Obama Administration Lawyers Claim Individual Mandate to Purchase Health Insurance is "not asking people to buy something they otherwise might not buy."

Does Congress have the power to regulate individual "economic decisions" even if those decisions involve no identifiable activity? The three Democratic judges who heard arguments in two constitutional challenges to ObamaCare's individual mandate today seem to think the answer to that question is, "Well of course it does!" You can listen to the entire audio of this morning's arguments online, but the short version is that, as expected, things don't seem to have gone very well for the challengers. Damon Root already linked to the handy summary by Cato's Ilya Shapiro, which notes the following:

The government is understandably unconcerned with articulating a principled limit on its own power, and this particular panel of judges may find some way to avoid dealing with the activity/inactivity conundrum.

At The Examiner, Philip Klein has a lengthier and less optimistic write-up of the courtroom back-and-forth. It seems that the Obama administration is once again arguing that it doesn't actually matter if someone does not purchase health insurance because virtually everyone is already a participant in the health care market simply by virtue of being alive: 

When Neal Kumar Katyal, acting solicitor general for the Obama administration, addressed the panel, the judges seemed much more sympathetic to his arguments.

Katyal argued that the the activity being regulated was "participation in the health care market" which he described as a virtually "universal feature of human existence." Thus, they were only regulating the financing of health care, since ultimately everybody will purchase it.

The government is "not asking people to buy something they otherwise might not buy," Katyal said. He said the distinction between health care and insurance was "artificial."

So mandating that everyone in the country purchase health insurance or pay a fine isn't actually requiring any person to purchase something they wouldn't otherwise buy? Sure. OK. Granted, Katyal did say the mandate wasn't "asking" anyone to buy something. And that's true! The mandate isn't a request. It's a requirement. 

The argument, I gather, is that the individual in question would presumably be participating in the health care market at some point anyway. One problem with this argument is that it sweeps in absolutely everyone, no exceptions. It also raises the by-now-familiar question: If a health insurance mandate is legal because virtually everyone will eventually purchase some sort of health care, then would a broccoli mandate be legal because virtually everyone will participate in food markets? It's not a trick question, but it is one I think the mandate's supporters should have to answer, if only to see who's willing to stand by the ultimate logic of the argument. The Obama administration's lawyers have so far dodged the question by saying it's not applicable because health insurance is a "financing mechanism" and not a truck, a vegetable, or shoes. But Harvard Law professor Charles Fried, who believes the mandate is obviously constitutional, says the answer to the broccoli question is yes! If the administration wants the power to mandate the purchase of broccoli, then it should say so too. 

Comments

[Liberal Parrot]

Squawk! Commerce Clause!

[Concerned Citizen]

"They can torture me, they can break my legs. Yes, they can even kill me. Then, they will have my dead body. But they will not have my obedience."
- Ghandi

[The Gobbler]

^^THIS^^

[sasob]

"But they will not have my obedience"

No, but they'll have you as an example to coerce everyone else.

[wylie]

Fucking martyrdom, how do they work?!

[Neu Mejican]

The broccoli analogy seems inapt to me.
The analogy would be that everyone was forced to join the local grocery coop. The regulation is a requirement on how health care is paid for, not which specific health care service is purchased.

[#]

First off, why's that relevant?

Second, insurance is a product. It is not the financing of a given service. It is purchasing soemthing that will absorb your risk and how much you pay in insurance has nothing to do with how much healthcare you actually use.

[TrickyVic]

""The analogy would be that everyone was forced to join the local grocery coop. ""

Or perhaps a gym membership.

[Jeff]

But it is a regulation of the specific health care plan you can purchase.

My high deductible health care plan does not meet the minimum requirements, so I can no longer purchase it.

[Barack Obama]

Let me be clear. If you like your health care plan, but I don't, you can go fuck yourself.

[.]

Whatcha gonna do - send SEAL TEAM 6 to shoot us in the middle of the night, in our pajamas?

[Auntie Semitic]

Don't give 'em any ideas.

[TrickyVic]

""But it is a regulation of the specific health care plan you can purchase.""

No, not specific but their will be a standard to be met. Same with the Medicare part D. Everyone over a certain age must have a prescription drug plan that meets a minimum. If your plan does not meet that standard, you are not in compliance.

[Tulpa]

So is the broccoli requirement. It doesn't tell you whether you have to buy the florets or the full broccoli, or where the broccoli must be grown, it just says it has to be broccoli.

[Libertymike]

But under Obamacare, one does not have the choice to purchase only organic broccoli.

[#]

but while im at it, MNG still hasnt answered this question, so I'll aks you.

The clause is written as the interstate commerce clause, with interstate modifying commerce. So there must be something that is commerce but not interstate.

List me ten things that are indeed commerce but not interstate commerce and therefore can no be regulated via this power?

[TrickyVic]

How about medical weed grown in Cali, for use only by the residence of Cali, and it not intended to be shipped out of the state?

[#]

I'm asking based on what MNG, new mexican, etc say the commerce clause power is.

[Neu Mejican]

How'd I get involved in this?
I am not a fan of the way this congress attempted to reform the health care system. I don't however, think a lot of the arguments against it are well formed.

The mandate, for instance, may or may not be constitutional, but I don't think the fatuous "can't regulate inactivity" argument is gonna fly. Clearly regulation means writing rules and clearly some rules compel activity.

You are on firmer ground arguing against it based on health it not being interstate commerce. But I have doubts that that tact will fly either.

[ola]

1) angel raisch's medical nug
2) that dude's wheat crop
3)
4)

Oh I thought you meant should not be regulated via this power.

[Jerry]

3) breastfeeding.

[#]

but that means you won't consume milk or baby formula so the government can force or ban you from breast feeding.

[Troy]

Your Honor, it is interstate commerce, I had to suck on Natalie Portman's titties.

[Barely Suppressed Rage]

List me ten things that are indeed commerce but not interstate commerce and therefore can no be regulated via this power?

First, the Constitution does not use the word "interstate." It authorizes Congress to regulate commerce "among the several states."

Why do we need 10 things?

Here's one: I build an Adirondack chair and sell it to my next-door neighbor. Commerce? Yes. Among states? No. It's commerce between two individuals in the same state.

Go back and read some of the 19th and very early 20th Century Commerce Clause cases - pre New-Deal, of course - and you'll find that the general theory was that Congress could regulated the actual act of commerce among the states and items that were in interstate commerce, but could not regulate the intrastate means of production. I.e., Congress could not regulate the factories where stuff was made, because that activity took place inside one state, but Congress could regulate the manufactured items, IF they traveled between states.

That changed with the New Deal court, which greatly expanded the power by inventing out of whole cloth the notion of regulating activity that, although not itself occuring among the states, could, if taken in the aggregate, have an affect on interstate commerce. And then other cases gave Congress the power to regulate the "channels of commerce" and the "instrumentalities of commerce." These are beyond the plain language of the Constitution, which enables Congress to regulate "commerce among the states."

But of course, they use a crowbar to pry wide open the Necessary and Proper Clause and they find all kinds of neato powers inside. Who put them there, we'll never know, because lord knows the Framers didn't.

[#]

I'm not arguing against you. I'm trying to get someone who argues for the admin's version of the ICC to give me examples of things that are commerce but not interstate

[Barely Suppressed Rage]

Oh, they won't. Just go back and see the shit MNG has spouted on this question.

They'll rely on what the SCOTUS has said - join the Commerce Clause with the Necessary and Proper Clause, and you find you can't limit Congress to only regulating commerce that occurs among the states; it also is necessary and proper to regulate activities that take place intrastate but which, in the aggregate, affect commerce among the states. So there ain't nothing left, and the progressive statist fucks are just peachy with that.

[Troy]

it also is necessary and proper to regulate activities that take place intrastate but which, in the aggregate, affect commerce among the states.

This is good example of "legal reasoning." According to this logic, if everyone takes a shit at the same time (read: in the aggregate), it is gonna affect interstate commerce, Therefore, the feds have the authority to tell you when and where to take your shit.

[Trespassers W]

Aha. But it's "among", not "between". So if only two states are involved, the commerce can't be regulated under this clause.

This constitutional law shit is easy.

[Libertymike]

Not only that, but the commerce clause can not logically be construed as giving Congress the green light to:

1. fix prices

2. establish minimum prices at which goods must be sold

3. establish maximum prices at which goods could be sold

4. fix wages

5. enact minimum wage laws

6. classify workers as employees and not as independent contractors

7. establish the NLRB

8. establish any administrative body with jurisdiction over the operation of any business

9. enact legislation banning the use and sale of any product.

[SugarFree]

The analogy would be that everyone was forced to join the local grocery coop.

Sweet fuck, man. You don't just have to give them ideas.

[0x90]

Is the right to healthcare somehow more fundamental than the right to sustenance?

[.]

There is no right to healthcare - unless there is a right to enslave others to provide it.

[0x90]

Do you draw a distinction between the concepts of cost- and risk-pooling?

[#]

1. still what is the relevance? 2. insurance is no longer allowed to price based on your expected risk. So it isnt even insurance anymore. Its socializes healthcare spending via fiat rather than a tax.

[0x90]

Then why call it that in the first place? If you're going to require people to do something, why not simply require that they purchase x-number of qualifying healthcare 'credits' each year, if that's the result you mean to effect? Is it because that would drop the insurance company out of the equation?

Or is it more because the government has accidentally backed itself into a commerce clause corner which requires that we allow it to redefine what it means to purchase what it would like us to call an insurance policy from what it would like us to call an insurance company? And only because it rather ill-advisedly hung its hat on that a peg of that particular name.

Doublespeak is so much easier to swallow when you can at least grok the reason for its use.

[#]

requiring people to buy 'healthcare credits" would be the same problem. It was the dems in congress that didn;t want to create a tax and spend program - hence this problem.

Then again technically, if we hadn't been shitting on the constitution for 80 years now, spending on healthcare in general would also be unconstitutional.

[0x90]

Which is my point. They want to have their cake, to eat it, and to do so under color of law by tricking you into calling this cake by the name broccoli.

And on your second remark: the constitution was destined for the dustbin from the day it was signed. Once we allow for the concept of preventative justice, we have laid all the groundwork anyone will ever need to claim that we can be forced to do absolutely anything at all. It is only a matter of showing who it will help, or what vague harm it will help to prevent, and how society will be better for having forced you to do it. That such laws will be passed is only a matter of time, and this just happens to be the time for you to lose the right of existing without also paying your neighbor's doctor bills. If it so happens that it cannot be fit through the body of the law this time, rest assured, it be will the next.

You are a natural resource. Get used to it.

[The Unabomber]

They can have their cake and eat it, too - but they can't eat their cake and have it, too.

[Tulpa]

Neu Mejican: proudly missing the point since 2003.

[Neu Mejican]

My pedantry goes back way farther than 2003 buddy.

[adam]

It's not completely the same. A better analogy would be a government requirement to buy 'food insurance.' With food insurance, you would just go the grocery store, pay a co-pay, and get as much as you could stuff in your cart. The government would require the food insurance company to pay for all food you take, except the food the government didn't like. You would pay a premium for your food insurance, but if you're below 400% of FPL, you'd get a subsidy. Of course, food insurance premiums would go through the roof as no one would pick the store brand, or use coupons, or skip any item that they remotely thought they would want. This would then lead to demand for more food insurance premium support, or better yet, single payer food insurance where the government set the price it paid those greedy grocery stores and made sure it was low enough that the grocery stores were ripping off the taxpayer. Of course, that would then lead to an undersupply of grocery stores as they could no longer make competitive profits. Then the government would step in with a system of directly run government grocery stores.

[Hazel Meade]

Only if the local grocery coop charged you the same monthly fee, regardless of how much food you ate.

[cynical]

But it is a requirement on which specific health care services are covered, which is at least similar in concept to requiring a pre-payment for those services.

[rather]

The argument, I gather, is that the individual in question would presumably be participating in the health care market at some point anyway. One problem with this argument is that it sweeps in absolutely everyone, no exceptions. It also raises the by-now-familiar question...The vegetable argument does not follow but what does is the fact that their claim is based on everyone making said purchase.

Is it a fact that we all participate or are itinerant not included in their claim? Does the public's history of purchasing insurance heterogeneously argue against a one policy fits all?

[emerson]

To be fair, it isn't ASKING us to buy something we might not otherwise buy.

[.]

No, it is ORDERING us to do so.

[NoVAHockey]

"He said the distinction between health care and insurance was "artificial."

*facepalm* We're about to find out how wrong that is when millions of newly insured people can't access health care.

[.]

The government doesn't actually care whether people can access healthcare. What it cares about is increased power and revenue. And make no mistake - it is about revenue. They might just as well have tacked on a new payroll tax, but this way they have the insurance companies collect it for them.

[ola]

BTW, the commerce clause mandate authority would be analogous to the feds requiring angel raisch to grow a certain strain of marijuana. If she didn't, she would be taxed (or fined) by the IRS. After all, marijuana is involved in interstate commerce, everybody knows that, and the feds have authority to regulate it. And people inevitably will smoke marijuana therefore the feds can get it over with and put her in jail if she doesn't grow weed or tax (or fine) her if she does grow weed.

[IceTrey]

Someone like Bill Gates doesn't NEED to buy health insurance.

[Liberal]

But rich people don't have rights

[Hazel Meade]

But he's being a "free rider" by failing to subsidize health care for 7,000 people who already have cancer.

[sasob]

+3

[TrickyVic]

Senator Obama was against the mandate and said, "if a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house,'"

So I have a question for the President. Why does he disagree with Senator Obama?

[#]

I really hope that whoever the republican is who gets nominated blasts him on that one.

Though I can see him spinning an answer saying well i needed to compromise and then look all wonderful to american mushy middle.

[nicole]

He clearly doesn't disagree with Senator Obama. You see, he's not mandating people buy the "house" anymore, just that they take out the mortgage for it. It's just a financing mechanism, folks, nothing to see here.

[X]

interesting. by this logic what my neighbors eat, how much they exercise, and how they have sex is now my business due to its effects on interstate commerce. I'd prefer a system where this is none of my business.

[TrickyVic]

Well, the government's business, not yours per se. And I would agree with the preference that it's none of the government's business. Assuming they are not paying the bill.

[X]

yep. all I need is 51% and I can outlaw veganism and make Tai-Bo mandatory.

[rather]

and how they have sex is now my business...I'd prefer a system where this is none of my business.

And that is why you only have earned one 'X' in your handle

[Jerry]

Thus, they were only regulating the financing of health care, since ultimately everybody will purchase it.

So call it a tax and stop these shenanigans.

[#]

what is interesting now - if you consider all healthinsurance premiums to be taxes, because you have to purchase it, and you count all healthcare expenses except for copayments as government outlays, US government spending as a percent of GDP is now on par with much of Europe at around 40%.

[sasob]

US government spending as a percent of GDP is now on par with much of Europe at around 40%.

Wonder how that would affect the government's bond rating.

[JimBob]

Can't just call it a tax, man. Obama PROMISED that non-uber-rich people wouldn't see their taxes increase one dime, remember? If he increases taxes on poor people without insurance, it looks like he lied or something.

This isn't a minor issue, either. Because of the "no increased taxes" promise, Congress put in specific wording to list the individual mandate penalty as NOT being a tax. Still, in some of the lower courts, the government argued that the authority to levy the penalty came from Congress' taxation authority.

The lower court judges threw that one out pretty quickly (and with pretty harsh wording). Since then, the government has contended that it's all about the Interstate Commerce Clause-- and whether or not Congress has any fucking limits whatsoever.

[R C Dean]

by this logic what my neighbors eat, how much they exercise, and how they have sex is now my business

I suggest video surveillance.

[Shelby]

So the government will not require us all to buy a new GM car. It will instead force us to get a loan, which can be used solely for the purpose of buying government-approved cars. You have to pay off the loan regardless of whether you get a car; the loan money sits in government escrow until an approved auto seller demonstrates it's delivered the car to you.

What? It's just a financing mechanism, and just about everybody eventually uses a car, or benefits from them.

[Xenocles]

That's perfect. If we do it your way we give the banks a boost along with GM. Don't forget to add that you can't pay it off early, either.

[Paul]

It seems that the Obama administration is once again arguing that it doesn't actually matter if someone does not purchase health insurance because virtually everyone is already a participant in the health care market simply by virtue of being alive:

So the Obama administration could mandate everyone eat broccoli, because you're a participant in the food market simply by virtue of being alive.

For Obamacare supporters, articulate to me in 500 words or less, what's the limiting principle on a law like this?

[Barely Suppressed Rage]

If you're a progressive, who needs a limiting principle? That's the whole point. You argue, "but the reductio ad absurdum of your argument is that Congress has the power to regulate anyone, anything and everything in any way at any time, anyhow it pleases.

And the progressive will answer, "yes!"

[#]

I wish progressives in particular and most americans in general would just be intellectually honest and say they don't give a shit about the constitution.

[Paul]

They came close in the 90s by bitching about the fact that it was written by a bunch of rich, white, slave-owning landowners so it didn't really matter anyway.

[Xenocles]

Progressives have a limiting principle: hands off abortion. You aren't allowed to touch abortion, even though it's arguably a medical service.

Also other people have to pay for abortions, especially those backward hillbillies who don't like it.

[Ballchinian]

For progressives there are no principled limits on government power, only practical political ones.

[Milton Quaffalot]

"If a health insurance mandate is legal because virtually everyone will eventually purchase some sort of health care, then would a broccoli mandate be legal because virtually everyone will participate in food markets?"

The Broccoli Mandate, George H.W. Bush's worst nightmare.

[Darien]

The distinction between health care and insurance is "artificial?" I'd like to invite Mr. Katyal out to my lovely Massachusetts villa so he can witness the apparently-impossible coexistence of nearly everybody having insurance and nearly everybody having limited (if any) access to care.

Oh, and also the utter bankruptcy of the state. The legislature just voted to strip public unions of collective bargaining rights, for pity's sake. The Massachusetts Democrat legislature! Anti-union! Truly these must be the end times.

[#]

we are soon going to all be in that situation - and to add insult to injury I'm sure that with be trumped as evidence that the "free market" failed and why everying has to be completely nationalized.

[TPTB]

evidence that the "free market" failed and why everying has to be completely nationalized.

Pretty slick, huh? Sometimes we amaze even ourselves!

[Hazel Meade]

As I keep saying, but nobody seems to think is important:

If you have community rating and guarenteed issue, buying health insure is NOT JUST a decision about how to pay for one's own health care. It is a decision about whether to subsidize or be subsudized by others. If you are a low risk person, buying health insurance is a bad bet. If you are a high risk person (say, you have a history of heart problems), then you're a free rider.

Most people KNOW whether they are high or low risk individuals. Low risk individuals are simply making an optimal economic choice - it is not in their own interest to buy health insurance if the pricing is not based on risk.

I really don't know why noone in the commentariat is making this argument as it pertains to the governments legal case. They keep insisting that it is "necessary and proper" to enforce the community rating and guarenteed issue regulations, and then they turn around and say that not buying health insurance makes them free riders. But it is NOT the non-purchasers of health insurance who are the free riders under ObamaCare. It is the people with pre-existing conditions.

[Neu Mejican]

You make a good point, but the issue of medical risk is more complicated than all that, methinks. Unless you have an identified chronic condition, your current health is not a good indicator of what your health care costs for the year are going to be.

Pooling risk through insurance seems to be about agreeing to subsidize now so that you can be subsidized later. The argument made for the mandate is that those who opt out of subsidizing now will end up being subsidized later. As such it seems they would be seen as free riders to the same extent as the people with pre-existing conditions.

[Neu Mejican]

Insurance companies are making a good bet with low-risk groups, but each individual in that low-risk group has unknown risk. When you say that a person in that low risk group is making a bad bet to buy insurance, I don't think you are correct. Now, of course, it matters what kind of insurance they buy. The current system seems conflate insurance against catastrophic costs, with a plan to pay for every single health care cost. This structuring is a large part of the problem.

[.]

Pooling risk through insurance seems to be about agreeing to subsidize now so that you can be subsidized later. The argument made for the mandate is that those who opt out of subsidizing now will end up being subsidized later.

Oh, I SEE now! You mean it's like paying into Social Security and Medicare all your working life so that the money will be there when you get old - unless, of course, you don't happen to live long enough or get sick enough to ever collect on any of it, or the government uses the money for something else, or moves the goal posts. Glad you cleared that up for me, buddy.

[Ryan]

The argument also ignores those with the ability to pay or those using concierge doctor arrangements paying a fixed amount to a doctor for unlimited care and house calls. Who says I cannot hire a private doctor and never buy insurance? We did it up until the late 1940's.

What about those with religious objections to a particular form of insurance or medicine? Will they be forced to violate their personal beliefs?

What about social co-ops that are formed to share the risk across a group of people with no carrier as the middle man?

This is a massive change from any established view on the Commerce Clause. The founding fathers clearly viewed commerce as the exchange of material items not thought or intent.