Constitutional Law

The Health Care Bill and the Courts

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Writing in yesterday's Washington Post, Georgetown law professor Randy Barnett surveyed the various legal challenges that the health care bill is likely to face. Here's his take on the constitutionality of the individual mandate under the Commerce Clause, which may be the strongest of the various challenges:

[T]he Supreme Court has long allowed Congress to regulate and prohibit all sorts of "economic" activities that are not, strictly speaking, commerce. The key is that those activities substantially affect interstate commerce, and that's how the court would probably view the regulation of health insurance.

But the individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying "cash for clunkers" is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.

If you choose to drive a car, then maybe you can be made to buy insurance against the possibility of inflicting harm on others. But making you buy insurance merely because you are alive is a claim of power from which many Americans instinctively shrink. Senate Republicans made this objection, and it was defeated on a party-line vote, but it will return.

Read the whole thing here. I discuss health care and the Commerce Clause here.

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  1. All I want to know is: do I get to punch obese people if I see them eating ice cream or a cheeseburger. Since, you know, I’m paying for them to get Diabeetus treatments.

    1. So THAT’S how you spell “diabetes” in Wilford-Brimleyese. Thanks!

      1. . . . Diabeetus testin’ supplies! LOL

    2. Total cholesterol under 160, Blood sugars well within normal ranges.

      Be prepared to take one to the balls if you take a swing.

      1. his balls are long gone;-)

    3. There were many problems that were faced by the Obama administration during the starting stages of the health care bill itself. Many objections came from quite different sectors.The rules have to be bend for a good cause. The bill would enable internal medicine jobs to all the people. After so much debate and confusions its great to see the bill has come out.

    4. Obama administration had to face many challenges to make the health care reform bill. The bill would enable normal people as well as aged people who are in Fallen and I can’t get up alone stages. It was really a great task by Obama to convince the court the opposition and every other for the bill to be bought out. I congratulate the President for this great achievement.

  2. One last branch stands between us and a real disaster. Hope they’re up to it.

    If this bill is allowed to stand, then there is no such thing as limited government in this country any longer. And, I fear, this bill will seem like something crafted by free market radicals when the Democrats start passing even crazier legislation

    1. “One last branch stands between us and a real disaster. Hope they’re up to it.”

      Haha. Ahahahaha. Bwahahahahah. That’s a good one. Eight of our nine justices spend most of their time with their heads so far up their asses that they’ll never need to get a colonoscopy. You’re expecting what from them?

      1. It’s a dim hope. In fact, it’s less a hope than a prayer.

  3. Exactly.

    Why not a law requiring all Americans to buy a cell phone? Or maybe a computer? Or a gun? Require everyone to purchase – and read – at least one book per month. I mean, after all, it’s for the general public good and betterment if people would read more. And we need to support our slowing printing industry.

    1. Or force each of us to buy both of Obama’s books?

    2. Or better yet, why not require everyone to get a yearly blood test for diabetes and such at their own expense? The lack of early detection of such diseases costs us a fortune. If they can make you buy health insurance, they can make you buy anything.

    3. Or better yet, why not require everyone to get a yearly blood test for diabetes and such at their own expense? The lack of early detection of such diseases costs us a fortune. If they can make you buy health insurance, they can make you buy anything.

      1. Costs who a fortune?

        I hate people who insert me into their collective fantasy. Now if you’re talking about you and the other people in your insurance pool, then I have no problem how you intend to incentivize or coerce them into paying for each other’s preventative care.

        1. oops, I mean collectivist

        2. It was a rhetorical device. I don’t disagree with you. But the “it costs us a fortune” is how your typical bully state politician looks at it.

          1. I figured it was. “it costs us a fortune” is why the private sector created insurance. The “bullies” didn’t like those financial nerds having all that money and power, so you got every level of government regulating it and eventually Obamacare.

            It only took them 45 years, but they’ve finally nationalized health insurance! I don’t know about you, but I’m going to love the higher premiums and longer wait times for reduced care!

          2. “”But the “it costs us a fortune” is how your typical bully state politician looks at it.””

            That was the states view on the Real ID Act.

            And to back your point.

            http://news.yahoo.com/s/nm/201…..are_states

            “States are concerned the burden of providing healthcare will fall on them without enough federal support.”

    4. How about a law making all americans stay in their country and shut the fuck up.
      Stop sniffeling you tossers!

  4. And if all fines can be thought of as taxes, we can also toss due process out the window.

  5. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company.

    No problem. HERE COME DA PUBLIK OPTION!

    1. You know, Sweden has tall hot blondes and Ikea. I bet its because of their awesome free healthcare. We should have free healthcare too!

      1. Can I just have a tall hot blonde instead?

        1. They’re bad for your heart.

          1. Not a problem. According to my ex I have no heart.

  6. This constitutional objection seems to have succeeded, as House leaders decided on Saturday to take a separate vote on the Senate version, rather than “deeming” it passed.

    Nah. The House leaders found they had the votes to pass it without “deem and pass”. If “deem and pass” was the only way to get the bill passed, they would have done it.

    This was about political pragmatism — about trying to avoid losing members in November — not about Nancy “Are You Serious” Pelosi caring about following the Constitution.

    1. You are right. They only dropped the “deem & pass” when it was hurting the vote count more than it was helping.

    2. The Constitutional objection still succeeded then, in the minds of the swing voters, or at least the Democrats were convinced it would.

  7. “But the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented.”

    Isn’t regulation of mere possession of something regardless of how that thing was obtained also regulation of economic inactivity? Alternatively, given the EPA’s excuses for regulation of CO2, isn’t breathing economic activity?

    Never underestimate the willingness of the Supreme Court to go head-spelunking in deep, dark, familiar places in order to find justifications for the constitutionality of Congress’s regulation of any facet of your life.

  8. This is our best case scenario, then:

    (1) SCOTUS throws out the mandate.

    (2) No more revenue from the fines for not buying insurance. The deficit grows.

    (3) No more new premium revenue for insurance companies to offset the cost of the new coverage mandates and ban on pre-existing conditions. The insurance companies collapse.

    I can see dawn breaking on the horizon, oh yeah.

    1. Pass the lube, we’re all going to get F%^&*d in the end.

    2. It is the pre existing coverage mandate that really fucks us. That is going to be a bitch to repeal. I know at least three different people who were all in ecstasy last night over “kids no longer being denied coverage for pre existing conditions”. I don’t have a lot of faith that those people will ever be smart enough to understand the downsides of allowing people with pre-existing conditions to get insurance. And “don’t let the evil insurance companies deny coverage to sick people” is effective if completely ignorant rhetoric.

      1. It is the pre existing coverage mandate that really fucks us. That is going to be a bitch to repeal. I know at least three different people who were all in ecstasy last night over “kids no longer being denied coverage for pre existing conditions”. I don’t have a lot of faith that those people will ever be smart enough to understand the downsides of allowing people with pre-existing conditions to get insurance. And “don’t let the evil insurance companies deny coverage to sick people” is effective if completely ignorant rhetoric.

        Would they see the downside of denying auto, fire, life, and disability insurance due to pre-existing conditions?

      2. I think that the mandate to cover preexisting conditions requires us to stop calling this business health *insurance*.

  9. I thought the bill just provided a tax credit against an increased income tax, for those who had a qualifying insurance policy.

    1. no, there are fines to be collected by the IRS

    2. A lot of people would still under-insure themselves even though there was a tax-incentive. That’s how they monopolize the “qualifying insurance policy” market and make the whole thing “work”.

  10. No more new premium revenue for insurance companies to offset the cost of the new coverage mandates and ban on pre-existing conditions. The insurance companies collapse.

    Which will be “market failure” requiring single payer (or a bailout w/ the govt owning the insurance companies, which will be the same thing).

    1. I believe this to be the end-game goal. Insurance companies will inevitably fail requiring the government to step in and provide a single-payer. That’s what this has been about since the beginning.

  11. Let’s face it, when it comes to this Supreme Court, it’s not how five justices will rule. Rather, the question should be how will Justice Kennedy Rule?

  12. Mr. Barnett is wrong. I’m already forced to purchase many things I don’t want, and in just about every case I don’t even get the benefit of those purchases. In the last year I’ve bought and paid for guns for the military and used (clunker) cars. I did so because I’m a net taxpayer who paid substantial sums of income and sales taxes. To say the individual mandate is an “unprecedented” tax on breathing/life is incorrect. You try living without earning an income and without engaging in trade.

    1. Easy if you’re Anna Nicole Smith! (or were)

      And the homeless don’t seem to have trouble not paying taxes. Look how much they get for free!

    2. All these programs are unconstitutional! How can anyone justify sending tax payer funds to Israel or Egypt? When the people join their respective states and demand the accounting of how tax monies are used like the great state of Utah is doing then we will no longer have the government stealing our livelihood. When the States strike down the Federal Reserve and the illegal income tax scheme (IRS) then we can resduce the Federal Government to it’s foot print. Our States will protect us like they are supposed too. But the focus has to leave Washington DC and be placed back on our State Governments. We must demand they free themselves from Washington. We must stop taking the Bribe monies from Washington. This will lead to freedom and prosperity.

  13. people bring up auto insurance, that is a state mandate, not federal! states like New Hampshire do not require auto insurance.
    where is the due process? depriving us of our money in the form of forcing us to buy insurance or pay a penalty is a violation of the 5th amendment, among others.
    “No person shall be… deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

    1. also in states that require car insurance you can either choose not to drive a motor vehicle or use another form of transportation (bus, taxi, subway, bicycle, electric bicycle/tricycle, other vehicles that don’t require a license).

    2. “No person shall be… deprived of life, liberty, or property, without due process of law”

      Nice try, Hacha, but if the HCR circus is not “due process of law” I don’t know what is. 😉

      Anyway, Nancy said last night this would *increase* our liberty. 8-(

      1. Liberty is the name of a Oxford health plan. Maybe that’s what she means.

  14. “”””While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company.””

    Would that mean an attempt to privatize Social Security would be unconstitutional?

    1. That’s an excellent question. A lot of the talk was about possibly mandating some sort of private retirement account in place of the SS tax. Looking at it now, that would appear to be as unconstitutional as what it being forced on us today.

      That’ll teach us to try to compromise with Leviathan.

    2. Not if it was voluntary? Which may be the way the courts come down on this.

      It’s a tax that can be avoided by buying an approved health insurance policy.

      1. We’re so screwed. You can make bullshit anything if you don’t have the right fundamental appreciation for the concept of limited government. The Court has to dislike this or easily foreseeable future laws to take action against it. If they’re okay with the result, they’ll find legal reasoning to support it.

        1. We are talking about a court who has some alternate definition for the word infringed as written in the 2nd amendment.

      2. Ah, but the authors of the bill have gone to great lengths to claim this is “not a tax”.

      3. The individual mandate is voluntarty because you can alway pays a fine that is not a tax even though the Internal Revenue Service will collect the fine.

        You don’t need to be a lawyer to understand that.

        1. for many these fines are not only without due process but people who make money but can’t afford or don’t want insurance would be paying an excessive fine.
          8th Amendment:
          Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

      4. Interesting, J Sub. You should apply for a SCOTUS clerkship. That’s the kind of pettifogging logic chopping that judicial careers are made of.

        You can choose to pay the fine instead of buying health insurance.

        So, I guess:

        You can choose to go to jail instead of testifying in your own trial.

        You can choose to have your house demolished without compensation instead of accepting the developer’s offer.

        1. This story grows tiresome.

      5. “”I figured it was. “it costs us a fortune” is why the private sector created insurance. “”

        From the last I saw, the tax isn’t voluntary. You must pay the tax first, then you get the rebate for having insurance.

        The purpose of the tax is to make no more free rides, or as little as possible. That’s a personal responsibility issue, albeit by force. But since when were conservatives not for personal responsiblity, even by force? When it’s a democrat’s bill? I hate to say it but I can see both sides of the court liking it for different reasons.

        The concept that everyone will need health care in their lifetime so everyone should pay, might win.

        1. Wow, that was not what I expected in my clipboard.

          Ignore that in the quotes. I was referring to J Sub’s line I did not place in quotes.

        2. The purpose of the tax is to make no more free rides, or as little as possible.

          But the opportunity to free ride is also created in the bill, with the mandatory acceptance of pre-existing conditions.

          This is going to be a tough one for the Court – I think they’ll realize that if they sign off on this, the Commerce Clause will henceforth be a grant of plenary power. The only question is how many of them think that’s a bad idea. I’m not terribly optimistic.

        3. That’s a personal responsibility issue, albeit by force. But since when were conservatives not for personal responsiblity, even by force?

          Oh, there are plenty of definitely not-conservative libertarian economists who think that the individual mandate is the best part of the bill, or at the least something inseparable from the rest of the bill and needed if you have it.

  15. the Commerce Clause will henceforth be a grant of plenary power

    What’s this “henceforth” shit?

    1. Well, I’m with Mr. Dean. There are little bits and pieces of flotsam of the Commerce Clause left in the floodwaters that broke through it decades ago.

      On the other hand, I’m reminded of the ‘A’ I got in Constitutional Law, where I answered one of the ‘A’ generating questions operating under the premise that the Commerce Clause, does, in fact, have the effect of giving the federal government general police powers. As gutted interpreted by the courts, anyway.

    2. I dunno – he lost me there too…

  16. In addition to being unprecedented, it is illogical. Under the McCarran Ferguson Act, one cannot buy insurance issued in a state other than your home state. As such, one’s purchase of health insurance does not involve interstate commerce.

    1. I can’t buy pot across state lines either, but mere possession is interstate commerce. So, try again.

      1. But there is an interstate market for pot. Under Federal law, the market for insurance is intra-state. I am not saying this is a winner, just logic–something that should never be confused with constitutional law.

    2. That’s my point. The Supreme court previously ruled that insurance is NOT interstate commerce when it upheld McCarran Fergeson in allowing states to separately regulate insurance. So it can’t use the commerce clause to uphold this health care bill without overturning that ruling.

  17. I would love to see Obama out there enforcing this in person. Show up at people’s doorsteps who refuse to buy insurance.

    1. I would certainly hope that the Supreme Court would rule that the individual insurance mandate is unconstitionl.

      But if they don’t I think a back up option could present itself if the Republicans take back control of the House.

      As I understand it, all appropriations bills to spend money must originate in the House. If the Republicans control the House, they could simply refuse to appropriate the money necessary to fund the administration of the health care plan – particularly all the IRS agents that will be necessary to enforce the tax on those who don’t buy insurance.

      1. “they could simply refuse to appropriate the money necessary to fund the administration of the health care plan”

        That would take balls, the GOP doesn’t have a nutcracker like Nancy Pelosi.

        1. Maybe – maybe not.

          It a whole new crop of Republicans got elected who specifically ran on repealing the bill and doing anything they could to stop comes in there, I don’t see why they wouldn’t be willing force that kind of showdown.

      2. There is no reason why they should vote in favor of upholding the unconstitutional Obamacare. It is ridiculous to believe the government can make you buy anything. It’s even more ridiculous to believe that people not engaged in commerce are part of Interstate Commerce. But honestly in the end no matter what the Supreme Court decides Obamacare will prove itself to be of great use to all us Freedom and Liberty Loving Folks. It will bring the States closer to taking back their Tenth Amendment Rights. It will bring more people together. It will force people to look at their beliefs about this country and what freedom is. It will light the fire for more people to get involved and become educated about the Draconian State and the Draconian State Apparatus. It will help to separate the people from it’s ideological beliefs about America. It will force folks to see that the two party system represents nothing less then Taxation Without Representation because our leaders represent something else and it’s not us. That Democrats will find they are nothing other then the second head of the same beast that the Republicans are part of and that they actually serve the same master. At the end of the day this is all good. More education, more freedom and more reality will be on it’s way! Don’t forget it took years for the founders to finally rebel against the crown. It’s coming and they know it! The States are churning freedom. Fires of freedom and Liberty are burning all over this country. It’s all part of the process. They know it’s coming and they are scared. They should be.

    2. I would most certainly love to see him come to MY door, assuming that his secret-service posse stood even slightly back, and let him knock.

  18. My secret hope is that the supreme court will use the opportunity to overturn their previous ruling allowing states to separately regulate insurance, thereby striking down the legal barriers preventing interstate insurance sales.

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  20. How can the government force anyone to associate with anyone else, especially a private entity? This is part of individual freedom and privacy? The right to associate and not associate. The freedom to make your own choices or not to make choices. There is also the question of weather the congress actually can force citizens to buy anything from a private company or even a government entity? And how can Health Care be a part of interstate commerce if you are not involved with it? And if congress can actually do this where do we stop or better yet where does it end? Health care is not a right it’s a good. People are forced to buy car insurance because when you sign your drivers license you sign away your rights and agree to follow the States Motor Vehicle Laws. But there is no privilege in not wanting to purchase health care insurance? Nor are people who choose not to get health insurance involved in interstate commerce. So the Supreme Court may have their hands full with this one. We will have to see their creative writing and creative opinions which usually never rest in fact just political opinions. Lets not forget the great Kentucky and Virgina Resolves. Written respectively by James Madison and Thomas Jefferson.
    At the heart of the matter that there are three branches of government at the federal level that are supposed to balance the power but when they don’t there are the States too. And if the States feel that the Central Government has violated it’s compact then the states can Nullify an unconstitutional law weather the Supreme court finds it constitutional or not. Under the premise that if you allow the Federal Government to regulate itself you will find your lives controlled by the tyrants of the time to expand their powers to Kings and Dictators and the rights of man will mean nothing. Sound familiar yet?
    That the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offenses against the law of nations, and no other crimes, whatsoever; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people,” therefore the act of Congress, passed on the 14th day of July, 1798, and intituled “An Act in addition to the act intituled An Act for the punishment of certain crimes against the United States,” as also the act passed by them on the — day of June, 1798, intituled “An Act to punish frauds committed on the bank of the United States,” (and all their other acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution,) are altogether void, and of no force; and that the power to create, define, and punish such other crimes is reserved, and, of right, appertains solely and exclusively to the respective States, each within its own territory. Here we have the founders setting the limits of the great federal government. Protecting it’s people from what we had just liberated ourselves from Tyranny. This is the stuff they never commemorate the true patriotic acts like the Kentucky and Virgina Resolve. No they commemorate the illegal wars! The Wars we started. They commemorate and idealize the tyrants like Abraham Lincoln, Teddy Roosevelt, Woodrow Wilson and FDR. Turn them into Gods when they are nothing but Dictators and Tyrants.

  21. Hate to be the one to point this out, but Barnett doesn’t exactly have a good record of convincing the court on issues related to commerce clause overreach. Which is notable, because there are very very few lawyers who can say they have a track record at all. Maybe practice makes perfect, but he couldn’t even get Scalia.

    Now, I suspect that Scalia perhaps might dislike universal healthcare more than pot, so he may get a mulligan for that.

  22. Obama and the Dems did not do them selves any favors the way they treated the Supremes at the State Of the Union. I hope the Supremes remember.
    http://www.suckitupcrybaby.com

    1. Agreed they were rather disrespectful. Not that I hold the Supreme Court in high regard. They have help create this monster!

    2. Er, can’t tell if you’re replying to me, but it looks like it.

      Ain’t nobody wearing my skin crying. I’m pointing out that, much as I think Randy’s a good guy, he’s really reaching for straws, and, much as I wish Raich came out the other way, it didn’t.

      But again, I do think it entirely possible that Scalia would prefer hypothetical future-hippies without state healthcare to non-hypothetical non-hippies with, so, that might make it 5-4. (Sotormayor isn’t going to change anything on this one, and even if you assume the rumours about the Real Liberal Of The Court, the idea Obama would fuck up a nomination who would vote against something this big that he has so much on the line for is fantasy.)

  23. I have said it, but it bears repeating: if the individual mandate is not found unconstitutional, you may as well pack it in – there will be nothing the federal government cannot do. A finding that the Commerce Clause encompasses economic inactivity will have the legal and practical effect of swallowing the rest of the Constitution.

    1. Dude, it has already been found that the CC emcompasses growing plants for your own use.

      I think Randy’s in fantasy land – Scalia has basically already found that economic inactivity is covered. His concurrance laid out that he was trying to keep a niche left:

      ‘Congress may regulate noneconomic intrastate activities only where the failure to do so “could ? undercut” its regulation of interstate commerce’

      Explaining why fixing basic economic problems in insurance like free-rider and adverse selection issues don’t “undercut its regulation of interstate commerce”, whereas they do with regards to a sick pot smoker, would, I think, twist Scalia into a very, very small oroborus.

      And he was the swing point in that decision who hedged with a concurrence. Again, not saying I like it. Just being realistic.

  24. Hey Damon –

    check out what’s going on down here in virginia! the pro-liberty attorney general ken cuccinelli plans to sue the federal government over the passage of the health care bill. Let’s hope this is more than a stunt and actually holds up in the courts. http://www.oag.state.va.us/PRE….._Bill.html

  25. Article I, Section 8, Clause 3. The clause states that the United States Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”

    Sorry campers this is just a fund raising ploy – keep giving your money away to the Corporatist millionaires and billionaires who run the Republican party.

    And remember the louder they scream the better it is for the middle class.

    Paul Burke
    Author-Journey Home

    1. And remember the louder they scream the better it is for the middle class.

      So when the drug manufacturers and insurance companies and hospitals and doctors are in favor of the health care bill and pay lots of money to help write it and promote it, is that good or bad for you, journey home?

  26. The court arguments keep the topic alive for the push in November. It only took 6 million to buy the Kennedy seat. The price to buy the votes is much less than the legal battle or leaving the law in place. Look for a billion to be spent on all types of commercials pushing for the repeal this fall.

    http://lettersfromitia.wordpre…..al-report/

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  28. Obama administration had to face many challenges to make the health care reform bill. It was a rhetorical device. I don’t disagree with you. But the “it costs us a fortune” is how your typical bully state politician looks at it.

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