The Obama Administration's 'Limiting Principles' Seem More Like Expansionary Principles

In an August column about the 11th Circuit ruling against ObamaCare's individual health insurance mandate—the decision the Supreme Court is now reviewing—I noted the basic problems that opponents and supporters of the mandate face in trying to reconcile their positions with the Court's Commerce Clause precedents:

Because the U.S. Supreme Court has treated the power to "regulate commerce…among the several states" like Silly Putty since the New Deal, explaining why it cannot be stretched to cover the health insurance mandate is harder than you might think. But...the law's defenders have a corresponding problem. Because a limitless Commerce Clause contradicts a fundamental constitutional principle [the doctrine of enumerated powers], they have to justify the mandate in a way that does not also justify every other conceivable congressional dictate regarding how we spend our money. So far they have been unable to do so.

Judging from yesterday's oral argument, that remains true. Consider this exchange between Justice Anthony Kennedy and Solicitor General Donald Verrilli:

Kennedy: Your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?

Verrilli: Yes. The rationale purely under the Commerce Clause that we're advocating here would not justify forced purchases of commodities for the purpose of stimulating demand....

Kennedy: But why not? If Congress says that the interstate commerce is affected, isn't...that the end of the analysis?

Verrilli: No....The difference between those situations and this situation is that in those situations, Your Honor, Congress would be moving to create commerce. Here Congress is regulating existing commerce, economic activity that is already going on, people's participation in the health care market, and is regulating to deal with existing effects of existing commerce.

Notice that Verrilli implicitly accepts his opponents' activity/inactivity distinction, saying a person's failure to buy health insurance only looks like inactivity; it is in fact a decision about how to pay for services in a market he has already entered (or will soon enter). That's an argument the adminstration has been making for some time now. But in rejecting the idea of requiring purchases to stimulate demand, Verrilli seems to contradict the logic of Wickard v. Filburn, the 1942 decision in which the Supreme Court said a farmer could be prevented from growing wheat for his own use in excess of a government quota because his self-sufficiency, combined with that of other similarly situated famers, exerted "a substantial economic effect on interstate commerce" by reducing aggregate demand, thereby pushing prices down. The quota did not directly command Roscoe Filburn to buy wheat, but that was its intended function in this context. So if the federal government is going to start making people buy things, why is stimulating demand an impermissible aim under the "substantial effects" doctrine?  

Later in the argument, Justice Samuel Alito asked Verrilli to "express your limiting principle as succinctly as you possibly can." Verrilli's reply:

We got two and they are—they are different. Let me state them. First, with respect to the comprehensive scheme. When Congress is regulating—is enacting a comprehensive scheme that it has the authority to enact that the Necessary and Proper Clause gives it the authority to include regulation, including a regulation of this kind, if it is necessary to counteract risks attributable to the scheme itself that people engage in economic activity that would undercut the scheme. It's like—it's very much like Wickard in that respect. Very much like Raich [the case dealing with homegrown medical marijuana] in that respect.

With respect to the—with respect to the—considering the Commerce Clause alone and not embedded in the comprehensive scheme, our position is that Congress can regulate the method of payment by imposing an insurance requirement in advance of the time in which the—the service is consumed when the class to which that requirement applies either is or virtually most certain to be in that market when the timing of one's entry into that market and what you will need when you enter that market is uncertain and when—when you will get the care in that market, whether you can afford to pay for it or not and shift costs to other market participants.

So those—those are our views as to—­those are the principles we are advocating for and it's, in fact, the conjunction of the two of them here that makes this, we think, a strong case under the Commerce Clause.

They've had two years, and this is the best they can do? It sounds like Verrilli thinks either of these conditions would be sufficient to justify congressional action:

1) Congress creates a "comprehensive scheme" and finds that people are behaving in ways that interfere with it. It sets agricultural quotas, but a farmer grows more than allowed. It bans marijuana, but a cancer patient grows her own for medical use. It says health insurers must take all comers and charge them all the same rates, but young, healthy people refuse to participate, creating a danger of adverse selection. This does not seem like a limiting principle to me. If anything, it's an expansionary principle, since a regulatory scheme becomes more constitutional as it becomes more intrusive.

2) There's something almost all of us will need at some point, and we're not sure exactly when, but when we do other people will be forced to pick up the tab if we are unable or unwilling to pay. Health care is surely not the only thing that meets those first two requirements (as Chief Justice John Roberts suggested, why not require people to buy cellphones in case of emergencies?), and the third one is contingent on government policy (such as the federal law requiring hospitals to treat people regardless of their ability to pay). Again, this "limiting principle" encourages Congress to interfere in the economy as promiscuously as possible, thereby creating problems that justify further intervention. 

The president's lawyers, of course, picked these criteria because they fit the policy he wants to implement, not because they flow ineluctably from the power to "regulate commerce...among the several states." They are designed to be permissive, not restrictive. To come up with something better, you'd need to be genuinely concerned about the prospect of a federal government unmoored from its enumerated powers, and I doubt that danger keeps anyone in the Obama administration up at night.

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  • Obama 2012 Campaign Slogan||

    Fuck you, that's why.

  • Half of America||

    There's something almost all of us will need at some point, and we're not sure exactly when, but when we do other people will be forced to pick up the tab if we are unable or unwilling to pay.

    What part of GOVERNMENT-PROVIDED healthcare do you not understand?!

  • MSNBC viewer||

    Yeah!! What is this "tab" you speak of?? WHY CAN'T IT JUST BE FREE LIEK IT IS IN CANADIA?!?

  • Shorter MSNBC viewer||

    I want it so it's constitutional.

  • Smarter MSNBC viewer||

    Derp.

  • ||

    Reagan's former Solicitor General Charles Fried :


    “There is a limiting principle,” Fried said. “Congress can’t regulate something that isn’t interstate commerce.”

    At yesterday’s hearing, Kennedy suggested that it is beyond Congress’s authority to force people to purchase something they do not want. “Can you create commerce in order to regulate it?” Kennedy asked.

    Fried rejected the logic on display here. He said that under the mandate, Congress isn’t “creating commerce,” it's merely regulating how inevitable commerce will be paid for.

    “You’re not compelling commerce here,” Fried said. “That assumes the commerce is the insurance. But the commerce is the health care. You’re regulating how it’s paid for. They’re not creating commerce; they’re creating the way you pay for it.”
  • ||

    Continuing :

    In another potential threat to the law, Justice Alito argued that under the government’s theory ... the government could also force you to buy burial insurance, since everyone dies.

    But Fried rejected this logic of unlimited government power, too. He pointed out that the theory of the mandate also requires the absence of such a mandate to have a major impact on interstate commerce. That’s the case when many people don’t have health insurance in a world where insurance companies can’t discriminate against those with preexisting conditions. It’s not the case with burials or broccoli. In neither case does the absence of mandating those purchases have far reaching effects on interstate commerce.
  • ||

    An absence of an argument requires an argument, which can only be made when I'm absent.

  • Charlotte Corday||

    Fried long since became a liberal. The fact that he was once Reagan's SG means much less than you think it does.

  • ||

    Fried long since became a liberal. The fact that he was once Reagan's SG means much less than you think it does.

    Whether he is liberal or not makes no differene. Nor am I appealing to his authority. Just posting his point of view about limiting principles (since that what this thread is about).

    And if 5 / 9 Justices can come up with any limiting principle even on their own, the law will stand

  • Charlotte Corday||

    Of course you are appealing to authority, otherwise why bother to tell us what job he had 30 years ago.

  • _||

    Because Reagan really sells around here. Do you know what site you're on?

  • ||

    I'm baaacckk. Did you miss me?

  • Jeffersonian||

    Yes, but our aim is getting better.

  • thirtyandseven||

    It’s not the case with ... broccoli.


    ORLY?

    People who eat junk food instead of healthy stuff don't significantly affect the very market you seek to compel people into paying for in a particular way, Fried? Glad to know you singlehandedly solved obesity, fuckhead. Nice limiting principle.

  • thirtyandseven||

    absence of such a mandate to have a major impact on interstate commerce

    Ok Friedy, so since the market people who make bad food choices traffic in to receive care for their health is not interstate commerce, then Congress has no authority to regulate it, right? That's what you're saying, isn't it?

  • PatR||

    Fried is not making much sense here.

    He is trying to say insurance is not a commercial activity (completely idiotic, but for fun lets assume true) and just a means to pay for an inevitable commercial activity.

    If insurance is not commercial activity, as Fried argues, where does congress get the power to constantly regulate it (as it wouldn't be subject to the commerce clause)?

  • PatR||

    So... where would congress get off telling an insurance company what policies it would have to offer and to whom?

    Logical consistency. Fried does not have it.

  • adam||

    The financing argument is just laughably bad. They created it to respond to the activity/inactivity distinction, but it just doesn't work because it relies on this assumption that we're all going to need healthcare, we just don't know when or what exactly. Well, yeah, I guess most (not all) will need some kind healthcare, but we can certainly know won't need some types and we can predict when we'll need a good deal of it. That makes it all far apart.

  • ||

    So whats the minimum standard for having far reaching effects? I never heard of that one before. And it's a limiting principle that has no power, since its congress that determines what far reaching means.

    Obesity impacts health care in a far reaching way, therefore the commerce clause gives the government power to mandate that you do 4 hours of government approved exercise programs a week, or you pay extra taxes. If you ask the supporters of ACA what would prevent that they mostly just sputter and say its ridiculous to think that would be a possibility.

  • ||

    But the "problems" of health insurance companies being imperiled by their inability to discriminate against preexisting conditions and freeloaders at the emergency room were created by congress itself. If either of those laws were repealed or modified, the so-called constitutional justification you're positing would fall away. Congress can't grant intself previously unimaginable power simply by creating problems and then "solving" them. Moreover, the fact that Fried worked for Reagan doesn't make his flawed opinion dispositive any more than the oft-touted fact that someone at the Heritage Foundation dreamed up the individual mandate makes that mandate constitutional.

  • adam||

    I will never ever in my entire life buy contraceptives. The mandate makes me buy them because it makes me buy a health plan that includes them. So, please explain again how this is just "regulating how it's paid for" and "not compelling commerce?"

  • Charles Fried||

    Because STFU, that's why.

  • cynical||

    The vast majority of direct healthcare provision is intrastate (local, in fact), unlike, say, wheat or weed. So, not really a valid grounds unless, like most people, you just arbitrarily drop the I from ICC.

  • ||

    Reagan's former Solicitor General Charles Fried

    WHAT?!?!

    Well shit if he said it i am going to have to completely change my views on this whole thing now.

    Thank you Tom, I can now fully support Obamacare for all its awesomeness now.

  • Brian||

    Health insurance is a product that provides risk management, not a simple method for paying for healthcare.

    You can't just jump from the assumption that everyone needs health care, to the inference that everyone is participating in a health insurance market, whether they're purchasing or not. So, no, you can't claim that health insurance is inevitable commerce.

    At the point that your regulation of a market, and how people pay for the goods in that market, requires you to force people to purchase a distinct product in another market, and this includes everyone breathing, it seems clear that you've gone too far,and you're creating your own problems.

  • ||

    Excellent points, Brian. The fact is not everyone uses healthcare. It is an inaccurate assumption. I have met several older people from rural areas that bring their grandchildren to my office to be seen. These old farmers and ranchers laugh to me, "The last time I saw a doctor was WWII and the next one will be the mortician." And there are a lot more of these people than are being represented in the comments I hear in the media. NOT EVERYONE CHOOSES TO BE A PART OF THE HEALTHCARE SYSTEM.

  • ||

    Verrilli's an embarrassment.

    Good lord, if you don't have your limiting principle down pat, so you can bark it out without making a total hash of it, you have no business arguing to SCOTUS.

  • ||

    Do you get the impression that he really, really, really doesn't believe in his position? I mean, he can't be this weak and be SG.

  • Charlotte Corday||

    Yes he can. His an appointed political hack. That doesn't mean he actually knows what he is doing. Most SG's have. But this is the Obama administration.

  • ||

    I guess, but I'm still surprised. The SG is a very key position. At least, if you want courts to rule in favor of your arguments.

  • adam||

    He's actually one of the most respected SC advocates in the bar. He was big time in the private bar before he went into the administration. He definitely had a bad day, but he knows what he's doing.

  • ||

    Maybe he's a closet libertarian (or conservative) and secretly wants it to fail.

  • Rob||

    I'm pleasantly surprised to see that this law might have a decent chance to go down in flames like Mary Stack's anonymity.

  • _||

    ^This. Exactly what I was thinking.

  • ||

    Agreed, adam. It is such a ridiculous position that mandating health insurance falls under the commerce clause that he was essentially having to argue 2plus2 is 5. It was a tough position to be in and he didn't handle it well. I am sure he is a good attorney in other circumstances.

  • thirtyandseven||

    I think it has more to do with the fact that he really really wants it to be true than that he actually believes it's true. He, like the statist four on the SC, know full well it's unconstitutional, but then, the objective isn't really adhering to the Constitution anyway, so much as it is getting stuff they want while still pretending to adhere to it with just convincingly enough to keep the public apathetic(doesn't take much).

  • ||

    "statist four"?

    How about the statist 8 and 3/4?

  • thirtyandseven||

    Yeah, but at least the other 5 put forth varying levels of effort to adhere to the constitutional principles of limited government on occasion. Breyer, Kagan, Sotomayor and Ginsburg are rubber stamps for the government Top Men every time.

  • thirtyandseven||

    ^^ or maybe they just accidentally stumble into a decent holding every now and then. Whatever the case, they aren't guaranteed stupid, just somewhat probable stupid.

  • ||

    Take Heller.

    Did Scalia write a brilliant opinion, consistent with first principles?

    Of course not. An opinion faithful to first principles would never cede to such communistic clap trap like the RTKBA is subject to government regulation.

    Last I checked, the language of the 2nd Amd. does not admit of any exceptions.

  • thirtyandseven||

    Agreed, but it moved us in the right direction. To me, that at least counts for something when compared with Breyer, Kagan, Sotomayor and Ginsburg's dissents.

  • Jeffersonian||

    To be fair, he's probably a smart guy with a tiny shred of integrity left in him, and is thus almost physically repulsed by the utter gibberish he's being paid to spout in front of people who certainly know it's gibberish.

  • Fantasy Verrilli||

    You're out of order! They're out of order! I'm out of order!

  • Jeffersonian||

    I can totally see Pacino growing a stupid moustache and playing Verilli in the movie.

  • ||

    That would be so awesome.

  • ||

    The problem is that there is no legitimate limiting principle. Nobody has actually expressed a limiting principle that actually limits anything in any meaningful way. You try spewing nonsense to 5 very sharp judges and see how long it takes to get you look like an idiot.

  • ||

    Also, the modern interpretation of the commerce clause is very treacherous ground due to it being a logically incoherent mess. It doesn't take much to expose its fundamental stupidity; the only response most ICC fans have is to jibber something about 'modern industrial societies' and that we had better just bow to the authority of the justices.

  • MJ||

    I don't think a representative of the Obama Administration can argue a sensible limiting principle because, at bottom, they do not think there should be one.

  • ||

    He couldn't bark it out for a very good reason- it is an argument that can't actually be made. One does get the feeling he was deeply embarrassed at having try to make an illogical argument in such a public forum. An honest person who supports the mandate would just get up and say that there is no limiting principle because Congress can define commercial activity any way it pleases.

  • ||

    “You’re not compelling commerce here,” Fried said. “That assumes the commerce is the insurance.

    So, he is arguing that insurance is not the interstate commerce that Congress is regulating here. Rather, Congress is regulating health care itself.

    Which is a funny thing to say about a law that doesn't actually regulate health care, but only health insurance.

    But the commerce is the health care. You’re regulating how it’s paid for.

    So which is it? Are you regulating health care, or are you regulating how its paid for?

    They’re not creating commerce; they’re creating the way you pay for it.”

    So, creating the way you pay for something isn't creating commerce?

    Somebody buy this man a dictionary.

  • ||

    The words "intentionally disingenuous" keep coming to mind.

  • Michael S. Langston||

    Or non-intentionally anxious from non-belief.

  • Jeffersonian||

    It's a hall of mirrors, ain't it?

  • ||

    So, creating the way you pay for something isn't creating commerce?

    Are they "creating the way you pay for something" or are they regulating the way you pay for something?

    Does that distinction even matter?

    I tend to think it does, but i do see the slope as quite slippery

  • Jeffersonian||

    So they can't make you buy a cell phone or broccoli, but they can make you buy cell phone and broccoli insurance.

  • ||

    Fried says :

    But Fried rejected this logic of unlimited government power, too. He pointed out that the theory of the mandate also requires the absence of such a mandate to have a major impact on interstate commerce. That’s the case when many people don’t have health insurance in a world where insurance companies can’t discriminate against those with preexisting conditions. It’s not the case with burials or broccoli. In neither case does the absence of mandating those purchases have far reaching effects on interstate commerce.

    Fried boiled down his limiting principle this way. Even in a world with an individual mandate, “Congress cannot mandate a mode of provision for payment when there’s no claim and no showing that without the mandate, there will be a substantial effect for interstate commerce.”

  • Jeffersonian||

    Yeah, I saw that. It's a distinction without a difference. All you need is a fast-talking lawyer, a few like-minded SCOTUS Justices like Ginsburg and Kagan and before you know it, you're sending in your monthly veggie insurance check.

  • ||

    I would be against veggie insurance but I would like to have smart, selfless, well-meaning bureaucrats put cameras in everyone's kitchen to make sure we buy, properly prepare and eat our veggies.

    We could even have high ranking members of the Politburo supervise us to make sure we come to the city center for morning calisthenics. Maybe Michelle Obama could be in charge of this.

    Then we build a statue of The One and we can worship our dear leader. So stop complaining, they just want what is best for us all

  • Charlotte Corday||

    Not having something, be that a phone for emergency, a gun for national defense, or whatever, most definitely "affects" interstate commerce, if for no other reason than your not buying it, means less demand.

    Fried is full of shit.

  • ||

    Chicago Tom, its not as if Fried is actually saying something that is credible.

    He is an Ivy hack. Pal of William H. Weld who appointed Fried to the SJC (the supreme court of Massachusetts).

    He does not bring anything particularly interesting to the table.

    Its not as if he applied the constitution as understood by the ratifiers.

    Its not as if he penned great opinions reaffirming first principles.

  • ||

    How can Fried exclude burials? If no one can afford to be buried then the whole country is going to stack up with dead people, isn't it? Same with broccoli. Enough people don't eat it, what will happen to the interstate commerce of it? Hundreds of broccoli farmers going bankrupt would effect the economy, wouldn't it?

    Yep, the word "limiting" doesn't mean what he thinks it means.

  • ||

    Just another effete Ivy hack.

  • Michael S. Langston||

    So..... Since the government hasn't yet mandated broccoli, and in doing so screwed up the market, they cannot regulate it.

    But if like healthcare, they were to pass a series of idiotic laws, which screwed everything up, then the fact it is all screwed up would be used as reasoning for requiring further regulation.

    Um... Ok.

  • ||

    Fried is retarded. He's defining the relevant market as broadly as possible ("healthcare", rather than health insurance) when it's convenient to his argument, but as narrowly as possible ("broccoli" or "burritos", rather than food) when it's inconvenient to his argument.

    We've been over this. The whole "but healthcare is SPESHUL" argument doesn't pass the giggle test.

  • ||

    Hope Kennedy's not equally retarded.

  • adam||

    They can just include broccoli as a minimum essential benefit.

  • ||

    CT, by forcing you to buy insurance, they are "creating" commerce in the form of your purchase of insurance. They can call this "regulating"the way you pay, but it is still creating via fiat your commerce with the insurance company.

    Buying insurance isn't paying for health care. It's paying for insurance, which may or may not pay for health care. Some. Of the insurance you buy (OB coverage for men) will never pay for health care.

  • Prediction||

    Some VIP will utter "What do we MEAN by 'health'? "What do we MEAN by 'care'? "What do we MEAN by 'insurance'?"

    We are so screwed.

  • Founding Fathers||

    Jesus H. Christ on a cracker, how did this even get to be an argument that the federal government has authority remotely approaching this level?

    We've been discussing it amongst ourselves, and we're all glad we're worm food.

  • ||

    You know, this is your fault. We needed more checks and balances. You guys all read plenty of classical sources--why no censor?

    Also, might've helped if you had gotten rid of slavery.

  • Suki||

    This is not a balances issue, it is a who writes the checks issue.

  • ||

    I think that's me.

  • we||

    The "comprehensive scheme" argument is dead-on under current precedent. It's just the way it is. If you want to change it, you have to overturn Wickard and Raich.

    "Necessary and proper," by the dictates of logic, means something more than, and additive to, the interstate-commerce power simpliciter. If each and every divisible provision of the law has to stand -- on its own and in total isolation -- under the interstate-commerce clause, then necessary-and-proper adds nothing and means nothing. Necessary-and-proper becomes pure surplusage.

    That's the fatal flaw in the broccoli hypo -- a truly analogous broccoli hypo would have to posit a situation in which there is a comprehensive regulatory scheme on broccoli that would create a massive free-rider problem without the broccoli mandate.

  • MJGreen||

    And that's Sullum's question: Can't Congress create a comprehensive regulatory scheme and then a broccoli mandate?

  • we||

    Yeah, I think it could, assuming the comprehensive scheme was wholly legit, and the broccoli mandate was truly necessary to it, and the legislation did not run afoul of some other limitation, like due-process liberty or privacy.

    Viz., a requirement that every American household maintain an cache of seeds, including broccoli seeds, as part of a hedge against food-supply disruption under circumstances in which such disruptions were a real possibility.

  • cynical||

    But the original seed store legislation would have to be justified by the fact that the broccoli market is largely interstate in nature (such that even non-interstate commerce should be lumped in as having an aggregate impact on the interstate market). That isn't the case for most healthcare, excluding pharmaceuticals.

  • ||

    Not sure about broccoli, but dairy, beef, and pork production are all rife with government regulation. Couldn't govt mandate that you buy those?

  • we||

    What would a mandate in such food products be "necessary and proper" for? The medical insurance individual mandate is necessary and proper to a free-rider problem. Even its opponents acknowledge that. What about beef or dairy is comparable?

  • Campinginyourpark||

    I'll trade you some food stamps for some good green

  • MJ||

    The free-rider problem is largely one the government has created by the mandates on insurers. The government is claiming authority to compel consumers into purchases because government policy breaks the market. The reason the Leftist controlled government did this is because they believe universal coverage is the most important goal. Any other sector where the Left has established that as a goal could be comparable as it requires destroying how the market normally functions.

  • Joe M||

    Notice that Verrilli implicitly accepts his opponents' activity/inactivity distinction, saying a person's failure to buy health insurance only looks like inactivity;

    The difference between activity and inactivity is hard to figure out, if you think about it.

  • Quickdraw McGraw||

    I'll do the thinnin' around here!

  • shrike||

    Britain Deserves Better

  • ||

    and the third one is contingent on government policy (such as the federal law requiring hospitals to treat people regardless of their ability to pay).

    This argument I love--hospitals have to treat everybody who comes in, and if they don't have insurance, that's detrimental. So we need the insurance mandate. QED

    It's like, Congress has already f-ed up the market, so the solution is f-ing it up even more with Obamacare.

  • we||

    Congress has the prerogative of "f-ing up the market" viz. having political-economic priorities that are different from your political-economic priorities.

    And if an individual mandate is "necessary and proper" to serving Congress's chosen priorities -- such as keeping ERs open to all critical cases -- there is no constiuttion-based objection to that, however much you disdain the priorities congress has chosen.

  • Alito to himself||

    "I ask for succinct, and you give me word-vomit soup."

  • Donald Verrilli||

    Wait til you hear the extended version.

    It's 2,163,744 words long.

  • ||

    So Alito is the Roxane to Verrilli's Christian?

  • nicole||

    Between the whole "we're only regulating the financing mechanism!" argument and the overarching redefinition of insurance to mean "prepaid health care," I wish someone (Scalia) would ask the SG if everyone could be compelled to buy college-style meal plans for life.

  • Night Elf Mohawk||

    How in the hell does health care, qua healthcare, substantially impact interstate commerce, then? What percentage of health care dollars are spent by people crossing state lines? I've never spent a fucking penny outside of Texas on health care.

  • ||

    "The pill that you took the other day was made outside of your State."

    I kid you not that I read that in the comments on another site today. The human race is simply too stupid to live.

  • Tony||

    Whatever you make think of government's stake in commerce, the fact is that its commerce clause powers are expansive and this court has ruled it such, in cases even I see dubiousness. There is no question that healthcare is interstate commerce based on how that's been defined by this court and its predecessors.

  • Night Elf Mohawk||

    Tell me how that is. What's interstate about it?

  • Mr. FIFY||

    You're arguing with someone who thinks Team Blue should *have* no limits, Elf.

  • Tony||

    What's interstate about growing weed in your back yard for personal use only? Ask this court.

  • Jeffersonian||

    Do you think you're going to get an argument about that here?

    Wickard has to be overturned. Period.

  • Tony||

    But healthcare is so far on the other side of the spectrum of forms of commerce that are described by the courts as interstate.

  • wef||

    Congress can regulate the method of payment by imposing an insurance requirement in advance of the time in which the—the service is consumed....

    A pre-payment then? Not insurance. Verrilli fumbles, mixing prepayment with the risk-pooling aspect:

    the service is consumed when the class to which that requirement applies either is or virtually most certain to be in that market when the timing of one's entry into that market and what you will need when you enter that market is uncertain and when—when you will get the care in that market, whether you can afford to pay for it or not and shift costs to other market participants.

    Timing of market entry unknown, but not enough - has to add risk to justify forced pooling. But who's risk? Your own risk would be the cost of the event and its probability. The government’s risk is your solvency. What a mess of an argument!

  • ||

    I am wondering if the leftist judges will not write their own decent or ruling rather then using the Solicitor's argument.

    Cuz they are really so very very bad.

    I think Tony has made a better case for Obamacare here then the US government has in court.

  • thirtyandseven||

    or their own dissent, even.

  • ||

    It is just painful to listen to Ruthie and Sota girl.

    How can such demonstrably inarticulate people ever be taken seriously.

    Ah, the marvels of affirmative action.

  • mike||

    lost in all of this is that there is no obligation for you to pay your medical bill via an insurance policy, cash works too.

  • Appalachian Australian||

    You can't! Health care is too expensive to pay with cash.

  • brec||

    There's something almost all of us will need at some point... [my emphasis]

    Outside of H&R comments, has anyone seen substantive remarks in widely-distributed media on how thin this "probabilistic" argument is? E.g., the old, healthy, rural coots who never go to the doctor and die at home; the young person who's hit by a truck; etc.

  • ||

    Considering that most insurance contracts have a one year term, I suspect the percentage of people who will not use that insurance at all. After being forced to buy it is not de minimis.

  • Tony||

    Ginsburg and Kennedy had different ideas of what the conservative route is, but normal people and Scalia have different definitions of the word. Can we not refer to the "conservatives" on the court as what they are: radical antigovernment ideologues? Scalia questioned the idea of people getting emergency care without regard to ability to pay.

    Is that what you guys want? A world in which people are shaken down for insurance cards or lavish check accounts before they're treated for cardiac arrest? If so, fuck you. If not, how do you make people take responsibility for their own costs without building many large debtors prisons?

  • Tony||

    And before someone jumps on the idea of herding uninsured patients into prison--more importantly, how do you justify the costs placed on others?

  • ||

    A world in which people are shaken down for insurance cards or lavish check accounts before they're treated for cardiac arrest?

    Perhaps you could point to evidence of this happening before the existence of Medicare, Medicade, and the ER must-treat laws. America was around for 150 years before they were.

  • Tony||

    Are you referring to the time before modern medicine existed?

  • adam||

    EMTALA was enacted in 1986. Hardly the dark ages.

  • Tony||

    Which was enacted to combat the problem. Regardless of how widespread access to healthcare supposedly was pre-mandates, Americans expect medical care when they need it. They have every right to, if they want to pay for it.

  • Colonel Beauregard||

    What this American expects is a passel of negroes to pick his cotton without a lotta kickin' and fightin'. I figger if we can force doctors, nurses, orderlies 'n' such to work for free, we can get Eustus and Sadie back to the field to work for me at the same price.

  • Libertarian, transg., bisexual||

    Shaken down for insurance cards? You mean like Quebec, where you die if you show up in the E.R. and don't have your Medicare card on you?

  • Mr. FIFY||

    Shit, Tony, did you hear Ruth Bader's fucked-up view of Wickard? She should be ashamed of her ignorance on that crucial case.

  • Jeffersonian||

    Scalia questioned the idea of people getting emergency care without regard to ability to pay. Is that what you guys want?

    Yes. It's the world we had prior to EMTALA, and it worked a lot better than what we have now.

  • ||

    without building many large debtors prisons?

    People declare bankruptcy everyday...

    Why suddenly would it be so very very different if they do it over medical bills?

    Someone goes bankrupt because they bought a house they could not afford...no one cares.

    Someone goes broke because they smoked 3 packs a cigarettes a day and scarfed bacon for every meal had heart attack and did not buy health insurance...

    "HOLY SHIT WE NEED TO TURN FUCKING WORLD UPSIDE DOWN!!!!"

    Does not make sense.

    And it does not make us the monsters that you claim.

  • Tony||

    And the limiting principle is that healthcare as a market is unique, and unique in a way that necessitates the mandate. Not that I prefer the mandate model over something far superior like single-payer, which ironically will be the only option left if the court strikes the ACA down.

  • ||

    Tony, the "uniqueness" argument is a non-argument. Everything is unique in its own way.

  • Tony||

    A triple tautology, impressive.

    To expand, it's unique because, unlike other markets, its costs are borne inevitably but unpredictably, and often catastrophically. Name another market that is like that and I'll see if I think a similar mandate ought to exist in it or if there is an argument for a more specific definition of uniqueness for healthcare.

  • adam||

    Pretty much every insurance market is like that. That's kind of the idea of insurance- to pay for unpredictable, but catastrophic costs. I don't really think catastrophic health care costs are inevitable though. Certainly many, maybe even most, but not all people will incur them. Life insurance certainly operates with an inevitable event.

  • Tony||

    Yes the economically successful free-market insurance model is the model for national healthcare, precisely because of the nature of the underlying market as described. It works as a business, and insured people gain economic security. The only problem we're addressing is uninsured people. If you believing access to some economic activity is a right, some government support is required, just as in education and other spheres.

    But you're talking about young people. The probability of catastrophic costs increases significantly with age. That's why the elderly are uninsurable in a private system, and why totally government subsidized programs must and do exist for them.

  • ||

    Can you articulate what the health insurance market would look like if removed from it were all the regulations that force insurers to pay for things like contraception, viagra, boob jobs, etc.? Insurance is for protection from catastrophic events yet we pay to protect people from having to buy their own birth control pills, etc. It's the elephant in the room that the left just seems to ignore and/or inserts [garden variety emotional argument] to muck up the logic.

  • Jeffersonian||

    Precisely. This is a way to blow yet another hole into the Constitution under some phony "uniqueness" standard that, as we all know, will become quite quotidian as more and more areas of the economy are deemed "unique" when the Left sets its eye on them.

  • Tony||

    I have no problem with people using their government to solve social problems. Yeah it needs checks and balances, but nowhere is it written that people ought to be ruled by the outcomes of the free market. I don't worship in your church.

  • ||

    At this point i should point out that catastrophic health care insurance is pretty damn cheap.

    Its all the other bullshit Obamacare forces you to buy that costs so much.

  • Tony||

    Not to suggest that I think applying this kind of limiting principle is the court's business either. Maybe government can force you to buy broccoli under the Commerce Clause. Maybe not. Let the states sue in case that ever happens in a million years. Don't see how it's relevant, except as an extralegal precautionary philosophy. The Scalias are treating it instead as a slippery slope justification for their judgment.

  • Mr. FIFY||

    That's because it IS a slippery slope... but you're fine with that, as you've stated more than once.

  • Tony||

    The democratic will of the people, assuming we can approximate that in governance as best we can, should be deferred to in deciding its own interests. The government ideally is the tool of the people to protect their interests against threats. Its power should be limited for the purposes of protecting those interests. That doesn't necessarily mean limiting its scope over commerce as much as possible.

    Let the people through Congress decide if they want broccoli consumption regulated unless that freedom should for some reason be restricted before they are even given the option.

  • Tony||

    I doubt you want to limit government's power with regard to national defense one bit. It's power is sometimes the point.

  • Brandon||

    Most of us would limit it far short of what it currently thinks it can do in regards to national defense.

  • Tony||

    But you wouldn't limit it to being unable to defend the country. That's still a lot of real violent power, and that power is the entire point. Why does that not apply in sectors that aren't about blowing people up?

  • Libertarian, transg., bisexual||

    I'm one of those crazy anti-war type of people, so I think the government needs far more limitations on the people it blows up.

    A workable model for me would be national defense taken care of by state militias with much less power concentrated in the federal executive branch or Congress, and the state militias restricted to actually defending their own states, as opposed to waging war in far-away lands.

  • Tony||

    Yikes. Better hope every other country in the world has the same respect for American federalism.

  • ||

    Why does that not apply in sectors that aren't about blowing people up?

    Cuz for the entirety of human history people have been extinguishing whole nations.

    You cannot name one nation that fell because they ate sprouts rather then broccoli.

  • Hyphenated American||

    Tony - let's do that to all government responsibilities mentionned in the Constitution. But you know what - forcing people to buy medical insurance ain't there.

  • Libertarian, transg., bisexual||

    Heck yes the federal government's power with regard to national "defense" should be limited.

  • Hyphenated American||

    Tony, it's funny that national defense is mentionned in the Consitution as one of the core responsibilities of the federal government. Forcing people to buy medical insurance? Not so much.

  • Libertarian, transg., bisexual||

    70% of California voters voted to deny same-sex couples the right to marry.

    How's that democratic process working out for you, Tony?

  • ||

    This is one of those exercises of the will of the people that is not good, so that's not good. Apparently Tony gets to decide this.

  • juris imprudent||

    The federal govt was not given a plenary police power, therefore it cannot just do what the people want - until the people pass an amendment to the Constitution that does that. You petty tyrants always gloss over that part.

  • Jeffersonian||

    Then "the democratic will of the people" can fucking well draft a constitutional amendment to permit such federal powers. Not until then.

  • Tony||

    If they must. Good thing we don't live under the constitution in your head.

  • MJ||

    With the procedural shenanagins the Dems used to force this thing through, one should be embarrassed to claim that Obamacare was the "will of the people".

    Again, in the end, Tony shows that he is for totalitarianism as he does not believe there is anything Congress should be restricted from imposing on the nation.

  • ||

    I believe the majority of people have made it very clear that they don't want this law. So if that's the only test, then why are we even having this conversation? I dare you to posit that "well, congress voted for it".

  • Jeffersonian||

    That's because it IS a slippery slope

    It's not a slippery slope if the principle being articulated puts you at the bottom of said slope.

  • juris imprudent||

    Some people aren't concerned about paving the road to hell, others what to build a bobsled track.

  • adam||

    The court is in the business of coming up with interpretive limiting principles. It does this for all areas of the constitution- that's what constitutional doctrine is all about.

  • ||

    good god almighty, he is not serious. he is just trying to push button. There is no way a grown up actually thinks like Tony.

  • ||

    Heck yeah man, lets do this lol.

    www.Anon-Works.tk

  • ||

    1) Congress creates a "comprehensive scheme" and finds that people are behaving in ways that interfere with it.

    This is exactly the defense they used. Jonathon Chait, in his latest column in The New Yorker reiterated precisely this argument. Indeed, Sullum is correct- if you want to justify an intervention, all you need do is to interfere beforehand as much as you need to to create the conditions that satisfy the intervention in question. This is no limit at all.

  • ||

    Scalia called it a "self created problem" - this should deem it as having no limiting principle in and of itself.

  • ||

    If the mandate was passed based on the unlimited assumptions of its power by liberals, the rest of the Constitution, basically, becomes as vestigial as an appendix.

  • ||

    Today, the left argues that limiting principles are not necessary, and that this is all about the "democratic process", as they choose to see it. The right decries this as an expansion of federal power that will destroy the nation.

    Tomorrow, the right passes laws using this same power and proves their original point, even as they abandon said argument. The left takes up the mantle instead, and the Kabuki theater that centralizes power in the federal government goes on.

    A few questions for both left and right: When enough power has centralized, and the executive is able to abandon democratic principles once and for all, will your favorite political party be the one in power? Will they care about placating you any more? Or in the more immediate future, what would the OTHER side do with the power you wish to cede to them?

  • ||

    Stop making sense, it scares people. The politikal class counts on us having these useless partisan dog fights, intellectual militias if you will, so they can go about the business of buying and selling their influence. The entire incentive structure needs to be dismantled, starting with term limits.

  • ||

    Voice in medicine cabinet:
    If you feel you are not properly sedated, call 348-844 immediately. Failure to do so may result in prosecution for criminal drug evasion.

    Quote from THX 1138 or Obama Care?

  • Masturbatin' Pete||

    Is it just me, or does Verrilli look like he should be demanding pictures of Spiderman?

  • ||

    In order for the mandate to be constitutional, you'd have to call it a healthcare tax, print out vouchers equal to the amount paid in taxes, send these vouchers back to the taxpayers, allow private companies to accept them, which are then mailed back to the gov't and redeemed for the original tax money paid. Thus, civil liberties are preserved.

  • ||

    1) Congress creates a "comprehensive scheme" and finds that people are behaving in ways that interfere with it.

    Isn't that what civil rights legislation was intended to remedy? Personally, I never understood how court-mandated opinion could be considered constitutional.

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