit provides an argument better than broccoli to oppose the individual mandate when they held that;

    This expansive theory could justify the compelled purchase of innumerable forms of insurance, however. To give but one example, Congress could undoubtedly require every American to purchase liability insurance, lest the consequences of their negligence or inattention lead to unfunded costs (medical and otherwise) passed on to others in the future.

  • MNG||

    "If Congress can make someone purchase health insurance, then what can’t it make them buy?"

    1. Implicit in this argument is that the Commerce Power is limited to economic matters, so there's one important limitation there. Lopez and Morrison are to that effect.
    2. Another limitation are political ones. Not everything is supposed to be a constitutional issue. As opponents of the mandate note Congress has in our entire history only tried to make us buy something via this power once, and note that following that there immediately was a political backlash which aims to undo the law.
    3. Another limitation is likely this idea of "collective action federalism." Congress can act via the commerce power to address "collective action" problems that the states seem incompetent to address. Otherwise it's a state thing.

  • Tman||

    "Congress has in our entire history only tried to make us buy something via this power once"

    What was this?

  • MNG||

    I mean now, the mandate.

  • MNG||

    BTW-Volokh has had an excellent debate on this theory of collective action federalism all last week.

  • Tman||

    So you mean this is the only time Congress has tried to get us to buy something, right?

  • MNG||

    Yes. We can count on the political to work out some of our problems. Not everything is constitutional.

  • ##||

    You mean that you can count on the political to cause more problems than they solve and the constitution be damned.

  • Tman||

    We can count on the political to work out some of our problems.

    Are you fucking kidding me? You honestly think our system of government was designed to count on the "political" to work out some of our problems?

    You are worse than Ezra Klein. The more you talk the dumber you sound, and you have apparently over-analyzed the constitutionality of the mandate to the point that you have lost all semblance of coherence in regards to our entire system of government.

  • MNG||

    I think the Founders counted on the sense of the polity in many areas. There's lots of things they allowed the government to do but hoped and actually trusted they would not use in stupid and immoral ways.

  • Tman||

    You mean they specifically listed limited and enumerated powers? Like not forcing people to participate in a market?

    Go on.

  • MNG||

    "You mean they specifically listed limited and enumerated powers? Like not forcing people to participate in a market?"

    Where in the Constitution is this power of "not forcing people to participate in a market" "specifically listed?" All I see "specifically listed" is a power to regulate commerce...

    Go on.

  • Tman||

    Where in the Constitution is this power of "not forcing people to participate in a market" "specifically listed?

    Jesus you are such a disingenuous fuck. LIMITED AND ENUMERATED POWERS means IF IT ISN'T LISTED IN THIS DOCUMENT THEN THEY DON'T HAVE THESE FUCKING POWERS.

    Go ahead and spin it though. I'm sure you feel very proud of yourself for this semantic bullshit.

  • juris imprudent||

    Why of course I would believe your interpretation over what that old white fool Madison had to say.

  • PIRS||

    "Not everything is supposed to be a constitutional issue."

    Unless Congress (or the President) tries to stick its nose in the issue somehow - it did here. If Congress does something it must have some reason to think it has this power "because I say so" might work for parents and small children but it does not work for political leaders except in tyrannies.

  • ||

    Implicit in this argument is that the Commerce Power is limited to economic matters, so there's one important limitation there. Lopez and Morrison are to that effect.

    Yes, but Lopez and Morrison didn't involve transactions. The 11th simply walked Wickard and Raich to their logical conclusion, that Congress had the unlimited capacity to regulate anything that involved, or even might have involved, a transaction. And that power is for all practical purposes unbounded.

    It made the 11th puke, so they twisted their way out of the shithole that SCOTUS had dug for them. But it's fraudulent reasoning. It's simply a matter of them arbitrarily deciding how much Congressional power is too much instead of rebooting the whole question of what regulating interstate commerce means.

  • MNG||

    "It made the 11th puke, so they twisted their way out of the shithole that SCOTUS had dug for them. But it's fraudulent reasoning."

    Yep.

  • Paul||

    2. Another limitation are political ones. Not everything is supposed to be a constitutional issue.

    Then perhaps the Obama administration shouldn't have declared the mandate fell under the commerce clause.

    Hell, Democrats shouldn't be screaming "Commerce clause" every time they touch the legislative pen to paper. That would be a start.

  • MNG||

    Holy shit you have some kind of arrested mental development, don't you?

    I mean, you really don't know wtf is being discussed.

    When I say not everything is constitutional I mean that the Founders granted or allowed some powers that could be used in stupid or immoral ways, but they hoped that we would have the political sense to not use them that way.

    So the commerce clause allows it, that's not the end of the story. i've long said Obamacare is constitutional, but also that it is stupid and immoral and deserves to be repealed. And it will be.

  • juris imprudent||

    You mean like the power to enforce patents?

  • Paul||

    Congress can act via the commerce power to address "collective action" problems that the states seem incompetent to address. Otherwise it's a state thing.

    No it can't, because that would violate the Constitution's explicit enumerated powers.

  • MNG||

    Dude, you should reeeeaaally read the debate on volokh before you pronounce on that, as that's a pretty big part of it.

  • ||

    Not everything is supposed to be a constitutional issue.

    I submit that every exercise of power by the national government is, in fact, a constitutional issue.

  • MNG||

    That's absurd.

    So when the Congress appropriates money for the Post Office and the President signs it into law that is a constitutional issue? It's clearly constitutional. One could still say it shouldn't be done though. That's what I mean about constitutional issue vs. political one.

    Sheesh.

    WTF?

  • ||

    Sure, there's a Constitutional issue there. It just happens to be an easy one.

  • MNG||

    Man that stretches the idea of "constitutional issue" to Stretch Armstong lengths.

  • Auric Demonocles||

    No it doesn't.

  • You should consider suicide||

    This is your fault idiot, you're misusing a common phrase and pretending your misuse is both accurate and clear.

  • Commerce Clause||

    RESPECT MY AUTHORITAY!!!

  • ||

    “‘The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.’”

    The shitty thing is that this makes Romney look really good in the Debate last week when he said the feds don't have the power to force people to buy insurance but the states do.

    Fuck i hate that guy...and i hate him even more when he is right.

  • ||

    Well, if you read Ezra Klein's blog just after the ruling that is the new progressive tactic.

    If the mandate falls and the rest of the law stands, their hope is that all the states that don't impose state-level mandates will be fucked.

  • Matrix||

    Easy way around this, then. Congress can pass legislation that says, "States, if you want to receive this money, you must pass a law in your states that forces all citizens to purchase health insurance or pay a fine." They did it with alcohol. Why not with something like Medicaid?

  • Ted S.||

    Sounds like a good way to get rid of Medicaid.

  • Matrix||

    I'm just hoping some progressive d-heads don't read this and decide to make a bill that does what I mentioned above. I'll have to kick myself for giving the thief an idea.

  • ||

    they did it with alcohol, speed limits, and LOTS of other shit

  • ||

    and education funding.

  • ||

    I haven't fully digested the decision yet, especially the part where the court tries to distinguish Wickard. My first read, though, is that their discussion of Wickard is pretty strained. By telling the farmer that he couldn't grow wheat that would never see a market, much less be in interstate commerce, they were in effect telling him that if he wanted that much wheat he was going to have to enter the market, that he couldn't be self-sufficient. A mandate, in other words, not too dissimilar from the ObamaCare mandate to enter into the health insurance market rather than be self-sufficient for health care financing.

    Federal law contains thousands, if not tens of thousands, of mandates to purchase goods and services. The only way to distinguish ObamaCare from these mandates is that the existing mandates are arguably conditional - IF you want to be in market X, you must also buy goods and services in market Y. The 11th alludes to this distinction, but I'm not sure it holds up, because all of us are in some interstate market (call it market X), which would seem to give Congress the authority under current case law to require us to enter market Y (call it the health insurance market).

    I find the activity/inactivity distinction very weak. It is the nature of a mandate that you become active in a market you would otherwise be inactive in, after all.

    ObamaCare is fairly easily defended as a straightforward application of existing Commerce Clause cases. The 11th is doing the best they can within the strictures of those cases, but between the lines, they are begging SCOTUS to revisit Wickard and its progeny. Because, without doing so, Congress does have the functional equivalent of plenary power over the nation's economic life.

  • ||

    Stupid joke name off.

  • ||

    I see what you are doing here, but if you are hoping the court will be forced to revisit Wickard, I think you are gambling at high stakes.

    The court may not like activity/inactivity from a doctrinal standpoint, because it can't always be applied in a clear-cut way, but it does provide an "outer limit" bounding principle on Commerce Clause power, within existing SCOTUS precedent.

    Actually, I'd argue is no more problematic than the economic/non-economic distinction or the "substantial effects" aggregation doctrine.

    If the court chooses to revisit Wickard, great. Do you really think they are going to trim away at "substantial effects" though? If you're hoping for that, I fear it will be a vain hope.

  • ||

    Whether the Court revisits Wickard depends on its intellectual honesty.

    The substantial affects/aggregation doctrine is a de facto grant of plenary power over the economy, and has been used as such. The Court was quite explicit that the non-interstate and non-commercial nature of the targeted activity were of no moment.

    Recent cases purporting to limit the Commerce Clause were directed at laws that were attempts to exercise the police power under cover of the Commerce Clause; conceptually, they are of little use here, since ObamaCare is actually an economic regulation.

    The Court can hang a decision on the activity/inactivity distinction, but that will lead to decades of confusion, lawsuits, and incoherence, because this distinction is fundamentally at odds with volumes of existing mandates under federal law.

    The next argument will be around whether mandates are appropriately "conditional", which will in turn raise questions about whether the mandate is sufficiently related to the activity that it is conditioned upon. You can see how this does not make for clear and predictable law.

    The problem here is that whether or not you have health insurance does, in fact, "affect" interstate commerce at a level that is well within the Court's previous jurisprudence.

  • Stephen Breyer||

    {depends on its intellectual honesty]

    ===blank stare===

  • ||

    fundamentally at odds with volumes of existing mandates under federal law

    I'm sure you've done this before, but what are examples of mandates that exist over actors which are inactive in the system being regulated?

  • ||

    Really, every mandate is an example.

    If I own a power plant, I am, absent an EPA mandate, inactive in the market for pollution control equipment.

    If I own a gadget factory, I am, absent an OSHA mandate, inactive in the market for safety equipment and notices.

    If I am in the market for a car, I am in the market for a car with airbags only because of a federal mandate.

    Etc.

  • ||

    Right, but the mandates requiring you to purchase pollution control equipment relate to the regulation of power plants, not to the regulation of pollution control equipment.

    In other words, you can mandate someone do something as a means of regulating the market they are *already engaged in* , but not as a means of regulating another target market.

    You can't mandate the purchase of pollution control equipment to provide price supports for pollution control equipment makers. You can only mandate it to regulate an aspect of the power plant industry.

  • ||

    You can't mandate the purchase of pollution control equipment to provide price supports for pollution control equipment makers.

    Wickard says you can. The acreage limitations in Wickard were precisely to "stabilize" the wheat market.

  • ||

    Your analogy that the requirement for an item, which is based upon a mandate from a governmental agency, thrusts you into the market place to begin with, is flawed.

    For example you can invent your own pollution control mechanisms, or use an automated workforce so that you don't have to buy any specific item as you do with Obamanationcare.

  • ||

    Wickard says you can. The acreage limitations in Wickard were precisely to "stabilize" the wheat market.

    But Filburn was already in the wheat market.

    The equivalent analogy would be to say that if Filburn was growing corn, and the government mandated him to grow wheat in order to lower wheat prices.

  • ||

    I don't think that's a reasonable POV. It also provides no guidance as to what defines the boundaries of the economic activity being regulated.

    If you are in the business of building power plants, then the nature of that construction is allowably regulated. It matters not ones opinion of what constitutes a typical component of said power plant.

  • ||

    If you are in the business of building power plants, then the nature of that construction is allowably regulated. It matters not ones opinion of what constitutes a typical component of said power plant.

    See my comment below on day care and medical facilities as mandatory components of power plants.

  • ||

    The next argument will be around whether mandates are appropriately "conditional", which will in turn raise questions about whether the mandate is sufficiently related to the activity that it is conditioned upon. You can see how this does not make for clear and predictable law.

    No less clear or predictable than "economic" vs. "non-economic" or "substantially affects".

    I suppose another distinction is that the mandate shifts the definition of Congress's police power over the economy from one of regulation, to a command economy. If you can force the purchase of certain products, you can force the entire hierarchy of commerce to obey specific production quotas, use specific supply chains, sell specific products. You can make everyone buy from state-owned co-ops instead of private store if you feel like it.

    There's a vast difference between mandating the purchase of something, conditional upon entry into a certain market, with the mandated purchase relating to a legitimate regulation of the conditioned market, and mandating entry into that market.

    For instance,it seems reasonable to me that you can madate that someone in the electric power industry purchase carbon scrubbers to reduce smog. Since reduction of pollution is a legitimate regulatory role in the power industry. What you couldn't do, however, is justify mandated purchasing of carbon scrubbers under the regulation of the carbon scrubbing industry. You can't use mandates are price supports for the industry you're purchasing from. You can only use them to target the industry that the individual is already engaged in.

  • ||

    There's a vast difference between mandating the purchase of something, conditional upon entry into a certain market, with the mandated purchase relating to a legitimate regulation of the conditioned market,

    But there's the rub. What constitutes a legitimate regulation of the market at issue? I can run a power plant perfectly well without pollution control. This:

    Since reduction of pollution is a legitimate regulatory role in the power industry.

    strikes me as assuming your conclusion. Going down this road requires you to assert that there is some connection between the two markets (the one the regulation is conditioned on, and the one the regulation requires you to enter). What is the nature of that connection?

    No less clear or predictable than "economic" vs. "non-economic" or "substantially affects".

    And look how well those have served us.

  • ||

    Going down this road requires you to assert that there is some connection between the two markets (the one the regulation is conditioned on, and the one the regulation requires you to enter). What is the nature of that connection?

    Er. Power plants emit pollution?

  • ||

    Power plants emit pollution?

    Keep going. Give me a principle that I can use to sort the good mandates from the bad ones.

  • ||

    For example. I want to build a power plant. If the government can tell me that plant must have certain equipment, why not mandate that it also be equipped with medical facilities? Day-care facilities? Etc.

    Absent the mandates, I would not necessarily be in the market for pollution control, medical, or day-care facilities.

  • ||

    Because the power plant industry does not have a substantial effect on the health care or day care markets?

    Except, in some loose sense in that pollution might increase health care costs in the general area around the plant, but then that comes via pollution, and it's more sensible to regulate the pollution.

    I suppose that the government *could* mandate that power plants provide medical care to compensate surrounding areas for the health impacts of pollusion, but it would make much more sense to require carbon scrubbers instead.

  • ||

    Hmm, also, the "substantial effect" cannot be a product of your lack of participation in the market in question. (i.e. you can't say that you're supstantially affecting the market for daycare but failing to provide daycare centers. That's stupid. You have to say that by building a power plant you're causing more babies to be born and therefore impacting the daycare market)

  • ||

    why not mandate that it also be equipped with medical facilities? Day-care facilities? Etc.

    Are you arguing that it is impossible to set up a bright line test for "reasonableness" regarding any regulation?

    "Reasonableness" arguments exist everywhere, the Police Power being the most fundamental example. There will always be bright line debates. But I don't see how that's relevant here.

    There's a fundamental difference between a bright line boundary and a black hole that swallows all legalese.

  • ||

    Because the power plant industry does not have a substantial effect on the health care or day care markets?

    So we're back to "substantial effect"? Haven't we learned yet that is a blank check?

    Are you arguing that it is impossible to set up a bright line test for "reasonableness" regarding any regulation?

    Bright line tests are by definition not "reasonableness" tests.

    My point, really, is that the activity/inactivity distinction doesn't get you anywhere when dealing with mandates. It just kicks the can down the road, and I think Hazel has correctly identified where that can will likely land: right back where it started, with a "substantial effects" doctrine.

    And I would point out that, when it comes to enforcing limits on the government, "reasonableness" doesn't seem to accomplish much. That's why I'm searching for principles to distinguish acceptable mandates from unacceptable mandates.

  • ||

    So we're back to "substantial effect"? Haven't we learned yet that is a blank check?

    What I'm doing here, is defining a limit on the necessary and proper clause, as it applies to economic mandates, within the context of Supreme Court precedent.

    IOW, to be "necessary and proper", the effect of a mandate must be applied to people already in the target market of a regulation. It cannot be applied to people outside the target market on the grounds that their lack of participation (in itself) substantially affects the target market.

    You can make people in market A compensate people in market B for the costs associated with participation in market A. But you can't make people in market A participate in market B in order to make market B fuction more effectively.

  • Neu Mejican||

    You can only use them to target the industry that the individual is already engaged in.

    The argument, of course, is that all individuals are engaged in the healthcare market. The argument made for the mandate is not about "in/out of the market" but about "when/how you purchase/pay for your healthcare." The conditional works like this.

    "If you are going to buy healthcare at any point in your life, then you must buy health insurance to cover the possibility that your costs will exceed your resources."

    In some ways this is similar (sort of the flipside of) to "malpractice" insurance requirements for doctors.

    It seems the "slippery slope" of congressional powers would only apply to a small set of other markets that are universally accessed when viewed on a life-time scale.

    The other thing about this that makes it a non-argument as far as I can tell, is that they could have structured it as a "healthcare tax" that everyone was mandated to pay, and no one would be arguing that they don't have the power to do it. Instead, they gave people more freedom to choose, but that gets lost in most of these discussions.

  • ||

    It seems the "slippery slope" of congressional powers would only apply to a small set of other markets that are universally accessed when viewed on a life-time scale.

    Sure. The markets that are essential to living, is all. Plus, because these markets are essential, the "conditional" nature of the mandate gets pretty fictitious, because its not, in fact conditional at all.

    If it was, you would be barred from getting healthcare unless you had insurance. That's not happening, and will never happen.

  • ||

    Plus, because these markets are essential, the "conditional" nature of the mandate gets pretty fictitious, because its not, in fact conditional at all.

    If it was, you would be barred from getting healthcare unless you had insurance. That's not happening, and will never happen.

    Exactly. The market you are (at least in theory) already engaged in is the health CARE market. The health INSURANCE is a separate industry.

    You might be able to mandate the purchase of health insurace as a condition of being in the healthcare market. But you can't mandate the purchase of insurance in order to regulate the target market - the health INSURANCE market.

    But of course, that would entail refusing health care to those who fail to purchase insurance. Which of course, is never going to happen.

  • Neu Mejican||

    You might be able to mandate the purchase of health insurace as a condition of being in the healthcare market. But you can't mandate the purchase of insurance in order to regulate the target market - the health INSURANCE market.

    I do believe the healthcare mandate is an attempt to control costs in the healthcare market, not an attempt to regulate the health insurance industry, per se. It is analogous (loosely) the the smog scrubber industry alluded to above. So, if you used a carbon tax, say, to subsidize the cost of environmental regulations on industry, you would be in similar territory.

    But of course, that would entail refusing health care to those who fail to purchase insurance. Which of course, is never going to happen.

    And is also the reason that the healthcare market is different than most markets.

  • ||

    I do believe the healthcare mandate is an attempt to control costs in the healthcare market, not an attempt to regulate the health insurance industry, per se.

    How does forcing people to purchase insurance regulate costs in the healthcare market? Much of the problem in the healthcare market is due to overconsumption of health care resources because people are overinsured. Mandating insurnace purchases does nothing to control that.

    Plus, the government's explicit justification for the mandate is under the necessary and proper clause, and associated with the insurance regulations. It's about regulating the insurance market - to provide universal coverage to people with pre-existing conditions.

  • NoVAHockey||

    "health insurance to cover the possibility that your costs will exceed your resources"

    too bad that's not what health insurance is anymore. the "you might get cancer or hit by a bus" argument does not mean i need the type of plans that will be eligible for inclusion on the exchanges.

  • ||

    Right. The conditioned nature of the mandate is already implicit in the government's argument.

    Problem is, that it is very difficult to prove that everyone is automatically engaged in the health care market by virtue of being alive, prior to the purchasing of any actual heath care services. Plus, it's rather unprecedented, in a liberal democracy, to claim that just be being born you have automatically undertaken certain positive legal responsibilities. This is contrary to the way the social contract is supposed to work.

    And thirdly, the odd thing about the governments LEGAL argument is that the mandate is justified under the "necessary and proper" clause, not under regulation of the health care market which the individual is presumably already engaged in.

    That lays clear that the mandate is a means of providing price supports for the insurance market (the target market of the insurance regulations), not as a means of regulating health-care delivery.

  • ||

    Problem is, that it is very difficult to prove that everyone is automatically engaged in the health care market by virtue of being alive, prior to the purchasing of any actual heath care services.

    Here's the other argument the government is missing:

    Health insurance is the business of funding risk pools. Everybody, by virtue of being alive, is in the risk pool, regardless of whether on any given day they are using health care. Thus, everyone is "affecting" the interstate commerce of health care finance just by being alive.

    For purposes of health care finance, being alive is an economic activity that, taken in the aggregate, substantially affects interstate commerce.

  • ||

    The "risk pool" DOESN'T automatically include everyone. it only includes people who choose to buy insurance. The riskiness (and thus premium levels) of the risk pool is determined only by people who actually buy insurance.

    You can only say they do if you that that IF they had purchased insurance, the price would be lower for those already in the pool.

    Now, the fact that an individual chooses not to purchase insurance MIGHT negatively impact the premiums of those in the pool, but that in itself doesn't justify forcing them to enter the risk pool. That would be using forced entry into the market to provide price manipulation for the target market (i.e. get healthy people to buy insurance in order to lower costs for people already in the market).

    That's the kind of regulation of the target market that I'm saying can't justify mandated entry.

    You really have to show that by being alive you're affecting the INSURANCE market (not the healthcare market) in some substantive way.

  • ||

    The "risk pool" DOESN'T automatically include everyone. it only includes people who choose to buy insurance.

    The risk pool for any given insurer or policy includes the people who have contracted for coverage.

    You could define it more broadly as the private insurance market taken as a whole, but under the substantial effects doctrine, Congress can construct a broader risk pool consisting of everyone who directly or indirectly, substantially affects that risk pool.

    Which is a national risk pool.

  • ||

    Well, that is circular logic. You can't just *define* the market to include everyone and then say "oh you're in the market so you can be regulated!"

    That's absurd.

  • ||

    I'm just applying current SCOTUS doctrine to health insurance.

    Are the results arbitrary and bizarre?

    No argument here, but that's what open-ended language like "direct or indirect, taken in the aggregate, substantially affect" gets you. That language allows you to sweep in anything that has a tangential affect on interstate commerce.

  • ||

    Ahh, well, I'm suggesting there's a possibly way to interpret substantial effects and (more importantly) "necessary and proper" that clarifies the boundary and disallows the individual mandate without forcing the court to overturn substantial effects entirely.

    Maybe I'm being an enabler, or maybe I'm being prudent.

  • juris imprudent||

    Whether the Court revisits Wickard depends on its intellectual honesty.

    I'd expect the South to rise again before I'd expect the Court to honestly deal with a first principle. Lawyers in general prefer to parse the n'th order particle.

  • Abner||

    "Well, if you read Ezra Klein's blog"

    This works better:

    http://www.wikihow.com/Induce-Vomiting

  • 35N4P2BYY||

    If I had a time machine one of the first things I would do is go back and tap James Madison on the shoulder and say, "You may need to be a bit more explicit here, here and here." After that I would go try and nail his wife.

  • ||

    Just remember that it was Madison who originally advocated against a Bill of Rights. Specificity? Nah. Congress would NEVER do something as absurd as violate the natural rights of man. We enumerated their authority right here. See?

  • 35N4P2BYY||

    Yes that's the way I understand it as well... However in the case of the commerce clause I would have it read something along the lines of: Congress shall have the power to regulate interstate commerce insofar as it relates to the imposition of tariffs..."

  • NoVAHockey||

    I thought it would be interesting to read the dissent in Wickard. I didn't realize it was 9-0. that was kick to the nuts.

  • ||

    I think the government is not doing a good job of arguing their side.

    I also think that the arguments that the states are putting forth are pretty flawed. That, however, is because they are having to argue that an essentially economic regulation is beyond the scope of Congress's de facto plenary power over the economy.

    Its kind of a Gordian knot type of thing. The solution, of course, is to revisit Wickard and its unholy progeny. For a variety of reasons, that is highly unlikely to happen.

    I almost wish the feds would do a better job with their side, because it would make it harder for SCOTUS to snake out of this, and force them to realize that Wickard was fundamentally wrong.

  • ||

    Okay, maybe I'm just being dense here, but what's with all the violent broccoli?

  • sevo||

    MNG|8.15.11 @ 3:11PM|#
    "So commerce only exists at the moment of contract formation? How long does it last after that moment? Does it include the exchange of consideration (that's after contract formation often)?"

    Dunno, Mr. Pedant. How long does murder last?
    What a twit.

  • pmains||

    Indeed. Earlier MNG was harping on the abstract nature of the action/inaction argument. The argument that contract formation is a single, non-dimensional point in time that therefore has a measured value of zero is pretty abstract. I feel like he needs to include limits, integrals and asymptotic curves to complete his argument.

  • Edwin||

    MNG I gotta say you're way out of line here

    yes, telling your kids to play some game is not "regulating" their recreation, it's telling them to do something.

    You're ignoring the necessary conclusion of your line of reasoning, which would be that that one tiny little clause grants congress literally absolute power, which it clearly does not. If the power to "regulate commerce" involved the ability to MANDATE that someone DO SOMETHING even when THEY ARE NOT ENGAGED IN COMMERCE, then congress has the power to mandate anything.

    Nobody's reading anything into the constitution. It's just basic semantics. Telling someone to do something who wasn't doing anything before is TELLING SOMEONE TO DO SOMETHING, that is absolutely SEPARATE from REGULATING AN ACTIVITY. Yes, this is the way the word is colloquially used.

    Indeed, genius, look at the basic grammar. "Regulate" is a TRANSITIVE VERB, you have to regulate SOMETHING. There needs to be a SOMETHING there to regulate in the first place if you indeed want to regulate something. What libertarians are framing as an activity/inactivity distinction is indeed endemic to the word. I don't know if I'd frame it like that, but the general concept is there and is valid.

    I could see how MAYBE very LOOSELY in conversation someone may ACCEPT the use of the word in the way you say, but in the linguistically-exacting context of LAW, or "technically...", I can't imagine anyone who would accept that loose use of the word.
    It's not like someone people would ask some guy to be a ref in a pick-up game or a poker game or something, then when they stop playing, if said selected guy tells them to keep playing when they want to stop, they'll be like "whoops, we made him the ref, I guess we have to listen to him" That's not how it works.

    Similar analogies could be drawn in the workplace with managers and employees. I could imagine someone being a dick and then pissing everyone off by making them do things in the relevant task, even when work is focused elsewhere by a more recent mandate of the higher-up boss or work is essentially finished on a task. And maybe someone would retort "He asked you to MANAGE __ACTIVITY X___ not to boss us around at all times".

    I mean I get that words are inherently vague, and no word has any ABSOLUTE exact meaning, but the interpretation we're being asked to buy would really have anything mean anything, and lead to some really stupid linguistically-justified dictatorship. Frankly, it reminds me of the word games libertarians play. Also reminds me of the guy who mocked post-modernism by making a computer program that would generate post-modern articles that actually managed to get published.

  • Edwin||

    If I say "Bob, I want you to manage those 3 guys and their task in building the house" (in this example as a development company that means doing the permits, calling the subs, etc.). That doesn't give Bob leeway to call them when they're off work and make them do more work. That doesn't give Bob leeway to make them do stuff when I'm telling them to do stuff first. That doesn't give Bob leeway to make them work on punch-list items (which are post-construction & CO).

    Hell, by your interpretation, Bob could tell ME what to do, and I'M the boss!

  • pmains||

    When I was the manager of a swimming pool, I did in fact call employees when they were off work and ask them to come in to cover other employees' shifts. If we unexpectedly needed more lifeguards, I could have called more employees in to work. If you were managing construction workers, I imagine you would have the same authority.

  • Edwin||

    And MNG's argument that everyone is engaged in commerce in the healthcare industry because at some point everyone buys healthcare services is also logically defunct and can be seen so by extrapolating the consequences such a meaning would have. Everyone would be in EVERY INDUSTRY ALL THE TIME if the word actually meant that. I'd be in the "petroleum industry" just from buying gas, I'd be in the construction industry just from buying a house.
    I'd be in the plastics/polymer industry just as much as DuPont from the mere act of buying plastics. I'm pretty fucking sure I'm not involved in the plastics industry; I've never seen a rayon-fiber extruder, I don't know the ideal breaking-point temperature where PVC becomes pliable enough for pressure-molding, and I've never performed chimecal polymerization. I'M PRETTY FUCKING SURE I"M NOT IN THE PLASTICS INDUSTRY.

  • GroundTruth||

    A serious question all: Does the specific ground for moving this abomination to the SCOTUS matter, so long as it has that effect? Are they required to rule only on the specific item brought forth, or can they take the ball and run with it?

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