Supreme Court

The Power to Regulate Commerce Across State Lines Is Also the Power to Regulate Non-Commerce Within a State


Last week, I took a skeptical look at an argument by two attorneys general for the constitutionality of an individual mandate to buy health insurance. Part of the problem with that piece was that it didn't bother to address the crucial question: How does the Commerce Clause, which gives Congress the power to regulate interstate commerce, allow Congress to prohibit the decision to not purchase health insurance—something that involves no commercial transactions, much less commercial transactions across state lines, and which couldn't possibly involve interstate commerce anyway given that there's currently no way to buy insurance across state lines. 


Today, Cato Chairman Robert Levy has a much clearer explanation of how the Supreme Court has ruled on Commerce Clause cases which involve neither commerce nor the crossing of state lines. In Wickard v. Filburn and Gonzales v. Raich, he explains, the gist of the Supreme Court's decisions was that "if the failure to regulate would undercut a federal regulatory regime, then [the Supreme Court is] going to permit it." But, he argues, the individual mandate is still uncharted territory; the federal government isn't merely telling individuals what they can't do, it's telling them what they must do, and what they must do is purchase a product from a private company. As I've noted frequently, the CBO has called the mandate "an unprecedented form of federal action," and Levy's analysis tracks with that assessment. I still don't think I'd put money on the Supreme Court actually striking down the mandate, but Levy's argument that they should is fairly convincing. 

Jacob Sullum wrote about the crazy constitutional logic of the individual mandate here. Damon Root noted one legislator's lack of concern for the constitutionality of the mandate here and looked at how the mandate has revived debates about the Commerce Clause here.

NEXT: Is Frank Rich the Only Non-Racist Left in America?

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  1. Clearly, SCOTUS has expanded the power of the government by using DeMorgan’s Rule.

    1. Apparently they’re huge fans of George Boole’s work

    2. the government need to remember they work for us , not us that work for them.

  2. Just hit the east side of the LBC on a mission trying to find mr warren g

    1. G-Funk, where rhythm is life, and life is rhythm.

      1. Radio stations (ones around Seattle at least) still play that song, but they cut it off before the last verse. Makes the song just a little less embarrassing to listen to.

        1. Blasphemy! The world needs more Nate Dogg, not less.

  3. With the Mass. law being constitutional, the mandate requiring people to buy insurance is a done deal.

    Twenty-four months from now, SCOTUS will strike down the requirement, with a strongly-wording statement about how this is totally wrong.

    January, 2012 (after the election, of course) the will be a bill that requires each state to pass a mandate, or loose highway money.


    1. What MA does may be constitutional, but that depends on the particulars of the MA constitution. What happens in MA stays in MA.

      You do understand that the Federal government operates under a different, and much more limited, constitution?

      1. No, he doesn’t seem to understand the difference between State Constitutions and the Federal Constitution. His belief seems to be if one permits it, all permit it. Very sad.

        1. His understanding of the constitution might be weak but, as his final paragraph shows, he does have a firm grasp of how the government works.

        2. Ah, the wonders of a Public Education!

        3. You missed Mr. Cracker’s point. He was not arguing an equivalence between the Mass constitution and the Federal constitution.

          In fact he clearly states that the Supreme court will strike down the federal mandate. Therefore he is arguing that the federal mandate is not constitutional.

          The part about the constitutionality of the state law is to set up the way the federal government will enforce a de facto mandate by the use of economic coercion when an explicit mandate is struck down by SCOTUS.

          If you doubt the scenario, then research the way the “national” drinking age of 21 was brought into existence.

      2. No, he is not confusing the differences between state and federal constitutions. What he is saying is that the federal government can basically force each of the 50 states to pass individual mandates. Therefore even if the federal mandate violates the federal constitution, the mandate can be forced through via 50 separate state mandates and that would not violate the federal constitution.

  4. Look, because of the interconnectiveness of the modern economy, it would certainly undercut federal regulation of actual interstate commerce if certain intra-state commerce, which would certainly “in the aggregate” effect national trends and markets, were not also subject to regulation. I realize it seems to stretch things, but look, the Founders granted this Power with very broad language in the Clause. That certainly makes one think they meant it to be broadly construed as opposed to narrowly construed.

    You guys have a little better argument in the whole commerce/non-commerce distinction. But certainly whether or not one participates in a market will effect that market, and if there is a broad power to regulate that market….

    1. I realize it seems to stretch things, but look, the Founders granted this Power with very broad language in the Clause.

      Wrong. It was not a broadly construed clause prior to the Progressive Era (through the New Deal and continuing to Raich with only a pothole for Lopez).

      As a counter, consider the Uniform Commercial Code, which has for the most part been adopted by the states without federal coercion or the need to torture the Commerce Clause.

      1. I’m not talking about how it was construed, I’m talking about how it is written: with virtually no limitations or qualifications. Sorry, that’s the way they wrote it…

        1. MNG applies chaos theory to economics; a butterfly flaps its wings in Montana and the price of milk goes up in Florida; so congress can regulate the migration patterns of the Monarch.

          1. Absolutely not. As the court has wisely recognized many forms of intra-state commerce do have an effect on inter-state commerce (care to argue otherwise?). Likewise it has set a limit on this: it must be economic intra-state activity to fall under the IC Clause. That’s a wise position imo.

            1. Except under your logic, any behavior that can even be construed to effect anything else counts as interstate commerce.

              1. The constitution is meant to be a limiting document, not an enabling document. (From the government’s perspective, not the peoples’.)

            2. Care to argue otherwise? Hell, the only two decisions in the entire history of SCotUS worse than Wickard are Dred Scott and Plessey.

              1. Examine the reason for the commerce clause in the Constitution. In the 1780’s, the states were busy imposing tariffs and stifling economic activity. The commerce clause was placed into the Constitution to remove this power from the states and place it in the hands of the federal government. This gave the feds a revenue stream and allowed them to set a consistent foreign policy.
                Somehow I doubt a group of men who took up arms to fight for economic free choice intended their governing document to allow federal micromanagement of individuals.
                Striking down Filburn would be the best thing the Supremes have done in the past 50 years.

            3. Intrastate commerce may have an effect on interstate commerce, but the interstate commerce clause reads as follows: “[The Congress shall have power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;”

              80 years of supreme court malpractice notwithstanding, it is a narrowly written power that does not include the regulation of things that may affect interstate commerce.

            4. All human action affects interstate commerce. Since we are now defining *not* purchasing something as a human action that affects commerce, then literally every single thing you do or don’t do can be either forbidden, commanded, or regulated by the federal government.

              Even the fact that I chose not to eat potato chips for lunch is covered by your interpretation of the Commerce Clause, as is my choice not to wear a pink tutu to work.

              1. Your argument fails because this has not been defined by SCOTUS.

        2. MNG, That’s not how they wrote it. It says that Congress can”make all laws which shall be necessary and proper for carrying into execution the foregoing powers.”

          To qualify for the elastic clause, a law has to be

          “necessary” which Obamacare isn’t
          “proper” which Obamacare isn’t
          needed to be able to enforce the enumerated powers, which Obamacare isn’t.

          The elastic clause is actually quite narrow, and Obamacare (along with about everything else the Federal government has done since the New Deal) doesn’t even come close to meeting it.

          1. If we are talking about the commerce clause, Obamacare still doesn’t pass. The law regulates production of healthcare, not just the sale of it (commerce), and it regulates in-state health care as well as interstate commerce.

            1. Production is part of the process of commerc (you make things planning to sell them; every good business sees these steps as connected, only the most absract division could conclude otherwise.) And intra-state commerce can and should be regulated when it, in the aggregate, would have a strong impact on interstate commerce (that would undercut the broad power granted to congress to regulate IC).

              1. So at that point, a lack of production also can easily affect things in the aggregate. So if I can be coerced to buy something for your reasons, I can also be coerced to produce. There is next to nothing that that kind of criteria couldn’t be applied to. And I don’t doubt successfully, even though I think it’s completely incorrect. If they can tell a man not to grow wheat because his not buying affects prices, there really is nothing they can’t do.

              2. your arguments are not logical in this case.

                The bill that I term Abominable care regulates for a lot of things. It has a mandate that people must purchase health insurance.

                The non-purchase of health insurance is not production.

                The Commerce clause when it is applied correctly refers to interstate activity, not intrastate activity which is the case with the purchase of health insurance.

                You are actually ignoring what was determined in both the wickard and Raich cases.

        3. The problem is that the word “regulate” did not have the same meaning then that it does today. At the time, and as it was used in the Constitution, the word “regulate” meant “to make regular or normal”.

          In other words, the purpose of the Commerce Clause was to give Congress the power to make commerce between the states “regular”; to prevent states from impeding interstate commerce. Federalist 11 and Federalist 42 are worth looking at in this regard.

          Just because the word “regulate” has come to mean something different than what it meant when the Constitution was created does not mean that the original meaning should be ignored on semantic grounds by Congress and, more importantly, the courts. By that standard, you might as well make the argument that the “right to bear arms” simply means that you have the right to your limbs.

          1. I think some of the earliest IC cases, under Marshall for example, rejected this narrow view. Those folks were closer to the Founders than you or I…

            1. Classic! Of course the Marshall court rejected the narrow view, John Marshall was in the nationalist group led by A. Hamilton. So, yes he expanded the role of the federal government almost immediately after the ink was dry on the Constitution. Big whup.

              By the way, the Federalist Party (funny how even then the totalitarians played with language as it should have been called the Nationalist Party) was defunct by the time Jefferson was elected because of just these types of shenanigans. So yeah, he was closer to one group of the Founders. A bad decision was still a bad decision or have we forgotten about all the Supreme Court cases supporting slavery?

          2. By that standard, you might as well make the argument that the “right to bear arms” simply means that you have the right to your limbsthe limbs of a bear.

            1. ok, so hunting IS legal. Phew.

          3. Not if you die in England, apparently. See the other thread on the National Health Service using body parts for transplants, which the donors had expressly said they wanted to “keep.”

    2. it would certainly undercut federal regulation of actual interstate commerce if certain intra-state commerce, which would certainly “in the aggregate” effect national trends and markets, were not also subject to regulation

      Everyone should be required to buy American-made cotton towels, because, in the aggreegate, buying foreign made towels, or not buying towels at all affects interstate commerce. We need to support domestic textiles.

      Everyone should be required to buy a house. In the aggregate, this affects housing prices. Which need to be driven up to keep the banks from failing. If they can’t afford it, the banks shall be required to lend them money.

      Everyone should be required to buy a Coca-Cola at least twice a week, to support the US economy.

      Everyone should be required to travel to another state at least once a year, to support the domestic tourism industry. They shall also be required to stay in government approved hotels, lest anyone be tempted to stay with freidns or relatives. If they can’t afford it, the government will provide subsidies, through a tax on tourism.

      1. Hazel, all of these economic activities imo can fall under the IC clause, though many of them strike me as uncommonly silly policies…It’s a broad grant. Maybe it should not be, but we have what it is.

        1. MNG’s argument: “Neener neener neener, semantics, neener neener neener!”

          1. Whatever Sherlock…I didn’t write the grant so broadly, don’t blame me…

            1. All of a sudden MNG is a strict constitutionalist.

              1. I guess you could say a strict constitutionalist of a broad grant of power, but that’s a bit of an oxymoron imo

                1. Other than the hard fact that there is no historical support for your position and interpretation of the commerce clause, you’ve got a great argument going on there.

        2. i think it’s fiarly clear that the founders meant it to refer to actual transactions of goods or services across state lines.

          Which incidentally, is not permitted for insurance sales.

          1. They’ve used it to regulate shipping of goods as well, which I agree with. However, using the clause to regulate anything even theoretically economic, even inaction itself, is new territory, even for the progressives.

            1. The purpose of the clause was always to protect free trade between the states, not to regulate every economic aspect of our lives.

              1. Give tkwelge a cigar!

        3. Three years from now President Huckabee and a Republican-controlled Congress pass legislation requiring every citizen to buy a King James Bible. Liberals who cheered Obamacare to the finish line are too busy eating their Wickard & Filburn Shredded Wheat to complain.

          More here.

        4. Do you seriously believe that when they wrote the Constitution, the Founders intended to give the federal government the power to do everything Hazel lists?

          Hell, why didn’t they just write a Constitution that said, “Congress shall make no uncommonly silly laws” and be done with it?

    3. So where does it end? If everything effects the market, why not force us to buy more stuff? The “market” is not a market if the transactions are not voluntary.

    4. I like your use of the word ‘Look.’ You sound just like BHO himself.

      Furthermore, you’re wrong on the substance. The commerce clause states The Congress shall have Power… To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. The Constitution goes on to state: No Tax or Duty shall be laid on Articles exported from any State. The commerce clause specifically, and the constitution generally, support reducing barriers on interstate trade. That’s what the word “regulate” means: to keep regular.

      There’s no question at all that the federal government has no authority to institute Obamacare. It obviously doesn’t matter for practical purposes, since the Constitution hasn’t been relevant since at least the 1930’s. But to argue that Obamacare is constitutional is just ridiculous. All you have to do is read the document itself. It’s not that hard to do; it’s short, written in plain English, and available for free from a variety of sources.

      1. You’re trying to make the Dormant commerce Clause the main power of the clause, over the explicit power granted. Quite a feat if you can pull it off.

        1. OK, wiseguy – the plain text empowers Congress to “regulate commerce”. It does not empower Congress to “regulate the activities of individual people which, although not constituting commerce individually, in the aggregate have the ability to affect commerce.”

          I.e., the power is limited to regulating COMMERCE itself, not activities that might, if engaged in or not engaged in, in the aggregate, “affect” interstate commerce.

          That expansion – the broad reading you advocate – came about only because of the FDR-era SCOTUS cases and subsequent cases.

    5. As a person who sells stuff all over the country, I fully appreciate the spirit of your argument. However, I do have to say this: if a part of the Constitution undercuts Federal attempts to regulate (make regular) all 300 million people in 50 sovereign states, isn’t that a GOOD thing? Because without it, there would be NO check on Federal power; the government could just decide it needed to regulate everything, and do it. Kind of like it is now…

    6. Ummm… how about no. Commerce clause is very specific. Since I, either as a private citizen or as a corporate entity, am neither A) a foreign nation; B) one of the several states; or C) an Indian tribe, Congress has exactly zero power to regulate my commerce. All court decisions to the contrary are therefore, extraconstitutional and therefore capricious and arbitrary, and it follows, null and void. The end.

    7. Under your theory of the Commerce clause, could Congress:
      – mandate that every adult buy a new GM car every year? (to help the economy)
      – mandate that every adult buy a gun? (to help homeland security)
      Is there anything that Congress could not mandate?
      Why did the framers write Article 1, Section 8 if they intended to allow Congress anything and everything?

  5. So, Mr. MNG (may I call you M?), with that interpertation, what activity would be outside the reach of the commerce clause?

    1. I totally agree with the smackdowns of power grabs under the IC clause found in Morrison and Lopez. The activity must be economic, not just “having a tenuous connection to economic activity.”

      1. What activity isn’t economic in some way? I mean, not that you’ve classified NOT buying something as economic activity.

        Technically, if I download free porn off the interent, I’m engaged in economic activity, because I’m failing to buy porn for money.

        1. Concepts are loose and connected, but there are some areas where the differences can be discerned. Violence against women may make less women economically active, and so effect economic activity, but it is not economic activity. Words do have some boundaries Hazel, you’re not a post-modernist…

          1. Words do have some boundaries Hazel, you’re not a post-modernist…

            Oh c’mon Humpty, words mean only what you want them to mean, nothing more, nothing less.

          2. Really? Can you precisely define what things that affect economic active aren’t economic activity?

            Without ruling out not buying health insurance?

          3. Oh really, so being less economically active is not economic activity, but being completely inactive (i.e. not buying something) is?

            1. Buying vs non-buying is inherently economic, engaging in gender violence or not is not…That seemed plain enough for Rehnquist and I agree…

              1. OMG! There’s a whole lot of non-buying I’m doing just by sitting on my ass right now. And every bit of it affects interstate commerce.

  6. According to Art. I the federal Congress has the power “To regulate Commerce..among the several states.”

    Period. Jesus, no limiting or qualifying language at all. I mean, look at other things in the Constitution which clearly put forth limitations and qualifications. They ain’t here. This was meant to be a broadly construed power dudes.

    I do think it’s a problem that it could become an amorphous and total grant to federal power, but I like Rehnquist’s solution: it only deals with economic matters (albeit even intra-state economic matters that in the aggregate effect inter-state commerce). That puts some limits without making it asburdly, and counter-textually, narrow.

    1. Yeah, Scalia sure followed that line of logic in Raich, didn’t he?

      Shit, even in Lopez the Court pulled their punch – it wasn’t that it was an obvious exercise of police power, but that the law as passed by Congress failed to establish the appropriate nexus with commerce.

      1. I have read the Raich decision from the point of view of being an outsider. I think that you misunderstand the reasons for that decision.

        Prior to the Wickard decision, the SCOTUS struck down the first AAA in United States vs Butler.

        In the Wickard case and you have to look at what was in the act and what was being controlled, the means of production of wheat was being limited. Wickard actually grew more than the amount of wheat that was allowable under the Act. The Court upheld the fines against Wickard because it was deemed that the production of the extra crops even for farm consumption affected the price of wheat as a whole.

        The Raich and Morrison cases were decided on the same lines because the two women were growing pot for home consumption but they were growing enough for them to actually sell some on the open market, thus their activity could be construed as affecting interstate commerce. This particular case involved the fact that there are Federal drug laws and that these Federal laws trump state laws.

        When the lawsuits reach SCOTUS I would expect that someone will at least refer to Butler because in scope the Butler case is a better fit than either Raich or Wickard.

    2. I like Rehnquist’s solution: it only deals with economic matters

      Really? What in your mind is not an economic matter and therefore beyond the scope of the Commerce Clause?

      If things that merely affect commerce are commerce, the Feds could (for example) make it illegal to move to another state. Sorry, you can’t leave California.

      1. I think Morrison and Lopez rejected this very logic.

        1. Gender-based violence causes health care expenses to increase.

          I don’t see what the difference is.

          1. Gender based violence is not in even the remotest sense economic activity itself. A farmer producing wheat for his consumption is engaged in economic activity (production and consumption are classically economic). The two are qualitatively different: non-economic activity that has an economic effect doesn’t count, because it ain’t commerce in any sense.

            1. But not buying healthcare counts as economic activity? If an innaction can count as an economic activity, anything can.

              1. Not true. Engaging or not engaging in gender violence is not economic activity.

                Engaging or not engaging in the purchase of a commodity is, though, a fundamentally economic choice.

                1. But it is always meant to be MY choice. Under that line of logic, we have no economic rights. Any economic rights that we do have are temporary until the government decides otherwise. Wow! I know that I’m a young guy, but I’m still amazed to learn something new everyday.

                  1. “But it is always meant to be MY choice.”

                    er, I hate to tell you this, but the power “to regulate” probably implies the power to restrict some choice…Look up the word if you don’t believe me…

                    1. You are aware of the case where a health insurer turned someone down because they were in an abusive relationship, right?

                      If a man beats his wife, and the wife requires hospital care, that is economic activity and can be regulated.

                      If a woman sues a man for damages for abuse, that is economic activity and can be regulated.

                      Why not?

                    2. Non-economic activity can have indirect economic effects, but that doesn’t make it economic. That’s what Lopez and Morrison were all about, and I agree with them.

                    3. This is really pushing the limit, though, because we are still talking about inaction. Congress cannot regulate my inaction. The congress has never penalized inaction under this clause. Even when they pulled the concept out of their ass to say that they could keep marijuana illegal, even intrastate, they didn’t punish states for not enforcing federal law. When has congress legislated inaction under this clause. Name one case.

                    4. This is in response to MNG.

                    5. I still want to know one case when the congress has legislated economic inaction under the commerce clause.

                    6. I can’t think of one, but I think it falls under current precedent nicely. You have to admit requiring people to buy something would effect the interstate market in that thing, and Congress has been granted a broad power to regulate that market…

                    7. If they can require us to buy something in the first place. Especially to buy something from a private company. This goes beyond the power to tax or regulate.

                    8. If you were a retarded fetus with no reading comprehension, I could see where you might get that from the text. Otherwise I might think you were trying to twist words to justify what you wanted to happen.

                    9. That was for MNG.

                    10. Regulation is just another word for law…

                2. “Engaging or not engaging in the purchase of a commodity is, though, a fundamentally economic choice.”

                  Not purchasing is an economic choice, but it is not an economic activity. It is by definition the LACK of an activity.

                  I think it’s a pretty far stretch to assert the Constitution grants Congress the power to unilaterally reverse your economic choice to NOT engage in an economic activity, regardless of how broadly written you may think the Commerce Clause is.

            2. MNG|4.5.10 @ 10:00PM|#
              “Gender based violence is not in even the remotest sense economic activity itself.”

              You are a total economic ignoramus. You’re stupid enough to think that ‘economics’ refers to money.
              Your ignorance is truly amazing.

              1. Interestingly you seem to, like the dissent in Lopez and Morrison, want to stretch the meaning of the concept “economic” to Reed Richards levels. You really are a post-modernist…

                Most normal people know that while gender violence may indirectly effect economic matters that it does not fall under such a term by itself.

                1. But it is always meant to be MY choice. Under that line of logic, we have no economic rights.

                  Yes, this is exactly what MNG believes. In fact, under his line of reasoning, the Constitution gives the federal government the power to dictate how you spend 100% of your income (or even require you to borrow beyond your income) to buy goods and services from private companies.

                  It’s an economic matter, therefore they control it without any limit whatsoever.

                2. You’re the one who is stretching it. You claim, with a straight face, that choosing to do absolutely nothing is an economic activity. Today, I choose not to purchase a multimillion-dollar yacht, and somehow my choice gives the federal government carte blanche to intrude on my affairs in any way it chooses.

                  Under this interpretation, Congress has all powers other than what the Constitution specifically takes away, e.g., speech regulation. This makes the Tenth Amendment a dead letter, because there are no powers reserved to the states or the people. Taken to its logical conclusion (your own statement about how the Commerce Clause can compel an individual to produce a product), the Thirteenth Amendment is also a dead letter. The Sixteenth Amendment is likewise a dead letter; since the Commerce Clause evidently grants Congress the power of direct taxation, the Sixteenth Amendment was never actually necessary.

            3. MNG said: “Gender based violence is not in even the remotest sense economic activity itself.” I would beg to differ. A person of my acquaintance was beaten severely by her husband and he was taken to jail. Even though her injuries were severe enough that it took her a month to fully recover, she bailed him out after a day or two because (as she told me) she needed the income he brought into the household, which income he wasn’t earning while in jail. This woman enabled gender based violence explicitly because of its effect on economic activity.

            4. -So let me get this strait, if Igrow tomatoes in a garden rathter than buy them the Feds should be able to regulate them.

              1. According to the Wickard decision, if the Feds regulate the production of tomatoes stating that there are limits on what can be produced, and you grow them for your own consumption, but your neighbours are free to purchase the said tomatoes, then yes, according to the second AAA the feds can regulate your production of tomatoes.

        2. No they didn’t, and EVEN if they did, the Court abandoned that line with Raich.

          1. Raich=Wickard dude. Producing something for your own consumption is a fundamentally economic act.

            1. Raich should’ve repudiated the reach of Wickard, but it didn’t – thus all but mooting Lopez (certainly) and Morrison (probably).

              1. I disagree. Wickard’s scope is indeed troubling, but there is a logic there. Producing a good for consumption is an inherently economic activity. Gender violence or gun possession is not. Rehnquist got it right guys.

                1. Our economic rights are the cornerstone of our civil rights. Without our economic rights, we are all subjects and serfs.

                2. MNG|4.5.10 @ 10:30PM|#
                  “….Gender violence or gun possession is not….”

                  Quoth the ignoramus.

                3. I agree that it is a gray area semantically. However, if you agree with the progressive interpretation, which states that “the legislature should determine what is considered commerce” then there are effectively no limits on federal regulatory power in the area of economics. I’m willing to bet that that would signal our slide into totalitarianism. Surely, that is not what the founders had in mind.

                  1. I doubt the framers of the constitution meant for the commerce clause to include tell the citizens they HAVE to buy a certain good or service. Thats part of what they were trying to get away from.

                4. Being in possession of a manufactured weapon is most certainly economic behavior, and it is entirely fatuous to claim otherwise.

        3. Moving to another state, and thereby relocating the locus of your labor, is clearly economic activity, and therefore can be regulated by your reading of the Commerce Clause.

          1. Perhaps, but other parts of the Constitution protect this right in a more explicit fashion, so according to the rules of construction they would be favored.

    3. MNG|4.5.10 @ 7:32PM|#
      “According to Art. I the federal Congress has the power “To regulate Commerce..among the several states.””

      And exactly how is coercing someone to buy an economic good ‘regulat[ing] Commerce..among the several states’?

      1. Easy, commerce, even in its most narrow definition, involves the business of buying and selling stuff. Congress can broadly “regulate” (with no qualifications or limitations) the buying and selling systems that exist inter-state. Whether or not people are mandated to buy into a market will certainly effect that market. Ergo, vis-a-vis, concordantly…

        1. MNG|4.5.10 @ 9:16PM|#
          “Easy, commerce, even in its most narrow definition, involves the business of buying and selling stuff.”

          Great. I’m not buying so no one is selling. Try again.

          1. Requiring people to buy a commodity doesn’t effect the market in that commodity? Remarkable.

            1. MNG|4.5.10 @ 10:01PM|#
              “Requiring people to buy a commodity doesn’t effect the market in that commodity? Remarkable.”

              What’s remarkable is you ignorance. I’m sure I’ve seen the like before, but not for a long while.

              1. Very cute, but I notice no attempt at refutation of my point. do you deny that requiring people to participate in a market will effect that market?

                1. Of fucking course, that is our point. You are using the law in a way that it has never been used before to argue that there are no limits on federal power outside of SOME criminal law. That goes against the entire spirit of the constitution.

                  1. I meant to say that “Of fucking course we don’t deny it.”

                    1. But with that definition of the law, the government can regulate just about anything, and that was never the framers’ intent.

                    2. Not true, as Lopez and Morrison show there are areas it cannot go. For instance think of a federal spanking law. One could argue spanking causes certain effects which then effect economic activity, but under Lopez-Morrison that’s too tenous, so no go.

                      It works.

                    3. We’ve been over this. Just because I can beat my wife under your logic, I’m not satisfied. You are still trampling on theoretically all economic rights including (but not limited to) action, inaction, interstate commerce, intrastate commerce, self production, etc. That seems to piss all over the entire point of having a constitution in the first place. Apparently all we needed was the “Writ of Federal Supremacy” and the founders would have been done. Although, we should all be happy that only the states can tell us not to beat our wives! Yay freedom! j

                      Freedom is Slavery

                    4. No it doesn’t. All Congress has to do is put regulation of those activities within the scope of some sort of bill that regulates some economic activity. The majority opinion in Lopez told Congress how to do this; since Congress now knows how, Lopez is moot except in the situation where Congress screws up the construction of a bill.

                    5. I deny it!

                      Requiring people to participate in a market affects that market.

                    6. yes yes sorry about the effect/affect thing.

                  2. tkwelge|4.5.10 @ 10:22PM|#
                    “….That goes against the entire spirit of the constitution.”
                    MNG has no interest in the constitution. MNG is attempting to use every bit of misdirection and ‘cleverness’ to justify what can’t be justified.
                    MNG, I’m waiting for that paycheck.

                    1. OK, didn’t I put this baby to bed? To need is defined as “?necessitate: require as useful, just, or proper”. There is an element of requirement (he needs this or he will die, suffer, etc.) or that it is just. You spending your money on an iphone doesn’t make you need my money to pay your health care. However, if you had an imminent painful condition that could be alleviated by my paycheck, then yes you have a claim on it. You’re trying to be cute with words, but we’re not post-modernists here: they have limits, which everyday people acknoweldge every day.

                      And when the house liberal has to chastise you guys about playing fast and loose with the “spirit” of the Constitution…

                    2. Oh wow! We are all slaves to eachothers needs now! There is no such thing as altruism anymore, folks. Somebody is in need? Somebody makes bad decisions and can’t take care of themselves? Everybody put your wallets on the table and grab a shovel.

                    3. Never the intention of the founders. Name one founder who said that we should all be compelled to take care of one anothers’ problems. Apparently we’ve been living in a socialist dictatorship (with the odd election) for 224 years!

                    4. MNG|4.5.10 @ 10:36PM|#
                      “?*necessitate*: require as useful, just, or proper”. …(he *needs* this…)

                      And just to rub it in because you deserve it, I’m sure you didn’t even notice the circular argument in your post, did you?
                      Sorry (well, not really…) to pick on such a blowhard, but I’m really tired of ignoramuses.
                      Go away, MNG, and take your silly comments with you.

                    5. you’re supposed to play fast and loose with the ‘spirit’ of the constitution when doing so restricts the power of the government (for example, extending first amendment to things that are not just ‘congress’). You are not supposed to do that when doing so restricts the power of the individual.

                    6. MNG|4.5.10 @ 10:36PM|#
                      “OK, didn’t I put this baby to bed? To need is defined as “?necessitate: require as useful, just, or proper”…”
                      No, you certainly didn’t ‘put it to bed’. In fact you just clearly demonstrated that “need” can in no way be logically separated from “want”. Did you read what you quoted? Just checking…
                      You provided what you presumed to be a ‘qualifier’ which certainly justifies my need of your paycheck:
                      “There is an element of requirement (he needs this or he will die, suffer, etc.) or that it is just.”
                      I might die if I don’t get it, OK?

                      “You spending your money on an iphone doesn’t make you need my money to pay your health care.”
                      By the definition *you* offered, it certainly does. It’s ‘useful and just’.

                      “However, if you had an imminent painful condition that could be alleviated by my paycheck, then yes you have a claim on it. ”
                      I state I do. I find it painful to pay for the food I like.

                      “You’re trying to be cute with words, but we’re not post-modernists here: they have limits, which everyday people acknoweldge every day.”
                      No, you’re an ignoramus who presumes the rest of the world agrees with your religion. I depend on logic.

                      “And when the house liberal has to chastise you guys about playing fast and loose with the “spirit” of the Constitution…”
                      Uh, let’s be honest:
                      ‘When the house ignoramus has to make up whole new meanings…’
                      You are supposedly educated; if you actually are, you would know that defining a ‘everything’ as ‘something’ means defining it not at all.
                      Exactly how stupid are you?

                    7. What invokes need is indeed want, but you’re equivocating on that latter word. Not want as in mere preference, but want as in a significant level of deprivation, one that induces human suffering. That level of need invokes a response in the moral and can rise to the level of a right. At the least the alleviation of some levels of need outweigh minor coercions.

                2. MNG|4.5.10 @ 10:17PM|#
                  “Very cute, but I notice no attempt at refutation of my point. do you deny that requiring people to participate in a market will effect that market?”

                  Very stupid, but I notice you make no attempt at refuting my point.
                  Do you deny that not giving me your paycheck will affect the market?

            2. Requiring people to buy a commodity doesn’t effect the market in that commodity?

              You VILL purchase dis insurance, ya?

            3. So anything that “affects the market” can be regulated under the commerce clause?

              What *doesn’t* affect the market?

              Name something.

              1. “So anything that “affects the market” can be regulated under the commerce clause?

                NO. Only economic activity. As I’ve said I support Morrison/Lopez.

                1. But you’ve already argued that inaction effects the market. Seems like there isn’t anywhere that you can go from there. Oh yeah, I really expect the government to stick to any sort of precedent. You piss all over precedent, then applaud that other people have already pissed all over it for you, than any case of precedent spanning a hundred years is a clinching argument for whatever the hell that you want. This is fun.

                  1. That should say that “it seems like there isn’t anywhere you CAN’T go from there…”

                    WHoops. You get the gist of my point.

                2. MNG|4.5.10 @ 10:38PM|#
                  “So anything that “affects the market” can be regulated under the commerce clause?

                  NO. Only economic activity.”

                  Define “economic activity”.

                  1. Again your post-modernism is amusing, if useless. You don’t understand the difference between buying and selling a commodity and engaging in gender violence such that the former is economic activity and the latter is a non-economic activity? Most non-postmodernists would instantly recognize the latter as an act of violence, not of commerce.

                3. “only economic activity”

                  What about non-economics activity, like choosing not to take part in the market and buy insurance. Like the broken window fallacy, what if I would have spent that money on something else? Like house payment, food, charity, ect. Are we now going to be forced to purchase housing and food? Am I going to be forced to stay in shape and work out and eat healthier because me being sick all the time and having to see the doctor will drive up costs for everyone else? We can take this economic activity/non economic activity idea to all aspects of life. And trust, slowly, the Feds will.

                4. NO. Only economic activity.

                  But inactivity now counts as activity.

            4. Dude, please learn the difference between effect and affect. Your repeated misuse kind of grates on my eyeballs after a while.

              1. I was tired, man. This is an internet comment page, not a dissertation.

        2. hmmm, if we require everyone to buy a house, it will drive up the price of houses (which everyone agrees is a universal good), which will effect interstate commerce, thereby justifying a law requiring everyone to buy a house.

          1. And “house” is no better defined than, say “food”. Or “healthcare”.
            So by MNG’s attempt at logic, any activity at all can be required if it is in any way associated with what might be commerce if someone were actually buying or selling anything.
            BTW, MNG, I still “need” you paycheck; where can I pick it up? I “need” to pay my health insurance bill.

          2. Yes Hazel, I think the IC Clause would permit this.

            1. Where’s your paycheck? I need it under the IC clause, since I can use it to buy something?
              Are we yet getting through on the stupidity you’re exhibiting, or do we need further examples?

            2. if it permits that, then it could permit the government to require you to purchase anything. Because every purchase or non-purchase affects the market price of *something*.

              Right now, by not buying a silver spandex unitard, I am driving the price of unitards down.

              1. What about all of the workers in the spandex industry you are putting out of work you shameful bastard! Selfish….

                1. I can’t believe the GREED of me for refusing to support the spandex industry.


                  1. Your comment is very funny. But imagine how this power could be abused. Here’s a scenario: a guy owns a pineapple business that is struggling. He lobbies his powerful senator friend, who then writes legislation that mandates all Americans must buy two pineapples every month during pineapple season. Since government is paying for HC, the legislation is sold as requiring healthy eating to keep down costs. Voila, guy’s pineapple business is saved.

                    If this mandate stands, businessmen all over the country will come out of the woodwork to lobby congress to pass bills mandating that the American people buy their products.

            3. This might be great for that rapidly-declining-in-value bit of real estate MNG has bragged about “owning” in previous threads….

            4. @MNG,
              Liberal Americans like you are the reason this nation is in a mess – your comments in this thread are nothing more than futile attempts at rationalization.

              Your “understanding” of inter-state commerce or the very idea of a free market is deplorable to say the least – a free market has a willing buyer and a willing seller – not a mandated buyer who will other wise have to pay a fine or come under the good graces of IRS.

              Your belaboring of inter-state commerce for a service which is not provided across state lines is painful.

              many posters have already used reductio ad absurdum to disprove your point – but the spandex market was the funniest.

              Geez, is this the country the Founding Fathers envisioned ? People like MNG are fighting over how broad the federal Govt’s power over an individual can be when they did everything in their power to restrict this exact power as much as they can..

              The Republic… has not been kept.

        3. And ergo, vis-a-vis, concordantly, your “argument” fails.
          And here I heard your degree was in Poly-Sci, which is certainly worthless enough.
          But it looks like you took it in Self-Righteous Twit.

        4. Why did prohibition of liquor require the 20th Amendment?

          1. Because the government wasn’t quite bold enough to ignore the constitution entirely back in the 1920s.


        5. But economics is more than just commerce. Commerce is only a subset of economics; not the whole set. You’re claiming that since Commerce is a subset of economics that congress can regulate anything economic. Why not go all the way? Economics is a subset of human action, ergo with the Commerce Clause all human action can be regulated!

    4. So, MNG, if I have a garage sale… does the Commerce Clause come into play?

      1. Apparently, even if you make something in your garage for your own use, or choose not to, the commerce clause comes into play in the US of MNG.

    5. Except the text does NOT say that refrainimg from buying something constitutes “commerce”.

      That is merely YOUR expansionist interpretation.

      The power is to regulate commerce – not compel someone to engage in commerce.

      They are not one and the same.

    6. If the power granted in the commerce clause is as broad as you claim, then the rest of the constitution is moot.


  7. I think the argument that the Feds will make is that it’s not really a mandate. It’s really a type of income tax and therefore allowed by the 16th Amendment. I don’t know whether the SCOTUS will buy it or not, but I think that’s the argument that the Feds will use.

    1. Really? So under the guise of taxing income, the feds can decide what I must buy, and really, it could be anything, not just health insurance.

    2. I disagree that the SCOTUS will accept that argument. This is why I think that United States vs Butler is the case that needs to be studied.

  8. I’ll just defer to the “Father of the Constitution” on this one:

    “Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the nonimporting, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.” – James Madison

    1. It’s interesting that a quick read of either the Federalist Papers, Anti-Federalist Papers or just the personal correspondence of the constitutional authors spells out exactly why the Constitution is written the way it was… but far be it for me or anyone else to actually “read” something for a change.

  9. Seriously, if you want the federal government to fulfill your every want and need, you’re just going to have to look the other way on the constitutionality of some of the things it wants to do to you on the way there.

  10. Hey, MNG, was slavery interstate commerce?

    1. It would have been great if Congress had thought to regulate slavery through the IC Commerce clause since the feds were in a better place than many of the states at the time…Sadly the selling of men was a part of economic activity of the time, and that’s what I think the IC clause aims at: the broad power to make laws to “regulate” inter-state commerce. Now, the trade in men should never have been allowed as commerce, but when it was it would be open to regulation via that clause.

      1. So the 13th Amemdment is entirely superfluous?

        What about the manufacture, transportation, sale and consumption of aloholic beverages? Interstate commerce?

        1. So the 13th Amemdment is entirely superfluous?

          Um, no. The 13th amendment prohibited slavery. MNG is just saying that, given his reading of the commerce clause, Congress could have outlawed slavery if they had wanted to. The would not have to.

          1. Under the clause the slave trade could have been regulated in any way, including prohibition.

            1. Nonsense. Congress knew it did not have that power, and passed the 13th Amendment as a result.

              1. Exactly. Kind of like how the knew they didn’t have the power to prohibit alcohol under the CC, so they passed an Amendment.

        2. Certainly yes.

          1. Too bad they went to the trouble of amending the Constitution when all it took was the interpretive genius of the modern liberal dishpit to decide that the Feds can do ANYTHING they want since it must SOMEHOW relate to interstate commerce.

            1. It may not have authorized ending intra-state slavery. But again, as I’ve said, it doesn’t mean “ANYTHING” is on the table, as Lopez and Morrison demonstrate.

              1. You don’t even get what the Court said in Lopez so stop treating it like it means anything. Raich signaled the end of Rehnquist’s federalism.

                1. I disagree, as Raich dealt with fundamentally economic activity.

                2. Just so we can be sure here, I LOATHE the mandate. I’m the house liberal and I’ve consistently said it’s the most hideous thing I can think of: forcing people to buy private corporate insurance.

                  My only point is the principled one that no matter how stupid and evil I think this law is, I think the Constitution allows it.

                  It should be defeated at the ballot, not the court.

                  1. What is your plan to defeat adverse selection, other than the individual mandate? Universal tax-financed coverage? Or do you just have no plan at all, and are willing to allow the market to fail?

                    1. Get the government out of the way.

                    2. Let insurance companies charge riskier people at above their expected cost.

              2. You still strip away any economic rights that anybody could have with one fell swoop. The commerce clause has never been used in that way. The pendulum has swung both ways on the commerce clause, but even when the progressives were in power, they never regulated economic inactivity, especially that meant to benefit a private company.

      2. MNG|4.5.10 @ 9:19PM|#
        “…Now, the trade in men should never have been allowed as commerce, but when it was it would be open to regulation via that clause….”

        Again, you mistake cause and effect.
        Slavery wasn’t “allowed”, it was enforced by the government.

      3. >It would have been great if Congress had thought to regulate slavery through the IC Commerce clause

        I’ve got news for you: they did regulate slavery, although they didn’t use the commerce clause to do it. The Fugitive Slave Act was one such measure.

        Fortunately, most of the northern states nullified the fugitive slave act, applying the principles of states’ rights that Jefferson and Madison asserted in the Virginia and Kentucky resolutions.


    2. I agree with you all on the unconsitutionality of the mandate but this line of reasoning won’t hunt. The Framers knew the Commerce Clause applied to the slave trade.

      Article I Section 9

      The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

      And Congress outlawed international slave trade as soon as it could (January 1, 1808). After that the only slave trade was internal but only permitted because the Southern states had sufficent political power to keep it legal. Being Constitutional doesn’t mean Congress *has* to do something.

  11. It really depends on what the Framers meant by “commerce”. Websters defines commerce as: Transactions having the objective of supplying commodities. A commodity is: Something of value that can be bought or sold, usually a product or raw material. I believe they meant it to apply only to widely traded goods or commodities. I doubt they would have even considered insurance as commerce. Insurance would have been considered “business”.

  12. Isn’t the obvious solution to pass a Constitutional Amendment to repeal the Commerce Clause?

    Ok, maybe 2/3rd of the state governments aren’t completely run by a pissed off center-right yet — give it time.

    1. I wouldn’t think it would be rid of the whole thing. It just needs clarification. The Constitution is not a perfect document by any means. The writers screwed up in a number of places. By “screwed up” I don’t necessarily mean that they enshrined ideas that I don’t like. I mean that the language that they included was not always clear and precise enough to cause the effect which the writers intended of it Things which I would want to append might include definitions of “commerce” and “among the several states”.

      1. Also “shall”, “not” and “infringe”.

      2. I’d rather run a risk of tariffs than totalitarianism, thanks.

  13. I’m regulated
    I’m regulated
    …Odd times and all
    Odd times and all

  14. Incorrect: your decision not to purchase health insurance is virtually certain to be a manifestation of a classic market-failure which corrupts the whole health insurance market – adverse selection.

    Please try again.

    1. How is it a market failure that I’m not subsidizing your healthcare by overpaying for insurance when I don’t really need it? You call not forcing me into a socialized regime for the benefit of a private company a market failure. You people really are totalitarians.

      1. Jesus, dude, don’t even bother.

      2. Please study up on adverse selection, and get back to me. It is clear that you know nothing about health care economics, and aren’t even smart enough to know it.

        You might want to read this article as well.…..amp;n;=140

        1. You are ignoring all of the ways that the government screws up the healthcare market. Now solving the adverse selection problem is going to make all other problems go away? All it is doing is forcing me to act in a way to cover the failures of past measures that have blown up in their face. The government screws upo the market then wants us to OBEY so that WE can cover its mistakes.

          What makes healthcare so magically different that it has to operate differently than any other market. We don’t have food insurance, or a subsidized regime for giving everybody housing, and those markets work more or less fine. Any socialized solution faces an adverse selection problem when people have the freedom to opt out. Compulsory healthcare is simply the realization of the socialized mistake that is the healthcare industry.

          1. No, in fact, I am NOT ignoring them. I simply observe what has happened in every other civilized nation on earth and conclude that in these cases, whatever flaws the government has is smaller than the flaws the market has here.

            The entire problem is that idiot libertarians refuse to believe that the market could ever have any substantial flaws, despite the evidence.

            1. The entire problem is that idiot statists refuse to believe that the government could ever have any substantial flaws, despite the evidence.


              You’re welcome, Chad.


                There you go, Chad

            2. An entity without obligations can’t have “flaws.”

      3. Dude, you use your freedom in a way Chad does not approve — that means that freedom doesn’t work.

        Just accept that Chad is an arrogant wannabe dictator and ignore his moronic bullshit.

    2. Chad|4.5.10 @ 10:01PM|#
      “Incorrect: your decision not to purchase health insurance is virtually certain to be a manifestation of a classic market-failure which corrupts the whole health insurance market – adverse selection.
      Please try again.”

      Chad, I need your paycheck to buy something, so I obviously have a right to it. Where may I pick it up?

    3. So, Chad… you okay with giving the Amish a skate on being forced to buy insurance? Or are you all for holding a gun to their heads as well?

    4. So, it’s okay to force people to buy health insurance, because people are forced to buy car insurance.

      I have a blind friend. I’m sure he’ll be happy to hear he has to purchase an auto policy AND health insurance.

    5. Please note. This statement is made by a guy who doesn’t know what the words “expected cost” mean in statistical terms.

      1. I can assure you, Hazel, that I aced both my stats and my econ courses.

        Really simple stuff, honestly.

        1. Chad|4.5.10 @ 11:19PM|#
          “I can assure you, Hazel, that I aced both my stats and my econ courses….”

          The shame is, you didn’t learn anything. “Adverse selection” is exactly what will sink Obamacare.

        2. “Furthermore, if there is a range of increasing risk categories in the population, the increase in the insurance price due to adverse selection may lead the lowest remaining risks to cancel or not renew their insurance. This leads to a further increase in price, and hence the lowest remaining risks cancel their insurance, leading to a further increase in price, and so on. Eventually this ‘adverse selection spiral’ might in theory lead to the collapse of the insurance market.” – wikipedia article on adverse selection.

          So basically the purpose of Obama care is to save the insurance companies? Make us all pay higher rates for everyone else? Sounds like back door nationalized health care to me. I can’t imagine the perverse incentives this will create for people.(I’m interested in this stuff because I’m starting an economics degree as soon as I’m out of the military. Comments?)

          1. No. It isn’t about saving “insurance companies”. It is about saving the very idea of insurance, regardless of who pays for it or adminsters it. As long as people can opt out, two things will happen: the healthy will flee, and any private insurers will do their damnedest to dump sick people. This is exactly what screws up the private market here in the states and makes it so absurdly expensive.

            1. Then sick people will stop buying insurance from them, an either another alternative will come up, or out of pocket health care will become cheaper, or family members and communities will chip in. It doesn’t take a federal government creating artificial incentives to help people. It would not be doomsday for the sick if the type of insurance we have collapsed. Thats just a scare tactic.

            2. I’m sorry, but I don’t think it would be a death sentence for sick people or the death of the idea of insurance. The death of the idea of insurance will come because people use it for everything, not emergencies, thats what really drive up costs for what insurance should be. It does not take a central government to create artificial incentives to get people help. The market will quickly device new, better, cheaper ways to help people, and local communities would help those in their communities that needed it. Saving insurance and lives is just a scare tactic to get power.

              1. That should be devise.

            3. “This is exactly what screws up the private market here in the states and makes it so absurdly expensive.”

              No. What screws up the market here is the fact that pricing information is generally not available. Price is a market signal; it’s how the buyer decides if a product is worth buying, and if so, where. And it’s how a seller decides if a market is worth getting or staying in.

              In health care, consumers seldom have any accurate information on pricing, and almost never prior to services being rendered (as opposed to afterwards). Even stated billing amounts on insurance-account statements seldom represent the real cost of the service; instead they are the result of a kabuki dance between the doctor and the insurance company. The doctor has to eat losses on some services in order to remain in the good graces of insurance companies, and will recover by overcharging or performing unnecessary services in other areas where the insurance company isn’t looking. The two sides constantly play price whack-a-mole against each other, and as a result what the consumer gets is pure noise.

              Let doctors, hospitals, and pharmacies advertise. Let insurance companies operate across state lines and offer a variety of policies. Equalize the tax treatment of individual and employer policies. Allow buying through ad hoc groups and cooperatives (e.g., credit unions). And — this is the tough bit — allow providers to turn down consumers who potentially have the means to pay, but don’t make any effort to cover themselves. Obamacare either doesn’t touch any of these areas, or it goes in the opposite direction.

        3. So why don’t you explain again how it makes no sense that the expected cost of a consumers health care could be less than their lifetime premiums.

          1. Where on earth did I ever claim they wouldn’t be, Hazel?

            1. You did in an earlier thread.

  15. even if the commerce clause was stretched to such absurd limits as to classify non-commerce as a commerce, that doesn’t give them the right to regulate it in unconstitutional ways. there are so many constitutional violations with this bill that it could be challenged 20 different ways.

  16. “if the failure to regulate would undercut a federal regulatory regime, then [the Supreme Court is] going to permit it.”

    Failure to regulate undercutting a regulatory regime seems like a slam-dunk tautology to me. Party on! 8-(

    1. Exactly. All Congress need do is fuck up a market sufficiently with meddling, programs and surreal regulation then, when the unsurprising collapse happens, declare “market failure” and annex the whole shebang.

      The answer is ALWAYS more state intrusion.

      1. This is basically chad’s argument.

  17. Chad is okay with forcing people to buy health insurance. Because, y’know, it’s for their own good, and shit like that.

  18. Anyone want to see me smack Tony around?…..nt_1644313

    Comments are welcome.

    1. Well put, but I don’t know why you bother.

  19. MNG|4.5.10 @ 10:36PM|#
    However, if you had an imminent painful condition that could be alleviated by my paycheck, then yes you have a claim on it.

    MNG, I know someone who has cancer who will die since she can’t afford her chemo. Paycheck plz?

    1. I will state the obvious, because I think it is worth stating:

      He doesn’t actually mean what he says.

      1. Marc|4.5.10 @ 11:07PM|#
        “I will state the obvious, because I think it is worth stating:
        He doesn’t actually mean what he says.”

        You’re too kind. S/he doesn’t *know* what s/he says.

  20. MNG, I’m putting your contact info on some cancer victim sites. People should be coming to pick up your paycheck any day now.

  21. The wisdom of the health insurance reform plan enacted by Congress is fairly debatable. Whether the Constitution authorizes Congress to act in this manner is less so.

    The so-called “individual mandate” is actually a tax on those individuals who decline to purchase health insurance. To quote from Professor Jack Balkin of Yale Law School, writing in the New England Journal of Medicine:

    The individual mandate is a tax. Does it serve the general welfare? The constitutional test is whether Congress could reasonably conclude that its taxing and spending programs promote the general welfare of the country. This test is easily satisfied. The new health care reform bill insures more people and prevents them from being denied insurance coverage because of preexisting conditions. Successful reform requires that uninsured persons ? most of whom are younger and healthier than average ? join the national risk pool; this will help to lower the costs of health insurance premiums nationally.

    Taxing uninsured people helps to pay for the costs of the new regulations. The tax gives uninsured people a choice. If they stay out of the risk pool, they effectively raise other people’s insurance costs, and Congress taxes them to recoup some of the costs. If they join the risk pool, they do not have to pay the tax. A good analogy would be a tax on polluters who fail to install pollution-control equipment: they can pay the tax or install the equipment. [footnote omitted]

    Moreover, Congress has the power to regulate interstate commerce. This power has been held to extend to requiring innkeepers to rent rooms, and restaurant operators to sell food, to Negro guests. These are individual transactions that, but for federal preemption of Jim Crow laws, would not have occurred, and thus the sellers (if left to their own devices) would not have been engaged in commerce.

    An individual’s decision to purchase, or to decline to purchase health insurance affects commerce in the aggregate. Again, quoting Professor Balkin in the same article:

    The individual mandate taxes people who do not buy health insurance. Critics charge that these 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. Moreover, like people who substitute homegrown marijuana or wheat for purchased crops, the cumulative effect of uninsured people’s behavior undermines Congress’s regulation ? in this case, its regulation of health insurance markets. Because Congress believes that national health care reform won’t succeed unless these people are brought into national risk pools, it can regulate their activities in order to make its general regulation of health insurance effective.

    Makes sense to me. I suspect that those who suddenly blather about “states’ rights” are operating in service of a less high minded, more ignoble agenda. After all, Article I, ? 8 does not confer the power “To regulate Commerce..among the several states, except when a darkie is President.”

    1. *baaaaaaaaaaaaaaaaarrrrrrrfffffffff*

    2. And now we’re back to the whole “the mandate is actually just a tax” issue. Except that the way that the law was written explains that it is a fine for NOT buying insurance. Arguing that it is a tax and tax credit combo, is dubious at best. Obama himself is not arguing that it is a tax, simply because he supposedly promised not to raise taxes on the poor and middle class, which this will be.

      Obamacare also doubles down on a lot of things that will make healthcare worse, or even more expensive. You could argue that any new law or program is in the best interest of the country, but that doesn’t make it so. The idea that healthcare is a natural right flies in the face of the fact that for 200 years, people lived just fine (or better than they had in any time period previously) without any such benefit. The only real problem is the spiraling cost of healthcare, which obamacare does absolutely nothing to solve.

    3. So, about that promise not to raise taxes on…

      Oh. Sorry, I forgot. He can’t possibly be held to his campaign promises, because dammit, it’s downright fucking racist to actually be angry if the man breaks his word.

      1. I am just a worthless liar
        I am just an imbecile
        I will only complicate you
        Trust in me and fall as well

        I will find a center in you
        I will chew it up and leave
        I will work to elevate you
        Just enough to bring you down

  22. Sounds like a bunch of political hooplah to me dude.


    1. You really nailed that one on the head, Botsworth!




    1. It’s interesting that Hayek speaks extensively in the The Road to Serfdom about the confusion of the meaning of language on the road to totalitarianism. He struggles and explains that is hard to articulate to people who have never experienced. I felt that Orwell did a good job of explaining it in 1984, and sadly we see it even now.

      1. It’s strange that Orwell was a socialist, when he pretty much nailed the inevitability of socialism becoming facism to the wall in more than one novel.

        1. That’s because Orwell had several real life examples in the evolution of the Soviet Union from Lenin to Stalin, and in the ideological history of Fascist leaders like Mussolini. Communism and Fascism are variations on the same sauce.

          1. Orwell also saw the elephant in
            S.E. Asia; Disgusting, terrifying
            breed, that.
            See also Keith Laumer’s ‘Retief’
            stories, based on his experiences
            as a Diplomatic Aide in that area
            during the Vietnam era.

  24. “The power to regulate commerce among the several States” can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.

    1. To refer the power in question to the clause “to provide for common defense and general welfare” would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms “common defense and general welfare” embracing every object and act within the purview of a legislative trust.

    2. What do you know about the Constitution, James? It’s not like you wrote it.

  25. Living in a country where both car insurance and health insurance are mandatory, I’d be less worried about whether or not they can find a way to draft a law that holds up, than the fact that to have *any* effect, the penalty is going to have to be on the order of the cost of the insurance, and once they gov’t starts chasing people for 10’s thousands of dollars they are going to turn into one bad ass loan shark. Think about the fact that cities already sieze cars now for back taxes. People are going to get bankrupted, the Feds are going to start grabbing things and you are going to think that “three felonies a day” was a lark.

    1. What country do you live in that car insurance is mandatory?

      1. Australia, but its required in most of Europe as well (and I thought by many US States-No?). In addition, both Australia and Switzerland have requirements for buying health insurance. The difference being that the Swiss don’t have a “public option” where as Australia does.

        1. Of course in Oz it did not work so the fix will be to nationalize it:

          PM Rudd: “We are heading for a once-in-a-generation change to the way health services are delivered and funded and managed in this country.
          From the top, the Commonwealth must have a greater funding and national planning role.”…..03-11.44.1

        2. “Australia, but its required in most of Europe as well (and I thought by many US States-No?)”

          Pretty much. Some states will let you out of it if you can post a bond of a certain amount. The amount is generally incredibly large, so I doubt very many drivers go that route. Also, banks generally will not give you a car loan if you aren’t insured.

  26. Using Wikipedia as a source?!?!

    Lame, unprofessional, and lazy…

    None the less you still make a very valid point…

    Its time, heck its past time to assert states’ rights regardless of what the Supreme Court has to say…

  27. The states and the people have to make it clear that the Commerce Cause has gone to far and must be rolled back.

    It’s time for a Constitutional Convention, or at least the credible threat of one.

    1. There is not time for a CC, and
      no need for one; CongressCritters
      need to heed the voice of the People.

  28. I still don’t think I’d put money on the Supreme Court actually striking down the mandate. . . .

    Given that you apparently didn’t have the background to understand the original point, Mr. Suderman, or any familiarity with the relevant caselaw, I hardly think your opinion on the viability of a challenge to the healthcare law under the enumerated theory is worth consideration. You admit to being ill-informed and then want us to grant you credibility on this issue? Get soaked.

    1. Will the Court act on legal,
      political, or personal grounds, A ?

  29. The biggest problem with the Leftist interpretation of, and SCOTUS precedent on, the Commerce Clause is actually not the intentional misreading of the words “Interstate Commerce. The biggest problem is their genuine misunderstanding of the word “Regulate”. It has nothing whatsoever to do with what we think of as “Regulation” today. In the context of the Clause, it means “To Regularize”, “To Make Regular”; that is, to ensure that each individual State’s Laws concerning Commerce are consistent regarding every other State. It gives NO POWER whatever to legislate, or to pass any “regulations”, that affect Commerce within or between States. It allows the Federal Government ONLY to disallow any State Law or Rule that treats goods and services from one State differently from how it treats goods and services from every other State.

  30. Well then, the commerce clause could allow the Federal Government to force me to go to Wal Mart and buy tennis balls.

  31. A SCOTUS decision to affirm the mandate would overturn the precedent and the test of the application of the commerce clause developed from Wickard through Lopez and Raich. Yes, in spite of two out of three of those rulings being expansive, they actually do set limits that the mandate would not past muster.

    You also have the problem of taxation. There are hard limits on how the Federal government is allowed to collect taxes that the courts have enforced consistently over the many decades.
    If it doesn’t fall under excise or income taxation, than the only remaining option allows the collection of taxes through an apportioned means applying equally to the states based upon representation based upon population. The health care by no means fits that description.

    With those real hurdles, it wont even be close. If I were a betting man, I would go with a 7 to 2 decision overturning the mandate. The most interesting thing for me will be reading the verbal gymnastics of the few remainders to justify their minority position.

  32. Wickard won’t be struck down because to strike it down would be to strike down the Civil Rights Act.

  33. surely it must be that the power is limited to regulating the actual conduct of commerce itself and not whether one participates in commerce.

    what would such a writ not cover?

    it doesn’t seem to provide any power to force individuals to engage in a certain type of commerce.

    God help us all if it is ruled that it does.

  34. Like a lot of people, I’m deeply suspicious. Given the overreach that has been allowed in the past, the likelihood of the Court striking down ObamaCare is extremely remote. The Commerce Clause has for all practical purposes become the entire Constitution, since pretty much anything can be somehow defined as “commerce”, and any “commerce” affects interstate commerce. The result is that the entire document resolves to “Congress shall have the power.” Anything further from the intent of the Framers would be hard to define.

    The Framers lived in a time when most of the revenues of Government came from tariffs and excises. It is my opinion that they intended that the Federal Government would establish (uniform) tariffs between the States, and collect the revenue. Congress did, in fact, do some of that, with near-uniformly disastrous results — the Coastwise Tariffs that were part of the motivation for the Civil War come to mind. Otherwise, the actual effect of the Clause prior to the Progressive era has been to establish the United States as the poster child for a free trade zone.

    I personally would like to see the Commerce Clause withdrawn in its entirety by Amendment, replaced by forbidding tariffs, imposts, etc. among the States. This is tossing the baby out with the bath water, agreed, but that baby’s starting to rot anyway, and nothing seems to be able to restrict the progressive incursion of the Clause deeper and deeper into ordinary life.


  35. MNG (et al.), Article I and, a fortiori, the Commerce Clause deal with relations between governments — the clause mentions three (and only three) entities: foreign nations, the several states, and Indian tribes. The goal of the clause is to ensure that economic transactions are regular — that is, the same among all members of each class (nations, states, and tribes).

    Part of what is meant by commerce can be seen in sections 9 and 10, which is clearly an explication (and narrowing) of the commerce clause: “No tax or duty shall be laid on articles exported from any state”, “No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports”, &c.

    By MNG’s reading of the Commerce Clause, nearly everything in sections 9 and 10 is redundant.

    Why, then, did the Founders include them?

    We can only conclude the the Commerce Clause was considered to be a narrow grant of Federal power that has been unjustifiably expanded since the New Deal.

  36. Even if their argument is the winning one, what business do these STATE AGs have in defending OCare? It is an unfunded mandate and an intrusion on state’s rights. The state AGs are supposed to protect the interests of the state. The only answer I can think of is that these AGs are putting personal interests (hopes for future advancement at the federal level) and party loyalty ahead of their duties to their states. This is a hideous conflict of interest and breach of duty of loyalty. I wouldn’t be surprised to see those claims brought against AGs who actively support OCare (as distinct from those who merely refuse to challenge it).

    1. Much of this discussion misses the main points, as I have written:


      1) The Court long-ago found insurance to be interstate commerce;

      2) The Court defers to Congressional findings of an affect on interstate commerce so long as Congress had a rational basis for such a determination–in other words, the Court defers to Congress;

      3) Modern Supreme Court precedent finding over-broad reach of commerce power is limited to non-economic transactions. The purchase of insurance–compelled or otherwise–unquestionably is economic activity;

      4) One 1995 Third Circuit case, United States v. Bishop, rejected confining commerce power to voluntary activities;

      5) On the question of whether “private” Social Security/Medicare/Medicaid would be Constitutional, see by analogy the Court’s 1954 Berman v. Parker case, upholding condemnation for private urban renewal, “The public end may be as well or better served through an agency of private enterprise than through a department of government — or so the Congress might conclude. We cannot say that public ownership is the sole method. . .”;

      6) The law’s use of fines assessed through the Internal Revenue Code at least allows the government to argue that the taxing power augments and re-enforces Congress’ Commerce power;

      7) If within Commerce or Taxing authority, the 10th Amendment doesn’t apply, and state anti-mandate laws would be preempted;

      8) The law might be an unfunded mandate, but that claim will be difficult to make in a facial challenge and may have to wait actual implementation of the mandate (starts 2014, final in 2016). In other words, the unfunded mandate argument may take years to pursue and require full development of facts at trial.

  37. For al of you desiring the true intent of the founding fathers reguards oninterstate commerce, you are adivsed to read Blackstones’ commentaries and those of St. George Tucker. The latter wrote his study during the composing of the Constitution and was a contemporay of the Founding Fathers. When his volumes were published in 1804 they were acclaimed as being the best giude to Constitutional law.

  38. “the federal government isn’t merely telling individuals what they can’t do, it’s telling them what they must do, and what they must do is purchase a product from a private company”

    If and when this provision is struck down, Obamacare supporters will say that the problem is that the government is forcing people to buy from private companies. This will be used as the impetus for ramming through the “public option,” as something necessary to keep Obamacare within constitutional bounds. Wait for it.

  39. the government like to do the telling , but dont like it when the people speak up against them , public opinion is not valued

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