Obamacare

Can the Government Require You to Eat Asparagus?

|

The future under ObamaCare?

While hearing oral arguments about the constitutionality of the new health care law yesterday, a Virginia judge suggested that the legal logic underlying the law's individual mandate, which requires everyone to purchase health insurance, could give the federal government "boundless" power over U.S. citizens. From The Wall Street Journal's report on yesterday's hearing:

Allowing [the individual mandate], Judge Hudson said, could open the door for the federal government to require residents to buy a car, join a gym and "eat asparagus," he said. "It's boundless."

Ian Gershengorn, a deputy assistant attorney general arguing for the administration, responded that "the appearance of inactivity is just an illusion." Almost all Americans end up getting medical care, he said, and requiring them to carry insurance simply regulates the way that care is paid for. "This is not a police power because it is tethered quite precisely to an economic market," he said.

Judge Hudson appeared skeptical of the administration's argument that the fee for not carrying insurance amounts to a tax. He said President Barack Obama vehemently denied it was a tax while Democrats were securing votes to pass the legislation. "Was he trying to deceive the people?" the judge asked.

Mr. Gershengorn responded that the president was conveying that it wasn't a tax increase, and that Mr. Obama hadn't been deceptive.

Regardless of the outcome of this case, I doubt we'll see the asparagus lobby pushing for a mandate any time soon. But Gershengorn's arguments are still suspect.

First, it's notable that Judge Hudson seemed irritated with the Obama administration for selling the public on the idea that the law isn't a tax and then trying to sell the court on the idea that it is. He isn't the first judge to point out the administration's rhetorical bait and switch, either: In Florida, Judge Roger Vinson, reviewing a similar case on the constitutionality of the mandate, scolded the government for its "Alice in Wonderland" rhetoric on the question of whether the mandate is or is not a tax. David Barnes at E21 seems to think that the administration lost this section of the argument. But if nothing else, the White House's messaging flip flops have made making their case marginally more difficult by annoying several of the judges.

As for Gershengorn's claim that declining to purchase health insurance is just a deferred economic decision, it strongly resembles the position taken by Michigan Judge George Caram Steeh earlier this month. Steeh's ruling on the mandate boiled down to the idea that not purchasing insurance is a form of economic activity, and therefore fair game under the Constitution's Commerce Clause, because it's an implicit decision to buy health care later, some other way. But one problem is that although many individuals who decline to buy insurance eventually pay for health care in another fashion, not all of them do. The Journal's summary of Gershengorn's position indicates he knows this: He reportedly indicated that "almost all Americans" eventually get medical care, but not all. No matter what, individual participation varies. As Ilya Somin argued, "those who choose not to buy health insurance aren't necessarily therefore going to buy the same services in other ways later." The problem, then, with Steeh's vision of the health insurance mandate is that it "makes no distinctions on any such basis. It sweeps in nearly everyone."

And stretched to its logical conclusion, the mandate's policy implications are absurd. As one successful political opponent of the mandate once said: "If a mandate was the solution, we could try that to solve homelessness by mandating everybody buy a house." That's probably somewhat exaggerated, but it's basically a fair point. And it was first made on the campaign trail by President Obama.

Read Jacob Sullum on the thorny constitutional question of whether eating fruits and vegetables is an economic activity

NEXT: Also, Obama's Taxes Are Higher

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. My mother tried to make me eat asparagus.

    My emphatic, unchanging ‘no’ cost me quite a few desserts.

    1. See guys, it’s not a tax, you just miss out on a few desserts. Chillax Already!

    2. Was it a 100% penalty tax on desserts for failure to comply, or a 100% dessert tax credit as a reward for optional compliance?

      1. You ever try to get a kid to fill out his dessert-tax forms? Harder than getting them to eat the veggies the dessert-tax exists to penalize.

        1. *exists to penalize them for not eating.

          (is that closer to english?)

          1. You’re talking about tax law. Resemblance to the English language does not apply.

        2. Think of the jobs created or saved to facilitate enforcement!

          1. THINK OF THE CHILDREN!!!!!

      2. 100% penalty, alas.

        With an occassional “bonus” penalty of the next night’s dessert as well.

    3. How can you not like asparagus?

      Oh, wait, that’s right: you’re a Canadian, so you only like asparagus-flavored potato chips.

      Here’s a question: if you have some hot dog flavored chips (these exist!), some dill pickle potato chips, and some “all dressed up” chips, can you consider that to be a complete meal?

      1. Here’s a question: if you have some hot dog flavored chips (these exist!), some dill pickle potato chips, and some “all dressed up” chips, can you consider that to be a complete meal?

        I don’t know, but I’m willing to be the guinea pig.

      2. I later discovered I have a mild allergy to aspargame (sp?), so my dislike did have a physiological basis.

      3. It is just “all-dressed”, you uncultured moron. All dressed up with nowhere to go is what you mom was when I stood her up last night.

        1. I didn’t think my mom serviced women any more. Are you sure it wasn’t Warty’s mom? She still does anything for a price.

            1. Never! I’ll vote it down like a raise for school teachers!

            2. Britain has some weird flavors for chips “crisps”. “Prawn”, “Jamaican Jerk”, “Cheese and Onion” (a real flavor), “Marmite flavour”, “Thai Sweet Chilli” (okay, that one sounds good).

              1. Cheese and onion sounds a lot like sour cream and onion or ruffles cheddar and sour cream, and therefore, not that fucked up. Actually, not fucked up at all.

              2. Lots of places have shrimp-flavored chips, Jamaican jerk spices are great, and Marmite (well, I have some Vegemite in my cupboard) is good, albeit an acquired taste. Also, I challenge you to find anything that cheese would not improve.

      4. Also, the fact that no American has been clever enough to make the perfectly logical combination of barbeque and salt & vinegar on the same chip is Teh Market Failure.

        1. So go make those chips and make a buttload of money — or perhaps lose a buttload of money. It’s not a Teh Market Failure if no one has tried to make a product which would be unprofitable if implemented.

          1. But every outcome that I don’t like is a market failure, don’t you see?

        2. Fuck that. What we need is some goddamn putine flavored chips.

          Putine and Rush are about the only things of worth that flow from your land of ice and snow.

        3. That’s about as accurate as the average purported example of market failure. Which is to say, completely wrong.

          1. They lost me at “Porcine Free”

            1. Yes, me too. What the fuck is Carolina barbecue if there’s no pork involved?

              But if you’re looking for vinegar-based barbecue, yeah, look no further than the Carolinas.

        4. Also, the fact that no American has been clever enough to make the perfectly logical combination of barbeque and salt & vinegar on the same chip is Teh Market Failure

          Bet you’re wanting some government intervention now, huh? I knew you weren’t serious about your silly principles.

          1. That was supposed to be “spoof chad” in response your market failure. Dammit.

      5. here in Australia I was served raw sliced beef with horseradish ice cream (I think the chef was dropping acid at the time). That felt like a Shabbos dinner at the chocolate factory.

    4. Asapargus tastes great, properly cooked.

      There’s a reason it was reserved for Kings in France.

      You just need to avoid the slimy canned asparagus.

      Get some fresh asparagus and pan fry it with a little garlic butter. Divine.

      1. Yeah, you don’t want to overcook it. Sometimes I’ll just boil it for about 1 minute and put a little salt on it. Sometimes I cut it up and put it in marinara and pour it over spinach ravioli. De-lish

        http://www.contespasta.com/ravioli.htm

      2. This is true. As a kid, I hated most vegetables. Growing older, I realized I hated most canned vegetables. Destroys most of the flavor and all of the texture of green stuff. What a relevation eating a garden fresh seewt pea was compared to the gray-green balls of mush that come out of cans.

      3. Olive oil, sea salt, fresh pepper, grill until slightly blackened. Done.

        1. Yup… damn, I want some asparagus now.

          1. asparagus and fresh truffles – now that’s a meal

      4. Steamed and then dressed with a little salt and lemon juice.

      5. Asparagus is the second most disgusting food that I have ever tasted, after Brussels sprouts. I have tried fresh asparagus cooked (to what everyone else thought was delicious) that tasted uniformly awful and activated my gag relax if I couldn’t wash it down fast enough

  2. Steeh’s ruling on the mandate boiled down to the idea that not purchasing insurance is a form of economic activity, and therefore fair game under the Constitution’s Commerce Clause, because it’s an implicit decision to buy health care later, some other way.

    Even taken at face value, this argument is incoherent. Buying health care is most definitely not the same thing at all as buying health insurance.

    Aside from the confusion between paying for health insurance, and paying for health care, it also confuses receiving health care, and paying for health care. Millions of people in this country receive health care every day, as charity cases, that they don’t pay for. So saying “everyone will need health care some day” is two steps removed from even looking like a justification for this law.

    You might as well say that my decision not to buy a toothbrush today is functionally identical to deciding to buy dentures at some point in the future.

    1. “Buying health care is most definitely not the same thing at all as buying health insurance.”

      But buying health care effects the interstate health insurance market and the Constitution grants a broad power “to regulate” interstate commerce.

      I don’t think it is correct to say requiring action can’t fit under that. Try telling a parent that their power to regulate their kids choices is only negative…

      1. No, the Constitution doesn’t grant a broad power to regulate interstate commerce. It grants a power to make interstate commerce regular — that is, to prevent states from engaging in economic protectionism that would serve as barriers to a national economy. That is the original public meaning of the Commerce Clause.

        The idea that the Commerce Clause permits Congress to basically do anything it wants so long as someone can draw a connection, however tenuous, to economic activity is approximately eighty years old, and has no basis in the text of the Constitution.

        1. “No, the Constitution doesn’t grant a broad power to regulate interstate commerce. It grants a power to make interstate commerce regular”

          Hmm, you must have a different copy of the Constitution than mine. Mine doesn’t say the power to make, here’s what mine says:

          “To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;”

          Yeah, I don’t see the words “make” or “regular” in mine.

          1. What the fuck do you think “regulate” meant in the eighteenth century, dipshit?

            1. It certainly meant to make rules concerning.

              1. Wrong.

          2. Hint: it didn’t mean “micromanage”, as it does in today’s political vernacular.

            1. Oh, I see, so you admit the term would include the power to make rules, but you don’t think it meant to make too many or stupid rules, just smart, non-micromanaging rules that would loosen trade between states…Again, you’re confusing what the possible goal of the clause was with what was actually written. The clause grants the power to regulate, that includes the power to make rules about, and the power was granted to congress which is the deliberative body to figure out what rules to make. Our Congress made some dumb, immoral rules in that area. We have a political process to remedy that.

              1. The funny thing is that Obama could readily adopt this view of yours that regulate meant only to make regular interstate commerce, after all, a requirement to participate in interstate commerce is hard to paint as an impediment to interstate commerce…

                1. I’m sorry; I haven’t mainlined enough brake fluid to understand how, if Congressional authority over the economy is limited to dismantling interstate trade barriers, Congress is empowered to compel individual citizens to buy insurance.

                  1. “if Congressional authority over the economy is limited to dismantling interstate trade barriers”

                    But the text doesn’t limit it to that, that’s the point dude.

                    1. Yes, the text DOES limit it to that, dude. Because, again, the word “regulate” meant something quite different to the ratifying public than it does to you, today.

              2. No, shitheel, I’m not confusing what the possible goal of the clause was with what was actually written. I’m pointing out to you that the word “regulate” did not mean to the ratifying public then what you think it means now (i.e., “to make rules about”). It had a very specific meaning that operated as a sharp limit on the scope of Congressional authority over the economy for the first century and a half of the country’s existence, until courts began ignoring it in the 1920s and 1930s.

                1. The commerce clause and other uses of the word “regulate” and “regular” refer to measurement, not rules.

                  The NIST is the “regulator” of interstate commerce by the keeping of units of standard measure. Not by the creation of imposed rules. By keeping (regulating) the units of measure, commerce between states is possible because an inch in California is equal to an inch in Delaware. Without this kind of “regulation” interstate commerce is impossible because there is no way to know who is buying how much of what.

                  The same standards of Money were also given to the NIST to keep. It is the official pound of Silver and the official pound of Gold as provided in the Mint (Coinage) act of 1792.

          3. “To regulate Commerce with foreign Nations

            So Obama is claiming the power to compel foreign nationals to buy health insurance?

            1. He can’t. He hasn’t got any power that the Constitution did not enumerate.

          4. Hey, how about that, YOUR Constitution doesn’t say “tell every fucking individual in the country what they must (or must not) buy”.

            Mine doesn’t say that either.

      2. “I don’t think it is correct to say requiring action can’t fit under that. Try telling a parent that their power to regulate their kids choices is only negative…

        Equating the government to a parent is pretty much the heart of the problem.

        1. Well, sure, it’s a dumb, paternalistic provision. My point is the constitution doesn’t prohibit every dumb, paternalistic provision.

          1. Ya, but it only enables a few specific ones, fuckstick. And this aint one of em.

            Is it interstate? No. Then it isn’t interstate commerce. God fucking dammit.

    2. The problem is, if you are talking about something like getting a tetanus shot, being stuck with everyone else in the same basic cheap program can only be so bad.

      But (as a physician) I am concerned I will end up in some crazy health fund with a bunch of people who want the latest, $50,000 per month cancer treatment to extend their lives by a few pointless weeks. How do I opt out of that? I’d be happy with a box of cigars and some cheap red wine when it gets ugly, sure as hell don’t want to be spending all my money on premiums because my peers have screwed-up ideas about what constitutes value for money in the healthcare market.

  3. I like asparagus, but I’m not eating the government-mandated variety.

  4. If I understand the current case law the government could make you join a gym, but couldn’t make you go work out there.

    Look, the persons to hate on are the Founders for writing such a vague, broadly interpretable clause such as the Commerce Clause and the idiot pols who would make something as wicked and asinine as the mandate (you know even if a thing is not forbidden by the Constitution it may actually be a terrible idea Congress).

    Recently SCOTUS has said that non-economic activity, even if it has indirect economic effects in the aggregate, are not open under the Commerce Clause. So working out or eating veggies is not something you could do under the clause. But economic activity that even idirectly effects interstate commerce is so you could mandate joining a gym or buying veggies. But now the responsibility rests on our pols: they shouldn’t do such a immoral and stupid thing.

    1. If I understand the current case law the government could make you join a gym, but couldn’t make you go work out there.

      Oh, as long as I don’t have to get out of my computer chair, I guess it’s cool for them to take my money. What was I so worked up about?!

      1. By all means get worked up. Write your pol and tell them not to vote for such stupidity. Vote against them if they do. Hell, vote in people who will amend the clause.

    2. Re: MNG,

      Look, the persons to hate on are the Founders for writing such a vague, broadly interpretable clause such as the Commerce Clause[…]

      I don’t understand what’s so broadly interpretable, as the framers went to all this trouble to enumerate the powers of the Legislature. Why would they do that if the so-called “interstate commerce clause” rendered these enumerated limitations meaningless?

      It is more reasonable to read the interstate commerce clause as it is clearly written (in plain English): To make commerce regular between the states.

      The problem resides not with the original intent of the commerce clause but with ideological judges torturing the meaning of words to suit their pre-conceived “decisions”; it also resides with the spineless state legislatures and governments who are unwilling to assert their sovereignty, as they’re so enamoured of the stolen loot doled out by the Fed Gov.

      1. “It is more reasonable to read the interstate commerce clause as it is clearly written (in plain English): To make commerce regular between the states.”

        But that is not how it is plainly written. It is plainly written to grant to Congress the power “to regulate” that area. And regulation was understood at the time to include “making rules about.”

        Perhaps their GOAL was to make commerce regular, but that is not what they SAID.

        1. Perhaps their GOAL was to make commerce regular, but that is not what they SAID.

          Fools! They tried to keep us from unlimited power, but little did they realize … the power of creative reinterpretation in the service of … whatever we want.

          1. There’s nothing creative about it, it’s the literal meaning of the plain text.

            1. The literal meaning of the plain text is that NOT buying a product that can’t even be sold across state lines is “interstate commerce”.

              REALLY??

              1. The literal reading is that Congress has the power to regulate (make rules concerning) interstate commerce. Rules can be prohibitions (don’t drive past 55 mph) or requirements (signal before turning). Health insurance is interstate commerce (my health insurance is with WellPoint which exists in most states in the nation).

                1. Chipotle owns stores in every state. Therefore not buying a burrito is interstate commerce, so the government can force me to buy burritos.

                2. Driving in one state isn’t interstate, fuckstain.

            2. You took two stupid pills today, didn’t you?

        2. If you are genuinely interested in what they SAID, then you would make a passing effort to grasp what an average eighteenth-century layperson — i.e., a member of the Constitution’s audience — understood the verb “to regulate” to mean.

          Plainly, though, you’re not doing that. You’re parrotting the words, but you’re ascribing to those words modern definitions that the ratifying public did not subscribe to.

          1. No, regulate was regularly read in the 18th century to mean “to make rules concerning.” In the Constitution in the very same article the IC Clause can be found we find this:

            “To coin Money, regulate the Value thereof”

            Did that mean to make the value of money “more regular?” WTF?

            1. Make the value regular, as in mitigate the effects of inflation and deflation, and make it consistently legal tender throughout the nation? It sounds like that’s what that means.

            2. Yes, actually, it did. One of the big problems with the Articles of Confederation was that the different states minted their own currency and that valuation varied incredibly widely. The wording in concert with what was actually meant by “regulate” at that time would be “to make orderly”. Words do change meaning over time. The word “gay” for instance, would never have been understood by someone in the 1930s to mean homosexual. A similar thing happened with the word “regulate”.

              1. And all the mentions of “regulation” that the new government would be permitted to engage in (Art. I Sec. Cl. I; Art I. Sec. 8, Cl. 14; Art. III Sec. 2 Cl. 2; Art. IV Sec. 3 Cl. 2), that’s referring to “making regular” too I suppose? Some of them even have the phrase “Rules and Regulation.”

                Dudes, you guys strain any harder here and you are going to get hernias…

                Of course, even if one could accept such a silly reading, it could still be argued that the mandate falls under it. As “regular” just means “consistent” every person in every state in the area of health insurance will be under the same, consistent mandate so in this area Congress will have “made regular” this area of interstate commerce.

                1. And if the word meant what you say, “rules and regulation” would be redundant.

                  As to your other point, the words orderly and consistent do not mean the same thing.

            3. No, regulate was regularly read in the 18th century to mean “to make rules concerning.”

              Wrong. Kindly extract your head from your ass before you suffocate.

      2. The problem resides not with the original intent of the commerce clause but with ideological judges torturing the meaning of words to suit their pre-conceived “decisions”;

        Exactly. It doesn’t matter how the authors of the Constitution worded it; somebody sufficiently determined to mangle the language will succeed in doing so no matter how the clauses are written.

        1. Agreed.

          To interpret the commerce clause to mean that ANY economic decision can be regulated is to torture the meaning of words beyond recognition.

    3. Libertarians do hate the Commerce clause. In fairness to the Founders, I don’t think they could have imagined the degree to which it has been exploited.

      1. I think they probably generously and wrongly assumed that our pols would not use the power granted for such immoral and stupid purposes as to make everyone buy insurance from an insurance company. They didn’t constitutionally prohibit everything stupid and immoral, they left a political process for much of that to be addressed.

        1. Kinda like they generously and wrongly assumed that a right to be free of unreasonable search and seizure wouldn’t turn into a right to abortion.

          There is no textual language which can prevent bad faith actors from acting in bad faith. When you have lackwits like Brennan and Marshall turning a statutory prohibition of busing into a requirement of busing, language ceases to act as a control on their desires. And it’s not like we can vote out those robed nincompoops, either.

        2. In my opinion, forcing me to purchase health insurance constitutes an unwarranted search and seizure.

        3. From reading the Federalist Papers the Founder’s clearly thought that no American politician would be foolish, corrupt and power hungry enough to argue that the constitution granted any such power to the federal government so that putting a bunch of “shalt nots” was redundant. The dicussion of the commerce clause in the Federalist Papers domestically involves preventing the States from installing interstate tariffs and other obstacle sto internal trade. Obviously, they did not anticipate the mendaciousness and pure talent for mischief of the modern progressive movement.

    4. Case law? Well shit motherfucker thats all you had to say. Case law says the government can do what ever the fuck it wants to do. Some motherfucker looks like he’s up to no good? Well shit arrest his ass and ship him out to some badass place and torture him til he confesses.

    5. They wrote what they wrote clearly in the language of the time.

      If you want an interpretation into modern txt, then perhaps you could provide us with it when you learn what the meaning is they intended, rather than what the meaning appears to be today.

      Regulate meant order, such as “everybody drive on the right side of the road, not the left” not “everybody drive to Cleavland” or “everybody drive a Ford”.

      The first example, “everybody drive on the right” is regulation as they understood the word to mean. It allows everyone to get to where THEY want to go.

      The other two examples are of modern interpretations of the word “regulate”. They don’t provide order, they impose it. The first one opens up the possibility of safe travel and that is all. The other two are mandates.

      The penalty for not observing the first is a head-on collision. The reward for observing it is getting where you want to go safely. Your choice and natural outcome.

      The other two do not provide you with any freedom of choice and enforced outcome.

  5. Ian Gershengorn, a deputy assistant attorney general arguing for the administration, responded that “the appearance of inactivity is just an illusion.”

    At that moment, the administration was enlightened

    NOT. 8-(

  6. People who don’t like asparagus are idiots. Cook it in butter and have it with some nice bloody steak, you retards.

    1. Cook it in butter and have it with some nice bloody steak, you retards.

      Yeah, about that fatty butter and the undercooked piece of meat….

    2. Have you had garlic spears? They’re the tops of elephant garlic that poke out of the ground. They’re incredibly delicious; like mild, more subtle, lightly garlicky asparagus. So good on the grill.

      Unfortunately, I’ve only been able to get them briefly in the summer.

      1. Sounds like something I’ll have to try growing next summer. Why are you being so helpful, Epi, you halitotic prick?

        1. It’s so good that I’ve become a garlic spear evangelist. I want everyone to enjoy how awesome it is. I was having it every other day for the two weeks I was able to get it at Whole Foods and the farmer’s markets.

          If you like asparagus, you will love these.

          1. My brother has become a gardening madman and is growing stuff for me. He is growing some garlic–I’ll have to see what variety it is.

            1. The spears from regular garlic are really good too; the elephant garlic ones are straighter, bigger, and have a more impressive top bulb, but it’s all good.

              1. straighter, bigger, and have a more impressive top bulb, but it’s all good.

                You forgot to add, “No homo.”

                Or did you?

      2. Thanks for the tip. I will remember that.

    3. Still taste like stick form of ass

  7. Can the Government Require You to Eat Asparagus?

    Does the Government Have Guns?

  8. Just wait until the “second-hand asparagus urine odor” starts being hated.

    1. That’s discriminatory, as the odor generation is genetic. Some do, some don’t. Those who do are, of course, superior. Kind of like right-handedness.

      1. I thought that everyone generated apparatus odor, but only some people can detect it?

      2. Pfft, the presence (or not) of a star on one’s belly is the ultimate determinator of superiority.

        1. I prefer the whole thing with the jewel that stick in your belly button, personally.

  9. First, it’s notable that Judge Hudson seemed irritated with the Obama administration for selling the public on the idea that the law isn’t a tax and then trying to sell the court on the idea that it is.

    Notable only because nobody remembers how the government defended Social Security in front of the court – as a tax, after selling it to the American people as insurance.

    1. The tax and spending clause is another incredibly vague and open ended clause in the Constitution, especially as the SCOTUS has developed an “objective” test for the tax part…So I’m not shocked to see it used for that.

      1. Be that as it may, it has nothing to do with the fact that Obama has argued that the provison is a fine in some forums and a tax in others. The big problem with that is that a fine has entirely different legal procedures and consequences than a tax. It cannot be both simultaneously, but that is what Obama’s arguments come down to.

      2. Fuck the SCOTUS

  10. Almost all Americans end up getting medical care

    And food and cars, dipshit. You’re making the judges point.

  11. I actually believe liberals secretly hope the mandate is removed. They only added it to placate the insurance companies.

    Without it, the collapse of private health insurance will only be hastened.

  12. I can only shake my head in wonder at the fools who cheer for the “anything goes” interpretation of the Commerce Clause. They’re gonna regret it someday, big time. They may think that their cherished issues will somehow remain immune, but they’ll find out differently soon enough. They are the architects of their own destruction.

    1. We can round everyone up and place them into concentration camps to regulate their sexual commerce.

    2. They prevent this by controlling the educations of the people who will do the interpreting.

    3. can only shake my head in wonder at the fools who cheer for the “anything goes” interpretation of the Commerce Clause. They’re gonna regret it someday, big time.

      Some liberals did briefly, after the Raich supreme court case. Causing yet more liberals to vote Democrat in the ongoing fruitless endeavor that is marijuana legalization.

    4. Let it flow the other way. Start writing into laws things like “we have chosen not to have regulations on vehicle emission, and by our standing via the Commerce Clause no state, we’re looking at you California, may have a more strict standard.”

  13. the legal logic underlying the law’s individual mandate, which requires everyone to purchase health insurance, could give the federal government “boundless” power over U.S. citizens

    So wai wai wai wait wait… are we now figuring out that the government might consider itself to have exclusive domain over what we put in our bodies?

  14. There’s a lot of fucking economic activity I’m engaging in right now, sitting on my ass doing nothing.

    For instance, by making a sandiwch instead of buying lunch out, I reduce demand for restauraunt services. Think of the poor waitresses who will be harmed!

    By repairing my bicycle instead of buying a new one, I reduce demand for new bikes, thus affecting interstate commerce.

    By repairing my car myself, I reduce demand for auto repair services.

    By shopping at thrift stores, I reduce demand for retail clothing.

    By renting instead of taking out a mortgage, I’m causing housing prices to fall.

    By getting an A in class I bring up the bell curve, harming the economic standing of my fellow classmate.

    Are all these things within the purview of the commerce clause?

    1. Let’s throw in this one …

      By investing my savings in bonds instead of stocks, I am causing the stock market to fall, harming everyone else’s retirement. Is it the government’s business to make me buy the right stock, to make sure that nobody’s 401(k) unfairly doesn’t earn what the government thinks it should?

    2. So you admit you’re unpatriotic.

    3. Of course! We need laws that prevent bad things from ever happening to anyone else, and so we’ll conscript you to make sure everyone else is insulated from the consequences of their decisions.

    4. Drawing lines is difficult whatever your reading is, because it the world was not made for our concepts perhaps.

      As I read SCOTUS opinions in this area the line is that things that are directly economic are fair game, indirectly economic ones are not (as the court has recognized everything is indirectly economic). So growing wheat for your consumption, that’s pretty classical economic. Taking a gun into a school zone, not so much.

      There are going to be gray areas here, but I don’t find them to be any more artifical and unreasonable than the old “manufacture” vs. “commerce” distinction (where manufacturing suddenly, contrary to any good businessperson’s natural sense, is suddenly not part of their “commerce”, only the mere carrying it over a state line is).

      1. the world was not made for our concepts

        What the fuck, man? The “world” in question is a human creation of laws and institutions. It’s fucking MADE OF human concepts. Where’ not talking about string theory for fuck’s sake.

        1. The world in question is the world of people engaging in activities which we try to demarcate as “interstate commerce” apart from other activities.

          We all agree that driving a product made in one state into another for sale is part of interstate commerce. Is the loading of the product into the carrier interstate commerce? How about the manufacture of it? How about the hiring of the people to do the manufacture? Hell, what about the workers driving to the place of manufacture or unloading? If you ask a businessperson engaged in “interstate commerce” I think they would consider all but the last one to be part of their “enterprise.”

          Likewise what makes one activity “economic” and another “non-economic” is probably not going to be stark, but more of a continuum.

          That’s life.

          1. The world in question is the world of people engaging in activities which we try to demarcate as “interstate commerce” apart from other activities.

            Um YOU are the one trying to designate those activities as interstate commerce. Is it possible that “the world” is not made for your concepts, because your concepts don’t make sense?

            Interstate commerce is selling something made in one state in a different state. It is not driving goods from one state to another. it is not loading into trucks. It only becomes interstate commerce when money changes hands.

            You are entirely right that there is not a lcear line between “economic” and “non-economic” activity. Which is why the constitution refers to “commerce”, not “economic activity”.

            Not buying a burrito may be “economic activity”, but it is emphatically NOT “commerce”.

          2. Here, I’ll make it easy for you.

            Only the interstate part is interstate. So the parts that aren’t interstate, aren’t interstate.

            Got it Mr concentration camp guard?

            No, i didnt figger u did

  15. Look, the persons to hate on are the Founders for writing such a vague, broadly interpretable clause such as the Commerce Clause

    No, the persons to hate on are the ones that took language that was clear and understandable, and twisted it around so it means something entirely different.

    What you’re proposing is like some twisted sociopath coming up with a novel way to murder people so that a slippery defense lawyer twisting the law and confusing a jury causes the sociopath to go free — and then you, MNG, say, hey, don’t blame the guy who killed all those people, hate on the people who wrote the law that was ambiguous enough that a slick defense lawyer could use it to bamboozle a jury.

    1. “language that was clear and understandable”

      You’re right, the language is clear and understandable. Congress has the power “to regulate” IC Commerce. To regulate, period. No limitations or qualifications. If its commerce and its among states, then Congress has the power “to regulate” it. That’s the “clear and understandable” part.

      1. And yet you construe shit that plainly only happens inside one state as interstate. So you are exactly the word twisting orwellian shitbag we are talking about. So please go fuck yourself.

  16. Has anyone tried to challenge the insurance mandate on First Amendment grounds yet? Medical care is a violation of some religions, after all, and forcing someone to pay for it could be a violation of the Establishment Clause.

    1. I think we can find a reason to challange it on many different grounds.

      Including some that the founders would never have imagined.

      For example, the right to keep and bear arms. See “arms” can refer to all sorts of weapons, including money. It can also refer to independent agency. To “arm” oneself means to prepare. By forcing me to buy health insurance the government prevents me from preparing for health care expenses in my own way. Also a “militia” could refer to the salvation army, a charitable organization. I’d prefer to manage my health-care expenses though charitable organizations (read “militias”).

      This is all very simple if you understand how to read legal text.

  17. While it might be true that all people will eventually need medical care, that doesn’t necessarily mean they will all need any and every sort of medical care the government forces on medical plans. I wouldn’t be shocked to learn that the government makes men and infertile or post-menopausal women get maternity-related coverage. Hell, I would be thrilled if they forced government to choose between insurance policy controls and an insurance mandate for individuals.

  18. The government requires me to wash my hands after taking a dump. I don’t see any difference.

    1. Well, you can make the Libertarian argument that you have the right to not wash your hands after defecating as long as you make the customers at your restaurant aware of that fact before they purchase food from you.

    2. Wrong. The state health department(not the federal government) forces your employer to put up signs in the restroom instructing you to wash your hands after defecating. Probably because you are too dumb to do it on your own.

      Also, if someone gets sick because of your poor hygiene, you shit stained fuck, your employer would bear the brunt of any fines/lawsuits that would occur.

  19. State governments already have the power to forcibly inject mind altering drugs into a person’s bloodstream, send high voltage through a persons brain without his consent, and slip mind altering drugs into his food without his knowledge all in the name of improving that person’s heath. The asparagus example is only shocking, because the general public can imagine it happening to them instead of psychiatric survivors.

    http://www.mindfreedom.org

  20. So, contrary to Steeh’s opinion, there are people who will NOT buy health care at some later point – Christian Scientists. Should they be penalized for not buying health insurance?

    Commerce clause, meet free exercise* of religion.

    * That “exercise” doesn’t mean jumping jacks MNG.

    1. If I am not mistaken they put in an exemption for religious objections.

      Expect a lot more Christian Scientists in the next few years.

  21. But buying health care effects the interstate health insurance market and the Constitution grants a broad power “to regulate” interstate commerce.

    (1) Does it? If I pay cash for health care, how does that affect the insurance market? What if my health care is provided for through charity?

    And, of course, if you say that by choosing not to participate in a market, I am affecting that market, then you are converting the Commerce Clause into a grant of plenary economic authority.

    (2) You are aware that there is no interstate insurance market, yes? That health insurance is regulated by the states, and that a given policy can only be sold within a state?

  22. And next time, Obama will force its people to buy candy on his own candy store! Great strategy!

    We help Americans move to Asia for jobs and prosperity. Learn more at http://www.pathtoasia.com

  23. I really loved reading your thoughts, obviously you know what are you talking about! Your site nfl authentic is so easy to use too, I’ve bookmark it in my folder

  24. Most of the time I don’t make comments on blogs, but I want to mention that this post really forced me to do so. Really nice post!

Please to post comments

Comments are closed.