Constitutional Law

"There is now a serious question as to whether the individual mandate will ultimately survive."

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Writing in The New York Times, Brooklyn Law professor Jason Mazzone makes the case that Judge Hudson's ruling striking down the PPACA's individual mandate could foreshadow a similar ruling from the Supreme Court:

When the health care law makes it to the Supreme Court, the justices will ask, with varying degrees of concern, this age-old question: How do we define the limits, because limits there must be, on this federal power?

Judge Hudson has presented a way for the court to finally answer this question. His opinion is the first prominent judgment to say that Congress can use its power over interstate commerce only to regulate "activity," as opposed to a lack of action. This strikes many as a bold assertion, but it has a lot going for it. All of the Supreme Court cases upholding Congress's power under the Constitution's interstate commerce clause have involved Congress regulating some kind of activity that is already occurring.

Indeed, the court has never confronted a federal statute that forces people to engage in some action like this. The conservative justices in particular will no doubt wonder what else Congress can make Americans do if it can make us buy health insurance. Can Congress tell us to join a gym because fit people have fewer chronic diseases? Can Congress direct us to purchase a new Chrysler to help Detroit get back on its feet?

…Judge Hudson's distinction also has allure because United States law in other ways already treats actions differently from inaction. Criminal law punishes things people do, not things they do not do. Tort law makes us liable for our actions that cause injury; outside of special relationships like that between a parent and a child, there is no duty to act. To drive a car, you must first purchase insurance, but you can choose to forgo auto insurance and use public transport instead.

The question he poses is the right one: If there are constitutional limits on Congressional power to regulate commerce, then how are those limits defined? 

Mazzone concludes that "there is now a serious question as to whether the individual mandate will ultimately survive." I am not yet convinced that the most likely outcome is that the Supreme Court invalidates the mandate; in the end, it will probably come down to what Justice Kennedy decides. But with Hudson's ruling earlier this week, and with another federal judge now seemingly ready to issue a similar blow to the law, the odds do seem to be shifting against the mandate. 

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  1. The question he poses is the right one: If there are constitutional limits on Congressional power to regulate commerce, then how are those limits defined?

    Eh I am unimpressed.

    Some one here in the comments has posted that very question. They have also made other arguments and posed other questions equally as good.

    My guess is Jason Mazzone stole it from us.

    1. Maybe I’m missing sarcasm here or something, but is that really such a unique idea that it would have to be stolen? “What are the limits on Commerce Clause power” is a question that legions of people have asked. It didn’t originate with Mazzone, the judge or a Hit & Run thread.

      1. Johshua thinks a H&R commenter invented masturbation too. Give the little boy a break

      2. Sure give me shit for giving hit and run commentors a little bit of credit.

        😛

  2. The title was the happiest thing I’ve read all week.

  3. I don’t see any of the Supreme Court justices as dumb. Misguided, maybe, but not dumb. Therefore, I am really curious to see what ring of hoops they try to concoct in their decisions if this is really going to be a 5-4 split. It might just be because we’re not all dumbasses like MNG, but how this won’t be a 9-0 in favor of striking down the mandate is difficult for me to see.

    1. Hell, these are (mostly) the same people who couldn’t agree at least 7-2 that the Second Amendment means what it says, and what it always was understood to mean for at least the first 150 years after it was written.

      1. Like this: Not buying insurance, under Obama’s plan, has quantifiable effects on a large sector of the economy. Therefore, the regulation falls under the powers granted in the Commerce Clause.
        I’m not saying I agree. I’m saying that’s a simple version of the argument.

        1. “Can Congress tell us to join a gym because fit people have fewer chronic diseases?”

          Can congress tell us all to carry around a government issued 9 digit number, that puts every US citizen in a vast gubermint database, without which you cannot work (UH, legally work)?
          Oh, already did that…
          Yeah, I think healthcare is child’s play next to that.

          1. In some ways, yes. But what’s the fine for not having a SS card?

            The thing going for the healthcare law is that SCOTUS has yet to rule a huge progam like social security as unconsititutional. However, none of those programs require me to make a private purchase to a private company.

        2. In other words, Obama can dig a hole and demand that we fill it up.

  4. Well, technically the income tax and tariff laws, census laws, and selective service registration laws do compel activity. But they’re not based on the interstate commerce clause, so Mazzone’s point is largely correct.

    1. You can avoid the income tax by not working(or at least, not working on the books). You can avoid tariffs by not importing anything. The Census and Selective Service simply require people to fill out a form, they are not forced to buy the forms.

      1. The Census and Selective Service simply require people to fill out a form, they are not forced to buy the forms.

        Some people, namely the taxpayers, are forced to buy the forms.

      2. If you have no income you’re covered by Medicade, so the insurance mandate doesn’t apply to you. So the Obamarrhoids can argue that the mandate is constitutional because it regulates the activity of earning income.

      3. And filling out a form you didn’t pay for is still an activity. Nice try.

        1. But the census is a specified task in the Constitution right? Also, registering for Selective Service is a function of the requirement to provide for defense?

          Those forms are just the method used to meet the Constitutional requirement aren’t they?

    2. I think it’s fair to say that being taxed is not an “activity”.

      Also, raising an army and raising taxes for the general revenue are specifically enumerated powers. Providing universal health care isn’t.

      1. I’d say taking a census is provided for because the Constitution requires congressional seats to be apportioned based on poplulation.

        1. More than that, the enumeration of the people (i.e. a census) is explicitly authorized in Article I Sec. 2.

  5. Taxes, tariffs, census, and calling up militias are powers granted by the Constitution. Healthcare is not.

    That should matter, but it probably will not.

    1. Beat me to it.

  6. “How do we define the limits, because limits there must be, on this federal power?”

    Whoa, whoa, whoa, limits on federal power? That’s just crazy talk.

    1. I’m getting tired of this joke.

  7. This is shaping up so that the best possible “win” is a Supreme Court decision that rejects the mandate by strongly defining “commerce” as “activity”?as in, any behavior that can be plausibly legally defined as a positive action is Constitutionally cleared for Congressional constraint.

    Then the Great Defining begins.

    You’re not getting Kennedy on the “no mandate” side if you don’t give him that. It’s this mandate now, or every mandate later.
    FFFFFFUUUUUUUU

    1. There’s probably plenty of room for further tightening of what counts as “economic activity”.

      Just because the economics profession can describe anything as economic activity doesn’t mean the supreme court must.

      The court has already ruled that some things, such as avoiding abusive boyfriends or carrying a weapon near a school don’t count as “economic activity”.

      1. I think while everything can have indirect economic consequences, not everything is directly economic and this gives the courts a way to limit the feds under the clause. For instance take the famous question that stumped Kagan: yes eating veggies makes you healthy and being healthy means you would be more productive and work more and cost less, etc., but look at how you had to take a step to get to purely economic consequences. So no, the government cannot make you buy and eat veggies for those reasons.

        1. Dude, with the way you willfullly misread the commerce clause and the general welfare clause, you are already on the record as being majoritarian,pro unlimited-government. So just embrace your evil and enjoy it.

        2. i can do it in much less steps. Eating veggies made in the USA promotes the US economy. Done

        3. So no, the government cannot make you buy and eat veggies for those reasons.

          You are standardless and disingenuous.

          You have argued, ad infinitum and ad nauseam, that choosing NOT to buy something is an economic decision, and therefore Congress can regulate (“make rules about”) it and require you to buy something.

          Now you say that choosing not to buy vegetables is not an economic decision and the government can’t make you do it.

          How the hell do you square that?

          If I choose not to buy health insurance, that affects commerce, but if I choose not to buy broccoli, it doesn’t?

          Either way money that I otherwise would have spent on those things does not get spent, or gets spent on something else.

          How the hell do you come up with any difference there?

  8. Some would say that we are being inconsistent when we create externalities for hospitals when we demand that they treat all patients that come to their doors in an emergency, but then we turn around and base our argument for the individual mandate on those very, uhm, externalities we created. But, you would be wrong. Our demands are internally consistent with the very fact that we are the ones that are making them.

    1. I think it ultimately comes down to whether the constitution grants a right to health care.

      If it does, then you can say that requiring the purchase of insurance is “necessary and proper” to the function of making healthcare available.

      The bill’s advocates could possibly make that argument under the general welfare clause, saying that requiring health insurance is necessary and proper to providing for the general welfare.

      However THAT would entail a radical new doctrine which would probably grant the government unlimited power.

      I’m guessing the bill’s supporters felt that the commerce clause was the safer route. Maybe they were mistaken.

      1. I think it ultimately comes down to whether the constitution grants a right to health care.

        To put a fine point on it, I have to note that the Constitution does not “grant” any rights at all. It recognizes and acknowledges certain rights that the people have, and forbids the federal government from infringing up on those rights (theoretically (insert eye roll smiley here)).

        The Constitution grants specific, limited powers to the federal government, but it does not grant rights. The rights in question pre-existed the Constitution and do not rely on the Constitution for their existence or validity.

        1. At least someone understands natural rights! You have them as an attribute of your essence, not because some 225 year old dude in a wig gave them to you!

      2. —“I think it ultimately comes down to whether the constitution grants a right to health care.

        If it does, then you can say that requiring the purchase of insurance is “necessary and proper” to the function of making healthcare available.”—

        Not so:

        Section 8 – Powers of Congress

        To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

        The necessary and proper clause refers to the enumerated powers of Government, not any Rights held by the people. Rights HELD, not GRANTED. Government does not grant you any rights, you have them already.

  9. Criminal law punishes things people do, not things they do not do

    TELL IT TO WESLEY SNIPES

    🙂

  10. Ok, let’s turn this around for a change, what powers does the Commerce Clause grant to Congress?

    For example take a famous case. Can Congress make laws regulating Major League Baseball games?

    1. Can Congress make laws regulating Major League Baseball games?

      It depends. What law do you have in mind?

      For instance, a federal law that said you can’t play baseball against a team from out of state unless you’re wearing your underwear on the outside of your pants wouldn’t pass muster, since it’s completely unrelated to the interstate nature of the commerce.

      However, a law saying that states can’t forbid playing baseball against teams from out of state would pass muster, indeed this was the purpose of the ICC in the first place.

      1. So the only laws it allows are laws that bar state restrictions on interstate commerce? Doesn’t the “dormant” part of the clause do that already? Or are you saying the only powers granted are the powers of the “dormant” part of the clause?

        1. Or are you saying the only powers granted are the powers of the “dormant” part of the clause?

          We have a winner.

          1. So while it explicitly grants the power “to regulate commerce” it actually only empower restrictions on what state governments could do, not interstate commerce….That strikes me as odd.

        2. But how is this “necessary and proper” to any of the few powers and tasks explicitly granted to the Federal government? Or to better ask the question, what task of the Federal government is regulating baseball germane to?

      2. “since it’s completely unrelated to the interstate nature of the commerce.”

        Who should decide what is related and unrelated to the interstate nature of commerce, Congress, who the power is delegated to, or the Courts?

        1. The commerce clause was not intended to apply at the citizen level. The mandate isn’t about regulating commerce, it’s about regulating you.

        2. The courts, obviously. Their role in our political system is to interpret the laws (which includes the Constitution).

          BTW, it’s pretty damned sad that a math professor has to educate a poli sci PhD on the definition of the judicial power.

        3. If you take a case to court and they take the case, then, duh, the court decides.

    2. Oh, jolly good that you should bring up MLB and that SCotUS granted it – via judicial fiat – exemption from the anti-trust laws that Congress had written. Talk about holy judicial activism batman.

      1. Oh I agree, one of the goofiest decisions ever.

        1. And it undercuts your very question. SCotUS arbitrarily decided that MLB was exempt from the laws Congress had written.

          Now if you would be so kind as to remove my boot from your arse.

          1. It wasn’t so arbitrary. It was basically the same logic that was used to decide that cigarets were not medical devices.

            The idea is that the properties of the thing in question were known to Congress at the time Congress passed the laws in question, therefore Congress did not mean to apply the words literally to the things in question. I think they were correct in the case of baseball, i.e. that Congress did not mean to outlaw the structure of pro baseball as it then existed. It does seem to be a stretch, however, not to extend that exception to other professional team sports.

    3. In other words, Congress can’t exercise police power over an activity they normally wouldn’t be able to, just because it involves economic activity and crossing state lines.

      1. So under your reading it doesn’t even grant power over actual interstate commerce!

        1. So, under your reading, commerce power is police power.

        2. Not quite. By his reading if Congress doesn’t have the power to regulate shoe manufacturing, they aren’t granted that power because the shoes are sold across state lines.

      2. I think that is at least debatable. The “normally” in your phrasing might kind of beg the question. I don’t think it is debatable at all though that interstate commerce must BE both (a) interstate and (b) commerce. If you can’t get on board with that then you are just a big fat Orwellian Humpty Dumpty.

    4. No. Not if you pay cash at the gate, and the stadium spans no state lines.

    5. what powers does the Commerce Clause grant to Congress?

      We don’t need to answer that question to determine that the individual mandate is beyond them.

      I.e., whatever powers the Constitution might have given Congress, this isn’t within them.

  11. Good piece by Mazzone, but I wish he’d tweaked this analogy a bit:

    “To drive a car, you must first purchase insurance, but you can choose to forgo auto insurance and use public transport instead.”

    No need to inject “public transport” into the mix. It introduces unnecessary, even rhetorically risky, wiggle room. Just say, “You can choose to forgo driving a car.”

    1. You only have to purchase liability insurance, against the possibility of damaging somebody else. You don’t have to take out collision insurance on your own car.

      That’s where the analogy of the mandates breaks down.

      1. Right. That’s his point. I’m just saying the point could have been made more crisply.

  12. The federal government already “forces” us to pay for the medical expenses of old people, poor people, veterans, and other favored groups. I wonder how unconstitutional it is for the government to do the same for the rest of us.

    In purely political terms, it will be interesting to see if the Supreme Court has the nerve to overturn such a major piece of legislation. In the past, conservatives on the Court have avoided a direct assault on liberal sensitivities (except for B v. G, of course). I wouldn’t be surprised to see them send it back down to the District Court for review of some trivial point. Then, if Obama is re-elected, it will be constitutional. If not, then not, at which point ObamaCare likely to be moot anyway (or at least semi-moot).

    1. This.

      There’s some irony that the mandate is part of a goofy compromise effort to get universal health care, control costs while not gutting the private sector health insurance industry. As has been pointed out this was essentially a Republican idea (Romneycare). If liberals had their way they would have just had some kind of single payer government paid health care for all under the Spending Clause with no fuss, no muss.

      1. MNG, are you under the impression that anyone here gives a shit that some Republicans like state-controlled healthcare?

        1. I know the many principled libertarians on this site hate Romneycare too, yes. My point is the irony of the goofy Dems who were going to get skewered for being socialists either way opting for a plan with questionable constitutionality in order to protect a section of the private sector!

          1. I don’t think they took seriously the notion that it’s constitutionality was questionable.

            The Commerce Clause has been a joke for so long I don’t think they ever suspected there might be a limit to it.

            1. Perhaps, but if any clause has had a broader reading than Commerce it has been the Tax and Spending clause…

              1. A broader reading by WHOM? Oh, by the guys that believe they can make any arbitrary decision they like – such as (as you brought up) exempting MLB from anti-trust.

                Aren’t you glad you have so much faith in them?

            2. I don’t think they took seriously the notion that it’s constitutionality was questionable.

              +10

      2. I agree with you on that MNG. It is more than a little ridiculous to see Republican supporters of Mitt Romney complain about the bill as socialism, when they would have likely supported the exact same bill had it been put forth by a Republican president.

        It just goes to show how stupid the Left/Right divide really is. The majority of Red Team/Blue Team only care about the constitution and limited government when they aren’t in power.

        1. I agree with you that MNG brings up a good point.
          Good grief – the gubermint can make you at 65 be in medicare.
          I oppose this heath reform because I see it ending up like medicare – far, far more expensive than estimated, while preventing advances in quality and cost reduction.

          1. “”Good grief – the gubermint can make you at 65 be in medicare.””

            Not really, nor can the gubermint make you have a prescription drug plan (Medicare Part D) at 65 either.

            Sure, there is a mandate for such, I point it out too, but what makes it different is that you are not penalized until you enter the Medicare system by having to pay higher premiums. There is no direct fine for ignoring the mandate. Now the government could impose a penalty system similar to that and I doubt SCOTUS would shoot it down.

        2. The only reason for there to have been major support for the bill under a Romney presidency would’ve been the same reason as in Mass.: that they’d better be seen to be getting behind this, or they’d be likely to eventually wind up with something worse, and be distrusted by those who installed that “something worse”.

      3. Right, and exactly how is “single payer” constitutionally defensible?

    2. “”The federal government already “forces” us to pay for the medical expenses of old people, poor people, veterans, and other favored groups. I wonder how unconstitutional it is for the government to do the same for the rest of us.””

      Well first, once the government collects the tax dollars it’s no longer ours. They don’t force us to pay for what you said. It’s subject neutral, they just force us to pay, then they decide where that money will go.

      Secondly, if they did propose a plan that was paid for directly with tax dollars, it would probably pass constituional scrunity since they are not forcing you to buy anything. It would be paid for by tax dollars. But that’s not what they passed.

      1. “if they did propose a plan that was paid for directly with tax dollars, it would probably pass constituional scrunity since they are not forcing you to buy anything. It would be paid for by tax dollars. ”

        Which is exactly why Socialist Security passed muster. You are NOT buying or paying for your own retirement, you are paying into the kitty, with the claim being that you will get something out of it someday. But SCOTUS has ruled that no one has a right to SS; it can be denied anyone.

    3. I have little doubt that they couldn’t find a way to justify siccing the IRS on the uninsured if they wanted to.

      But I have a hard time understanding why they’re being so mean to the uninsured. I thought the whole point of this was trying to help them!

    4. I would argue those programs are also unconstitutional, but the “forcing us to pay” aspect is covered by the A1S8 power to tax and the 16th amendment. It doesn’t flow from the commerce clause, as the individual mandate purportedly does.

  13. The object is to drive a stake into the heart of Medicare – which the Teabagger Medicare Preservation PAC objects to.

    To use the car insurance analogy – why do I have to pay maintenance insurance premiums for old 1966 Buicks?

    As long as working people subsidize an all-you-can-eat Medicare buffet we are all destined for eventual poverty. The Teabagger Medicare Preservation PAC knows this.

  14. …outside of special relationships like that between a parent and a child, there is no duty to act.

    So if the court defines the relationship of citizens to their government as children to parent…?

  15. The problem with the mandate is that Congress confused “man date” with “Don’t ask, don’t tell.”

  16. MNG, if it’s a state imposed restriction on interstate commerce (for instance a tariff on out of state goods) then Congress can act on it. The point of the clause is to make a free trade agreement between the states.

    1. as regulate used to mean “to make regular”

      1. Still does in some circles.

        I eat more fiber to regulate my bowels.

      2. I’m not sure how helpful it is to point to the idea of “making regular” when regular means “ordered according to some established rule, law, principle, or type.” By definition any Congressional regulation would order the commerce according to an established law or rule.

        Also listed for regular is “recurring, attending, or functioning at fixed, uniform, or normal intervals.” The problem here is it strikes me this is more supportive of something like the mandate, making everyone buy into the market would certainly make things more uniform, fixed, etc.

        1. Will somebody please bump the fucking record player? The damn needle keeps skipping. I’m hearing the same annoying fucking noise over and over and over and over and over…

          1. Does regular not mean this?

            1. Dude, the fucking issue is NOT whether congress has the power to make rules. Yes, it does. The question is WHAT it has the power to make rules about.

              The Commerce Clause empowers Congress to regulate – “make rules about,” if that makes your pockets tight – COMMERCE AMONG THE SEVERAL STATES.

              So stop focusing on whether regulate means “make rules about” or not. The definition of “regulate,” in itself, does not answer the question. The Commerce Clause does NOT say Congress has the power to regulate (make rules about) individual decisions to purchase or not to purchase something. It says Congress regulate COMMERCE AMONG THE SEVERAL STATES.

              This is not to say that I buy your proposed broad definition of regulate anyhow, because it’s pretty clear the Framers did not mean to, and the provision was not understood to, grant Congress the broad power you advocate.

              And if, as you say, you do believe the individual mandate is a bad idea or whatever, then why the fuck are you still flogging this goddamn dead fish about it being constitutional?

              It’s just getting old and tired, having to read you saying the same fucking thing over and over and over.

              1. A while back I debated MNG on the ninth amendment and after a while I concluded that he was either truly trolling or simply being obtuse. I suspect the latter. It’s true that he’s be best leftist that we’ve got on the board but he won’t give an inch when cornered.

                … Hobbit

                1. “It’s true that he’s be best leftist that we’ve got on the board but he won’t give an inch when cornered.”

                  I called MNG on MNG’s bullshit when I first wondered on to the Reason site; MNG responded with irrelevant claims of his/her degrees and a claim/threat that MNG had ‘demolished’ those who disagree with MNG on this site.
                  It has become obvious that MNG is a lefty brain-dead who attempts any and every bit of sophistry MN can find to ‘win’ a debate.
                  MNG’s ethical standards in any debate are somewhat south of, oh, John Edwards’; if MNG can claim a ‘win’, the sleazebag is more than happy to ignore any sort of honesty.
                  Simply put, MNG is a more clever shrike.

        2. I think your’re getting at regular in terms of “orderly” or “normal.” Someone with constipation or the shits is not regular for example. The problem here is how does this restrict anything? One man’s “orderly” and “regular” is another man’s too little or too much. Since the power is granted explicitly to the legislature I should think they should decide what is “orderly” and how to achieve that.

          1. Your missing the point that the commerce clause isn’t meant to apply to the citzen per se, but to the states. Mississippi couldn’t add a tariff to Arkansas poop, assuming poop was going across state lines.

            1. For you nitpickers that would be states, countries, and indian reservations.

        3. MNG, are you totally ignorant of the late 1700s practices the ICC was written to prevent? States charged tariffs against products entering their territories, they charged fees for traveling through the state, etc. It was a totally incoherent mess that severely hampered interstate commerce. The point of ICC was to have no restrictions on interstate commerce unless enough states agreed (ie, if Congress passed them) and that such rules would be uniform for all state borders. So a law against transporting fireworks across state lines is fine, while a law against possessing fireworks while within a single state is not.

          1. Pretty sure MNG is trying every bit of sophistry s/he can come up with in the hopes that someone agrees with some offhand peripheral point, and then MNG will *pounce!*

      3. In contemporary usage, we might say “to standardize”. As in, ‘the centimeter is standardized to be the distance travel by light so many seconds’ (or some such variation, I’m too tired to look up the latest version of how that’s done). The point being, regulate as used at the time of writing meant “set the form”, as opposed to the substance. Read Randy Barrett on this… he’s long winded, but in that verbosity, he eliminates any chance of it meaning anything but “standardize the form”.

  17. Criminal law punishes things people do, not things they do not do.

    Criminal Law, let me introduce you to a little invention of ours called “the sin of omission”.

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

    .
    .
    .

    Step N: Mandate every person by a commercial product or face a penalty.

    One of the intermediate steps must involve the consumption of hallucinogens.

    1. …or progressive Kool-Ade

  19. ” it will probably come down to what Justice Kennedy decides”

    Would that be the same Justice Kennedy who wrote the majority decision in Citizens United? – PAY BACK

  20. “Tort law makes us liable for our actions that cause injury; outside of special relationships like that between a parent and a child, there is no duty to act.”

    That is not necessarily true. If the sidewalk outside my business is extremely icy, and I refuse to place salt down, or take any action to make it safer, and someone slips and falls, they could potentially sue.

    1. The sidewalk is typically in the city/county right of way and the city/county has written laws that require you to maintain the sidewalk in a fashion that support public traffic. If you fail to do so, you can be punished.

    2. The “no duty to act” statement is indeed painting with an overly broad brush. I think he was getting at the distinction between misfeasance and nonfeasance.

  21. http://www.law.com/jsp/nylj/Pu…..hbxlogin=1

    The word “commerce” derives from the Latin commercium, which is a mixture of com (with) and merci (merchandise); thus, it literally means “with merchandise.”

    It has been widely used in English since the 16th century. Samuel Johnson’s “Dictionary” defines “commerce” as “Intercourse; exchange of one thing for another; interchange of any thing; trade; traffick,” perhaps because these are all things one can do “with merchandise.”

    Another 18th century dictionary defines “commerce” as “trade or traffic,” while a third describes it as “Exchange of one thing for another; trade; traffick.”

    And, according to the leading English law dictionary of the day, “commerce” means “Traffick, Trade or Merchandise in Buying and Selling of Goods.”

    In all these definitions, the word traffic, with or without the “k,” refers broadly to exporting or marketing goods, a sense that survives in such phrases as “trafficking in stolen goods.”

    Moreover, there is evidence that the Founding Fathers would have understood “commerce” as something distinct from other economic activities, such as manufacturing and agriculture.

    In the Constitutional Convention, for example, James Madison proposed that Congress be given the power “[t]o establish public institutions, rewards, and immunities for the promotion of agriculture, commerce, trades, and manufactures.” The measure was voted down, but it shows that Madison distinguished “commerce” from “manufactures.”

    These sources suggest that when the Constitution was written, “commerce” referred narrowly to trade; that is, buying, selling, and bartering. If that’s the case, then one can argue that much of today’s federal bureaucracy, justified as it is by the Commerce Clause, is built upon a faulty premise. Indeed, some do argue just that; Justice Clarence Thomas for one.

    kinnath votes with Clarence.

    1. I think the commerce/manufacture distinction is pretty goofy.

      I build a factory to make widgets, most of which will be sold interstate. Retailers call me and put in orders for the widgets. I hire people to make them. I hire people to pack them to be sent interstate. I hire trucks to take them interstate.

      So what part is interstate commerce and what is not? Just the putting in the order and the trucks actually crossing the lines? What sane businessman doesn’t think of the manufacture of his product to be part of his enterprise or “commerce?”

      1. If you make widgets, then bury them in the backyard, no commerce is involved.

      2. step 1: buy raw materials; Commerce
        step 2: make a widget; Manufaturing
        step 3: sell a widget; Commerce

        The commerce clause give the federal government the authority to regulate commerce that crosses international borders, state borders, and reservation borders (indians were foreign nationals for all pratical purposes in the 18th century).

        The supreme court decisions that say that manufacturing can be regulated because it has a substantial effect on commerce are bullshit in the same way the Dred Scott ruling was bullshit.

        Stare Decisis is important, except when it’s not.

      3. “”I build a factory to make widgets, most of which will be sold interstate. Retailers call me and put in orders for the widgets. I hire people to make them. I hire people to pack them to be sent interstate. I hire trucks to take them interstate.””

        Let’s say this is good enough for this discussion. At no point did you say it required people to purchase that product.

      4. I think the commerce/manufacture distinction is pretty goofy.

        Do you think cruel or unusual punishments was also a goofy distinction?

        The point isn’t what you think, it is what the people who wrote the thing meant using the words (as used) at the time – then applying that concept to contemporary conditions.

      5. I think the commerce/manufacture distinction is pretty goofy.

        OK, so if we pass a constitutional amendment saying that Congress cannot regulate manufacturing, does that mean it can’t regulate transportation of manufactured goods either?

      6. How so? Only if you argue that everything that touches interstate commerce with any number of degrees of separation is fair game, instead of just commerce itself.

  22. This also shows you why intra-state commerce that effects inter-state commerce has to be under the clause.

    Let’s say half of my widgets ship out of state, half in state. Half of my workers cross state lines to come to work for me, half are in state.

    So the feds can make rules concerning, what, half of the widgets and workers? Do I have to mark them and set them aside that it applies to and segregate and have different policies for half of my workplace? WTF?

    1. So the feds can make rules concerning, what, half of the widgets and workers?

      That would be yes.

    2. There is no reason why a company that builds rocking chairs can’t build one type of chair under one set of regulations to be sold locally, and then builds a different type of chair under different regulations to be sold inter-state or internationally.

      1. Like automakers and CA

    3. I suppose if the federal government wanted to put tariffs and other regulations on goods exported from one state to another, that would cause a problem. In the approximate 150 years of the strict interpretation of the clause, that never happened though.

      To understand the commerce clause, you have to also understand the economic climate of when it was written. All the great European powers were mercantilists. They limited imports and maximized exports. Each country tried to profit by impoverishing their neighboring countries. The founders did not want the states to engage in these destructive practices with each other, hence the commerce clause.

      Trying to manipulate the price of wheat or health insurance would have been the exact opposite of what the founders intended and essentially is a return to the mercantile policies we were trying to leave behind when this country was founded.

    4. Let’s see, the purpose of the ICC is to make commerce *between* states regular – so I would say that Congress should step in if there are trade barriers imposed by one state or the other. Not to require distributers to carry the product, not to require customers to purchase it, nor to regulate the safety and efficacy of the product’s use or manufacture.

      These are things that are the responsibilty of the state governments and the customers themselves.

      Intrastate commerce, even though it affects interstate commerce, does not automatically make interstate commerce irregular and therefore requiring regulation.

      So no, I don’t think the Feds should be making rules for any part of your company.

      Feds step in to settle trade disputes between states – by arbitration and regulation, that’s what the commerce clause is for by a plain reading.

      I’m sure that the above has brought OSHA in mind. OSHA is the one federal regulatory agency that everyone will have to deal with regardless of your industry. Hell, even in the military we have to abide by their regs with only a narrow set of exemptions.

      No, I don’t think OSHA should exist as-is though I can certainly see a use for an organization that researches and disseminates best practices for safety.

    5. The commerce clause gives the federal government the authority to pass a law that says State A can’t ban residents of State B from working in State A.

      But it does not give the federal government the authority to set worker safety standards in State A just because residents of State B cross the state line to work in State A.

    6. This also shows you why intra-state commerce that effects inter-state commerce has to be under the clause.

      Alternately it shows why the idea that they can regulate non-commerce things and activities using the commerce clause is bollocks. Trying to do so leads to either (1) no limits on the meaning of the clause or (2) silly contradictions and distinctions-without-difference being promoted to prime importance.

      So the feds can make rules concerning, what, half of the widgets and workers?

      In this interpretation they can not makes rules concerning either the widgets or the workers. Just about what happens when you try to sell the widgets across state lines.

      Rolling this back (aside from being essentially impossible) would, of course, wreck merry havoc as we’ve adapted to life with federal oversight of this, that, and the other (like, terms of employment) which should be state matters.

      And yes, business would like to have a uniform set of rules—indeed our economy would be rather less efficient without some uniformity—but the Laboratories of Democracy have shown some capacity to converge with some things really work, and business could pressure the States to make voluntary pacts with each other in these matters.

      Thus endeth my Utopian Musings for the day.

  23. http://www.cartoonbank.com/inv…..TNYarticle

    This is pretty good especially for a New Yorker cartoon.

  24. If the government can demand you purchase health insurance under the commerce clause, it can demand you buy a gun under the necessary clause of the 2nd amendment. If that law was passed, most people who support the mandate, no longer would.

    1. For a long time federal statutes did require the militia’s members to furnish themselves with ammunition.

  25. Here’s the governments argument:

    We want to regulate health insurance in a particular way so as to produce some general social good (i.e. universal health care).
    If we regulate health insurance in this way, all sorts of adverse consequences will occur, causing people to stop buying health insurance.
    The only way to prevent these consequences is to force everyone to purchase health insurance. Therefore the individual mandate is necessaqry and proper to the regulation of health insurance, which is interstate commerce.

    What are the flaws in this argument?
    Well, for starters, there is another way to prevent the adverse consequences the state claims the mandate is necessary to avoid. Namely, don’t regulate health insurance in that way. So the state’s claim that the individual mandate is “necessary” to the regulation of the health insurance mandate falls on it’s face. The state could pass different regulations that didn’t produce the bad consequences and necessitate the mandate. There are other ways to produce the desired social good.

    Secondly, the power to regulate the health insurance market isn’t a specifically enumated power. It’s only one that is encompassed by an enlarged version of the commerce clause and a broad interpretation of the general welfare clause. Health insurance can’t be sold across state lines. The markets it’s supposed to be regulating only exist intrastate. So you have to apply the necessary and proper clause to some pretty tenuously extended powers already.

    Thirdly, even the necessary and proper clause has never been used to compel a positive action on the part of the population to produce some social good. IMO, to interpret the necessary and proper clause combined with the general welfare clause in this way would create a number of “positive rights” which have never previously existed in the constitution.

    You could effectively have to make the argument that the general welfare clause and the necessary and proper clause combine to allow the government to compel people to produce any sort of good or service that may have a positive social benefit to it.
    Forced purchasing of health insurance isn’t particularly different from compulsory morning calisthenics or mandatory medical training. They both involve forcing people to perform a particular action in order to produce a social good.

    1. Didn’t really finish my thought…

      The whole issue we have with positive rights is that they would *require* people to take positive actions to fulfill them.

      This seems to me to be exactly what is happening here. The government is attempting to make health insurance a right, via the circuitous route of regulating the health insurance market in such a way as to force insuers to pay for everyone’s health care. Since the health insurers cannot afford this, it must mandate the positive action of forced participation by the general population. The mandatory purchasing of health insurance is what is meant to finance the provision of the positive “right” to health care.

      1. So, basically, if the mandate stands, it implies that people can be forced to participate in other “financing mechanisms” that are designed to provide positive rights.

        Just for example, say the government required apartment complexes to provide free housing to the homeless. Could they then legitimately offset the cost of this by requiring the general public to pay the rent on the units used?

  26. Under MNG’s philosophy, government can require you to purchase X amount of American made goods, because not doing so would adversely affect the economy.

  27. The liberals will get pissed off when they find out the insurance companies are ran by Haliburton.

  28. What said the Articles of Confederation on this topic? And what “evils” did that spawn that the Constitution was to remedy? It should always be kept in mind that the Constitution was, in many ways, a reaction to weaknesses in the Articles and by studying the changes we can discern what the drafters of the Constitution were getting at.

    1. “And what “evils” did that spawn that the Constitution was to remedy?”

      States imposing restrictions on trade with other states.

      The Constitution gave the Federal government the power to enforce a free trade zone among the states.

      1. I wouldn’t go quite that far. Restrictions on interstate trade are not banned by the commerce clause, but they must be agreed upon by a majority the states through Congress (ie, the pre-Am17 Senate).

  29. Separate issue:
    I’ve been thinking about this, and it seems to me that the government is attempting to have it both ways.

    On the one hand, they argue that failing to purchase health insurance is just a way of making an economic decision about how to pay for inevitable future treatments. On the other hand, they claim it is made “necessary” by the ban on exclusions for pre-existing conditions.

    But they can’t have it both ways. If purchasing health insurance is merely a means of financing one’s OWN future health care expenses, then the ban on exclusions for pre-existing conditions could be dropped without affecting the rationale. But then, it wouldn’t be “necessary”, according to the government’s own logic.

    It’s clear that it’s only made necessary by the demand that people pay for OTHERS health care expenses through their insurance premiums.

    To avoid having it both ways, the government would have to do one of two things:
    A) Drop the ban on preexisting conditions and mandate only that people purchase insurance that is priced according to individual risk. (In which case they can’t uses the necessary and proper clause)
    B)Stop arguing that not buying health insurance is just a way of making decisions about paying for one’s OWN future healthcare, and argue that it’s necessary to provide for other’s healthcare. But in that case, they can’t use the commerce clause, since not paying for othyer people’s healthcare isn’t econom
    ic activity either.

    Either way the argument doesn’t really work. You just can’t argue that not buying insurance is just a way of billing people for your future healthcare expenses, AND argue that it’s made necessary by a regulation requiring the insurer to pay for people with pre-existing conditions.
    One does not follow from the other.

  30. The question is whether we still have the right to refuse to purchase a good or service or whether some politicians will deny us that right in order to increase their own power by dictating similar ideas to everyone.

  31. I hope this mandate will pass only if it is good for the average citizen

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