Ayn Rand, Herbert Spencer, and ObamaCare
As Sasha Volokh notes at The Volokh Conspiracy, during oral arguments yesterday at the 11th Circuit Court of Appeals, Acting Solicitor General Neal Katyal defended the constitutionality of ObamaCare's individual mandate by noting that the law's requirements "may violate the constitution of Ayn Rand, but they do not violate the Constitution of the United States."
For those who missed the reference, Katyal is almost certainly alluding to Justice Oliver Wendell Holmes' influential dissent in Lochner v. New York (1905), where Holmes attacked the majority for striking down a maximum working hours law for New York bakers as a violation of economic liberty. As Holmes famously quipped, "The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics." Social Statics, which was first published in 1851, isn't so well known now, but it certainly would have rung a bell with educated Americans back then. In it, Spencer laid out what he called his Law of Equal Freedom, which held, "Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man." The book also featured a chapter titled, "The Right to Ignore the State."
For Holmes and his Progressive Era allies, Spencer served as a sort of free-market bogeyman, useful for conjuring up scary visions of America descending into an anarcho-capitalist dystopia thanks to the Lochner decision. The reality was of course a little different. In Lochner, the Supreme Court simply struck down one section of New York's 1895 Bakeshop Act while leaving the rest of the law's regulatory structure in place, including regulations stipulating "proper washrooms and closets," the height of ceilings, floor conditions, and "proper drainage, plumbing, and painting." Not exactly the right to ignore the state.
Katyal's invocation of Ayn Rand is a similar piece of misdirection, designed to smear the legal case against the individual mandate as an example of libertarianism gone wild. But let's not forget what the legal challenge is actually about. At the heart of the case is the essential question of whether the Commerce Clause imposes any meaningful limits on congressional power. So while waving around a copy of Atlas Shrugged might scare a few liberals, it doesn't say anything about this fundamental constitutional issue.
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At the heart of the case is the essential question of whether the Commerce Clause imposes any meaningful limits on congressional power.
We had this discussion the other day, Damon. Since the Commerce Clause grants a power to Congress, its job is not to impose limits on Congress.
The right question to ask is whether there are any meaningful limits to the Commerce Clause.
“We had this discussion the other day, Damon. Since the Commerce Clause grants a power to Congress, its job is not to impose limits on Congress.”
I think you’re being too pedantic here. What they are getting at is, is there a limitation in this grant of power? The idea is that if there is not a limitation in the government’s reading then something is wrong with that reading because it would undermine the entire purpose and structure of the rest of the Constitution.
Wow, MNG, your paragraph is a very concise description of the issue, and I agree with it except for the part where you say Hugh is being too pedantic.
Precise language is very important, especially in areas like this. And, I especially expect good writers like Mr. Root (whose writing I enjoy) to get it right.
“[They] may violate the constitution of Ayn Rand, but they do not violate the Constitution of the United States”
he hissed, as he stroked his goatee and flashed a crazed, maniacal grin.
It sounds like something that Ayn Rand would have written (for a villain to say).
Totally meta.
Philosophically, a moral distinction between activity and inactivity is critical to libertarianism. This is why they can be OK with regulations or prohibitions of certain actions with direct harms to others but be opposed to mandating activity even if that activity would prevent a harm to others.
And to be honest, I get that. I might think the latter harm would justify mandates but even I can’t buy that an action that directly harms another=an inaction that fails to prevent a harm to another.
The problem is, this is not a moral debate for the court, it is a debate about what words mean. When the Constitution says Congress has the “power to regulate” and caselaw says that power includes the power to totally prohibit some actions it is hard to see how it does not also mean the power to mandate some actions (the whole ‘make regular’ or ‘remove impediments’ thing goes out the window if you accept the holding in Raich).
Consider Romneycare. No one is challenging it in the courts afaik. States have a general police power to regulate all kinds of things, and, well, that power to regulate is thought to entail both prohibitions and mandates. Likewise remember the Georgia locality that mandated a gun in every home a while back? The power to regulate, as a concept apart from any political philosophy, just normally includes the power to mandate, prohibit and direct.
The clause grants Congress the power to “regulate interstate commerce.”
Since Congress has already forbidden the buying of health insurance across state lines, in what possible sense could the decision to buy or not buy insurance constitute interstate commerce?
AFAIK none of the current lawsuits Reason is covering make that argument. Now, given all the highly motivated legal groups and state AG’s who want to strike a blow against Obamacare, why do you think that is?
Hint: you are wrong in your premise, companies like Aetna may have state subsidiaries but they are a national company offering products across all states.
Sorry, that wasn’t a hint, it was the answer…
So, if I own a small shop in one state that only sells locally, and I own a small shop in another state that only sells locally, I am engaged in interstate commerce? Who knew?
This is why they can be OK with regulations or prohibitions of certain actions with direct harms to others but be opposed to mandating activity even if that activity would prevent a harm to others.
Of course, libertarians are fine with mandating activity to people that you have a legal duty to.
Sure, I thought of that caveat when I wrote it but my post was long enough imo.
The Romneycare mandate is set up as a tax provision.
In Obamacare, they bent over backwards to deny it was a tax.
They fucked themselves. Now it’s Commerce Clause or nothing.
All they had to do was invent a “health care tax” of $X a head and then waive that tax if you provide evidence of insurance coverage. Instant mandate. That’s how Romneycare does it. But that would require honesty, and Obama has even less of that than Romney.
Be honest fluffy, reading “regulate” to include mandates doesn’t strike you as less tortured than “taxing” something just to keep people from doing it?
Personally, I think Romneycare directly violates SCOTUS precedent in US v. Jacobs.
But that decision is long forgotten and the tax code is used to micromanipulate behavior all the time now.
I really don’t see anything stopping the feds from imposing massive utility taxes and then issuing you a tax credit eliminating the tax if you install solar. Voila. Instant solar mandate.
And so forth.
Sure, it’s tortured. But the government’s power to tax is much better established constitutionally than its power to directly compel a private purchase.
What strikes me as tortured is the notion that the concept of liberty, which is one of the founding principles that the constitution was enshring to protect, doesn’t include not being forced to do thing against your will.
The 14th Amendment explicitly allows the government to deprive people of their liberty as long as it follows due process when doing so.
And of course the 5th for the feds.
So, the government can make us buy insurance as a punishment for being without insurance, but we all have the right to a jury trial first?
You’ll not that the 14th is an Amendment. As in, it presumably would not have been constitutional without adding an explicit amendment.
It’s not just libertarians that have some strange fetish for the activity vs inactivity distinction. It’s pretty much all of western moral philosophy.
I think all of western philosophy would say there is a moral difference betweent the two, but certainly not all of it would dismiss the second as unimportant or not required (at least at times).
And those times are generally recognized to include “when some commercial sector would benefit from such a requirement” ?
Maybe you can list a few cases where inaction is considered punishable, when the individual has not taken any prior action to assume responsibility.
That Georgia locality still has the mandate in place. It’s the next town over from where some relatives of mine live.
If he’s just saying he doesn’t want the court to rule using the Constitution of Ayn Rand’s home country when she was still living there, then I thank him for his effort to defeat Obamacare
Just to refine the question a little:
Are there any limits on Congressional power over anything a citizen does that might affect the economy?
This is the part of the defense of ObamaCare that I am stuck on for my presentation in a couple of weeks. I am having a very hard time coming up with principled limits, other than the current line drawn between Commerce Clause power and things which are not “economic in nature”.
MNG seems to think that line is a sufficient restriction, so that Congress has, effectively, plenary power of the economy (since the extension of the Commerce Clause to include all economic things economic that, taken in the aggregate, have an effect on interstate commerce pretty much obliterates the distinction between local and national).
“MNG seems to think that line is a sufficient restriction, so that Congress has, effectively, plenary power of the economy”
Well, that’s only if you buy the substantial effects doctrine, which I’m not toally sold on btw. In theory you can accept that regulate includes the power to totally prohibit and the power to mandate and accept the Lopez-Morrison economic activity as a limiting principle and you can still have a lot of purely intra-state activity off the table. It’s the substantial effects doctrine that really enlarges the clause’s reach.
MNG,
Do you believe that the Commerce Clause restricts Congress’s power or do you believe they can use the CC to regulate virtually any economic transaction?
I get the feeling that you straddle the line between “any and all” economic activity when your wife is explaining to you about the benevolence of big government and “interstate commerce only” when we start talking some sense in to you.
I think it grants the power to regulate inter-state economic activity and that power includes prohibitions and mandates. But I’m not sold on the substantial effects doctrine as I describe below.
Take Wickard. Letting the government say that “in theory” if people in the aggregate did what Wickard did there would be a substantial effect undercutting the regulation seems strange to me. Why not require an actual showing that this was either happening or very likely to happen?
Why not require an actual showing that this was either happening or very likely to happen?
Good question. So, based on that response am I to believe that you are against the Healthcare mandate because a.)it isn’t interstate commerce and b.)the substantial effects doctrine isn’t proven in any substantial way. Yes, no?
1. See my 12:26 post above
2. I imagine the government can make a showing that people not having to buy insurance would have a substantial effect on the regulatory scheme they have in mind.
1.) It is not by definition and state law intsrestate commerce. Just because Aetna services several states does not change the fact that they can’t sell insurance to me outside of my state, thus it is not “interstate commerce”.
2.)The argument in Massachusetts was based on statistics showing a large number of uninsured individuals were clogging up the ER’s in hospitals, thus raising the costs for everyone. After several years of data, we now know that the mandate did not a.) lower the costs for healthcare for ANYONE and b.) lower the crowds of people in the ER.
Fail + fail = no serious argument for the “susbtantial effects” doctrine.
I don’t know what to tell you, if it were that obvious why are none of the current lawsuits making that argument?
McDonalds operates through local franchises, I guess you think they are not interstate because each one is “locally owned.”
“we now know that the mandate did not a.) lower the costs for healthcare for ANYONE and b.) lower the crowds of people in the ER”
You do realize that the government doesn’t even have to claim these goals, right?
Go here
http://www.aetna.com/individua…..vices.html
WTF is that 1-800 Aetna number for? I mean, it’s just fifty uncordinated state insurance offices with no interstate commerce. What’s this national number which can answer questions on your policy all about?
Jesus dude, the fact that they are all called Aetna even though they exist in fifty states should clue you in. Terrible, terrible argument. Now, the big boys are actually having a serious conversation below regarding the actual issues being litigated by people who know wtf they are talking about (whether inactivity can be regulated, whether the substantial effects doctrine should apply, etc.).
The “big boys”?
Seriously? You think this highly of yourself?
why are none of the current lawsuits making that argument?
The lawsuits are making that argument. The idea that “economic inactivity” is somehow justification for Congress to regulate the healthcare industry is preposterous from a constitutional standpoint. Indeed, this seems to be the main argument.
McDonalds operates through local franchises, I guess you think they are not interstate because each one is “locally owned.”
If the McDonalds in Texas is buying beef from Oklahoma that they then sell in Texas, then yes that it interstate commerce. This is not the same as the Aetna example, and your continued attempts at strawmen to prove this are fallacious.
You don’t think the Aetna in Texas utlizes services and resources from the national Aetna?
“The lawsuits are making that argument.”
Citation?
Lopez and Morrison do not articulate a limiting principle on federal authority under the Commerce Clause. I don’t know how many times you have to be told this.
These cases stand only for the proposition that the “substantial effects” doctrine doesn’t have an infinite reach: at some point the economic effects of non-economic activity are so attenuated that they’re outside the scope of the Commerce Clause power.
Importantly, though, the Court declined to say what that point was. It said that Gun-Free School Zones Act and parts of VAWA were beyond the pale, but it didn’t provide any kind of analytical framework for ascertaining the constitutional validity of laws moving forward. The decisions were the intellectual equivalent of Justice Potter Stewart’s “I know it when I see it” obscenity test.
So please, MNG — pretty please, with sugar on top — please knock this bullshit off about how Lopez and Morrison are a limiting principle. They’re not, and you’re just embarassing yourself by claiming otherwise.
If an inactivity counts as interstae commerce, I’m having trouble conceiving anything that wouldn’t be considered “economic in nature.”
Think of it this way: the government can prohibit or mandate all kinds of activity, but only activity that is directly economic (involving the production and distribution of goods and/or services).
The inactivity is not the inter-state commerce, the activty they mandate has to be. And it has to be economic.
Does that help?
It sure does. So when can I expect the mandatory procreation act?
You think procreation is a directly economic decision?
Lord, I hate to see the porn you watch.
“You think procreation is a directly economic decision?”
If it results in children (which as dependents affect one’s taxes) then yes.
Ah, but now you sound like the dissent and the government in Lopez and Morrison. Yes, everything can have some indirect economic impact, that doesn’t make it a directly or primarily economic act or decision.
No, it doesn’t help. You can define “economics” as the study of how incentives affect the actions of human beings. Note that this has nothing necessarily to do with money, trade, interstate-commerce, etc.
So it can mandate any activity that has an economic impact. That is what you are saying?
Seriously?
Lord Hazel, that is the exact opposite of what I am saying.
The dissent and the government in Lopez/Morrison said that if you could follow a train of impacts until you get to an economic one then it’s covered. The majority, which I side with, said no, the impact has to be directly and primarily economic, not incidentally, to be covered.
So the government can force you to do anything that has a direct economic impact?
MNG, why do you persistently ignore the word “interstate” in all of this?
There are many things that are not directly or primarily commercial.
There are also many things that are commercial, but are not directly or primarily interstate, and that seems as key of a distinction as commercial/noncommercial.
Wheat, as an industry, is both commercial and primarily interstate and international (even if substantial effects is a bullshit doctrine).
Medical care and health insurance is not, pharma excepted (and PPACA doesn’t limit itself to pharma, at any rate).
Certainly, to the extent we are expected to simply assume that someone will get medical care even if they don’t pay for it personally or through an insurer (you know, the overt justification for the individual mandate), we are talking about emergency rooms, and people don’t travel across the country to find the hospital with the nice emergency room.
The mandate is for insurance, not medical care (the latter though is interstate too, people cross state lines all the time to see specialists and such), and insurance is interstate. Do you think Aetna is not a multi-state enterprise?
But they’ve tried to argue that the mandate is justified as commerce because everyone will use medical care at some point, and thus we can assume future commerce even where there is none at present.
But we can only plausibly make that assumption in cases where people can get care regardless of ability to pay, which basically means emergency room care, which is primarily intrastate.
I suppose you could argue that things that are explicitly forbidden are a higher order rule than their general grant of police power. So, for example, they couldn’t use the commerce clause to regulate speech.
Oh, wait, they treat commercial speech as having less protection than other forms of speech, so, no, scratch that. It’s just a blank check.
Katyal may have had something more specific in mind. The case for Obamacare’s constitutionality relies on the claim that not engaging in interstate commerce is the same as engaging in interstate commerce. That is, it rests solidly on the claim that A and not-A are the same thing. This is, of course, something Rand would have vehemently objected to. Katyal’s saying “the Constitution of the United States” follows non-Randian logic.
Perhaps that is what he meant, but the opponents of the mandate aren’t really arguing that.
There is a basic liberty interest in not being forced to do things against your will. Pretty much our entire legal tradition, predating and including the constitution, is design to limit governments ability to force people to take positive actions. Ignoring the distinction between forbidding a specific act, and mandating a specific act runs counter to that tradition, which is one reason why there has never been a case where SCOTUS has upheld a law mandating that people engage in a specific commercial trasaction as a condition of lawful residence in the US.
non-Aristolelian logic, you mean.
Aristotelian, that is.
Katyal’s invocation of Ayn Rand is a similar piece of misdirection, designed to smear the legal case against the individual mandate as an example of libertarianism objectivism gone wild.
Either way works, if you consider objectivism to be libertarianism gone wild.
BTW:
Is anyone else besides me struck by the fact that when any liberal mentions Ayn Rand in any way, they appear to flip a coin?
Heads: Rand is an unstoppable evil force whose ideas have subjugated the entire right wing and the most dangerous and influential political-economy thinker since Marx.
Tails: Nobody reads Rand except for maladjusted 15 year old’s and she is completely irrelevant and forgotten.
PLEASE PLEASE LIBERALS, MAKE UP YOUR MINDS. TOO. MUCH. NUANCE.
Same thing with “libertarians.” When they aren’t stealing her best ideas, they’re taking cheap shots at her personal life. It’s a classic example of despising the person you’re indebted to.
Kindof like the right and Bill Ayers
Such a government is incompatible with the genius of republicanism. There will be no checks, no real balances, in this government. What can avail your specious, imaginary balances, your rope-dancing, chain-rattling, ridiculous ideal checks and contrivances?…It is on a supposition that your American governors shall be honest that all the good qualities of this government are founded; but its defective and imperfect construction puts it in their power to perpetrate the worst of mischiefs should they be bad men; and, sir, would not all the world blame our distracted folly in resting our rights upon the contingency of our rulers being good or bad? Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men without a consequent loss of liberty! I say that the loss of that dearest privilege has ever followed, with absolute certainty, every such mad attempt.
You should have listened to me.
I should have listened to me.
The doctrine of regulation and legislation by “master minds,” in whose judgment and will all the people may gladly and quietly acquiesce, has been too glaringly apparent at Washington during these last ten years. Were it possible to find “master minds” so unselfish, so willing to decide unhesitatingly against their own personal interests or private prejudices, men almost god-like in their ability to hold the scales of Justice with an even hand, such a government might be to the interest of the country, but there are none such on our political horizon, and we cannot expect a complete reversal of all the teachings of history.
Now, to bring about government by oligarchy masquerading as democracy, it is fundamentally essential that practically all authority and control be centralized in our National Government. The individual sovereignty of our States must first be destroyed, except in mere minor matters of legislation. We are safe from the danger of any such departure from the principles on which this country was founded just so long as the individual home rule of the States is scrupulously preserved and fought for whenever it seems in danger.
What? Another states’rights cracker?
Fuck off slaver!
Well, that’s only if you buy the substantial effects doctrine, which I’m not toally sold on btw.
My definition of interstate commerce is “transactions which cross state lines.”
I think anything other than that requires, one way or another, a substantial effects doctrine, and that such a doctrine imposes no clear, principled limit on the application of the Commerce Clause to intrastate activity.
Once you say “Well, this doesn’t cross a state line, but we’re regulating it anyway”, its game over for any real intra/interstate distinction.
I would be even more restrictive and say “the transaction of crosssing the state line.”
So, if Company A ships across state lines to Retailer B who sells to me, the only thing that the ICC can regulate is the shipping.
Not the manufacture, not the selling. The manufacture is intrastate, the retail selling is intrastate. Only the shipping is a part of interstate commerce.
There are a few things other than shipping that are interstate. For one, which gives me a chance to mock Holmes as an idiot, are sports leagues. A baseball game is entirely intrastate, but the league structure is interstate. So the feds couldnt interfere with rules of the game, or the way tickets are sold, but could regulate the league cartel.
“So, if Company A ships across state lines to Retailer B who sells to me, the only thing that the ICC can regulate is the shipping.”
If you follow that logic out then only the moment if actually crosses the state line should be open for regulation. It’s an absurdly hyper-abstract distinction.
But preferable to what we have now.
Kind of like federal tax stamps on liquor and tobacco. Buy a bottle of Tito’s vodka in Austin, and there’s no federal excise tax required.
Also, it longer governs commerce, the property rights didn’t change at the point of shipping. Would also gut the passive ICC, which is the only good thing about the clause.
*no longer
This is actually the definition that was intended by the clause in the first place. There is much evidence that the idea behind the commerce clause was to prevent states form placing tarrifs and other trade restrictions on good from other states in the union. This is no different than the first part of the commerce clause which prevents states from placing individual tarrifs and mandates on foreign nations.
Only in modern parlence has the commerce clause come to mean regulating and micromanaging economic activity such as manufacture and labor.
“”My definition of interstate commerce is “transactions which cross state lines.”””
Raich pretty much killed that didn’t it?
Wickard killed that, Raich just kicked the corpse.
Which doesn’t mean that principled lawyers and judges shouldn’t overturn those bad precedents.
Contrary to modern legal thinking precedent =/= law…
When you say transactions which cross state lines what do you mean? Just the actual carrying over the line of the product, or also the negotiation, manufacture, transportation and ultimate sale of the product?
But yes, I agree with you, it’s the substantial effects doctrine much more than the mandate idea that inflates the scope of federal power…
Again, I’m not sure I buy the doctrine. I’ve tried to think of ways to make it something more real with limits. Like a distinction between a significant and a substantial effect, a requirement that the government carry a heavy burden in showing the latter, something like what the courts do when they review exemptions from laws for religious reasons (the government always argues against these on the grounds they will possibly cause aggregate substantial effects undermining the law).
To me it means that the producer of the good or service is located in one state and the purchaser of that good or service is located in another at the time of the purchase.
So that would mean that if Company A in NY sells goods to Company B in VT, that transaction would be covered by the ICC. If Company B turns around and resells those goods to customers located in VT, it would not be.
Further, if Company B drives its own trucks to NY and buys from Company A direct, that transaction would not be covered by the ICC – although the act of transporting the goods back across the line would be.
Again, what an oddly hyper-abstract distinction. I travel from my state to your state to drum up business from you and that is not part of interstate commerce? The founders were familiar with the word shipping.
The Founders were attempting to prevent the states from setting up barriers to the movement of people or goods across state lines, by making it clear that the federal government would oversee that.
I see no evidence they had grand, expansive dreams of the ways the power might be used.
Given the paucity of times they actually employed this power (its chief purpose for the first 100 years was to strike down state law, not to make federal law) I don’t see anything wrong with a de minimis definition.
“The Founders were attempting to prevent the states from setting up barriers to the movement of people or goods across state lines”
We don’t know that, as Scalia has described quite well discerning legislative intent is a fool’s errand. All we have is the normal meaning of the text at the time.
And the feds started using that power at least as early as the 1860’s with federal anti-lottery and anti-obscenity laws. That means that for more of our history than not we have interpreted it more widely than that.
I’m pretty sure that the intent of the founders when they wrote the word “regulate commerce” did not include “mandate that individuals engage in commerce”.
But they were familiar with what the word meant. Johnson’s dictionary of the day defined regulate to mean “to direct, to make rules.” They knew regulating, directing, making rules could involve mandates as they readily accepted that State and local governments could mandate activities and they also used the word in this way latter in the same article of the Constitution (granting Congress the power to make regulations for the military; you don’t think they can mandate things for the military?).
Raising an army is a separate and specifically enumerated power.
MNG, back when he had his ass handed to him about what the founding fathers meant:
“I don’t care about how they expected the powers to be used”
It’s bad enough that you don’t care what the Constitution was supposed to mean, but don’t pretend now that you’ve forgotten.
All we have is the normal meaning of the text at the time.
The normal meaning of the text at the time — i.e., the original public meaning, what the people who ratified the Constitution understood it to mean — was not what you continually insist it is, i.e., “to direct, to make rules.”
The people who ratified the Constitution did not understand the Commerce Clause to embody the next closest thing to a general police power. Any suggestion to the contrary is fragrant horseshit.
Another example. You call me from another state and negotiate an order of goods. I hire more men to fill that order. They assemble goods from parts shipped from two other states. Then they load it on a carrier who takes it across state lines to your warehouse where your employee unloads it and your seller sells it.
For RC only the call was open to regulation, for you only the shipping (and as I said to robc, only the actual crossing of the line should be by that logic).
I would maintain that most people in the actual world would see that entire chain as a transaction in interstate commerce.
That would because they are dumb.
There are a series of distinct and separate transactions there, some of which are interstate and some of which aren’t.
Each transaction is discrete and is utterly itself.
And each is tied to the interstate sale of a product.
Being “tied to” the interstate sale of a product isn’t good enough.
It has to constitute the interstate sale of a product.
When the local grocer buys a product from an out of state supplier, that transaction is interstate commerce.
Once he owns the product and the product is physically inside my state, that transaction is utterly complete. That property is now his and is inside Vermont. If I buy it from him, that is intrastate.
You may as well claim that it’s interstellar commerce because the iron atoms in the steel beams in his store came from supernovas. “See? See? It’s TIED TO interstellar commerce!”
I bought something from Amazon.com recently. With the click of a button I sent information to someone in another state who used it to charge my account existing in yet another state, contacted a warehouse inyet another state, had a shipper from yet another state come get the product and carry it over several states to me door. That was all the result of one click of the mouse, one transaction of interstate commerce.
No it wasn’t.
There were several discrete transactions there:
One between you and Amazon.
One between Amazon and its web host. (They have their own subsidiary company as their web host.)
One between Amazon and its warehousing subsidiary.
One between Amazon and its bank.
One between Amazon and UPS.
Depending on where the parties are located, some of those transactions are intrastate and some are interstate.
The one transaction between me and Amazon involved them working with my bank across state lines, ordering something from a warehouse across state lines and picking that thing up and shipping it to me across state lines. It’s bizarre to say they were not part of the transaction between me and Amazon seeing as how all of the others exist because of that one, they are all part of the process of fulfilling that one.
Because there are other parties involved in each of these discrete transactions.
You are not contracting with Amazon’s warehouse subsidiary. Amazon is.
You are not contracting with UPS. Amazon is.
“I hire more men to fill that order.”
YOUR ASS IS MINE!
I travel from my state to your state to drum up business from you and that is not part of interstate commerce?
Nope. Not unless you actually make the sale.
Asking me to by X is not commerce. Commerce consists of me actually buying X.
But it’s not interstate commerce for the traveling seller?
It would be odd indeed to tell an interstate peddler that he is not involved in interstate commerce when he goes from state to state peddling his wares. Incredibly according to your reading the only time he is when all of this interstate effort results in the sale. Presumably only the actual handing of the item and the payment are open for regulation!
Presumably only the actual handing of the item and the payment are open for regulation!
Right. Exactly.
“Presumably only the actual handing of the item and the payment are open for regulation!”
That’s the only place where the federal government has legitimate authority to regulate. The individaul states have authority to regulate their intrastate commerce according to their individual constitutions. You really cannot accept intellectually one of the basic components of federalism, that the fedral governments powers are limited compared to the states.
When I use a word, it means just what I choose it to mean – neither more nor less.
You mean words have exact meanings? What a concept!
You know how old you have to be to spoof-old enough to type but not old enough to have escaped childhood.
Commerce is exchange, not manufacture.
Its also not transportation. If I own a factory in one state that makes parts used in my other factory in another state, the transport of my parts from one factory to another is not commerce.
Manufacture and transportation are not transactions, even though they can be part of a transaction.
So when I say transaction, I mean the exchange of value in some way between two or more parties. If those parties reside in different states, you have interstate commerce.
For individuals, determining their residence is fairly easy (although Rahm Emmanuel certainly struggled with it). For corporate enterprises, its not as easy, but that doesn’t mean you can’t come up with some pretty straightforward brightline tests. State of incorporation could be used, although I don’t much like it since its a pure formality. The state where your headquarters are strikes me as a good one, for openers.
But I’m not trying to construct a quasi-plenary power over the economy, so I’m not bothered that a great many transactions, and even economic activities, are not covered by my definition.
So fluffy would only count the shipping, not the transaction. RC would count the transaction, not the shipping. This is the kind of goofiness that results from such hyper-abstract distinctions.
Not, not really. I just am being very specific that the good or service actually has to cross a state line as part of the transaction that is to be regulated, and that the transaction can only be so regulated ONCE (once the good is past the line, it is part of intrastate commerce again).
I think when the good or some component of it has crossed state line then all parts of the transaction are open to regulation. Otherwise we get these wacky, silly distinctions, like where a Yankees-Red Sox game has no interstate commerce at all.
@MNG
You lost me at “I think”.
I think one of the reasons why I assume Gobby is an adolescent is his seemingly constitutional inability to add anything of substance to any debate.
Pot / kettle?
Also by your logic a travelling salesman who goes from state to state setting up a booth and selling his wares has incredibly never engaged in interstate commerce (since at each booth money changes hands and the product is handed over only in one state!).
I have literally no problem with the proposition that a Yankees / Red Sox game has no interstate commerce in it. Assuming we’re talking pre-broadcast.
I think when the good or some component of it has crossed state line then all parts of the transaction are open to regulation.
That’s because you’re still stuck on trying to get an expansive federal power, not one limited to those things which are truly interstate and thus not appropriate for states to regulate.
This is a very telling post RC. I’m not trying to get any result, you are. I’m trying to get an interpretation that comports with the text and does not lead to so many absurd results.
The idea of an expansive commerce power is terrifying to me, it is why I oppose it as a political matter. Liberals should remember that the early uses of the IC power were conservative concerns-to ban inter-state lottery activity and inter-state commerce in ‘obscene material.’ I don’t want that power to be expansive. But I also want to work with the text we have.
You wouldn’t consider the results absurd if you weren’t trying to get an expansive federal power.
I’m trying to get an interpretation that comports with the text and does not lead to so many absurd results.
As are we all. Its just that I think a result that sweeps in all kinds of transactions that are wholly intrastate is an absurd result. For a clause that supposedly gives an enumerated power to regulate interstate commerce.
How is the Dean/Fluffy approach anything other than a non-expansive application of the text we have?
Reading it to catch every transaction where a single molecule has previously crossed state lines, somewhere, sometime, is about as expansive as you can get.
Let’s say I fabricate doo-dads. They have 10,000 parts. One of them, and only one, comes from another state. That’s it, then, all transactions in the doo-dads are interstate?
Or let’s say that they are all manufactured in-state, but I have to import the steel I make them from. Are the doo-dads interstate commerce because they use out-of-state steel? When does that out-of-state steel (or component) lose its ability to put my entire operation under federal jurisdiction?
It’s also worth noting that ruling that a transaction is totally intrastate would not exempt it from regulation.
It would just exempt it from federal regulation.
The state regulation covering your activity might be more or less onerous than federal regulation.
Fluffy, I’m curious – why would the act of transporting your own stuff across state lines be interstate commerce?
Because you are transporting the goods across a state line. That makes you an interstate carrier, to me, even if you’re just moving your own stuff.
If I go abroad and buy 20 Mercedes and bring them home, I can’t deny I’m an importer by saying, “Huh? Whah? This is just MY STUFF!”
Naturally, I see the upside in not defining it that way. That would enable anyone with a truck to evade any interstate commerce restrictions by just transporting their own goods instead of having them shipped. So you could sell me on that, sure. I wouldn’t fight you too hard if you used that definition.
Clicked too soon: also, why wouldn’t a transaction between two parties in different states be interstate commerce, regardless of where the buyer takes delivery?
I think your two questions contradict each other.
Becuase it isn’t interstate commerce unless the place where the buyer takes legal title to the property is in a different state from where the seller is when it happens.
So is the magic moment when the buyer from the other state “takes title” to it or when it is shipped over the state line? Government can only make regulations about the point in shipping when a product crosses state lines or when the buyer takes title.
Again, absurd.
Why is it absurd that the states regulate it before and after a product crosses a state line, and the federal government when it crosses it?
Nothing absurd about it.
Until title transfer takes place, it isn’t commerce. And unless the buyer is in a diffent state than the seller is when that happens, it isn’t interstate.
What is REALLY absurd is the commerce clause being used for anything other than what the founders made abundently clear it was for in the first place – preventing the states themselves form erecting trade barriers that would impeded the free flow of commerce.
I dunno, Fluffy. I just don’t see how moving your own stuff is “commerce.” I just don’t see “transportation” in and of itself as being commerce. Economic commerce is defined by buying and selling, exchange, that kind of thing. Once its yours, its yours.
I see your point, though. Well, a point, anyway. If you go abroad and buy Mercedes but don’t bring them back, is it really international commerce because you are a resident of the US and the seller is not? Even though the goods never crossed a border?
Maybe being located in different states isn’t enough. Maybe you need location plus transportation.
I think the founder would reasonably have included movement of people (with their luggage) across state lines. Passenger trains hadn’t been invented yet, but I think they had stagecoaches.
Wouldn’t interstate stagecoach services and passenger ships travelling down the coast have fallen under interstate commerce?
Only to the extent that the Federal Government would set a single tariff or taxation rate on the items being shipped and unloaded, and would not have allowed each individual state to charge additional fees and tariffs as they crossed into their territory.
People often forget that one of the purposes of the commerce clause was to prevent a European style of tariffs and fees for goods as they were shipped from state to state or from foreign nation to state.
Yes, if they were hauling other people’s stuff. But I don’t think my truck (or car) hauling my stuff crossing a state line is commerce. Even if I just bought the stuff.
I’ve said it before, and I’ll say it again: the Founders wrote the Constitution hoping that it would protect Liberty while keeping Government in a box labelled “necessary evil.”
Unfortunately, they failed.
According to some people, in the part where they say they intend to “secure the blessings of liberty”, they didn’t really mean that the government shouldn’t be allowed to force people to do whatever it thought was good for the economy.
The semantics we twist ourselves in knots over are ridiculous. The constitution fucked up when they used that wording, and it isn’t completely clear what exactly they meant, no matter how much you believe that your personal reading is accurate.
They probably, not being gods, did not foresee a time when the states were so unified, and manufacturing was so specialized (i.e. using resources from all over, and shipping all over, instead of primarily being local in nature), that basically everything crosses state lines at some point in the process.
What they probably should have done is said something like, “no states may enact tariffs or trade barriers against other states”. It would have gotten (what I personally believe) to have been the main point across (keeping in mind, MNG, that no, state gov’ts don’t produce things, but production was still laregly local, so states may have wanted to be protectionist, like nations).
Jim, you and Patrick Henry (above) have nailed it on the head. They left it too open and obscure.
It is my belief that the ICC was the first attempt at a North American Free Trade Agreement, especially when you consider the context of the rest of the clause, which mentions other nations and Indian tribes.
This way of thinking avoids the contortions of people I agree with (RC and Fluffy) as well as people I disagree with (MNG).
Whilst running errands, I was pondering the transportation and residence issue.
I’m not entirely happy with the “all transactions between people who reside in different states” formulation. If you live in State A, I live in State B, and you own something in State B that you sell to me, is that interstate commerce? It doesn’t seem like it to me.
Howsabout if the stuff is in State A and I take delivery in State A, and leave the stuff there? Is that interstate commerce? I don’t see how.
Does this mean that regulations on interstate commerce are easily circumvented, by consummating the transaction in one state? Sure, but so what? Once you consummate the transaction in a single state, what interest does any other state, or the feds, have in that transaction? I realize this frustrates the MNGs who are looking for a broad federal power, but what need is there for the feds to exert control over something that is completely within the jurisdiction of a single state?
I do think that interstate transportation contracts (that is, with carriers) are interstate commerce, because the performance of the contract necessarily crosses state lines.
As for MNG’s distaste for hyper-abstraction, I submit that any variation on the substantial effects doctrine is pretty damn hyper-abstract, itself. And if hyperabstraction leads to a regulatory system with boundaries that any businessman can easily navigate, that strikes me as a good thing.
Its not hyper-abstraction, its the original purpose of the ICC.
The reason for its existence is to prevent, for example, KY from banning the importation of WI beers. If KY is going to allow the sale of beers, it cant treat KY and IN and WI beers any differently. How beers are sold within KY is purely a KY matter. How beers are brewed in WI is purely a WI matter.
The point being, the ICC exists to prevent border squabbles. It prevents trade wars between states.
I think it is also a modern fallacy to sub-divide the clause into three parts; Foreign, Interstate, and Tribal.
The clause was a single application of power to the Federal Government and the powers granted in that single sentence should be equal in all three cases cited.
The only reason for the modern distinction was to drastically expand the Federal power over all aspect of modern life.
It would be foolish to read the Foreign section of the commerce clause to allow the American Government to go to China and micromanage and regulate a Chinese factory. However, we have read the Interstate portion of the clause to allow the Federal Government to do just that with Texas or California factories.
Interstate commerce is everything that would be considered international commerce if the states were not unified under the constitution. You can consider the states to be 50 nations allied under a mutual defense and trade treaty.
Rand has had her day. Would have been great if he had said, “the Constitution of Welsh and Gillespie.”
Hrm, Welch.
Bad analogy. Holmes was criticizing the Court for imposing its own policy goals and finding an extra-textual right to the Constitution. The current case deals with a specific and enumerated power within the Constitution. If anything, the lawyer is asking for the substitution of Obama’s policy goals for the plain text and original intent of the Commerce Clause.
Grandstand fail.
The attacks on Ayn Rand have become obsessive lately. I will put on record that I think this, at some point, became a little coordinated, a la the old Journolist. The final keystone was probably the nonsensical meme that Rand was a sociopath. Now the progressives think that they have a perfect icon to smash at the conservatives with.
To hear the audio of Neal Katyal’s comment on “Ayn Rand’s constitution,” go to 42:00 in the Florida v HHS audio file on the merits, available here:
http://lucidicus.org/references.php