Constitutional Law

Uninsured People Do Things, So They Should Be Punished

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In my column today, I argue that the failure to buy health insurance does not fall under the federal government's power to regulate interstate commerce, either as it was originally understood or as it has been interpreted by the Supreme Court. In a recent New England Journal of Medicine essay, Yale law professor Jack Balkin disagrees, challenging the claim that uninsured people "are not engaged in any activity that Congress might regulate; they are simply doing nothing":

This is not the case. Such people actually self-insure through various means. When uninsured people get sick, they rely on their families for financial support, go to emergency rooms (often passing costs on to others), or purchase over-the-counter remedies. They substitute these activities for paying premiums to health insurance companies. All these activities are economic, and they have a cumulative effect on interstate commerce.

As I suggest in my column, this kind of argument proves too much, since it means that everything people do or don't do potentially qualifies as interstate commerce, once you consider substitution effects, secondary and tertiary consequences, and similar behavior by other people. If sleeping with the windows open or failing to purchase an air filter triggers people's allergies and causes them to "purchase over-the-counter remedies," it affects interstate commerce. By Balkin's logic, Congress therefore could pass a law requiring everyone (or maybe just allergy sufferers) to close their windows at night or purchase air filters. Mandatory calisthenics, which would make the population fitter and thereby reduce health care costs, likewise should qualify as regulating interstate commerce, along with myriad other measures aimed at increasing health-promoting behavior or reducing health-compromising behavior: a national bed time, mandatory tooth brushing, a donut ban, a weight tax, etc.

And these are just the possibilities suggested by the government's interest in health care. Add in the other five-sixths of the economy, and the Commerce Clause swallows pretty much everything, subject to specific limits such as those listed in the Bill of Rights. Hence Congress could not stop us from watching a particular TV show or playing a particular video game (which would violate the First Amendment), but it could prevent us from engaging in such sedentary activities for more than an hour a day in the name of improving our health and boosting our productivity, both of which would have consequences that ripple through the economy and have a cumulative effect on interstate commerce.

David Harsanyi discusses the constitutionality of the individual health insurance mandate in his column this week. More on health insurance and the Commerce Clause here.

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  1. Many would say that this is a feature, not a bug. Without constitutional restrictions, the federal government can truly work for the people without hindrance! Wonderful.

  2. I hear these arguments, and I may even agree with them, but I don’t want to get fooled into any false sense of security, and I don’t want to let the politicians who voted for this monstrosity off the hook…

    My big question is this…

    Has the Supreme Court ever struck down anything for overstepping the commerce clause?

    That’s not a rhetorical question; I really want to know.

    1. United States v. Lopez

      1. Yeah, BUT. What the Court said was that the appropriate nexus to Commerce hadn’t been established. So, Congress just neatly re-enacted the law with the proper incantation (to summon the spirit of commerce). The law is back on the books, though it would take a ballsy prosecutor to bring a charge under it.

    2. Gun free school zones act – see US v. Lopez.

    3. They struck down part of the Brady Bill requiring local sheriffs to do background checks on gun purchasers. Can’t recall the case name now.

      1. US v. Printz – but that was the 10th amendment

    4. Well that’s encouraging!

    5. Yes, a few. Most of those have been in the last 15 years. There has been a trend to narrow the effects test to focus more on economic activity, but the cases aren’t completely consistent because the 5-4 split breaks differently on different cases (compare lopez to raich). I recall a case on VAWA too- I think that one went against the government.

      1. Yep, United States v. Morrison. It’s the sole other case besides Lopez
        http://en.wikipedia.org/wiki/U……_Morrison

  3. Why doesn’t the government just outlaw dying?

    1. That just wouldn’t work.

    2. makes me want to run

    3. Then it would just be taxes, not death and taxes, and then they’d look worse.

    4. Then it would just be taxes, not death and taxes, and then they’d look worse.

  4. As I suggest in my column, this kind of argument proves too much, since it means that everything people do or don’t do potentially qualifies as interstate commerce, once you consider substitution effects, secondary and tertiary consequences, and similar behavior by other people.

    Somehow I don’t think that qualifies as “too much” in the eyes of politicians and their faux-intellectual puppets such as Balkin.

    1. Watch it-thems are words that could earn you some nasty sobriquets, like anarchist.

  5. These little fascists can all see the Promised Land just out of reach . . . .

    God, but I hate them.

    1. You are not alone. The Daily Caller is reporting that pro-ObamaCare congressmen are experiencing death threats, vandalized offices and a cut residential gas line (a congressman’s brother’s house whose address was posted in the Internet).

      They also are reporting “Obama Education Secretary caught giving preference to kids of politically well-connected”

      http://dailycaller.com/#ixzz0j7Sj53TH

      1. Perhaps if a few more congresscritters lived in fear for their lives regularly, we might have fewer meddlesome and destructive laws.

    2. Legal positivism at work.

      Yeah, like legal positivism could ever hold the jockstrap of natural rights.

  6. When uninsured people get sick, they rely on their families for financial support, go to emergency rooms (often passing costs on to others), or purchase over-the-counter remedies. They substitute these activities for paying premiums to health insurance companies.

    Great, so with Obamacare we can now count on this stuff not happening, right?

  7. And of course, having the individual insurance mandate struck down but leaving the ban on denial for preexisting conditions in place is probably going to be even worse for the country in the long run, as it would inevitably drive private insurers out of business. Obama or Pelosi or whoever plotted out this bill was one devious little monster…trying to attack it piece by piece only makes things worse.

    1. “devious little monster”

      Hmmm…..code? That there statement could be taken for an off color slur.

      1. So can the wourd skinny. Go fuck yourself.

    2. Obama or Pelosi or whoever plotted out this bill was one devious little monster…trying to attack it piece by piece only makes things worse.

      It’s really a matter if we want the shit to hit the fan sooner or later. Since I’m not thrilled at the notion of going to my eternal reward knowing my generation has screwed that of my sons and daughter, I vote to choose sooner so we can get the pain over with.

  8. Such Retired or unemployed people actually self-insure feed themselves through various means. When uninsured retired or unemployed people get sick hungry, they rely on their families for financial support, go to emergency rooms food banks (often passing costs on to others), or use their savings or investments to purchase over-the-counter remedies food. They substitute these activities for paying premiums to health insurance companies having a job. All these activities are economic, and they have a cumulative effect on interstate commerce.

    Ergo, the government has the authority under the Commerce Clause to put any person who does not have a job into a work camp.

    1. Finally, someone who understand me!

      Any interest in working for the Department of Labor?

    2. Bullshit RC – they can put any person into a work camp, without reference to job or insurance, etc.

      “When uninsured people get sick, they rely on their families for financial support, go to emergency rooms (often passing costs on to others), or purchase over-the-counter remedies. They substitute these activities for paying premiums to health insurance companies.”

      Notice how that dimwit misses the fact that he’s got to add an action to have any nexus to interstate commerce. When uninsured people GET SICK. I’m sure when uninsured people do a lot of things they also involve interstate commerce, but if you take the verb (“get sick”) out of the statement where’s the nexus to intetrstate commerce? Do uninsured people – or any people for that matter – affect interstate commerce by the mere fact of their existance? If so, then the federal government has no limits to its power to control the individual – your mere existance is interstate commerce.

    3. They can work at the soylent green factory. It’s win-win.

      1. My advice is to skip the retirement luncheon they throw in your honor, after 30 years of dedicated service.

        1. Are you saying that when they said they were going to have me for lunch they didn’t mean what I though they meant?

    4. For a bunch of constitution fetishists, you don’t read your scripture very much. From Amendment V:

      No person shall … be deprived of life, liberty, or property, without due process of law;

      So your outlandish totalitarian health care state analogies are utterly inappropriate.

      1. The Obamacare bill is like a box of chocolates, Forrest. You never know what you’re going to get.

        1. But they passed it. Aren’t we supposed to be able to find out what’s in it now?

          As an aside, what the fuck is up with this “Thank Rep. Perriello” ad from SEIU? Your target demographic is not here, sirs! And is “Rep.” short for “reprehensible”?

          1. “But they passed it. Aren’t we supposed to be able to find out what’s in it now?”

            Apparently they don’t know themselves what is – and isn’t in it.

            I heard on the radio today that the ban on denial of coverage for pre-existing conditions for “the children”
            that Obama has ben blabbing about so much was actually NOT in the bill that was signed into law and they are scrambling around to get an amendment passed to fix it.

          2. Hey, if it was good enough for the PATRIOT Act, why not for this?

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

        We do read this, and if you read the articles here you would know that due process is routinely violated. Pretty much anything by Radley Balko is a good starting point.

        Please sit quietly in the corner with the other noobs until you’ve caught up with the rest of the class.

        1. Then “Obamacare” isn’t the problem. Like you guys always say, enforce the clear language of Amendment V before wading into the murky waters of Article I Section VIII.

          1. How does Amendment V justify required purchasing of a commercial product?

            As it doesn’t, Obamacare remains a problem.

      3. Welcome to the deep end of the pool, Forrest. Might want to keep those floaties on for a little while longer.

      4. So your outlandish totalitarian health care state analogies are utterly inappropriate.

        Phew. I forgot that the Constitution has mystical powers to protect us from tyranny. Not unlike the liger.

      5. No person shall … be deprived of life, liberty, or property, without due process of law;

        Due process would be a hearing before an administrative law judge to confirm that you do not, in fact, have a job, before you are sent to the work camp to remedy your impact on interstate commerce.

        1. HCR will in fact deprive me of property in the same way Title 26 of the US Code does.

          If I were to refuse to pay taxes, I would be brought before a judge, expropriated, and imprisoned.

          It’s pretty easy to understand. That’s why almost every single adult knows the significance of April 15.

    5. I’ve noticed a lot of supporters toss out the “passing costs on to others” bit, as if the fact some people sometimes don’t pay for their health care justifies making everyone pay for everyone’s health care.

      1. No kidding. If “passing costs on to others” is such a Bad Thing, why are setting up an enormous bureaucracy to make good and damn sure that costs are passed on to others?

        1. RC,

          That is the heart of this matter. People try to make logical arguments referencing the fact that costs are passed on, but when your point is made, they then shift the argument (entirely contradicting their previous position) to nothing more than a misguided humanitarian/moral appeal. As long as they can move the target back and forth, then they win.

          1. As long as they can move the target back and forth, then they win.

            That’s why you need two guns.

    6. RC Dean perfectly illustrates why all of you are slaves just biding time until we order you to do more shit. There is no law to protect you. The only thing that you have to protect yourselves is the fact that cats, sheep and humans can be difficult to herd. Your a little too spread out and too many of you have guns…if it weren’t for those couple of things you’d be seriously fucked.

    7. Well, duh. (The Soviet Union used to put unemployed people in jail for the crime of “parasitism.” Ah, good times.)

  9. “This is not the case. Such people actually self-insure through various means. When uninsured people get sick, they rely on their families for financial support, go to emergency rooms (often passing costs on to others), or purchase over-the-counter remedies. They substitute these activities for paying premiums to health insurance companies. All these activities are economic, and they have a cumulative effect on interstate commerce.”

    But waht if the person getting sick is worth several million dollars? Why should they be forced to buy health insurance? Or to buy it for the poor for that matter.

  10. This is not the case. Such people actually self-insure through various means. When uninsured people get sick, they rely on their families for financial support, go to emergency rooms (often passing costs on to others), or purchase over-the-counter remedies. They substitute these activities for paying premiums to health insurance companies. All these activities are economic, and they have a cumulative effect on interstate commerce.

    Yes, I’m sure that’s exactly how the delegates at the Constitutional Convention interpreted interstate commerce. I must have missed Federalist #86 where Hamilton explains how even though he and the rest of the Founders had just spent nearly four months crafting a document that would create a limited federal government with enumerated powers at the very end they decided to toss in the Commerce Clause to give the federal government free reign to do whatever the hell it wanted to do.

    1. Feh – you and your dusty old, decrepit, dead historical figures. How quaint.

    2. loldeadwhitemales

    3. Living Document! {click}
      Living Document! [click]

      repeat ad infinitum

      1. Dyin’ ain’t much of a livin’.

  11. Couldn’t the mandate be justified under the tax power? I mean, the penalty is actually a tax that is levied on a person that doesn’t have qualifying coverage. I know Obama doesn’t want to admit it’s a tax, but of course it is one. Are there limits on the tax power that prevent this from being the justification?

    1. Unfortunately – for you – the Constitution does not allow capitation taxes. The exception to apportioned taxes is the income tax – and there is no way you can construe this as a tax on income.

      1. Hmmm, perhaps you can construct the argument that the income you should have used to buy health insurance but didn’t is actually phantom income — kind of like the debt you owed to the credit card company but they forgave is considered taxable, phantom income under current IRS rules. Too crazy?

      2. There is hereby allowed a refundable credit equal to $100 against an individual’s income tax liability if such person has qualifying health insurance coverage in effect during the tax year.

        Just converted it into an income tax provision. Easy as pie.

  12. I’ve heard the tax argument, but that only makes the penalty constitutional. It does not render the mandate constitutional. Congress could tax us all and set up a single payer system but ordering everyone to buy a commercial product is a novel concept unheard of in the Constitution.

    1. Well the only consequence for failure to comply with the mandate is the tax, right? I don’t get the distinction you’re making.

  13. Here’s a quote from today’s CNN opinion piece written by a law professor:

    But more fundamentally, people who can afford insurance and don’t buy it are simply being irresponsible. An auto accident or serious disease can cost hundreds of thousands of dollars. Why should the taxpayers or health care providers have to finance the care of those who refuse to buy insurance?

    In answer to that last question: they don’t, you can provide them treatment and then charge them for it can’t you?

    1. No. The only two choices were this bill or the status quo of 18 billion Americans dying from lack of insurance each year (maybe even each day, if that’s what it takes). Try to pay attention, would you?

      1. I apologize. Given such binary choices (mass extinction of the human race or this health care bill), I’ll have to reluctantly support the bill as I rather enjoy living and the company of my fellow humans. But wait, what if those aren’t the only choi… uh, better I not engage in seditious behavior.

    2. The taxpayers aren’t subsidizing them. The insurance mandate is meant to force low-risk peopel to subsidize rates for high-risk people.

      1. But then the taxpayers subsidize the low-income low-risk people. There’s a lot of flows in and out.

      2. Since the mandate penalties are so small, it stands to reason that the subsidies are the reason why the low-risk people will sign up. Which means that, effectively, yes, the taxpayers are subsidizing the high risk people.

        1. Well, except that not all low-risk people are poor. So it’s partially richer healthy people too.

    3. Why should the taxpayers or health care providers have to finance the care of those who refuse to buy insurance?

      Why, indeed?

      I wonder if this idiot realizes that this isn’t exactly an argument for ObamaCare. Or Medicare and Medicaid, for that matter.

    4. Why should the taxpayers or health care providers have to finance the care of those who refuse to buy insurance?

      They shouldn’t have to. We’ve willingly taken on the responsibility, and then we complain about it. How about we let people fend for themselves? Let people suffer the consequences or reap the rewards of their own actions. That is justice.

    5. Why should the taxpayers or health care providers have to finance the care of those who refuse to buy insurance?

      They shouldn’t have to. We’ve willingly taken on the responsibility, and then we complain about it. How about we let people fend for themselves? Let people suffer the consequences or reap the rewards of their own actions. That is justice.

  14. Every breath you take and every move you make / Every bond you break / Every step you take, We’ll be watching you

  15. This will be interesting to see how this plays out.

    If the individual mandate is thrown out on Constitutional grounds (something that I doubt will happen. The Commerce Clause seems to be something the court is very very hesitant to put limits on) and the rest of health care reform stands, insurance companies will be the BIG BIG losers.

    Without the mandate all the other reforms (no more pre-existing, removal of annual caps, end of rescission) will decimate the insurance company profits and hasten our path to a true single payor/socialized medicine system.

    Without a mandate that forces healthy people to buy into the pool, our current system under the new rules is toast.

    Now I don’t believe that the mandate will be thrown out (even though I believe that it should. If the government can force you buy private insurance, what can’t they force you to do) but if it does, I think that would be a good thing.

    Also a question for the more lawyerly among us…
    Is fining/penalizing someone for not buying insurance the same as mandating that they buy it? Could one make the argument that you don’t have to buy insurance, you just have to pay a penalty or more taxes if you choose not to? I know it’s kind of a semantic argument, but can’t the government already tax people more or less based on arbitrary criteria?

    As an example, people who have a child get a tax credit. Would it be constitutional if it were instead done in a way that everyone gets a standard lower tax rate, but everyone who doesn’t have a child gets a tax penalty? What would be the difference?

    1. Is fining/penalizing someone for not buying insurance the same as mandating that they buy it?

      Yes. It would be very similar to not licensing your pets with the county. That is if I understand your question.

      1. Is fining/penalizing someone for not buying insurance the same as mandating that they buy it?

        OF course it is. Many, many laws are enforced through fines rather than jail time (at least, you aren’t thrown in jail until you refuse to pay the fine, just like lying on your tax form or refusing to pay taxes will, eventually, get you jailed).

        Would you say that the myriad of acts punished by fines as midemeanors aren’t actually illegal?

        1. Does the law define the payment as a “fine” or as a “tax”. I thought it called it a tax.

        2. OF course it is. Many, many laws are enforced through fines rather than jail time (at least, you aren’t thrown in jail until you refuse to pay the fine, just like lying on your tax form or refusing to pay taxes will, eventually, get you jailed).

          I agree that it is in essence the same thing, but that’s not quite what I am getting at.
          The question I am getting at is, based on the way they are doing this, taxing people who don’t have insurance, how is it different than any of the other arbitrary taxes/credits people get for all sorts of things.

          Example 1 :
          One doesn’t have to buy insurance. They can choose to pay a higher tax rate.

          Example 2:
          One doesn’t have to have a child, they just choose to forgo the child tax credit and pay more in taxes.

          Because they are doing the mandate via taxation rather than actual fines (civil or criminal) or misdemeanors etc what is the difference that makes example 2 constitutional, but 1 is not.

          It’s already established that the gov’t can, based on certain arbitrary criteria, charge you less in taxes than someone who doesn’t meet those criteria, why can’t they also charge you more if you don’t meet other arbitrary criteria?

          1. Exactly. That’s why I’m confused about all the commerce clause arguments. This seems to be a clear exercise of the tax power. I would love to see a new line of cases defining congress’ tax power more narrowly, but I don’t know of any.

          2. You’re correct, there’s not a huge difference (except that the Administration wants to pretend that this isn’t a tax.) One difference is that the normal sort of tax preference comes with pretending that money spent on a particular item doesn’t count as income/profit to be taxed, whereas this would be imposing a special penalty. It is a little different from the normal wording. (If they instead adopted something like a universal tax credit for health care, like Candidate McCain suggested, it would be easier to fit into the tax code.)

            The problem mostly comes in the extreme. It’s easy to understand why the power to tax is the power to destroy when taken to the limit. There really is no limit on the power of the government if you allow this to happen. The government can’t ban a book? Well, it can just massively tax it. The government can’t ban burning the flag? How about a special huge tax on those who burn it. Etc.

            There’s not a lot of good places to draw the line, though, unless you do it at the start.

            1. In the unlikely event that the supreme court strikes the mandate down under the commerce clause, it would very easy to just convert it into a tax credit.

    2. I’m rooting for them striking down the state-based regulation system.

      http://en.wikipedia.org/wiki/Dormant_commerce_clause

      Of course, they *could* strike down *both*. Even if the insurance business is interstate commerce, an individual *not* purchasing insurance doesn’t have to be.

  16. When uninsured people get sick, they rely on their families for financial support, go to emergency rooms (often passing costs on to others), or purchase over-the-counter remedies.

    Or they rely on their own savings, thus burdening absolutely nobody else.

    1. Or they suck it up, realise that a case of the sniffles doesn’t require a trip to the doctor and a case of antibiotics, and get on with life. I believe that’s the entire point of catastrophic insurance, which our dear leaders seem determined to remove from the menu.

  17. “are not engaged in any activity that Congress might regulate; they are simply doing nothing”:

    Oh that argument’ll go nowhere. Have we learned nothing from the hubris of the Congress?

    His lifestyle choices affect the health and wealfare of the entire country. By “doing nothing”, he becomes a drain on our increasingly centralized healthcare system. If we’re going to control healthcare costs, he needs to do something. And that something is purchase the product from one of the major Democratic campaign donors: the insurance industry.

    Doing nothing affects other people. End of discussion.

    1. Not doing anything? There’s a tax for that.

  18. everything people do or don’t do potentially qualifies as interstate commerce

    I thought that was pretty well established by Gonzales v. Raich in 2005.

  19. Based on the US Supreme Court’s rulings, the interstate commerce clause would authorize Congress to mandate the following:

    From this day on, the official language will be Swedish. In addition to that, all citizens will be required to change their underwear every half-hour. Underwear will be worn on the outside so we can check. Furthermore, all children under 16 years old are now… 16 years old!

  20. I’m going to go out on a limb here and say that the Court will, if the opportunity arises, strike down the guts of the law as unconstitutional. Usually, the Court tries to avoid weird results in striking down portions of the law while leaving others intact, so don’t be surprised if most of it gets hacked up for any number of reasons. There is a small, irregular trend in the last twenty years of SCOTUS rulings to re-recognize the limits of the Commerce Clause, after all.

    Something in my gut says this is one step past where the majority of this Court is willing to go. We might even get some concurrence from one of the left-leaning judges, assuming they start thinking about what the right could do with this kind of power.

  21. The SC might strike it down on some technicality (“you didn’t say ‘pretty please'”) so they can allow it at a time when conditions are better.

  22. I’m going to go out on a limb here and say that the Court will, if the opportunity arises, strike down the guts of the law as unconstitutional.

    I think it will require a majority of Justices to realize both:

    (a) upholding the law will be to abjure the notion that the federal government has limited powers, and

    (b) that is not a good thing.

    Sadly, I think (b) is where we might just lose a majority.

  23. The thing of it is that the Commerce Clause regulates commerce “between the States.” It does not regulate commerce between two individuals. Since Congress has determined that corporations are legally individuals the Commerce Clause should have no authority.

  24. If sleeping with the windows open or failing to purchase an air filter triggers people’s allergies and causes them to “purchase over-the-counter remedies,” it affects interstate commerce. By Balkin’s logic, Congress therefore could pass a law requiring everyone (or maybe just allergy sufferers) to close their windows at night or purchase air filters. Mandatory calisthenics, which would make the population fitter and thereby reduce health care costs, likewise should qualify as regulating interstate commerce, along with myriad other measures aimed at increasing health-promoting behavior or reducing health-compromising behavior: a national bed time, mandatory tooth brushing, a donut ban, a weight tax, etc.

    Yeah, so what’s your point?

  25. Here’s an article on what the health care bill is suppose to do

    http://www.csmonitor.com/Money…..w-health-c

  26. #LogicFail#

    Actually, Jack is right and Jacob is wrong. For a magazine that’s supposed to be built around “logic” Jacob sure botches this one! A health insurance mandate is not equivalent to the government forcing people to engage in calisthenics or sleeping with the window closed. That so many commenters here have missed this is a sign of the sad state of Reason.

    People get sick and have accidents that require medical care. That is a fact of life. Now, should these people be required to pay for their own medical bills? Or should they be allowed to pass the costs onto society and tax-payers?

    These two statements are not equivalent:
    > If someone doesn’t have insurance, then the rest of us pay for it.
    > If someone doesn’t have an air freshener, then they might get sick.

    Indeed, if they do get sick, maybe they have their own insurance so it might not cost society anything after all….

    This is ridiculous, and I expect better from Reason.

  27. These two statements are not equivalent:
    > If someone doesn’t have insurance, then the rest of us pay for it.
    > If someone doesn’t have an air freshener, then they might get sick.

    You’re right; they’re not equivalent. What’s more, the first statement is false. If someone doesn’t have insurance, there’s no reason to assume that the rest of us pay for it. The person might well (1) not get sick, or (2) pay for his own treatment if he does get sick.

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