Constitutional Law

"It would be a giant leap for the Supreme Court to say that a decision to buy or not to buy is tantamount to activity"

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The Wall Street Journal's Janet Adamy reports from today's hearings in Pensacola in the ObamaCare challenge filed by Florida and 19 other states. As she notes, federal Judge Roger Vinson "signaled he's sympathetic to the plaintiffs' argument":

The plaintiffs, a group of mostly Republican governors and attorneys general, contended that requiring Americans to carry insurance is beyond the federal government's power under the Constitution's commerce clause. They say failing to buy insurance is "inactivity," not "activity" that can be regulated by Congress.

Judge Vinson signaled he saw the requirement as unprecedented and a potential imposition on Americans' individual liberties.

"It would be a giant leap for the Supreme Court to say that a decision to buy or not to buy is tantamount to activity," he said.

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  1. To buy or not to buy – that is the question…

    1. “There are more things in heaven and Earth, Pelosi, than are dreamt of in your philosophy.”

      more clever plagiarism at http://www.manifstliberty.com

  2. Activity/inactivity is a thin reed to hang the argument on. It looks like the specious distinctions that the Supreme Court eliminated in other areas of the law in the early 20th century. Under the “substantial effect” doctrine, I don’t see how growing weed in your backyard is Interstate Commerce and refusing to buy health insurance isn’t.

    1. So, do I understand correctly that you are refusing to grow weed in your backyard?

    2. If a person were, say, a writer, and chose not to write, could that be considered an economic activity? Could the government then pass a law requiring all writers to write?

      1. If a person chose not to write, then they wouldn’t be a writer, now would they?

        You’ve got to get up pretty early …

        1. If a taxpayer chooses not to pay taxes then they…?

          1. Is it still writing if the subject and object doesn’t agrees in number?

            1. Subject and predicates, that is.

    3. What if I didn’t grow weed, would that be economic activity?

      1. Only if the government paid you not to grow weed.

  3. It would be a giant an historic leap for the Supreme Court to say that a decision to buy or not to buy is tantamount to activity

    FTFY

    1. Couldn’t fit an unprecedented in there as well?

      1. Nah. When you’re Barack Obama, good things that you do are “historic.” Bad things that are done to you (e.g., having to deal with a recession that began before you were president) are “unprecedented.”

    2. It would be an a historic leap

      FTFY.

      (We don’t do the whole “an historic” thing anymore, Barack, despite what your 60-year-old English teacher told you in 1975.)

  4. It’s not about activity vs. inactivity. It’s about economic activity vs. all other activities.

    1. Then the opposition is sunk, because while inactivity might not fall under Lopez and Morrison, buying health care seems to certainly be an economic decision…The only logical distinction under current precedent for the opposition to rest on is that inactivity is a fundamental distinguishing element.

      I don’t buy it because I think in Wickard and Raich what was going on was the same thing at issue here: inactivity in certain interstate markets (wheat, pot and insurance).

      1. No, it wasn’t that. Wickard and Raich were both in violation for growing something, not for not growing something.

      2. I doubt the Republican opposition would use an original intent argument. It might not even be strategically advantageous to do so, if one only cares about doing away with the individual mandate. Then a later case could still correct the current precedents.

      3. MNG|12.16.10 @ 5:14PM|#
        “…buying health care seems to certainly be an economic decision…”
        So’s choosing to sleep and extra hour and losing the income. So?

        1. …so Congress can tell you to get out of bed and get to work.

          I’ve asked this several times, and I have yet to receive an answer: may Congress, through its Commerce Clause power, establish and enforce National Bedtime?

          We are told that the individual mandate is necessary because we need more people who will not make claims (i.e., healthy people) to buy health insurance to offset the costs of insuring people with pre-existing conditions. Alas, there may not be enough healthy people to carry that burden. What we need is more healthy people, and one way to make people more healthy is to ensure that they get eight hours of sleep every night. Forcing people to go to bed at 10:00 PM is not a regulation of economic activity per se, but it is a necessary regulation if we are to require health insurers to cover those with pre-existing conditions.

          1. “….Forcing people to go to bed at 10:00 PM is not a regulation of economic activity per se, but it is a necessary regulation if we are to require health insurers to cover those with pre-existing conditions.”

            If the supremes hold that inactivity = activity, I can’t see any reason congress can’t set a regulated bedtime.

            1. Frankly, at that point, I can’t see any reason why they can’t rule that up is down and force everyone to wear their underwear on their heads.

              1. So hot snow falls up? D’oh!

          2. Taking it one step further, if all of this is upheld, then Congress should have the right to tell me what to eat and drink so I, and my children after me, stay healthy enough to offset said costs of pre-existing/sick people.

      4. BTW, Jon Stewart a day or so ago attacked Republicans for wanting to get rid of the individual mandate, calling it judicial activism. He couldn’t be more wrong, since it is exactly these precedents which have moved away from original intent and accepted a form of constitutional flexibility and dynamism.

        1. “BTW, Jon Stewart a day or so ago attacked Republicans for wanting to get rid of the individual mandate, calling it judicial activism”

          That’s because he’s too stupid to know what judicial activism is.

          1. When a judge does something you don’t like?

            1. No, no. That’s Jon Stewart’s definition.

      5. haha, doing nothing is engaging in interstate commerce?
        welcome to the modern world, where words have no meaning

        1. Sburadlig.

      6. As of this moment, I am not buying cheeseburgers, aluminum siding, Pantera CDs, eyeglasses, brain surgery, paint, marijuana, Tickle-Me Elmos, Season 3 of Family Ties, lightbulbs, or handjobs.

        Previously I thought I was just sitting on my ass, but today I learned that I am making economic decisions. And I’m going to continue to make those economic decisions in about six hours when I’m asleep. Amazing!

        1. And I’m going to continue to make those economic decisions in about six hours when I’m asleep. Amazing!

          The cool thing is that you could be a brain dead vegetable in a coma on life support and still be making those decisions.

          Perhaps the Republicans should embrace this new insight about economic activity…they might have been able to keep Shivo alive.

          1. Nah. Shivo was not a healthy person.

            1. So she qualified under ‘pre-existing conditions’.

      7. I think in Wickard and Raich what was going on was the same thing at issue here: inactivity in certain interstate markets (wheat, pot and insurance).

        What you don’t understand is that in Wickard, the farmer was making the economic decision not to do grow any crop other than wheat. In fact, he was making the economic decision not to engage in every conceivable activity that is not growing wheat. See how that works?

      8. Except you are restricted to engaging in a very particular type of health care product. The mandate isn’t even satisfied by purchasing high-deductible, catastrophic insurance.

        And any innovation that a free market in health care might have come up with is out: setting up a mutual aid society; perhaps a new type of health insurance policy based on medical tourism; … gotta write more later…

      9. “The only logical distinction under current precedent for the opposition to rest on is that inactivity is a fundamental distinguishing element.”

        It is a fundamental distinguishing element. Activity distinguishes purpose, inactivity doesn’t. Punishing activity provides a level of avoidability, inactivity denies avoidability. It is a basic human understanding that the purpose and avoidability of our actions are important moral considerations. Thus the difference between killing someone as a matter of aggression, or killing someone because you are left with no other choice.

        This is also why Filburn was distinguishable from all other individuals who did not purchase wheat. Filburn acted with the purpose of avoiding market wheat prices, millions of people also avoid market wheat prices, but they were not also fined because they had not engaged in the purposeful activity of growing replacement wheat.

    2. If doing nothing is an economic activity, what isn’t?

      1. Related question:

        If Congress is empowered to regulate only interstate commerce, what is an example of intrastate commerce that Congress may not regulate?

    3. IMO, it’s about “economic activity” vs. “commerce”.

      “Economic activity” can mean fuck all anything. Actions. Inactions. Decisions. Indecisions.

      “Commerce” however, has a much more well-defined meaning.

  5. I can say this, after hanging around here for a while reading and debating I can see why this issue is so important to libertarians. Apart from the whole liberty thing the distinction between activity and inactivity is crucial and has massive implications in libertarian thought…

    1. are you suggesting that my decision to not not harm you is the same as harming you?

      1. No, I’m saying that the distinction you see there is immensely crucial to your political viewpoints…

        1. given that libertarian thought is often seated first in the “harm principle” it seems unlikely. No particularly ruling here would convince a libertarian that he is now harming someone by not going out of his/her way to help them.

        2. “I’m saying that the distinction you see there is immensely crucial to your political viewpoints…”

          True enough, but trying to redefine “up” as “down” has effects on all sorts of viewpoints.
          For instance, gravity now pulls you up!

    2. I wouldn’t say it has massive implications for libertarian thought, the Supreme Court ruling that something is Constitutional or not doesn’t change the fundamental philosophy of libertarianism.

      It does have massive implications for libertarian concerns in the US, particularly the amount of regulatory control the Federal government has over individuals.

      1. I’m noticing a lot of black names. Names without fake email addresses. This disturbs me. I’m thinking they must all be Anonypussy. I may be wrong.

        1. Let me be clear.

          I also find such inactivity disturbing.

        2. Yo, black name Jerry, be not disturbed: I have a red name and a fake email address… Yep, you may be wrong.

          1. Still…

          2. Oh BTW

            I’m noticing a lot of black names.

            Raaaaaaaaaaacist!

            And H&R is totally racist for allowing red and black names only!!! A white name, to the best of my knowledge, has never appeared on H&R. (full disclosure, I am a calico, mixed race pussy)

            1. White names are here. You just can’t see ’em.

              In fact, some of the best comments are white-on-white, so to speak.

        3. Some of us only every put links on our joke handles.

          Not that I’m admitting to any of them. Or that there’s anything wrong with that. or something.

          Ho nomo.

    3. Well, yes. NOT PULLING a lever that will divert a trolley to kill one person instead of five, is not morally equivalent to PULLING a lever that diverts the trolley to kill five people instead of one.

      Do you disagree?

  6. Let’s stop focusing on the distinction between activity and non-activity – and on whether the Constitution grants the government the power to regulate even much activity (is that really what the commerce means?!): http://pileusblog.wordpress.co…..obamacare/

    1. Hit submit in haste – should read “such activity (is that really what the commerce clause means)”

    2. Right, I’d be pretty pissed if the courts found that the commerce clause allows to government to PROHIBIT me from buying health insurance as well.

      All “economic decisions” are not “commerce”.

  7. Somebody should drop a 13th argument on them too. Slavery is illegal yo!

  8. The point really is whether the Constitution describes a federal government with limited and enumerated powers, or whether the 10th negates the rest of the document. Anybody taking an expansive view has to explain why the FF’s bothered with the other amendments.

  9. If government power shouldn’t be limited, then whatever the government does is okay so long as the government decides it’s okay.

    1. Well, since Congress can regulate both activity and inactivity, I propose a new law: “Everything Not Prohibited is Mandatory.”

  10. Obviously ‘inaction’ has economic consequences. I don’t buy coke from Juan, and therefore he doesn’t have enough dinero to pay off DEA agent Fred, and therefore Fred can’t pay his mortgage and therefore the Fed has to pay it for him and therefore…well…

  11. “It would be a giant leap”

    No crap. For better or for worse, that’s what the Supreme Court does.

  12. “It would be a giant leap for the Supreme Court to say that a decision to buy or not to buy is tantamount to activity,” he said.

    If I were plaintiffing this thing, or judging it in a lower court, I wouldn’t direct the Supremes to understand the case on those terms.

    First, since I’d be a lawyer, I’d fuck sheep. While fucking sheep, my mind would wander, because I’ve fucked so many I don’t even care anymore, and I’d realize I was definitely going to lose the case or be overturned at the SC, and the in/activity distinction is a bad place to aim that loss.

    The Court’s lefties and squishes share their constituencies’ hate-fueled a-reason, so however well that argument may work on the sane, it’s your argument, so it loses with them?plus you risk the not-libertarian conservative Justices handling it badly and fucking shit up, because they’re dumb assholes, too.

    I’m not sure there’s a better argument that’s allowed. “Look at the fucking Constitution, you Nazi cunts. It says ‘fuck you,'” is the best, and it’s unspeakable.
    We’re sheeped.

    1. You realize that not fucking sheep is an economic activity pursuant to the 10th and subject all relevant laws, past, present and future…

      1. ‘subject to all…’

    2. I think the problem is that the commerce clause is already so extended that making the inactivity/activity distinction is the easiest way to set an outer boundary without violating previous supreme court rulings that have extended to clause to include “economic activity that in the aggregate has an effect on interstate commerce”.

      Neither Vinson, nor Hudson, has the power to overturn Wickard. They can only find a distinction between Wickard and the present case. So they can’t rule that “economic decesions” can’t be regulated. They can only define the outer boundaries of which economic decisions are regulatable.

  13. 1012: Ron Paul decides not to run for president. He is sued for inactivity by readers of Reason Magazine. The suit reaches the Supremes in 2015 and the case is found with merit. Paul is fined $100,000,000 and sentenced to life. Unfortunately, he has died, activity or no activity, and sentence is passed on to Rand.

    1. 2012, I’m a bit behind the times…

    2. Screw that, the sentence remains, we just have to dig up his corpse and do $100,000,000 worth of evil to it.

      Oh, and the sentence is also passed on to Rand, because fear is a good way to keep the peasants in line.

  14. 2016: Ludwig von Mises V writes (note: activity) new economic opus: Human Inaction.

    1. Threadwinner!

      1. Seconded.

  15. Dude, you are the passive-aggressive gift that just keeps on giving. What retarded internet thing will you do next?

    1. 2020: Great Great Depression in umpteenth year. US Govt sues consumers for inactivity – non-consumption.

      (Hey, we can do these scenarios ad infinitum)

  16. Can the Federal government outlaw vegetarianism? Your failure to consume meat is an economic decision that is detrimental to the interstate beef and poultry industries.

    1. Por supuesto, pedejo!

      1. wine will do this to you – pendejo

    2. Let me take this one step further:

      The administration has defended the mandate in court on the grounds that those who do not buy insurance are making the economic decision to pay for their health care in some other way. Well, those who don’t consume meat are making the economic decision to obtain protein in some way other than consumption of animal flesh. If Congress can force you to pay for health care by buying it from an insurance company, why can’t Congress force you to buy your protein from Frank Purdue?

      1. “why can’t Congress force you to buy your protein from Frank Purdue?”

        Indeed! After all, it’s not a ‘product’, it’s a ‘financing mechanism’ to deliver protein!

  17. I apologize for one more, as this is all so ridiculous:

    Doing nothing is not legal. Go break a window and save the economy.

  18. We laugh because its funny but we cry because its true?

  19. The Feds can only force you to buy meat, but the states could maybe make you eat it.

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