Constitutional Law

An Unhealthy Mandate

Does ObamaCare violate the Constitution?

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During her confirmation hearings last summer, Supreme Court nominee Elena Kagan was asked if the Constitution empowers the federal government to pass a law requiring Americans to eat fruits and vegetables.

What did she say in response? She said, "It sounds like a dumb law." She said the commerce clause of the Constitution "has been interpreted broadly." She said the courts have a duty to ensure that "Congress doesn't go further than the Constitution says it can go, doesn't violate individual rights, and also doesn't act outside its enumerated authorities."

This is what she did not say: "No."

This week, however, a federal judge said it. The case wasn't about fruits and vegetables; it was about the federal health insurance law passed this year. But his conclusion was exactly the one Kagan evaded: There are some things the federal government may not make us do. It may not make us purchase medical insurance—as the new law does—and by implication, it may not make us eat broccoli.

When the individual mandate to buy coverage was challenged in court, the Obama administration argued, essentially, three things: 1) The Constitution gives the government the authority to regulate interstate commerce, 2) everything people do and don't do affects interstate commerce, and therefore 3) the government may regulate everything and everyone.

This interpretation of the Constitution is at odds with the view of James Madison, who said the powers of the federal government are "few and defined." But even by the elastic standards that apply today, the administration's view is a reach.

As Georgetown University law professor Randy Barnett said last month at the national convention of the conservative Federalist Society, the individual mandate "is an unprecedented act of federal power over individual freedom. And by 'unprecedented,' I mean simply: It's never been done before."

In the past, Washington has been permitted to regulate commerce that crosses state lines. It's been permitted to forbid a man to take a young woman from one state to another for the purpose of sexual intercourse. It's been permitted to bar a farmer from growing more wheat than the federal government allowed, even if he wasn't going to sell it.

But, noted U.S. District Judge Henry Hudson, "Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause power to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market."

The courts have approved extensive, incessant, burdensome regulation of economic activity. But inactivity? That's a different story.

If you don't want to pay the minimum wage, you can refuse to start a business. If you don't want to buy car insurance, you can take the bus. But if you don't want to buy health insurance, your only options are to leave the country or depart this vale of tears.

The question in this case is not just whether this part of the health care reform will stand. It's whether there are any limits on the powers of the federal government in matters economic.

If it can force people to buy insurance, it can presumably force them to buy cars (to help General Motors) or homes (to alleviate the housing bust) or fruits and vegetables (to improve health and reduce medical outlays) or pet rocks (just because).

The mandate had a simple purpose. Under the new law, insurance companies were required to take all comers, without denying coverage or charging high rates for pre-existing conditions. Those rules, however, would encourage customers to avoid buying policies until they were sick. So Congress and the president agreed to make everyone get insurance.

This makes some sense, and if the mandate were eliminated, the whole scheme would be in jeopardy. Still, there are other ways to address the problem.

One is to grant more generous subsidies to consumers to induce participation. Another is to pay insurance companies to compensate them for their new and unprofitable policyholders.

Princeton sociologist Paul Starr has proposed that anyone who declines to get coverage be barred for five years from guaranteed access. That would be a strong incentive for even young, healthy people to opt in right away, rather than risk a financially catastrophic illness.

A government with unlimited power, of course, would not have to trouble itself with accommodating citizens who prefer to make their own choices. But that is not the kind of government we have. Not yet, anyway.

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154 responses to “An Unhealthy Mandate

  1. Good morning reason!

    1. Page 2:

      “One is to grant more generous subsidies to consumers to induce participation. Another is to pay insurance companies to compensate them for their new and unprofitable policyholders.

      Princeton sociologist Paul Starr has proposed that anyone who declines to get coverage be barred for five years from guaranteed access. That would be a strong incentive for even young, healthy people to opt in right away, rather than risk a financially catastrophic illness.

      A government with unlimited power, of course, would not have to trouble itself with accommodating citizens who prefer to make their own choices. But that is not the kind of government we have. Not yet, anyway.”

      1. “A government with unlimited power, of course, would not have to trouble itself with accommodating citizens who prefer to make their own choices. But that is not the kind of government we have. Not yet, anyway.”

        You just know he said that with a smile on his face and glee in his heart.

        I almost wish that the oppressive, crushing, total government would come to pass just to see it chew and and spit out such lickspittles like Princeton sociologists. They really all seem to believe deep in their little statist hearts that THEY are the ones who will be in charge. Or at least that they will be the eternal favorites of whoever is in charge.

        1. “A government with unlimited power, of course, would not have to trouble itself with accommodating citizens who prefer to make their own choices. But that is not the kind of government we have. Not yet, anyway.”

          These are Chapman’s words.

  2. One is to grant more generous subsidies to consumers to induce participation. Another is to pay insurance companies to compensate them for their new and unprofitable policyholders.

    Still redistribution of wealth. There is a third option no one seems willing to mention these days.

    Follow your momma’s adivce and keep your nose out of other people’s business.

    Worry about your own life and let those without medical insurance worry about theirs. Let them get medical care as needed, AND pay for it themselves. Quit robbing others of the fruits of their labors to pay for those who have not labored and have no fruit.

    1. Exactly what I thought. On a site like Reason (you’re welcome alcoholics), Chapman only gives us two alternatives when libertarianism itself is a third option?

      1. Perhaps he was restricting his arguments to those that congress might actually pass? Even if this decision is upheld, congress is unlikely to just drop the health insurance program. Watch the republicans cave and pass some bastardized proposal (even more bastardized?).

    2. Princeton sociologist Paul Starr has proposed that anyone who declines to get coverage be barred for five years from guaranteed access. That would be a strong incentive for even young, healthy people to opt in right away, rather than risk a financially catastrophic illness.

      Or we could simply stop paying for medial care for those who can afford but refuse to purchase insurance RIGHT NOW. Wouldn’t that accomplish the same thing?

  3. Alt-text caption contest:

    “Can’t we pick up a bad law by its clean end?”

    1. “Yes, I once had sex with a man. But it only went in this far.”

      1. My girlfriend’s thingie is thiiiis big!

        1. I call my stylist when my roots grow out this far….

          1. I’ll recuse myself this much.

            1. I think we’re leaving people with about thiiiiiiis much personal freedom

              1. See this hand? I have another one just like it.

                1. You know who else had a mustache this wide?

                  1. I’ll say my eyes are, oh, about *this* far apart. Am I confirmed now?

            2. “This is how much I respect the Founders.”

              1. I am talking about Tony here.

  4. Jack Balkin article on commerce clause:

    http://www.michiganlawreview.o…..balkin.pdf

    Excerpt: Contemporary originalist readings have tended to view the commerce power through modern eyes. Originalists defending narrow readings of federal power have identified “commerce” with the trade of commodities; originalists defending broad readings of federal power have identified “commerce” with all gainful economic activity. In the eighteenth century, however, “commerce” did not have such narrowly economic connotations. Instead, “commerce” meant “intercourse” and it had a strongly social connotation. “Commerce” was interaction and exchange between persons or peoples. To have commerce with someone meant to converse with them, meet with them, or interact with them. Thus, commerce naturally included all trade and economic activity because economic activity was social activity. But the idea of commerce-as-intercourse was broader than economics narrowly conceived?it also included networks of transportation
    and communication through which people traveled, interacted, and corresponded with each other.

    Congress’s power to regulate commerce “among the several states” is closely linked to the general structural purpose behind Congress’s enumerated powers as articulated by the Framers?to give Congress power to legislate in all cases where states are separately incompetent or where the interests of the nation might be undermined by unilateral or conflicting state action. Properly understood, the commerce power authorizes Congress to regulate problems or activities that produce spillover effects between states or generate collective action problems that concern more than one state. This basic structural principle explains why Congress’s commerce power inevitably expanded with the rise of a modern integrated economy and society, and it explains and justifies most if not all of modern doctrine. This approach justifies the constitutionality of
    federal regulation of labor law, consumer protection law, environmental law, and antidiscrimination law; it even shows why a federal mandate for individuals to purchase health insurance is constitutional.

    1. This approach justifies the constitutionality of
      federal regulation of labor law, consumer protection law, environmental law, and antidiscrimination law; it even shows why a federal mandate for individuals to purchase health insurance is constitutional.

      It’s magic!It justifies itself!

      Have no fear the commerce clause is here!

      If you agree with this(circular) argument, then why have a constitution at all? Window dressing, perhaps?

      Jeeze minge, if you’re going to copy and paste something, please something a little less…fecal. This shit stinks.

      C-

      1. Commerce clause = enabling act.

      2. I’m not sure where you see a circular argument. He says the structure and text of the constitution and the words of the clause suggest that it was to be used for broad social problems where states were incompetent to act, and he then lists these areas as examples of such problems. Care to point out the circularity there?

        1. “among the several states”

          Because “states” are the same thing as “every individual.”

        2. If it was intended the way you say, why did they even throw the 9th and 10th in there?

          1. Read the article…In it he says it fits well with the idea that the states are left powers to deal with intrastate issues, the feds power to deal with issues the states are incompetent in addressing alone.

            1. You know, like farmers growing wheat for their own use.

        3. I’m throwing up in my mouth a little bit as I write this but, I agree with MNG. I don’t see a circular argument here.

          1. Except that Balkin’s concept of the 18th Century definition of the word “commerce” as used in the Commerce Clause is just silly.

        4. “He says…”

          Exactly – he’s got his favored position that he’s offering up. This does not make it so; nor does it establish that this is what the Framers meant. Instead of looking at some modern law professor’s intellectual musings as to how he thinks it should be read, how about we go back and read what those who were there at the time said it means?

          1. That would be a problem for the modern law professor.

    2. And “regulate” meant to “make regular,” IOW to prevent protectionism between states. Balkin is full of shit.

      1. At least they’re consistent, give how “well regulated militia” is where the 2nd stops for them.

        1. Balkin and MNG need to read Federalist 42 to disabuse themselves of this nonsense.

          1. I’m not sure how helpful Federalist 42 is.

            1. It is one ratifiers opinion of what the aim of the clause is. Worse, it is just his opinion stated to sway people to support it. Even at the time many people thought he was lying.
            2. The aim of a clause does not necessarily limit it’s appropriate use (i.e., the aim of the 14th was to protect blacks but the protection of whites from much later, and at the time unthinkable, affirmative action programs).

            1. Federalist 42 isn’t just by a ratifier, but the author. do you contend that James Madison doesn’t know what he had written, MNG?

              It also makes perfectly clear that “commerce” does not mean all interactions and social intercourse between people and organizations. it means trade, and trade across borders, not within them. Madison even gives several parallels from Europe, all of them dealing with goods and services that cross borders. Not a one about the Central State having the authority to meddle in a particular political subdivision’s internal affairs.

              You and Balkin are the ones spreading falsehood here, MNG, not Madison.

              1. Federalist 42 isn’t just by a ratifier, but the author. do you contend that James Madison doesn’t know what he had written, MNG?

                When it doesn’t agree with his bullshit worldview, of course he believes Madison didn’t know his own words.

                1. Or was lying. Take your pick.

              2. He knew what he had written and he knew how he understood it would be used. Both my points above still stand though.

                1. If that’s so, MNG, why do you feel that it needs to be interpreted?

                2. Both my points above still stand though.

                  No they don’t – they’re refuted by Madison’s definition of commerce.

                  1. The opinion of the author of a work cannot be minimized when the discussion revolves around the interpretation of said work.

                  2. The documents discussed share a common theme of codifying limits to the power of the government. Your wish to pretend that such limitation can be ignored at a later date is nonsensical and contrary to the point of the documents.

            2. I’ll add that if “commerce” meant all “interaction and exchange between persons or peoples,” then Article I, Section 8 authorizes Congress to either conduct foreign policy (an Article II power) or, holding strictly to Balkin’s construction, legislate the affair of foreigners.

              IOW, it makes no sense whatsoever.

              FAIL.

              1. Of course it doesn’t, it does empower the Congress to make rules to regulate American’s intercourse with foriegners.

                1. To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

                  Congress’s power to regulate “Commerce” among the states is identical to that it has to regulate that with foreign nations and indian tribes. Either the Consitution is empowering Congress to regulate the internal commercial behavior of France, Singapore and Ghana, or your construction is bogus.

                2. Apparently we can legislate the actions of foreigners since we will be trying to convict Assange of violating US laws when he is not a US citizen. Kind of bizarre.

                  1. Nothing bizarre about that at all. Just because someone is not a U.S. citizen does not mean they cannot be charged, tried and convicted of violating U.S. law.

                    The challenge will be for the U.S. to gain jurisdiction over him – which generally will require extradition.

            3. Not that you’ll put any effort into reading or comprehending this but here is an excerpt anyway:

              The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain.

            4. 1. It is one ratifiers opinion of what the aim of the clause is. Worse, it is just his opinion stated to sway people to support it. Even at the time many people thought he was lying.

              And the law review article is just one law professor’s opinion of how the clause should be read, and it is just his opinion stated to sway people to support it.

              2. The aim of a clause does not necessarily limit it’s appropriate use (i.e., the aim of the 14th was to protect blacks but the protection of whites from much later, and at the time unthinkable, affirmative action programs).

              Re: the 14th, the plain language of the words used make it clear it’s not limited to black people, as Justice Harlan explained in his excellent dissent in Plessy v. Ferguson. The question is not what the authors of the words “intended,” but what they wrote and what it was understood to mean by all who read it and comprehended it. Yes, the motivating factor behind the reconstruction amendments was the inequitable treatment of former slaves – but the authors did not write “black people and former slaves must be treated the same as everyone else”. They wrote that states may not treat anyone differently based on their race. By its plain language, it’s mostly clear what it means and what it requires.

              Similarly, you can come up with all the nuanced and sophistic arguments to propose a novel reading of the commerce clause, but the problem you’re faced with is the plain language – Congress may regulate “commerce among the states.” It cannot fairly be read to even imply that this means Congress can regulate “conversations between individuals.”

              1. “The question is not what the authors of the words “intended,” but what they wrote and what it was understood to mean by all who read it and comprehended it.”

                Ok, we agree here. So stop bringing up Federalist 42 and all. What matters is what did the words “commerce” and “regulate” mean at that time. Commerce was used at the time to mean trade and it was used to mean most social intercourse. Regulate was used to mean “make orderly” and “make rules about.” So the question is, what interpretations will the words themselves support?

                1. Federalist 42 is highly salient and apropos because it documents not merely one person’s “intent,” but the understood meaning at the time.

                  What you are advocating is precisely what the Framers warned against: looking for an interpretation that you can force into the words, rather than understanding what was meant when they were written.

                  Again:

                  “On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.” – Thomas Jefferson

                  A primary purpose of law is to provide stability through predictability. If everyone understands what the law means, and that is its meaning, it provides that desired predictability. If instead it means whatever the next generation of judges can finagle it to mean, then nobody knows what it’s going to start meaning from one year to the next. It no longer is law then.

      2. Hey, if you are going to harp on one (and only one btw) of the meanings of “regulate” in the eighteenth century then Balkin can surely direct you to a common usage of the word commerce…

        1. See my reply abover. Balkin’s construction is nonsensical.

    3. “Properly understood, the commerce power authorizes Congress to regulate problems or activities that produce spillover effects between states or generate collective action problems that concern more than one state.” ? “shows why a federal mandate for individuals to purchase health insurance is constitutional.”

      Individuals are not States or state actors. If their participation or non-participation in a market causes “spillover effects” or other disturbances in the Force, the oligarchs are going have to suck it up without the individual’s participation.

    4. How sad that the Michigan Law Review and sunk to such depths as to publish this horse manure. The founders were well educated men, who knew their latin. Dictionary.com tells us the word “commerce” comes “from the latin “commercium” trade, from commerc?r?, from merc?r? to trade, from merx merchandise].” Think of the root words “com” which means to bring together (as in “combat” or “combine”) and “merce” which refers to merchandise or something rooted in money (as in “mercenary”). As such, the power the granted by the constituion was simply the power to regulate trade among the states.

      1. I guess you failed to read the footnote where he references Johnson’s dictionary definition of commerce that existed at the time…

        1. “Intercourse; exchange of one thing for another, interchange of anything;
          trade; traffick.”

          That one?

          1. Er, keep reading dude. Footnote 44.

            1. Except it’s clear from F42 that “commerce” here is that referred to in the definition I C&P’ed.

              FAIL.

    5. The commerce clause does not say “regulate commerce among every individual citizen”.

      No, it says “among the several states” with “states” meaning state governments.

      1. That’s pitiful. Even under the conservative reading the idea was that the states rules about commerce that was going on “among the states” was not state industry trade but any trade that was going on “among” the states geographically.

        1. Throughout the entire Constitution when “the states” are mentioned it is referring to the state governments.

          Why would this one sentence be any different?

          1. Becuase he wants it to be.

            1. Kinda like how all the Amendments are talking about the people except number 2 which gives the government (National Guard) the right to keep and bear arms.

          2. What “commerce” “among” the state governments was it referring to?

            1. Among means between, as in slapping duties on goods crossing borders.
              Hello?
              McFly?

              1. It says regulate commerce among the states. It’s the commerce among the states being regulated, not the state rules about commerce. How does the text support that latter idea?

                1. You do understand that “among” does not mean “within” don’t you?
                  The purpose was to stop Michigan from putting duties on cars made in Ohio, or California putting duties on wine made in Oregon.
                  It’s not that complicated.

                  1. Yes, we know it’s not complicated, but MNG wants it to be.

                    I have no idea why at this point. It’s just the need to continue pushing a pet point for some reason.

        2. Among does not mean within. Among means between.

      2. How exactly would that prevent protectionist measures being levied against private transactions? Presumably the states also referred to the jurisdictions of the states, at least in conjunction with the word “among”.

    6. Congress’s power to regulate commerce “among the several states” is closely linked to the general structural purpose behind Congress’s enumerated powers as articulated by the Framers?to give Congress power to legislate in all cases where states are separately incompetent or where the interests of the nation might be undermined by unilateral or conflicting state action. Properly understood, the commerce power authorizes Congress to regulate problems or activities that produce spillover effects between states or generate collective action problems that concern more than one state

      This is such obvious bullshit. The asshole who wrote it doesn’t even believe it. Sure, they wrote the whole Constitution, and debated it, when the Commerce Clause over-rides everything and provides unlimited power.

      Can the shit-for-brains who posted this find a single example of ANYTHING that wouldn’t be under the power of the Feds to regulate if this were true?

    7. OK, great. But, in our system, health insurance is sold and regulated at the state level. Any state can adopt a mandate, as Massachusetts has actually done. Where’s the justification for the Federal government getting involved?

    8. Re: MNG,

      “Properly understood, the commerce power authorizes Congress to regulate problems or activities that produce spillover effects between states or generate collective action problems that concern more than one state. This basic structural principle explains why Congress’s commerce power inevitably expanded with the rise of a modern integrated economy and society, and it explains and justifies most if not all of modern doctrine.”

      ‘Properly understood’ – in hindsight, that is, since Congress was already doing all those things. It’s like grabbing a bunch of dards, walking towards to and placing them on the target, and then saying “Properly understood, the game should be played like that.”

      This is the killer:

      “Commerce” was [???] interaction and exchange between persons or peoples.

      Notice his use of “was”, and now notice the spin he gives it:

      But the idea of commerce-as-intercourse was broader [???] than economics narrowly conceived [sic] ? it also included networks of transportation and communication through which people traveled, interacted, and corresponded with each other.

      So, since the economic definition is too narrow, he himself gives it a broader definition to include:

      ROADS!!!

      Thus, commerce naturally included all trade and economic activity because economic activity was social activity[.]

      See the sleaze oozing? Since commerce is not “merely” interaction between individuals (according to his “broader” definition), it is now a social activity (because of roads, what else?) and as “social” activity, Congress is justified to regulate it.

      It is still a non sequitur, as there’s nothing in “regulate commerce between the states” that can be construed as meaning “regulate social activity” or even “people, because they use roads.”

      You sure know how to pick’em, MNG…

      1. “Commerce” was interaction and exchange between persons or peoples.

        The clause clearly states which commerce the gov’t can regulate–“…regulate commerce…among the several states…” It never says that congress has power to regulate commerce between persons or peoples.

        The need for someone to interpret the constitution (even though it was written in plain fucking English) makes it obvious that that person simply does not agree with what it says and will spew any amount of bullshit to try and convince everyone else that the constitution does not say what it says.

        1. Again, that is nonsense. It was meant to what, regulate trade between state governments? WTF?

          1. I knew you wouldn’t read Federalist 42. I posted it just for your benefit. If you read it, you would understand (hopefully) exactly what the author meant. There is no need for an interpretation.

          2. Obviously, it was the individuals in each state who were trading with each other that “could” be regulated. But the idea was to prevent tariffs between states. It probably should have said (IMO) that neither the states or congress could interfere with or regulate free trade between (individuals within) the states.

            My friend from India was telling me (about ten years ago) how many states in India had tariffs and that they had to pay bribes to get things from one state to another more cheaply.

            This was probably the intent of that clause (to avoid this).

            But over the years, during wars and depressions, and because politicians wanted votes or wanted their state to get money, or because a politician did not want the black man or the chinaman to inter-breed with the pure white race and spread their filthy drugs this clause has been abused and stretched. And soon it will be used to justify even more ridiculous things. We are all F%**&^#’d.

          3. Yes, it was meant to regulate trade, which means the interchange of goods and services in the course of doing business.

            So if you were engaged in trade – whether goods or services, you were engaged in commerce.

            Which congress can regulate.

            Now show me where it says Congress can regulate (using your words, “make rules for”) individual people who are NOT engaged in commerce.

            If I am NOT buying or selling anything, there is no commerce going on for Congress to regulate. The individual mandate requires me to get up and go engage in commerce by buying something, which I would not have done otherwise. Your proposed reading of the commerce clause is ridiculously disingenuous – it allows Congress to not just regulate commerce among the states, but to require people to engage in commerce, thereby creating commerce that did not exist before.

            And no, I reject your proposal that not buying health insurance constitutes commerce. That also is a bullshit, disingenuous notion.

      2. He doesn’t give the word a broader definition, he notes that was how the word was used then and cites Johnson’s dictionary as evidence.

    9. Law review articles in general mean precisely jack squat. The vast majority of what is published in law review articles is academic mental masturbation or grandstanding.

      Law professors get published in law reviews to burnish their resumes and try to get tenure. And to get published, a law review article generally has to either cover a topic not previously covered, or offer up a different take on it. Typically, it will offer a proposition up front – such as “This article proposes that the commerce clause should be broadly interpreted and viewed as an elastic clause, to justify the constitutionality of much economic regulation, as necessary for the broader and greater interests of the nation as a whole.” And then the author will set out to “prove” his thesis by selecting snippets of quotes and cases that can read as supporting his proposition.

      And then some other law professor will write a reply refudiating the first author’s proposition. And back and forth it goes.

      A typical law review article is far from an authoritative statement of the law – rather, the majority of the time, the author is proposing what he or she thinks the law should be, or proposes a novel way of approaching, interpreting or applying the law. And of course, they’ll look for any kind of history or authority they can find to support and justify their proposal.

      I’m not going to bother reading the linked article, but does he offer any cites for his proposition of the broad meaning of “commerce” as including individual conversations between individuals? Because I’m not buying it. If the Framers had meant that, they certainly knew how to say it. If they had meant “social intercourse,” they would have used those words.

    10. Balkin’s understanding of the 18th Century usage of the term “commerce” is patently ridiculous.

      It wasn’t until 1868 that anyone would even argue that insurance was even a form of commerce. In Paul v. Virginia (1868), the Supreme Court ruled “issuing a policy of insurance is not a transaction of commerce”.

      In the words of the majority of mid-19th Century Justices, Balkin’s “position taken has no foundation in a true conception of the word commerce.”

      Balkin’s conception of the word commerce is quite modern, much more similar to that of the New Deal Supreme Court that overturned Paul v Virginia in 1944. His argument that the correct originalist definition allows commerce to encompass any sort of intercourse is just silly.

    11. Balkin is wildly, hilariously wrong about the history.

  5. to give Congress power to legislate in all cases where states are separately incompetent

    So since Mass can’t institute their own healthcare program….oh….wait….

    1. Right. Balkin’s stealing a base here. I actually agree that Congress my “legislate in all cases where states are separately incompetent.” For example, in conducting diplomacy or establishing uniform rules of bankruptcy. But there’s no reason to conclude that the states are incapable of executing Obamacare Jr. with the same or better results as the national law.

  6. To have commerce with someone meant to converse with them, meet with them, or interact with them.

    So Congress can legislate our every interaction w/ everyone, period?

    1. Do you have a problem with that?

      1. How does this prevent Congress from limiting abortion, since this is broad enough to cover abortion and abortion isn’t mentioned anywhere in the document to be excluded? You can’t let a mere penumbra override something as powerful as the commerce clause.

        1. When medical science can detect defective genetic patterns heretofor undetectable (e.g. capacity for independent thought, propensity to libertarianism, etc.), then the clause will be invoked to force the abortion of people babies fetuses pre-children acorns the carriers of such genetic predispositions.

    2. So Congress can legislate our every interaction w/ everyone, period?

      If you think that’s amazing, consider this: Congress had that power for 150 years, but never bothered to exercise it until the 1930s.

      1. That’s because they didn’t realize they had it until FDR opened their eyes.

  7. This approach justifies the constitutionality of
    federal regulation of labor law, consumer protection law, environmental law, and antidiscrimination law; it even shows why a federal mandate for individuals to purchase health insurance is constitutional.

    Which is essentially an admission that this approach is chosen for its results instead of any basis in reality.

  8. This goes back to the discussion in the other thread. Answering, “It’s a dumb law” or “healthcare was different in 1782” does not change the question or the text of the Constitution.

  9. Okay, here’s a fun game. Do an image search for pictures of Barack Obama and Elena Kagan together. Use a few of them and the picture that goes with this article to create a story in pictures. Send to your family members as a Christmas card.

  10. “The clause giving Congress the power to regulate interstate commerce is one of the major errors in the Constitution. That clause, more than any other, was the crack in the Constitution’s foundation, the entering wedge of statism, which permitted the gradual establishment of the welfare state. But I would venture to say that the framers of the Constitution could not have conceived of what that clause has now become. If, in writing it, one of their goals was to facilitate the flow of trade and prevent the establishment of trade barriers among the states, that clause has reached the opposite destination.”

    1. Nothing wrong with the clause. It’s just been blatantly misinterpreted by the Supreme Court.

    2. The commerce clause was just the low hanging fruit: The easiest path for the authoritarians to take. Without it they would have just chosen some other clause to exploit. The real failure is the People’s failure to stand up to them. Without strong, popular support, the Constitution is just a crumbling piece of paper.

      1. Without it they would have just chosen some other clause to exploit.

        Name one that would have had the same effect.

  11. MNG reads the Constitution like fundie whackjobs read the Bible: “Here’s an isolated phrase that I can use to back up my assertion of power over you, if I can just get it totally out of context”.

    1. “…and since my fundie/progressive argument assumes so many other things to be true, you can’t possible address them all, so you have no response so I win so shut up and submit to me.”

    2. Did you read the article? It’s nearly all about context and structure of the entire Constitution…

      1. No, it is about a bizarre and obviously false interpretation of the Constitution. As I state above, why have anything else if the Commerce Clause provides unlimited power?

        1. Didn’t you get the memo?
          The Constitution has been abbreviated down to just seven words:

          general welfare … regulate commerce … necessary and proper

          That’s it. The entire document. Three enabling phrases with no limitations.

      2. It is one of myriad articles putting forth the author’s pet proposed construction of a particular provision of the Constitution. I’m sure if I looked a little while, I could find one fully explaining, with footnotes for detailed support, precisely the opposite proposition.

  12. Is it true that when a woman says “It sounds like a dumb law” she really means “Yes”?

    1. It sounds like a dumb comment.

    2. Whomever asked her the question should have continued to badger her until she answered, and I don’t care if Kagan burst into tears or the questioner was later labeled a douchebag in the main stream media. The position Kagan was nominated for is one of nine lifetime positions that, any review of history has shown, carries enormous consequences for the (former) Republic.
      Chivalrous punch-pulling has no role in questioning those who would assume such positions.

      1. Are you serious?

        ** bursts into tears **

      2. It was my question, and I’m sorry I moved a little to quickly on to other topics, such as my new goatee.

  13. The law professor from Yale left out this part of the Gibbons v. Ogden decision.

    If all these be regulations of commerce, within the meaning of the constitution, then, certainly, Congress having a concurrent power to regulate commerce, may establish ferries, turnpikes, bridges, &c. and provide for all this detail of interior legislation. To sustain the interference of the State, in a high concern of maritime commerce, the argument adopts a principle which acknowledges the right of Congress, over a vast scope of internal legislation, which no one has heretofore supposed to be within its powers. But this is not all; for it is admitted, that when Congress and the States have power to legislate over the same subject, the power of Congress, when exercised, controls or extinguishes the State power; and, therefore, the consequence would seem to follow, from the argument, that all State legislation, over such subjects as have been mentioned, is, at all times, liable to the superior power of Congress; a consequence, which no one would admit for a moment.

    Now, STFU.

    1. I guess you don’t see the irony in quoting from Gibbons, a case known for it’s broad reading of the Commerce Clause…

      “With respect to “commerce,” the Court held that commerce is more than mere traffic?that it is the trade of commodities?it is also intercourse. This broader definition includes navigation. The Court interpreted “among” as “intermingled with.”

      Marshall’s ruling determined that “a Congressional power to regulate navigation is as expressly granted as if that term had been added to the word ‘commerce’.”

      1. Not surprisingly, but you missed the point. Balkin tries to use the Gibbons v. Ogden decision to justify his position that Congress can regulate everything down to personal economic decisions, but even under their broad interpretation the Marshall Court still felt that there were limits to the Commerce Clause power.

      2. Yet even after Gibbons, Congress never even dreamed it had the authority to end slavery or the production, distribution and consumption of alcohol.

        Funny, no?

        1. Hahahahahahah… oh, you meant like ironic-funny?

          1. And if I laugh at any mortal thing, ’tis that I may not weep.

        2. Congress never even dreamed it had the authority to end slavery or the production, distribution and consumption of alcohol.

          Nor did Congress believe that it could tax incomes, even though earning an income is economic activity.

          What’s really breathtaking here is that Balkin is attempting an Originalist justification for limitless Commerce Clause authority. The idea that the original understanding of the CC is nearly limitless is laughable. We’ve had this Constitution for 220 years, and it took until 2010 for someone to figure out that the original meaning of the CC was to grant Congress what amounts to a general police power. Balkin discovered this today. This argument didn’t appear during Wickard. Hell, it didn’t even appear during Lopez, Gonzalez, or Raich. It took until right this goddam minute for someone to propose Balkin’s preferred understanding of the CC,

      3. Even Gibbons v. Ogden does not support the stretching of the commerce clause to the extent you propose.

        If, as you claim, you truly do believe the individual mandate is a bad idea and should not be the law, then I’m curious as to why you so tenaciously adhere to this silly argument that this extent of Congressional power was not only understood to be allowed but actually intended by the Framers?

        It’s absurd. It’s demonstrably false.

  14. Please, please make this article the subject of a thread so we can ridicule Tom Friedman to our hearts content…

    http://www.nytimes.com/2010/12……html?_r=2

    1. Tom Friedman doesn’t even know you’re alive.

      1. Good thing that because otherwise he might report me to his Chinese paymasters.

        1. You’d be condemned to riding bullet trains for the rest of your life.

          1. I bet that bullet train would be traveling through a very highly developed economy. If only we could institute such punishments here, we could get out of this mess.

            Hey, wait a minute… I have an idea!

    2. Yes, the Chinese government was brutal and murderous in its early stages. But they’ve made great progress in that area, and many others, including bullet trains and windmills, which shows you why the 21st century will be China’s.

      More than ever, China reminds me of a free puppy that the middle child in a family of five brings home one day after school. The children enjoy playing with the puppy, but no one takes responsibility when it pees on the rug. Mom ends up cleaning up the puppy’s messes, causing fights with Dad, who’s banging the family’s Czech au pair on the side. Meanwhile, during one of Mom & Dad’s fights, the puppy eats the family’s two parakeets, Taiwan and Hong Kong. The children are upset, and the oldest, Iran, turns to bullying his classmates for lunch money. The Czech au pair then starts dating a black guy and realizes that she’ll never go back. What to do?

  15. 1) The Constitution gives the government the authority to regulate interstate commerce

    2) everything people do and don’t do affects interstate commerce, and therefore

    3) the government may regulate everything and everyone.

    4) the Constitution calls for “separation of church and state”, therefore

    5) Separation of church and everything

    1. the government may regulate everything and everyone

      Good thing, because Activia can’t anymore.

    2. Actually, (4) isn’t what the Constitution says, although I wish it were.

  16. Properly understood, the commerce power authorizes Congress to regulate problems or activities that produce spillover effects between states

    IOW, everything. And this interpretation does not depend on the rise of an “integrated economy”, either. It is essentially a different way to say the current formula of taken in the aggregate, direct or indirect affect on interstate commerce. Back in 1800, you could have justified a Congressional control of any and all economic activity with that reading, too.

    or generate collective action problems that concern more than one state

    See above comment.

    This is not an “originalist” interpretation, it is the New Deal interpretation in fancy dress.

    “Intercourse; exchange of one thing for another, interchange of anything;
    trade; traffick.”

    Indeed. And it was universally understood that “commerce” did not include agriculture or manufacture, but only the actual trade of the fruits of agriculture on manufacture itself. Again, the New Deal interpretation cast this distinction aside, so this is not an originalist interpretation.

    1. Precicely, as Madison in F42 made perfectly clear.

      1. Silly man, you can’t go back to texts other than the Constitution to try and figure out what the people who wrote it actually intended. That would be against the rules and bring everything crashing down.

  17. But if you don’t want to buy health insurance, your only options are to leave the country or depart this vale of tears.

    The mandate also violates the 14th Amendment:

    “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;”

    It violates the 13th Amendment:
    “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

    Making you buy something from someone with no due process of the law or mutually agreed compact or contract is involuntary servitude.

    It violates the 5th Amendment:
    “[…]nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

    Mandating a person to PAY for health insurance under a universal care law IS the same as DEPRIVING A PERSON of property for PUBLIC use (the healthcare of other people unknown to the person) without just compensation.

    1. Are you ser-

      Goddamit, this is getting old.

    2. The mandate also violates the 14th Amendment

      The 14th Amendment only applies to the states, not the federal government.

    3. Now-a-days “due process of law” is complete when the President signs the bill.

    4. The government mandates I pay for bombs to kill innocents overseas and bribes for corrupt government officials. The government mandates I pay the salaries of the worthless shits in Washington. The government mandates I pay for care for those who choose not to get health insurance. This bill at least has some benefit.

  18. Kagan must know Tony.

    1. I see what you did there.

      Winner.

  19. How about something simpler:

    Would anyone with a shred of intelligence think that the framers or the Constitution intended to give the federal government unlimited powers? (Exclude statist crybabies since we all know they long for someone to wipe their clenched asses for them)

    If you really think the Commerce clause is that flexible, why bother having it?

    The Constitution is a firewall. Deny everything unless specifically allowed.

    IOW, suck it.

    1. Sorry, it’s for the children so it must be OK. And of course I don’t want to see people die because the corporations are raping their dogs.

    2. Would anyone with a shred of intelligence think that the framers or the Constitution intended to give the federal government unlimited powers?

      Absolutely correct! It’s one thing for Obamacare supporters to say “we’ve got 80 years of Supreme Court decisions granting Congress broad Commerce Clause power, and you’d have to undo all that if you want to throw out the mandate.” It’s quite another to what Balkin is doing and say that those powdered wig dudes granted Congress that authority from day one.

  20. You damn straight Obamacare violates me. Make me buy insurance will you!? Come down here and make me!

    1. Oh, just you watch.

    2. As long as you done expect the rest of us to pay for your treatment when you get sick, I for one am fine with you not getting insurance. Just try not to die in the ambulance drop-off area.

  21. Caption: “I’m crushing your head!”

  22. Balkin:
    A good test for the plausibility of any theory of constitutional interpretation
    is how well it handles the doctrinal transformations of the New Deal
    period.

    IOW, a theory is valid if it conforms to the statist goals of the New Deal. Conforming to the framer’s intent is no longer necessary.

    1. I couldn’t get past the first sentence, either.

    2. I actually agree with that statement. Any consitutional theory that doesn’t throw the New Deal out on its ass is unmitgated horseshit.

      1. Well, played, sah!! Well played, I say!!

  23. American division and discourse is as American as apple pie.

    1. What are you? Some kind of commie? lol

  24. How about mbt kisumu sandals this one: there are X driving deaths a year- what % of driving deaths (or serious injuries) involve alcohol, or other intoxicating substances? kisumu 2 People are pretty darn good drivers when they are not impaired.

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