Commerce Clause

Looking for Limits

The power to mandate health insurance is the power to mandate almost anything.

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Opponents of the federal law requiring Americans to buy government-approved medical coverage face a daunting challenge. Because the U.S. Supreme Court has treated the power to "regulate commerce…among the several states" like Silly Putty since the New Deal, explaining why it cannot be stretched to cover the health insurance mandate is harder than you might think. 

But as last Friday's decision by the U.S. Court of Appeals for the 11th Circuit illustrated, the law's defenders have a corresponding problem. Because a limitless Commerce Clause contradicts a fundamental constitutional principle, they have to justify the mandate in a way that does not also justify every other conceivable congressional dictate regarding how we spend our money. So far they have been unable to do so, which is the main reason the appeals court rejected this "wholly novel and potentially unbounded assertion of Congressional authority." 

Under our system of government, the 11th Circuit noted, Congress has only those powers that are explicitly enumerated in the Constitution, with the rest "reserved to the states respectively, or to the people" (as the 10th Amendment puts it). An all-encompassing Commerce Clause that authorizes any mandate, restriction, or prohibition aimed at behavior that might affect interstate commerce (subject to specific limits such as those imposed by the Bill of Rights) is plainly inconsistent with this federal system.

The Obama administration therefore needs to explain why its constitutional rationale for the health insurance mandate—that the failure to obtain medical coverage, in the aggregate, has a "substantial effect" on interstate commerce—does not amount to such an open-ended license. Toward that end, it argues that health care is unique because it is expensive, everyone needs it at some point yet cannot confidently predict when, and federal law requires hospitals to treat people regardless of their ability to pay, which shifts costs to others.

As the 11th Circuit noted, however, "virtually all forms of insurance entail decisions about timing and planning for unpredictable events with high associated costs." Based on the administration's criteria, "there is no reason why Congress could not similarly compel Americans to insure against any number of unforeseeable but serious risks," including natural disasters, accidental death, theft, business interruption, disability, long-term nursing care, and burial costs.

More important, the distinguishing characteristics cited by the government have no basis in the Constitution or in the Supreme Court's Commerce Clause precedents. "They are not limiting principles," the appeals court said. "Rather, they are ad hoc factors that—fortuitously—happen to apply to the health insurance and health care industries."

These factors may help explain why Congress wants to make people buy health insurance, but they do not explain why it has the authority to do so. And if the Supreme Court ultimately upholds the unprecedented policy of mandating purchases in the name of regulating interstate commerce, future Congresses could decide there are sound reasons to make people buy other forms of insurance (to prevent cost shifting), exercise equipment (to reduce health care costs), double-pane windows (to conserve energy), or American cars (to stimulate the economy and support domestic manufacturers).

"Every day," the 11th Circuit observed, "Americans decide what products to buy, where to invest or save, and how to pay for future contingencies such as their retirement, their children's education, and their health care. The government contends that embedded in the Commerce Clause is the power to override these ordinary decisions and redirect those funds to other purposes."

Given the potential for wide-ranging controls over heretofore private decisions, you can see why this debate is not simply about arcane legal doctrines or arbitrary distinctions between state and federal powers. "While these structural limitations are often discussed in terms of federalism," the appeals court noted, "their ultimate goal is the protection of individual liberty."

By increasing the federal government's role in medicine, President Obama's health care reforms directly limit freedom. But the legal arguments he is using to defend them may turn out to be a much bigger threat.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2011 by Creators Syndicate Inc.

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  1. reserved to the states respectively, or to the people

    R.I.P.

    1. Good posting, im subscribing to your rss. Many thanks once more

  2. Externalities!!!

    1. DEY TURK ER ‘TERNALITIES!

      1. Yay! “heller” is awake and repeating internet clich?s, and soon he’ll insist that I am “rather.” Priceless!

        1. So your just annother anonopussy dumb enough to be confused with rather.

          1. annother anonopussy [sic] dumb enough

            The dumb “anonopussies” (like you) confuse me with “rather.” I laugh and laugh, as you are clueless.

            1. PS
              The irony of your typos and misspellings, while calling me dumb, is, as “Warty” loves to repeat, delicious.

  3. To believe that the commerce clause extends this far requires you to believe that the founders spent an entire summer of 1789 crafting a perfectly balanced federal system only to completely undermine it by inserting a commerce clause that grants the federal government limitless power.

    1. From what I see, the white man’s Ghost Dance to re-conjure the Constitution is gonna be put down brutally.

      Remember, the externally invasive and occupational agricultural City-State is also internally repressive of any expression of Liberty.

      The State sociopolitical typology will treat internal dissent like it treats the tribal Non-State sociopolitical typology.*

      So lose the Stockholm Syndrome in regard to civilization (i.e., the City-State) already. Quit defending your captors.

      * an ethnographic terminology; see NON-STATE AND STATE SOCIETIES faculty.smu.edu/rkemper/cf_3333/Non_State_and_State_Societies.pdf

      1. This site continually produces a lower and lower quality of lunatic. I miss Lone Wacko and Gaius Marius.

        1. Why do Libertarians sound *exactly* like Neo-Cons? I could get the same dismissive response regarding State sociopolitical typology at free republic.

          1. You get a dismissive response because you are nuts. You debate about what the shape of civlization should be. But once you start saying there shouldn’t be a civilization and that agrculture (the human invention that saved man from a life of privation) is evil, you have stopped being a serious person. And there is no point in wasting time with someone who is not serious.

            1. Sure John, I’m nuts because I know the demonstrated difference between Non-State and State sociopolitical typology, based on empirical data of anthropological and ethnographic studies. It confuses you, because all you do is read Marxist/Libertarian economic fantasies how the abusive State is going to be divorced or brought to heal, while still keeping the agricultural City-State.

              1. NO, you’re nuts, but you’re also a liar and you’re disingenuous. You were directly asked why the Navajo, who had agriculture, are exempt from your “Agriculture is evil” stupidity.

                You ignored the question because it demonstrated that you are a liar and a hypocrite.

                So, if you’re going to make claims, and pretend to be interested in serious discussion, then ignore anything the definitively proves your point a lie, you’re going to get clowned.

                Like you have been.

                1. Some of the Indians of North America did go through non-egalitarian chiefdom agriculture (e.g., Anasazi) and agricultural civilization (e.g., Mayan.) It always ended in famine, death, and disaster, with the more intense examples falling the hardest.

                  White man’s will too.

                  1. It always ended in famine, death, and disaster, with the more intense examples falling the hardest.

                    Well, things don’t tend to end in abundance, joy and comfort. It doesn’t take a moment to think of examples of agricultural society that didn’t end in disaster. Are you willing to accept those as counterexamples, or go on being disingenuous?
                    Look, there’s pretty good evidence that when are ancestors went agricultural they gave up quality of life for quantity of life – they didn’t live as long or as well as hunter-gatherers, in exchange for larger societies. But this is a debate for ten thousand years ago – the results are in and, turns out, agriculture worked pretty well. It allowed our ancestors to take advantage of Ricardo’s law of comparative advantage, massively increased prosperity and, eventually, led to the industrial age. That’s how important it is: no agriculture, no specialisation. And if we didn’t have specialisation, we wouldn’t have, for example, a polio vaccine. Infant mortality rates would still be horrifically high and life expectancy horrifically low. We certainly wouldn’t have the internet, or for that matter, film or literature. You’d want to give all that up, would you? In exchange for what, exactly?

              2. There is no such thing as “Marxist/Libertarian” *anything*, White Idiot.

                1. Both Marxist and Libertarians identify, but only partially, the aggressive and abusive nature of the agricultural City-State, and want to somehow reform or eliminate the State.

                  Unfortunately, both economic dogmas are completely uninformed of the last 60 years of empirical data regarding 2 million years of humans living in Non-State sociopolitical typologies.

                  Thus, they create premises, quite false and discredited by empirical data, upon which they both build their house-of-cards deductive syllogisms.

                  Humans have already suffered under Marxism; Goddess help us all if we ever have to suffer under “Marxism-of -the-Right’s” Voluntary Slavery (Block, Nozick) selling children like cabbage patch dolls (Rothbard,) or the coercive child rearing psychobabble (Mises.)

                  1. You’ll notice he continues to ignore questions that prove him wrong and a liar.

                    1. As well as avoiding explaining what he’s doing using the evil, earth destroying technology instead of going out and hunting and gathering, much less crying over litter like another white Indian.

        2. Agreed. This Ward Churchill wannabe kind of crazy is just sad.

          1. Was agreeing with John, not the troll.

          2. throw a penny to old White Indian. He needs it to buy cigars.

          3. Statist Neo-Cons at free-republic typically talk like you too, having little regard for the Indian’s tribal Non-State sociopolitical typology.

            How’s it feel to be just like a Statist Neo-Con?

            1. “Statist”

              And stop misusing that word, it makes you sound moronic in addition to your crazy.

              1. No, you stop misusing it. A statist is anybody who supports the agricultural city-state (civilization.)

                The State is an integral part of the agricultural City-State (civilization,) never to be magically divorced from the whole, except in the raging fantasies of Marxist/Libertarian literature.

                “Agriculture creates government.” ~Richard Manning, Against the Grain, p. 73

                1. My father married a pure Cherokee;
                  My mother’s people were ashamed of me.
                  The Indians said I was white by law;
                  The White Man always called me “Indian Squaw.”

                  1. Please, Mother. Cover the Little Beaver, and let us speak no more of this.

        3. Hey John, you get the quality of trolls that you deserve. But you knew that!

          1. Fair enough. Speaking of, what happened to Rather? She seemed to have disapeared right about the time White Indian showed up. Could this be her revenge?

            1. Rather was a bore, at least ‘white indian’ has a healthy dose of crazy, for flavor.

            2. Just look for the passive aggression and the frantic denials of using a smartphone to post.

            3. Maybe she got a job?

              1. You don’t realize that’s her above?

                1. “The frantic denials accusations of using a smartphone.”

                  Fixed it for you, Wally.

                  1. Hi rather

          2. Hi rather.

      2. You need to go work in Hollywood man, cause that is fucking gold. I could see that as the next big distopian future blockbuster.

    2. John, John, John…

      Those who say the commerce clause grants unlimited power are liars and they know it.
      They can read. They can comprehend the plain language of the Constitution.
      But they are liars.
      They care only about controlling things. If that means lying, then that means lying. They don’t give a shit as long as they have control.

      There are basically two types of people in the world. Those who want to control other people, and those who have no such desire.
      Those who want to control other people have no compunction for lying.
      None at all.

      1. There are basically two types of people in the world.

        Only two? This must make arguing on the internet very simple for you.

        1. Political tags ? such as royalist, communist, democrat, populist, fascist, liberal, conservative, and so forth ? are never basic criteria. The human race divides politically into those who want people to be controlled and those who have no such desire. The former are idealists acting from highest motives for the greatest good of the greatest number. The latter are surly curmudgeons, suspicious and lacking in altruism. But they are more comfortable neighbors than the other sort.
          -Heinlein’s Lazarus Long

          Think about it.

          1. “The human race divides politically into those who want people to be controlled and those who have no such desire.”

            And of course you are in the latter heroic category and everyone who disagrees with you is in the former.

            Sheesh, could there be a more arrogant, self-congratulatory world view?

            1. What is heroic about not wanting to control people?
              It’s the ones who force people to do things for their own good who are the heroes.
              I would let someone drag race down the road, get into a head on collision, and die. I don’t care. Fuck ’em. Unless they’re a family member I couldn’t give a shit less.
              A hero would stop the race and save a life.

              1. Well said.

              2. What is heroic about not wanting to control people?

                I would say lots.

            2. So wanting to leave people alone and not control them is arrogant. Uh huh.

            3. No, no, no. The heroic ones are the ones that want to take my money and redistribute it to make everything fair.

            4. I suppose not all libertarians are 100% pure when it comes to not controlling people, but allowing people to make thier own choices is the most defining aspect of libertarianism. Is it surprising that some people like the ideals they live by?

            5. could there be a more arrogant, self-congratulatory world view?

              “PRESENT!”

            6. This is a simplification but it has a lot of truth to it.

              The conservatives want to control other people’s social choices and the progressives want to control their economic choices.

      2. sarcasmic …

        The progressive sort that say that the CC grants unlimited power believe that the Constitution is a “living document”, that its words have no fixed meaning. They truly believe that the plain language of the Constitution is subject to continuous reinterpretation to conform to the zeitgeist.

        When progressives argue nonsense, it’s usually not really lying but rather evidence of a mental disorder or mental deficiency. Only a small minority of progressives knows exactly what they believe and why. When this minority makes such argument, they are indeed lying.

    3. To believe that the commerce clause extends this far requires you to believe that the founders spent an entire summer of 1789 crafting a perfectly balanced federal system only to a Living Constitution so that future Supreme Courts could completely undermine it by inserting a “interpreting” the commerce clause so that it grants the federal government limitless power.

      Seriously, that’s what at least half our Supreme Court believes.

  4. Libertarians consistently argue the “might makes right” line to explain how the tribal Non-State sociopolitical typology of the Indians were defeated and therefore inferior to the aggressive State sociopolitical typology of Civilization (i.e., the City-State.)

    Is Liberty itself inferior to City-State aggression, since, like the Indians, it is run-over and killed-off so easily?

    Is the legalistic appeal to the great spirit of the Constitution a white man’s forlorn form of the Ghost Dance?

    1. We’re crying at the side of the road while idiot liberals and idiot conservatives throw trash all over the Constitution.

      The govt is trying to take back to itself all reserved powers, making them Indian givers.

      1. That wasn’t the giving way of the Indians.

        Their giving, and example, transformed the world. See:

        Indian Givers: How the Indians of the Americas Transformed the World
        by Jack Weatherford (professor of anthropology at Macalester College)

        1. You call it corn; we call it maize.

          1. Maize. What your people call “porn.”

            [::Squats on a corn cob. Smiles.::]

      2. “Raaaaacist!!”

      3. I have reservations about your metaphor.

        1. Constitution Ghost Dance,
          Conjuring the golden past,
          But that stuff doesn’t last,
          Civilization’s deadly blast.

          1. They took the whole Cherokee Nation
            And put us on this reservation
            Took away our ways of life
            The tomahawk and the bow and knife

            They took away our native tongue
            And taught their English to our young
            And all the beads we made by hand
            Are nowadays made in Japan

            Cherokee people, Cherokee tribe
            So proud to live, so proud to die

            They took the whole Indian Nation
            And locked us on this reservation
            And though I wear a shirt and tie
            I’m still a red man deep inside

            Cherokee people, Cherokee tribe
            So proud to live, so proud to die

            But maybe someday when they learn
            Cherokee Nation will return
            Will return
            Will return
            Will return
            Will return

            1. One can hope, but the aggressively invasive and occupational agricultural City-State (civilization) has proven to be a superior evolutionary adaptation (if we’re to believe the NeoCons or Libertarian defenders of State sociopolitical typology.)

              1. Mount up Tonto and shoot some Neo-Cons(and maybe some libertarians…if you are in NH) and blow up some buildings. KILL SOME FUCKING CITY-STATE BABIES. THEY FUCKING DERSERVE IT BECAUSE THEY MIGHT (MIGHT!!!!!!!!!!!!!!) BE DESCENDED FROM PEOPLE WHO DID SOME EVIL SHIT. WHAT’S STOPPING YOU?! WHAT? YOU LIKE LIVING IN A HOUSE WITH ELECTRICITY AND THE INTERNET? YOU FUCKING PUSSY!!!!!!!!!!!!!

                1. Since the agricultural City-State has aggressively invaded and occupied nearly every square meter of Mother Earth’s surface, yeah, I have to live in it and get along best I can in the prison.

                  That’s because you City-State types killed anybody who didn’t believe your way. So don’t attribute your aggressive ways to me.

                  Civilization is like a prision. The cells are pretty plush near the center of the Warden’s office (the center of Empire, or “first world” as the dominators say) and you’re just a bootlicker to keep your cell in some trinkets.

                  1. You could just kill yourself.

                    1. Or just go live out in the fucking woods if he really objects to civilization. But then he’d have to give up posting on the internet.

                    2. But then he’d have to give up posting on the internet.

                      He could visit the library from time to time and post his crazy talk like many other homeless people do.

                    3. But libraries of a construct of civilization so wouldn’t that make him a raging hypocrit?

                    4. LOL – gotta love how the Statists can’t address legitimate issues.

                      Hell, I suppose I got a raging case of acne too.

                      That would correspond to the fantasy land Libertarians/Marxist live in, thinking that somehow, with just the right conjuring, they’ll magically divorce the State from the agricultural City-State.

                    5. You are a raging case of acne… on the ass of society.

                    6. I bet you City-Statists think it’s hypocritical of a woman’s body to lubricate while she’s being raped. Should she just go dry and die?

                      That’s the way you’re talking here.

                      The City-State invades and occupies and leaves no other alternative.

                    7. So…farmers get you wet, then? I don’t judge.

                    8. I bet you City-Statists think it’s hypocritical of a woman’s body to lubricate while she’s being raped. Should she just go dry and die?

                      STEVE SMITH INTRIGUED BY VIEWS, WANT TO KNOW MORE ABOUT NEWSLETTER.

              2. Can’t we all just “smokem peace pipe?”

    2. Since it’s not Thursday…

      Libertarians consistently argue the “might makes right” line

      Bullshit. But that might be the argument that liberals use to justify Obama’s prolific Middle East bombing.

      1. It’s not bullshit, Al Gore. I noted several examples of the argument yesterday, paralleling the Neo-Cons’ explanation on why the tribal Non-State sociopolitical typology has fallen to State aggression.

        1. Half-breed, that’s all I ever heard
          Half-breed, how I learned to hate the word
          Half-breed, she’s no good they warned
          Both sides were against me since the day I was born……

          1. Constitution Ghost Dance,
            Conjuring the golden past,
            But that stuff doesn’t last,
            Civilization’s deadly blast.

            ^^^ Now that gets us rich and famous in Nashville; who has a guitar?

        2. The more important question is how do you feel about Charles Bronson taking Indian roles?

          1. Or that Italian dude in that 70s environmental commercial.

        3. Examples?

          1. Fatty, come into this joint, and say that the Indians were the victims of an aggressive, invasive, and occupational agricultural City-State (civilization.) Watch libertarians go NeoCon defending civilization. It’s just that simple. They did it yesterday, and have done it consistently in previous days.

            1. Consistency is our biggest challenge.

            2. I will defend the agricultural City-State to my death, for without it beer would not exist.

              -“To alcohol! The cause of, and solution to, all of life’s problems”
              –Homer Simpson

              1. There’s much truth to that. It appears agricultural civilization may have started over making alcohol.

                The City-State is like a big, abusive, drunken, raging patriarch.

                It’s not nice living in a State sociopolitical typology, and libertarians can sense it, ever so weakly. But lose the Stockholm Syndrome already.

                1. And live without beer?

                  NEVER!

                  1. Yeah, I know.

                    “The American Way of Life is Not Negotiable.” ~George H.W. Bush, 1992 Earth Summit

                2. It appears agricultural civilization may have started over making alcohol.

                  It happened in Ireland. It is happening here.

                3. White Indian is MATT DAMON?

            3. No…I’m inclined to agree with that assessment White Indian, but blaming/punishing the sons, grandsons, cousins, and the great-grandaughter’s former roommate’s long-lost inbred haberdasher is not going to going to correct the sins of the past. Its unfortunate, but nothing short of a new genocide will “correct” the displacement of the people. Look at Israel. Many palestinians (Muslim and Christian) got fucked by the formation of Israel. As a result, some of them would like to destroy that City-State (and probably replace it with another…but I don’t really care). The point is, their situation is analoguous to what happened to the Indians except that their greivance is:
              1) More Recent (People are still alive today who were there when the gloves dropped…maybe)
              2) Wider availability of modern weapons and explosives to those with some beef (whether it be delusional or actual)
              3) World-wide media to spin the story for the Palestinians especially in nearby Europe
              4) Religion plays a factor
              5) Virtual immunity to any disease the “invaders” might have brought with them

              The Indians did not have any of that shit. If they had explosives that could have been made from readily available materials, overt moral support from multiple European powers (France doesn’t count), and an immunity to Smallpox maybe things would have gone differently. Plus they were a bunch of disconnected tribes with many long-standing anatagonisms between them.

              Some libertarians also bash the Indians (I guess), because of their collective societies, the emphasis on mysticism, the rejection of advancement, etc. etc. Personally, I don’t care if you want to live on the plains and shit into the grass everyday while shooting wild buffalo. But if you (and a lot of other people) want to get back to that type of life, your going to have to kill a lot of people who won’t be happy about you fucking around on what they perceive to be their land according to their rules. Just Saying.

              1. And the occupation continues, while the occupiers conjure pretexts to continue the occupation and assuage their conscience.

                1. The sins of the fathers shall be visited upon the sons!

                2. What is the time limit on ‘occupier’? Because if there is none, the indians are occupiers, too.

                  1. As are the Turks, the arabs in North Africa, anyone with Mongolian blood in Eastern Europe/Russia (a surprising number), most of the population of France and Germany (fucking romans, goths and franks invading and occupying gaul), Normans in Britain, anybody with Spainaird/Portuguese blood in Central/South America. Going further: Anyone who’s not Greek, Carthaginian, Phoenician, etc etc, who now resides along the Mediterranean, the original Canaanites, so on and so forth. It’s true that there is a long and shameful trend throughout human history of war, occupation, and colonization; and I do think more could be done to rectify these past wrongs.

                    That being said, simply saying that the only right thing to do is for the occupiers to leave and allow those First Peoples to reclaim their land, is not some automatic Morally Right Thing To Do that washes away everything. The Israelis actually make such a claim in their occupation: That they were forced to leave by Nero, mistreated under the Ottomans, etc etc… Another example: After WW1, a large number of Germans were expelled from parts of Poland and France and other nearby territories – even despite the fact they could trace their roots back for centuries; they were still considered occupiers. These expulsions pent up a lot of resentment amongst Germans in the interwar-period and among other things, led to a period where the German government decided to do something about another middle eastern “occupier” whose roots were long in Germany – but not as long as “native” Germans. In general, those who have coerced large movements and migrations of people, have been on the wrong side of history – whether it’s nero, pizarro, columbus, custer, Uncle Joe, Turks in the early 20th century, etc etc etc….

    3. “Libertarians consistently argue the “might makes right””

      No they don’t.

      Now you’ve resorted to openly lying. How sad.

      1. They have here on Reason, yesterday and in days past, and in other places. They use the same old Neo-Con argument that the Indian’s tribal Non-State sociopolitical typology was inferior to the invading agricultural City-State, simply because aggression won.

        It’s funny watching libertarians crow like a Neo-Con how aggression won and thus is somehow superior.

        1. I don’t think that pointing out the obvious, that the Native American culture was defeated and/or assimilated by the invading European culture is in any way crowing or advocating aggression or superiority at all, any more than stating that Green Bay won the Super Bowl is advocating a return to the Packer way of life for all of us. Seriously, you are repeating the same words over and over (give it a rest with “typology” already) and contributing literally nothing new.

          The tribes lost. I realize it sucks. In some senses that was their fault, too. Stating that fact does not make the means used to subjugate them right or moral. They weren’t. But spending your time fulminating against it now, several hundred years later, is not going to undo the past, nor is it going to bring a hunter/gatherer culture (which the tribes did not uniformly have) back. The world is replete with examples of cultures that have been subjugated, enslaved, assimilated, or annhilated. Yours is by no means unique.

          1. A woman loses when she’s raped by an aggressor. Would you say “In some senses that was her fault, too.”

            Interesting how libertarians become so very apologetic — the same apologetics used by NeoCons and other lovers of ‘might makes right’ — for aggression when they benefit from it.

            1. Ways really interesting is that when you’re price wrong you resort to analogies. Why at you intellectually incapable of actuallyarguing a point without falling to analogies.

            2. A woman loses when she’s raped by an aggressor. Would you say “In some senses that was her fault, too.”

              No, I certainly wouldn’t say that, but heaping blame on the perpetrator doesn’t undo the rape or the psychological damage resulting from it. Neither does your pseudo-intellectual babbling at all change history. It’s clear you misunderstood my statement. You didn’t even address it. I’m pretty sure that’s because you have no arguments to make, just relentless flinging about of “ouch” words like neocon. The undeniable fact that Native Americans waged war on each other is something you have no even bothered to address nor do I expect that you’ll bother since you don’t seem to have the intellectual capacity.

          2. “The world is replete with examples of cultures that have been subjugated, enslaved, assimilated, or annhilated. Yours is by no means unique.”

            The indians of the Americas engaged in enslaving and subjugating just as much as any other group anywhere else.

            They weren’t a bunch of earth angels sitting around in perfect harmony with each other and nature before the Europeans arrived.

            Different tribes fought each other over territory and resources.

            And plenty of them practiced enslavement – a lot more nasty stuff as well. Ask the victims of the Aztecs.

    4. You do realize that a good majority of North American Indians were no longer just Hunter-Gatherer’s when the white man landed on their backs right?

    5. Lemme guess…you’ve never read Berliander’s Indians of Texas, have you? I bet you’re one of those wierd New Age dweebs that thinks nomadic Indian culture was the tits.

      I wish it were 1830 so I could throw you to the Comanche.

  5. Stop feeding the troll!

    I outted him over a week ago as an adherent of Malthusians Jared Diamond and Marshall Sahlins, and…

    Oh, fuck it!

    1. Yeah, let’s not learn anything about Non-State sociopolitical typology, because Libertarians are so bought into State sociopolitical typology.

      The desperate defense of the City-State, while childishly wanting to slightly reform its abusive nature, is Stockholm Syndrome indeed.

      1. And why wouldn’t Libertarians be joyed to learn there was an Original Affluent Society? (Marshall Sahlins)

        Are you against being affluent?

        http://www.primitivism.com/original-affluent.htm

    2. Sorry dude…I fell off the wagon again. I think I need an intervention.

  6. I insist that you stop commenting! I outed you! Stop it!

    1. You haven’t “outed” anybody. I’ve openly referred to Jared Diamond’s essay about agriculture being mankind’s biggest mistake, and the Original Affluent Society.

      Do you have something against everybody, instead of just a few in a hierarchical sociopolitical typology, being affluent?

      The Worst Mistake in the History of
      the Human Race
      By Jared Diamond
      University of California at Los Angeles Medical School
      http://www.scribd.com/doc/2100…..Human-Race

      The Original Affluent Society
      Marshall Sahlins
      http://www.primitivism.com/original-affluent.htm

      1. I am a sockpuppet!
        Stop responding to me!

      2. I’ve openly referred to Jared Diamond’s essay about agriculture being mankind’s biggest mistake, and the Original Affluent Society.

        Really? Seriously? I can’t wait to tell my colleagues that someone actually buys that nonsense…

        1. Are you a sellout to the Statists?

          1. Are you a sellout to the Statists?

            Are you qualified to discuss this? Because you’re making first-year level errors.

            1. I’m making no errors, except in your fantasies. Have you read any of the literature? Quit blustering and bring it on, if you got it.

              1. What literature? You keep referring to the same piece, over and over. Surely “the literature”, which, I might add, the Native Americans you hold in such high esteem didn’t bother to produce (probably too much hunting and gathering), has more than one decent publication that agrees with you?

                1. I refer to several books over and over. There’s a whole score of literature in the last century of archeology and anthropology that overturns the Hobbesean myth that the abusive State wants you to believe. I’ve cited Marshall Sahlins, Elman Service, Stanley Diamond, Jared Diamond, Richard Lee, Kevin Duffy….well, you get the idea: those guys put out more than a single publication.

                  Take another swing.

                  1. “There’s a whole score of literature in the last century of archeology and anthropology that”

                    is a joke to professionals.

                    Cry all you want about it, you’re referencing material that has all the credibility of the Protocols of the Elders of Zion. Consider how people who do that are treated, and then you’ll understand why no one cares what you think about anything.

      3. Just had the time to read the articles you cited above. They aren’t remotely scientific. They’re opinion pieces at best. If nothing else, they’re amusing. Someone actually citing a story about a “field trip” he went on resulting in a woman single handedly carting a bag of rice bigger than her across the landscape pretty much tells me all I need to know. It’s as if the author is claiming that this is solely because we grow things. It’s laughable.

  7. It’s pretty simple. The text grants Congress the “power to regulate commerce…among the states.”

    Proponents of the activity/inactivity distinction point to the idea of activity being inherent in the definition of commerce and argue that mandates regulating inactivity cannot stand. But as Neu Mexican has pointed out you can argue that the economic activity regulated is the decision to insure or not (making a decision sounds like activity).

    More importantly even an ‘activity inherent’ word like commerce when preceded by a broad grant of the power to ‘regulate’ would sensibly include the power to mandate. As I’ve said take a word like recreation. It’s certainly about activity. But if someone had the authority to regulate the recreation of others they could certainly order them to engage in some form of recreation.

    Ironically for conservatives the best argument against the mandate is a non-textual one, one that looks to the ‘overall structure’ or ‘spirit’ of the Constitution and says the mandate would obliterate this spirit of limited federal powers.

    1. making a decision sounds like activity

      I see. So mental activity is something to be regulated.

      Thought Police?

      1. You nudged?

      2. When the decision is about whether to take an action or not, yes. This is not unheard of in the law. If decide not to feed your kid or dog for example you are open to regulation.

        1. You are the king of poor analogies.

          1. I was thinking just plain stupid.

            1. Are you incapable of actually addressing an argument by analogy? Your response is on the level of a grade-schooler at the sandbox “You’re stupid!”

              1. Some things are self evidently stupid.

                Not feeding someone or something that is dependent upon you is a dereliction of duty.

                Comparing that to any old decision to act or not act is, well, stupid.

                Judging from the fact that you repeatedly make such incredibly stupid arguments, I am forced to conclude that the source of the arguments is also stupid.

                1. And it’s perfectly arguable that not insuring yourself is a “dereliction of duty” as well. Your not being insured costs other people money if you happen to get sick and can’t pay out of pocket. The only reason the mandate exists is to prevent freeloading that costs the system money. Why do you support freeloading?

                  1. Your not being insured costs other people money if you happen to get sick and can’t pay out of pocket.

                    I would have no problem with repealing the legislation that created the above problem.

                    1. Yeah somehow a tax penalty for not being insured is a greater threat to freedom than social darwinism.

                    2. False dichotomy. Nice.

                      The greatest threat to liberty is well intentioned do-gooders with power.

                      They mean well, but there are always consequences.

                      Socializing the cost of medicine eliminated incentives to hold that cost down, and created incentives for people to take more than they put into the system.

                      The “solution” to this is to force people to pay even more.
                      But that does not put back any incentive to hold down cost, nor does it eliminate the incentive to get more than you pay in.

                      So it is not a solution since it ignores the cause of the problem.

                      Treating symptoms while ignoring the cause does not cure the patient.

                  2. “It’s perfectly arguable that not having a fucking job is a ‘dereliction of duty’ as well. Your not being employed costs other people money if you happen to need beer or cigarettes or Lotto tickets and can’t pay out of pocket. Why do I support freeloading?”

                    1. That’s entirely different, and you know it. We’re buying votes, in that instance.

                    2. Ummmmmmm… as absolutely everyone knows: Food stamps are actually a stimulus!

                    3. If you believe in the idea of economic stimulus at all, you have to acknowledge that food stamps is one of the more efficient ways to do it.

                    4. Oh, god… I know I shouldn’t, but a hanging curveball of perfect imbecility such as this is damned near irresistible:

                      If you believe in the idea of economic stimulus at all, you have to acknowledge that food stamps is one of the more efficient ways to do it.

                      Then, logically, putting every last person in America on food stamps would GIGA-stimulate the economy, wouldn’t it…?

                    5. Stop. You’re getting me all lubed up.

                  3. If I don’t drive a car, am I still being negligent if I don’t buy a car-insurance policy?

                    1. Good question. Let me consult with the oracle, on that one.

                      [::Stares fixedly into ass of Magic Rainbow Unicorn. Waits. Waits.::]

                    2. No, but you don’t have the choice not to have a human body. Blame nature for that one.

                    3. No, but you don’t have the choice not to have a human body.
                      Yeah you do. You could kill yourself.

                    4. Killing yourself would also be considered interstate commerce.

                    5. Killing yourself would also be considered interstate commerce.

                      Be a patriot! STIMULATE THE ECONOMY, TONY!!!

                    6. Me, @11:33, above: “Then, logically, putting every last person in America on food stamps would GIGA-stimulate the economy, wouldn’t it…?”

                      Tony: [::scuttles back underneath sink::]

        2. If decide not to feed your kid or dog for example you are open to regulation.

          No. Criminal law is not a form of regulation.

          1. I think maybe MNG is confused on this fact. He seems to think that all state power derives from a power to regulate. It does not, obviously.

            1. Give us time.

        3. Last time I checked not feeding your kid or dog is a state crime, not federal. Bad analogy.

    2. More importantly even an ‘activity inherent’ word like commerce when preceded by a broad grant of the power to ‘regulate’ would sensibly include the power to mandate.

      So now Regulate Commerce = Force Commerce?

      1. If I have the power “to regulate” your recreation I can force you to engage in recreation, no?

        1. No. Regulation of activity must start with a consensual choice to engage in that activity. Otherwise, you aren’t regulating, you are dictating.

          1. Regulation of activity must start with a consensual choice

            Whoa. That’s just crazy talk.

          2. So you want to argue that when someone has the authority to direct behavior they cannot order one to engage in behavior? What would be the basis of that argument?

            1. They don’t have the authority to direct behavior. They have the authority to direct how one engages in behavior. That’s what regulation is. It’s the management of engaged activity. Not the creation of activity.

              1. What’s your argument for this?

                Mine is that regulte means direct and did so at the time. Are you arguing that in any other context the power to direct some activity inherent thing like recreation or commerce would not include the power to direct one to engage in that activity? If you want to argue that, rather than just assert it, produce said argument.

                1. Direct does not equal Dictate.

                  You’ve yet to provide your own argument why Regulate = Force. Regulation relies on the existence of an activity to regulate. It does not allow for the construction of an activity which can then be regulated.

                2. Say you have the power to “direct” recreation. Recreation has to exist for you to have something to direct. If no one is recreating, there’s nothing for you to direct. MNG, you claim otherwise–that you could then mandate recreation. That would mean that a power to direct recreation entailed a power to direct non-recreation–and thus that any power to direct was a power to direct anything at all.

      2. So now Regulate Commerce = Force Commerce?

        Since 1942, at least, yes. Our statute and regulatory books are packed full of mandates that force commerce of one kind or another. You can argue that these mandates are all conditional on your more or less voluntary decision to engage in a different kind of commerce, but that doesn’t change the fact that the Commerce Clause is used to force all kinds of commerce right now.

    3. As I’ve said take a word like recreation. It’s certainly about activity. But if someone had the authority to regulate the recreation of others they could certainly order them to engage in some form of recreation.

      That’s just nonsense, and this entire argument just highlights your ability to do mental contortions when it suits your agenda.

      The regulators might be able to set standards for bike paths, for example, but they can’t make people use them. Federal regulators could set standards for insurance sold across state lines, but they can’t make you buy it.

      1. Thanks for repeating the conclusory statements of others here, but do you actually have an argument there?

    4. So when Congress mandates that everyone is required to buy the entire Rush Limbaugh Book, Audio and Video collection then you will have no problem with this “regulation of commerce….among the states”. And of course this is just the beginning, next you will be required to give half your income to the Sarah Paln perpetual Presidential campaign fund.

      Giving Congress unlimited power to regulate commerce gives them unlimited power.

      1. It opens up what amounts to a general police power. Under this interpretation, the federal government could enact things like nationwide building codes. They could mandate that everyone have a smoke detector in their home. Or that they purchase a cell phone or have an assault rifle (national defense you know).

        1. DJF and John are kind of acknowledging my point that the argument must rest not on the text but on the “spirit” of the Constitution, that granting this power violates the spirit of limited and enumerated powers. All of the “but if we grant this the government is not limited” arguments are along that line.

          1. Call it what you want, but context matters. You can’t take words out of the document and just use any definition that suits your purpose. That clause or any other clause has to be read within the structure of the document. That is both common sense and a basic rule of statutory interpretation. There is nothing new or touchy feely about it.

            1. The problems with ‘context’ are myriad. As Scalia points out in his book A Matter of Interpretation the search for legislative intent is nearly impossible. There are many ratifiers and all we have are the public statements, some of them conflicting of some (which may not be their actual motivations).

              History doesn’t tell such a simple tale. For every person who can argue the Founders clearly were focused on creating a strictly limited government another could point out that the entire project was motivated by a desire to move away from a strictly limited government (the Articles) and to a more vigorous one, that this is evidenced by the vociferous claims of the anti-federalists that the Constitution would mean a very powerful federal power, that the Virginia Resolution (VI?) that became Art. I Sec. 8 certainly evidenced a very broad federalo power, etc. Context is very indeterminate I’m afraid.

              The plain text though is not. Unlike many parts of the Constitution the grant in the clause is a broad one with no qualifiers, bluntly granting “the power to regulate commerce” among the states, period. The word regulate meand to direct back then, in any other context the word direct entails the right to order people under the authority of the director to engage in activity (this is evidenced in the Constitution itself when Congress is given the power to regulate the armed forces, certainly they can direct them to engage in activiy [and don’t argue ‘but you have to join the military before they can do that1’; we are arguing about what the word ‘regulate’ means; if it means that Congress can direct people that joined the miitary when that power speaks of the military then it must mean that it can do so to citizens in general when it is broadly granted without reference to a specific arena]).

              1. Nothing about this is true. No one intended their to be a limitless federal government. If they had intended that, they wouldn’t have written most of the document.

                There is nothing ambiguous about the context. They never conceived of or intended what you and liberals like New Mexican want. You just find a definition that suits your purpose and try to cloud the debate as much as possible.

                1. If they had intended that, they wouldn’t have written most of the document.

                  Solution: ignore most of the document.

                  Here’s the abridged version:
                  General welfare… regulate commerce… necessary and proper.

                  There. Unlimited power.

              2. in any other context the word direct entails the right to order people under the authority of the director to engage in activity (this is evidenced in the Constitution itself when Congress is given the power to regulate the armed forces, certainly they can direct them to engage in activiy [and don’t argue ‘but you have to join the military before they can do that1’; we are arguing about what the word ‘regulate’ means; if it means that Congress can direct people that joined the miitary when that power speaks of the military then it must mean that it can do so to citizens in general when it is broadly granted without reference to a specific arena]).

                But MNG, there is reference to a specific arena: commerce. Congress is granted the right to regulated people once they have chosen to engage in (interstate) commerce. They don’t enter “under the authority of the director,” in your words, until they do so.

              3. then it must mean that it can do so to citizens in general when it is broadly granted without reference to a specific arena

                No it does not. There are complete separate enumerated powers that allow Congress to maintain both an Army and a Navy. Those “raise” and “maintain” powers entail construction. “Regulation of the land and naval Forces” does not entail construction, as the power to construct was defined elsewhere.

                I fail to see any substance to your argument that Regulate = Direct = Dictate = Force the Creation Of.

          2. And you apparently believe that the Constitution only exists as a structure for setting up three branches of Government. The unlimited authority of those three branches over the States and their citizens respectively, is just a given, regardless of concepts like Enumeration and the 10th amendment.

          3. The text is clear. The context just makes it crystal clear.

            Where you have to stretch is in applying it to intrastate commerce and non-commerce. Taking it as a power to force activity isn’t even a stretch, it’s pure invention.

    5. “But if someone had the authority to regulate the recreation of others they could certainly order them to engage in some form of recreation”

      LOL

      So you’re trying that nonsense again, eh?

      No, they certainly could not.

      1. “No, they certainly could not.”

        You have to love Gilbert. His argument is always the same: “no, you are wrong.”

        Hella of an argument there Gillie.

        I might point out that the almost uniformity of failure to offer up actual counter-arguments other than versions of “no, that’s not right!” points the tenous nature of the position of this stance.

        1. You have’t actually made an arguement. You simply repeat assertions that you have not and cannot prove.

    6. “you can argue that the economic activity regulated is the decision ”

      And you’d lose that argument.

      1. a decision isn’t commerce. An transaction made based on that decision is. If the decision was to not take any action at all, then there was no commerce

        commerce != decisions
        The clause doesn’t fucking say “regulate commercial decisions” it doesn’t fucking say “regulate commerce-oriented Behavior”

        It just fucking says “commerce”. That is the only direct object of that transitive verb “regulate”, when the fuck are you idiots going to get that through your thick skulls?
        No wonder MNG is a libertarian, he doesn’t even fucking understand English.

        1. MNG is not a libertarian; he believes the health-insurance mandate is kosher.

          Though I do think he has some grasp on property rights, for the most part…

    7. Put it this way:

      Congress only grants people power to regulate people who are active in interstate commerce markets in some way. It cannot extend it’s power to regulate those markets to people outside the markets.

      In particular is cannot aggregare no-purchase decisions as a means to extend it’s power. To do so would mean that BOTH purchasing AND not purchasing a product makes you active in a market. Which would mean that we’re all, simultaneously active in all markets for all products. Which would be a power of unlimited scope.

      It’s not all an indistinguishable mush of activity. Some people are participants in a market and are the proper subjects of regulation and some people are NOT.

  8. Even in Sam Johnson’s dictionary at the time regulate was defined as “to direct.”

    Direct includes the power to tell people to go do something as well as how they do something they are already doing. To have the power to direct is the power to tell all those under the authority of the director to do x y or z. In any other setting this is uncontroversial. Somehow this word used in a federal document somehow morphs its meaning on this one occassion for opponents of Obamacare who argue on the activity/inactivity distinction.

    And then they have the nerve to wax eloquent about the plain text!

    1. Could it mean that? Sure if uber liberals like you and NM had written the document, it would have meant that. But context matters. And in the context of creating a balanced federal system with a limited federal government, there is no way it means that. Again, to believe your interpretation is to believe that the founders spent an entire Constitution creating a limited federal system only to go “psych” by inserting a limitless commerce clause. And that defies credulity.

      1. “General Welfare” = Enumerated powers + anything else.

        Remember kiddies, enumeration was done only to provide a skeletal framework. You know, just some examples of what a Congress with unlimited power over your every action might chose to do.

        1. That is right. There was apparently no grand bargain at the convention. The Federalists got everything they wanted and even some things they never dreamed of asking for. It just took us 235 years to figure out that is what happened.

      2. MNG’s spininngs about the Commerce Clause are irrelevant.

        The writngs of James Madision made the meaning of the Commerce Clause quite clear and it isn’t remotely close to anything MNG says about it.

        1. It does. And you don’t even have to read Madison. All you have to do is understand the historical context of the document to know that there is no way it means that.

          1. But don’t you remember? Thanks to MNG’s Scalia quote, we now know that context doesn’t matter because we can superimpose any interpretation we like on events without limits. The founding fathers were communists. Malcolm X was a Protestant reformer. Betsy Ross was an animal rights activist who dressed as a tiger to protest dadaism. Wheeee!

    2. “Direct includes the power to tell people to go do something as well as how they do something they are already doing”

      Nope – you are wrong again.

      “To have the power to direct is the power to tell all those under the authority of the director to do x y or z.”

      And wrong yet again. Citizens aren’t under the authority of any “director”. You’re just peddling circular logic.

    3. “And then they have the nerve to wax eloquent about the plain text!”

      You have yet to demonstrate any vailidty to your creative interpretation of the plain text.

    4. MNG: “Direct includes the power to tell people”

      Wait, wait, wait. By that definition of regulate, “regulate commerce” in the commerce clause becomes “direct commerce”, but somehow you translate that into “direct people”? Please provide me with a link/reference to a dictionary that says commerce =people. Go ahead, I’ll wait.

    5. To have the power to direct is the power to tell all those under the authority of the director to do x y or z.

      I said it above, but one more time, for emphasis: we’re not “under the power of the director” until we engage in commerce. They can regulate commerce, therefore they can direct commerce, therefore they are the directors of commerce. None of that makes them the director of noncommerce.

    6. OK MNG, direct what? Commerce?

    7. What was the Sam Johnson’s definition of “direct” at the time?

    8. Let’s use your word direct and assume that Bob has the authority to direct traffic. Now, some people are and some people are not currently driving right now. So, everyone has an effect on traffic. By your reasoning, Bob has authority over all people — those in traffic and those not in traffic. And, because Bob can make any rules he wants — so long as he is regulating people in traffic — he doesn’t have to stop at making traffic related rules. He can dictate that everyone wear funny hats or talk in Pig Latin.

      Of course, this is an absurd plenary grant of authority. When we give someone the authority to regulate traffic, we give that person authority over people who are actually driving. More specifically, they are allowed to regulate the traffic itself, so non-traffic activities would be off limits to Bob.

      1. I should have said, “so long as he is regulating people who are affecting traffic, which is everybody.”

  9. health care is unique because it is expensive, everyone needs it at some point yet cannot confidently predict when, and federal law requires hospitals to treat people regardless of their ability to pay

    Seems we oughta mandate *funeral* insurance, too.

    1. People need to take a shit. Why not mandate shit insurance?

      1. Thought we have Activia to regulate *that*.

        1. We need a law to make people criminals if they do not purchase Activia!

          1. ** checks districts where Activia is manufactured and distributed **

            OK!

  10. An all-encompassing Commerce Clause that authorizes any mandate, restriction, or prohibition aimed at behavior that might affect interstate commerce (subject to specific limits such as those imposed by the Bill of Rights)

    Do the current set of CongressCritters and the current administration even concede that the power of the Commerce Clause is limited by the Bill of Rights?

    1. What is this “Bill of Rights” of which you speak?

      Sure, our Commerce Clause power may not be exercised to infringe on abortion. But, offhand, I can’t think of anything else.

  11. This wolf in sheeps clothing want s to control every aspect of our lives. Since day one, I commented to my friend that EVERYDAY there is something new put to us, some intrusion, some restriction!!!!
    He thinks that he is a king!! Thank God that this court slapped him down.
    Now, let the Supreme Court do the same. Then thiws loser can golf forever and get the He** out of our lives!!!!

    1. I wonder what you must be doing that you feel the current president has intruded in your life so much.

      The only differences I notice currently are my taxes are lower and I have more anxiety over the economy the Republicans destroyed.

      But maybe you’re in a jurisdiction where Obama’s oppressive assault on personal lives is more pronounced.

      1. Yawn. You sound exactly like a GW Bush defender. Funny that.

        1. Day late and a dollar short. I bellycrawled my way underneath that particular bar when I defended His undeclared war on Libya.

      2. I’ll admit he hasn’t affected our likves that much… yet. Remember, this stuff kicks in more after 2012.

        But when CAT (the bulldozer company), says they’re going to be fucked by this legislation, CAT, one of the few remaining large manufacturers in this country, MAYBE YOU SHOULD FUCKING LISTEN. We have to manufacture SOMETHING Tony, we can’t have a nation of lawyers, accountants, and starbucks baristas

        1. They’re complaining because the law reduces their tax deduction for their retiree healthcare program. That will cost them money and it may even be bad policy, but it seems to me that the best thing we can do for that business and others is to have economic demand for manufacturing things. How about an infrastructure program?

          1. from what I remember they said they could go bankrupt and had the numbers to prove it

            1. If they are relying on government favors to be profitable then maybe they are bad at capitalism and should fail. But I’m willing to entertain government subsidies to keep construction companies afloat in a bad economy.

              1. No you idiot, they are trying to get the government to leave them alone. Just like most of the rest of us on this board. Trying to stop someone from screwing you is not the same as relying on a favor.

                Stupid Statist fuck

                1. They are complaining about reductions in a tax deduction. Know what you’re talking about, please.

                  1. Lets’s see if I got this straight. They spend money on people that no longer work for them. The government, in it’s infinite knowledge, decreases the amount of money that they wil seize from the company because they approve of this behavior. However, now the government decides that need more money to fund whatever dubious endeavor they now want to fund (or just spread the wealth around) and the company wants to know why this no longer a preferred behavior. And this is not being good at capitalism? This trying to play a rigged game with the government changing the rules. How will these retirees have their healthcare paid for if the company goes out of business?

                    1. Unicorns.

                      That’s what will solve all of their problems.

                      Unicorns.

      3. Tony, don’t be disingenuous. You and I both know that the Republicans AND the Democrats share the shit sandwich that is our economy. The Dems had control of both houses for 4 years and the Presidency for 2. It’s well past the time that you can claim only one party responsible.

  12. The problems with the Commerce Clause don’t have so much to do with what “regulate” means, as they do with the Court’s decision in 1942 to, essentially, delete the words “among the states” from the Clause, and to replace the word “commerce” with “the economic life of the nation”.

    According to the Supreme Court, the Commerce Clause is “regulate the economic .”

    From Wickard:

    “But even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.'”

    “The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.”

  13. MNG I gotta say you’re way out of line here

    yes, telling your kids to play some game is not “regulating” their recreation, it’s telling them to do something.

    You’re ignoring the necessary conclusion of your line of reasoning, which would be that that one tiny little clause grants congress literally absolute power, which it clearly does not. If the power to “regulate commerce” involved the ability to MANDATE that someone DO SOMETHING even when THEY ARE NOT ENGAGED IN COMMERCE, then congress has the power to mandate anything.

    Nobody’s reading anything into the constitution. It’s just basic semantics. Telling someone to do something who wasn’t doing anything before is TELLING SOMEONE TO DO SOMETHING, that is absolutely SEPARATE from REGULATING AN ACTIVITY. Yes, this is the way the word is colloquially used.

    Indeed, genius, look at the basic grammar. “Regulate” is a TRANSITIVE VERB, you have to regulate SOMETHING. There needs to be a SOMETHING there to regulate in the first place if you indeed want to regulate something. What libertarians are framing as an activity/inactivity distinction is indeed endemic to the word. I don’t know if I’d frame it like that, but the general concept is there and is valid.

    I could see how MAYBE very LOOSELY in conversation someone may ACCEPT the use of the word in the way you say, but in the linguistically-exacting context of LAW, or “technically…”, I can’t imagine anyone who would accept that loose use of the word.
    It’s not like someone people would ask some guy to be a ref in a pick-up game or a poker game or something, then when they stop playing, if said selected guy tells them to keep playing when they want to stop, they’ll be like “whoops, we made him the ref, I guess we have to listen to him” That’s not how it works.

    Similar analogies could be drawn in the workplace with managers and employees. I could imagine someone being a dick and then pissing everyone off by making them do things in the relevant task, even when work is focused elsewhere by a more recent mandate of the higher-up boss or work is essentially finished on a task. And maybe someone would retort “He asked you to MANAGE __ACTIVITY X___ not to boss us around at all times”.

    I mean I get that words are inherently vague, and no word has any ABSOLUTE exact meaning, but the interpretation we’re being asked to buy would really have anything mean anything, and lead to some really stupid linguistically-justified dictatorship. Frankly, it reminds me of the word games libertarians play. Also reminds me of the guy who mocked post-modernism by making a computer program that would generate post-modern articles that actually managed to get published.

    1. “Regulate” is a TRANSITIVE VERB, you have to regulate SOMETHING.

      Indeed. According to Wickard, that something is “that which exerts a substantial economic effect on interstate commerce”, and specifically includes regulations to “stimulate” commerce.

      Honestly, I don’t think its much of a stretch under the Commerce Clause as de facto amended by SCOTUS in 1942 and applied ever since.

      1. there still needs to be commerce in the first place to regulate

        NOTHING can’t possibly exert a substantial economic effect in aggregate. If that were so, then we’d be affected to death with all the nothing. How could the world get along with all that nothing affecting us so deeply all the time?

        Or maybe nothing isn’t anything isn’t nothing and so can’t have any aggregate affect at all, or even individual effect… since it’s nothing.

        1. *Or maybe nothing isn’t anything and so can’t have any aggregate affect at all, or even individual effect… since it’s nothing.

  14. Should be quite interesting to see how that all turns out. Wow.

    http://www.anon-tools.int.tc

  15. the word “regulate” does not imply the right to also dictate. These are two separate things. If the clause said “regulate commercial BEHAVIOR” then that would be broad enough that MNG would be right. But to have only “commerce” as the direct object of “regulate” would necessarily require that there be commerce in the first place to regulate.

  16. Making a tax penalty out to be “compulsion” is a bit of a stretch of the English language as well. If you don’t want to be insured, pay the higher tax. Nobody is guaranteed a certain tax level.

    The difference between acting and not acting has been dealt with well, and is not a convincing argument.

    Maybe someone more familiar with the relevant legal issues can fill me in, but is the fact that a ruling leads to a potential slippery slope a legitimate legal argument? If the constitution permits Congress to compel people to buy anything, maybe that’s just a flaw in the constitution. But just because it sounds scary, which seems to be the breadth of the argument, doesn’t make it unconstitutional and doesn’t seem to relate to the point at hand.

    The SCOTUS was certainly unconcerned with slippery-slope consequences when it ruled on Citizens United.

    1. Maybe someone more familiar with the relevant legal issues can fill me in, but is the fact that a ruling leads to a potential slippery slope a legitimate legal argument?

      Good judges look for limiting principles. Good advocates try to show that their position has a limiting principle.

      Theoretically (and I haven’t seen the Solicitor General argue this point), the activity/inactivity distinction leads to its own slippery slope, namely, that it calls into question vast swathes of existing regulation.

      Hazel Meade made a case that the activity/inactivity distinction could be saved by adding a limiting principle to it a few days ago, to the effect that the activity that triggers a mandate must be substantially related to the mandate.

      1. Yeah, don’t they do that regularly in court? Not really as a normative thing but as a way to test their linguistic interpretations? That is, you look at one interpretation, but then you look at what else that interpretation would imply, and if it’s silly, you know your interpretation is wrong?

        Indeed, the most recent decision said “we cannot cabin that language…” or something like that, referring to the idea that the Obama Administration’s interpretation of the commerce clause would literally mean everything and nothing at the same time.

        1. It could be the case that Congress has broad powers with respect to interstate commerce, but in the time since the clause was written, commerce of any kind has simply become more likely to be interstate (even international). There do seem to be vanishingly few examples of commerce that don’t have interstate consequences, which is just a feature of the modern world.

          So it could be that the logic of having the national government have jurisdiction over national commerce extends to it having jurisdiction over more things, since more things are national in scope. To me, any debate on this point isn’t really about freedom–I’ve never understood why the federal government is assumed to be a greater threat to individual freedom than more local governments. It’s simply a question of jurisdiction.

          1. well Tony I was directly talking to R C Dean with regards to the regular goings on in court, since he seems to be a lawyer or something. But, with regards, to what you’re saying, what I was saying is that one way to know that your interpretation is ludicrous is that it has doing nothing as affecting interstate commerce, which would literally give Congress dictatorial power on the order of Stalin. Which IS JUST SILLY AND CLEARLY NOT WHAT THOSE WORDS MEAN.

            Not going anything isn’t commerce, interstate, having interstate effects, or otherwise.

            1. But this is why healthcare is different from other forms of commerce, and that difference is somewhat of a guard against the slippery-slope fear.

              It’s that everyone must engage in healthcare purchases at some point; it’s expected, and as a civilized society we treat people when they have emergency needs. In a real way you are engaging in interstate commerce just by having a human body. It’s exactly like mandates for auto insurance except that you don’t have the choice not to own a human body. I admit it’s not the best way to do healthcare policy (I’d definitely prefer just extending the logic and purpose of Medicare to all–which would seem to avoid the legal issues), but it is the Heritage Foundation plan, not something radical.

              1. All your verbosity can’t avoid the plain fact that not doing anything is not commerce, and therefore not regulatable under the commerce clause.

                We live in a nation of laws Tony, not men. If you want people to have absolute control without any legislative restraints, go to Burma or start your own country or something. But don’t try to pretend that words mean something they don’t.

                1. It’s not not doing anything. It’s refusing to insure against possible, even inevitable healthcare costs. We have all sorts of penalties for certain types of negligence in this country, and negligence is the definition of doing nothing. But sometimes doing nothing can even be a crime.

                  1. laws regarding negligence don’t work at all the same way and are very different

                    the fact of the matter is doing nothing is not engaging in commerce, end of story.

                    1. Quite correct.

                    2. I agree.

                      The problem arises under current case law if “doing nothing” affects interstate commerce, directly or indirectly, in the aggregate, etc.

                  2. Um, no. Negligence is not “the definition fo doing nothing”. Negligence is largely a tort principle, and has absolutely no bearing on this conversation.

          2. How exactly is growing something at my home, for my own use and mine only (which is now covered under “interstate commerce) any different from a farmer growing crops when the Constitution was written? It’s exactly the same effect on interstate commerce as it was then.

    2. Tony, you’d be right if the penalty were indeed a not-getting-a-write-off, but from what I understand that’s not how it works. You simply get charged like $1000 if you don’t have health insurance. I don’t think it doesn’t matter if you make so little that you don’t pay taxes (like if you make like $25,000), they still charge you.

      I’ll grant you there are ways to get almost the same effect with tax write-offs, and in that case it would be covered under the income tax amendment, but this isn’t that.

      1. The law does provide an increase in subsidies for people without the ability to pay. I guess, similar to the debate about activity and inactivity, I don’t see a meaningful difference between a write-off and the absence of a penalty.

        1. It’s a big deal given that congress has the power to “tax income”. If the law mandates that your rate goes up if you don’t buy health insurance, then that’s OK. If the law mandates that you add to your income on your taxes and then calculate from there, then that’s not OK because that doesn’t represent actual income. If the law is simply a fine, then it isn’t even a tax, and as discussed thoroughly, is not allowed under the commerce clause.

          Again, I’ll grant you can do almost the same thing with tax laws, but until the law is written as such (unless it already is), it’s an unconstitutional law.

    3. Every single court that has considered the question — even the courts that ultimately upheld the mandate — has rejected the claim that it’s just a tax penalty.

  17. Indeed, MNG’s interpretation is kind of loony. Wouldn’t that imply that legislation of all kinds gives government agents at all levels the power to mandate.

    A law could say that some gov. has the power to “tax” something. By MNG’s logic the taxman could then both tax said item/activity AND MANDATE THAT PEOPLE USE IT/PURCHASE IT.

    Really this would be loony tunes, because there are shitloads of different bureaucracies in various states, and they are often started with legislation that has broad language, such as the use of the word “regulate” (followed by a direct object that is the activity in question to be regulated)

    If the New Jersey Board of Realtors was set up with a law that says they “regulate real estate transactions”, does that mean they can mandate that everyone has to buy a house or a condo?

  18. COMMERCE CLAUSE SMASH!!!

  19. Times have changed.

    I’m old enough to remember when progressives would wail to the high heavens if anyone said that their position is that the government has unlimited power. Now they say it themselves, openly and with great joy.

    1. Don’t exaggerate, Sandwich. Progressives are quite clear that there are limits on government. Something about abortion. And pornography.

      1. Seriously, I am trying to understand what government CANNOT do if they can force you to buy services from privileged market actors with inside connections.

        1. We can’t make you not get an abortion.

          But that’s about it.

      2. Heh, if they’re serious about their theory on the Commerce Clause then I don’t see that the government lacks the authority to outlaw abortions. An abortion is interstate commerce, by their “seven degrees of Kevin Bacon” rule.

        1. I literally lol’d.

      3. Pah, a lot of them regard porn as misogynistic and hence a valid target for government regulation.

  20. “regulate” doesn’t even mean “direct” as MNG keeps claiming. It means essentially “make rules about”. Actually directing business, RUNNING a business in place of its managers and/or owners, would be way more invasive and controlling, and would probably be well outside of Police Power and would probably be found as such in court.

    1. That is an excellent point.

      Essentially, MNG is playing the synonym game. In some contexts, to regulate and to direct can be synonymous. But a director is sometimes also called a conductor, so direct and conduct can also be used synonymously. Conduct can also mean transmit. Therefore, Congress has the authority to transmit commerce.

      This sounds like it should be a party game.

  21. Price controls! They’ll work this time!

  22. Essentially, MNG is playing the synonym game. In some contexts, to regulate and to direct can be synonymous
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  23. Con-gress said there was a problem with medical costs. But self-same Con-gress also passed a law mandating that even those who can’t/won’t pay MUST be treated. Have the courts ever suggested they could remove the treatment mandate, and that could potentially negate the need for the insurance mandate? A lot of the costs are due to the fact that those who can/will pay are also providing subsidies to those who can’t/won’t.

    I’m not saying it’s the best solution. But the entire ‘need’ (as Con-gress sees it) is exacerbated by the original mandate.

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