Obamacare

Buyers Beware

Upholding the health insurance mandate would encourage endless meddling in our spending decisions.

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A couple of months ago, Deputy Assistant Attorney General Beth Brinkmann was standing before the U.S. Court of Appeals for the D.C. Circuit, defending the federal law requiring Americans to buy government-approved health insurance, when Judge Laurence Silberman asked her about broccoli. Specifically, he wanted to know whether a law requiring  Americans to buy broccoli would exceed the federal government's authority to regulate interstate commerce. "No," Brinkmann said. "It depends," she added. 

Silberman evidently was troubled by that shifty answer. Last week he expressed "discomfort with the Government's failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce." Oddly, he voiced that concern in the context of a majority opinion upholding the health insurance mandate. Dissenting Judge Brett Kavanaugh congratulated the majority for its candor in "admitting that there is no real limiting principle to its Commerce Clause holding." 

For the sake of our teetering federalist system, which helps preserve liberty by restricting the national government to specifically enumerated powers, let's hope the Supreme Court can locate the limit Silberman could not. On Monday the Court agreed to review an August 12 decision by the U.S. Court of Appeals for the 11th Circuit, which unlike the D.C. Circuit deemed the insurance mandate unconstitutional, saying Congress may not "compel individuals to enter into commerce so that the federal government may regulate them." 

If Congress had that authority, Judge Joel Dubina warned in the majority opinion, it would be free to dictate all manner of transactions, beginning with other forms of insurance and extending to decisions about housing, education, investing, and saving for retirement. In fact, he said, if a decision not to buy something can trigger federal intervention, provided it has a "substantial effect" on interstate commerce when combined with similar choices by millions of other individuals, "we are unable to conceive of any product whose purchase Congress could not mandate." 

Which brings us back to broccoli. Dissenting from the 11th Circuit's decision, Judge Stanley Marcus said health insurance is not like broccoli because failing to buy it imposes costs on others. Thanks largely to a federal law that requires hospitals to treat people regardless of their ability to pay, taxpayers and policyholders pick up the tab for treating the uninsured. 

By contrast, Marcus said, the rationale for a broccoli mandate is that eating more green vegetables would "improve people's health," which would in turn "improve overall worker productivity, thus affecting our national economy." He noted that the Supreme Court has rejected such productivity-based reasoning, precisely because it could apply to almost any activity. 

But that is not the only way to justify a broccoli mandate. You could also argue that the failure to eat green vegetables imposes costs on others because it makes people less healthy and therefore more likely to need medical treatment. 

That sort of argument becomes increasingly powerful as the government's role in health care expands. When the government forces you to pay for other people's medical treatment, either directly through taxpayer subsidies or indirectly by requiring insurers to take all comers and charge them the same rates regardless of health, you have a financial stake in other people's lifestyle choices, including their diets, their exercise levels, their sleep patterns, their oral hygiene, and their risky habits. 

These decisions, aggregated together, have a substantial effect on health care spending, which the Obama administration has vowed to control. Imagine the fun that Congress could have coming up with mandates aimed at coercing healthier lifestyles once it has a constitutional blessing as well as a fiscal justification. Even if it sticks to regulating purchases, the possibilities for meddling will be wide and varied, ranging from food to recreational activities. 

If you value your freedom to spend your money as you choose, you should hope the Supreme Court rejects the Obama administration's open-ended view of the Commerce Clause—no matter how you feel about broccoli.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist. Follow him on Twitter.

© Copyright 2011 by Creators Syndicate Inc.

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  1. If you value your freedom to spend your money as you choose, you should hope the Supreme Court rejects the Obama administration’s open-ended view of the Commerce Clause…

    Our liberty is completely out of our hands at this point, and we have no one to blame but ourselves.

    1. Right. When our only remaining option is to “hope,” we’re fucked.

      1. And we’re getting fucked by the same guy who we elected to give us hope.

        Serves us fucking right. Jesus, we are so stupid.

        1. the same guy who we elected to give us hope.

          “What you mean ‘we,’ White Man?”

        2. Obama is like Pandora’s box. People wanted the hope inside, but they had to release all those demons to get it.

    2. I think that if this monstrosity gets upheld by SCOTUS, then Republicans should push for a law mandating that all Americans purchase firearms just to mess with liberals. I mean it would allow us to save so much money on law enforcement, and think of all the police officers lives we’d save, and all the money we’d save on their life insurance, etc.

  2. Imagine the fun that Congress could have coming up with mandates aimed at coercing healthier lifestyles once it has a constitutional blessing as well as a fiscal justification. Even if it sticks to regulating purchases, the possibilities for meddling will be wide and varied, ranging from food to recreational activities.

    “Eat your peas, bitches.”

    1. that’s “please, bitches”

    2. You’re gonna sit there until you eat every black eyed pea on that plate!

      1. Even Jaime Gomez?

    3. I eat my peas with honey.
      I’ve done it all my life.
      It makes the peas taste funny,
      But it keeps them on the knife

  3. Dissenting from the 11th Circuit’s decision, Judge Stanley Marcus said health insurance is not like broccoli because failing to buy it imposes costs on others. Thanks largely to a federal law that requires hospitals to treat people regardless of their ability to pay, taxpayers and policyholders pick up the tab for treating the uninsured.

    So on that analysis, constitutional curbs on federal power can be easily evaded by creating a socialized cost* and then using that as the justification for a program that is otherwise unconstitutional? We are through the looking glass my friends.

    * putting to one side the constitutionality of the socialized cost, of course!

    1. Just trying to fill up the holes they’ve dug, Furry.

  4. As I have found out, eating large amounts of broccoli leads to a serious amount of gas. I have to be sure to have a dozen or more number 2 jars handy after the meal so I can jar up those farts. Saves money over Taco Bell as well.

    1. Someone actually parked a URL called “http://rctlfy.fartinajar.com/”? Seriously? Someone is obsessed.

  5. Here’s the problem:

    The ICC as twisted by progressive era and New Deal era courts really has no limit. Even the “substantial impact” limit was always a joke. The ICC is now like the War power – the Congress can declare war on anyone it likes and no one can ever have any basis for litigating it or asserting that it has a limit.

    And the problem is that to find that the ICC is not unlimited in this way – to find that the ICC does not give the Congress the unlimited power to compel what actions it wants, right down to the level of controlling every mouthful of food you put in your mouth and the amount of exercise you do daily – the SCOTUS would have to throw out the modern understanding of the ICC. Or they will have to invent yet another doctrine out of whole cloth. Do you see them doing either of those things? I don’t.

    This will be Kelo all over again. There is nothing that will not be sacrificed to protect the regulatory state. Nothing.

    1. Stop it. You’re making me hard.

      1. please pass the brain bleach

    2. This will be Kelo all over again. There is nothing that will not be sacrificed to protect the regulatory state. Nothing.

      Jesus Christ, I haven’t even finished my coffee yet and already my day sucks. I think I’ll just go punch a hippie.

    3. Fluffy’s truth is hard to take, but take it we all must.

    4. IMHO, anything other than a unanimous decision overturning the mandate, this whole republic party we’ve been having for a couple hundred years is over. Given that there is no difference between constitutional scholarship and consulting the magic 8-ball, you can guarantee that SCOTUS will do the wrong thing.

      1. So you’re saying an 8-1 decision to overturn the mandate means we live under tyranny?

        Exaggerate much?

    5. I got nothing to add here. The SG is exactly right.

      Last week he expressed “discomfort with the Government’s Supreme Court’s failure to advance any preserve the clear doctrinal principles contained in the Constitution limiting congressional mandates that any American purchase any product or service in interstate commerce.”

    6. I’ve become convinced that the only solution is a Constitutional Amendment that either repeals or restricts the ICC. It’s become the catch-all for the overbearing megastate.

      1. The court should just rule that the interstate commerce clause prohibits states from interfering with sovereign interstate transactions.

    7. There is no ICC in modern jurisprudence, there is a “Commerce Clause”. If actually proving that things are related to commerce becomes too much of a hassle, it will get shortened to just the “Clause”, the same way “General Welfare” has been shortened to “Welfare”.

      1. Agreed. There is no more overrated institution than the Supreme Court of the United States. Judicial respect for precedent is outrageous. I understand that you don’t want two different rulings in a week and need some predictability in the law, but in what other facet of society are we still holding on to precedent set 80 years ago? Grow some balls Justices.

  6. But, but … I want to believe!

    I am also hoping for the fairies at the bottom of my garden to survive the raids by dive-bombing pigs

  7. dive-bombing pigs

    “PRESENT!!!”

    1. You can’t be Joy Behar ’cause that’s actually funny.

  8. You do your best to keep your children healthy, but sickness and accidents are a part of life. Getting health insurance for your children gives you peace of mind knowing they have health coverage when they need it. Search one the web “Penny Health” for kids they are the best.

    1. I’m sure sickness and accidents will be legislated out of existence soon.

      1. You can’t even begin to contemplate how significant an impact sickness and accidents have on interstate commerce.

  9. The Scotus decision will be 5-4. There will be 2 additional concurring opinions. There will be additional concurring opinions to the dissent. In other words, SCOTUS will completley abdicate their responsibility as a check of federal power and we will end up with an opinion that does not tell us where the federal limits end.

  10. Judge Stanley Marcus said health insurance is not like broccoli because failing to buy it imposes costs on others.

    Not necessarily. As Confucius said: “No tickee, no washee.”

    1. How does failing to buy broccoli not “impose costs” on those in the broccoli production and sale business?

      1. It does, but there is no law requiring them to produce broccoli.

        1. Yet.

  11. Someone did a drive by shooting on a government building in Washington, District of Criminals. It is not yet known if the weapon came from Eric Holder’s Fast and Furious program.

    http://news.yahoo.com/secret-s…..55176.html

    1. “Isreal” tattoo! OMG! False flag operation! JOOS! HISPANIC JOOS!

      1. JOOOS!!!11!!!

      2. Seriously though, the last thing any of us should want is for Barack Romneybama to become a martyr. I would vomit if I saw an “eternal flame” lit in this asshole’s honor. I want him voted out of office in disgrace. Preferably with Ron Paul as his replacement.

        1. I’d rather he be kicked out (although I know there’s no way it will happen). It grates my cheese to think that I’ll be working the rest of my life to pay his fucking pension, that he “earned” doing his part to destroy Western civilization.

          1. I think even Nixon got one, didn’t he? Maybe because he served one full term. That and he resigned rather than being impeached and literally removed from office.

        2. I would vomit if I saw an “eternal flame” lit in this asshole’s honor.

          The trick is to hold it until you can vomit on the eternal flame.

          Get enough gooey, half-digested pizza remains on the little zapper thingy and you can keep it out for hours…and then complain about the release of unburned hydrocarbons in to the precious atmosphere of Mother Gaia.

      3. JOOS! HISPANIC JOOS!

        Well… that’s got me beat, dammit.

        1. But not Heraldo Rivera.

    2. Police believe the suspect, 21-year-old Oscar Ramiro Ortega of Idaho, is mentally ill. […] U.S. Park police say Ortega may have spent time blending in with Occupy D.C. protesters.

      Some substances just seem to blend naturally, don’t they…?

  12. I’m still waiting to hear the Lefties explain how this wouldn’t apply to abortion.

    They should warm up before doing those verbal gymnastics. They could pull a muscle.

    1. because the single purpose of the bill of rights are those penumbras protecting abortion?

      1. What – no love for the “emanations” as well?

        1. One of Motown’s most versatile singing groups.

  13. Dissenting Judge Brett Kavanaugh congratulated the majority for its candor in “admitting that there is no real limiting principle to its Commerce Clause holding.”

    They sawed the lady in half, right there on the stage; it would be impolite not to clap.

  14. the last thing any of us should want is for Barack Romneybama to become a martyr. I would vomit if I saw an “eternal flame” lit in this asshole’s honor. I want him voted out of office in disgrace.

    I’ll be right over here, wiggling my fingers.

    1. I was thinking in terms of the future. JFK is remembered primarily for two things – the Bay of Pigs and a president who was shot in Dallas. Psychologically people have a tendency to idealize him precisely because he was shot. The Bay of Pigs on the other hand was a complete failure.

      1. Cuban Missile Crisis.

        1. Boffing Marilyn.

          1. PT-fucking-109! Cliff Robertson! Medal of Honor! Or something!

            1. Yeah, he managed to get rammed by a boat which had only a fraction of the speed of his own boat. That’s some damn fine Captaining, let me tell you!

              1. Yep, any naval officer with a father not named Joe Kennedy would have had his career go down in flames.

      2. AKA “The Red Dwarf Hypothesis”

      3. Having a gay middle name.

  15. So it sounds like the only way to live a happy life anymore is going to be to rewire your brain to accept these rulings as the absolute right thing. How could we ever second guess the righteousness of the government?

    I love Big Brother! I love Big Brother!

  16. Whenever Wickard, Reich, or any other decision granting intrusive commerce clause power is threatened, the left will always retreat to the haven of race.

    In a desparate attempt to preserve their ability to strongarm the citizenry to their wishes, they will warn of the return of ‘Whites Only’ signs if the federal government is not allowed to regulate discrimination through commerce.

    The prospect of the states outlawing discrimination will not be mentioned, nor will the prospect that the 14th amendment requires the states to ensure the equal treatment of their citizens.

  17. Why only spending decisions? Wickard v. Filburn and Raich didn’t involve spending. Your reading of the Commerce Clause is far too narrow.

    1. You say that like it’s a bad thing.

  18. This is a good opportunity to wipe off clean all the commerce clause horseshit.

  19. For those who can handle the truth: If you are a United States citizen, you are fucked. You are not protected by the Constitution, per th SCOTUS Hooven Decision. Article 1, Section 8 – “To excercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding Ten Miles square)…” The Hooven decision said that Congress has total control over the District of Columbia and everyone in it. Per Black’s Law Dictionary, D.C. is also known as the United States, and if you’re a citizen of the United States, Congress has total control over you. The U.S. military is an example. Soldiers and sailors are not protected by the Constitution. By conning us into signing up for Socialist Security, and checking the box that says we are a U.S. Citizen, we give Congress total control over us. That’s why the drug war doesn’t need a Constitutional amendment, but the war on booze did. We’ve been fucked for a long time

  20. I have a better analogy. Suppose the government wanted to regulate the energy market to reduced greenhouse gas emissions.

    And suppose they chose to do so in a way that was designed to make solar energy the dominant energy source.

    Under the commerce clause, could they then require individuals to purchase solar panels and have them installed on their roofs? After all, failing to buy solar panels will result in greater greenhouse gas emissions, which means you are imposing costs upon society.

    I think under the reading given the law by the mandate’s supporters you would have to say yes.

    It’s irrelevant that one might wish to buy your electricity from wind or nuclear or geothermal instead, because the healthcare law similarly bars individuals from buying minimal coverage or from self-insuring if they have sufficient cash or assets to do so. The law doesn’t *just* stop you from imposing costs on others. It’s actually designed in a way that makes you spend more than you really need to in order to cover sicker people.

    I think my analogy is much more apt than the brocolli examples, and also fairly politically plausible. If congress can impose purchase mandates, the idea of a solar panel purchase mandate isn’t a ludicrous stretch of the imagination.

    1. While I agree that your analogy is much better, it fails in that it provides what they would see as a superb idea. This wouldn’t be something you’d present to show the absurdity of their position.

      1. A better example would be asking whether this means the government could require us to buy a new car from Government Motors every three years.

        1. Everyone will need to go somewhere at some point, and by not buying a car, you force us to provide a taxpayer funded bus, making this a totally unique sector of the economy. And left to your own devices, you probably would buy only a compact when we know that you will really need a Tahoe.

  21. Commerce-clause justifications get knocked down when they rely on “secondary effects” on interstate commerce (e.g., crime).

    Thus violence against women and guns near schools, having no DIRECT effect on interstate commerce (only a secondary impact at most) have not satisfied commerce-clause scrutiny.

    By contrast, commerce clause justifications NEVER get knocked down when they involve ‘direct’ or ‘primary’ effects on interstate commerce however small. Thus, the proverbial bale of hay or home-grown medical marijuana plant, miniscule as they are in the scheme of interstate commerce, are within the ambit of the commerce clause because they have a tiny-but-direct effect. (Wasn’t always this way — used to have to pass a constitutional amendment just to ban alcohol).

    The Supreme Court is going to have to do something “unprecedented” one way or another. It’s going to have to take the “unprecedented” step of allowing purchase mandates in the commerce clause, or it’s going to have to take the “unprecedented” step of saying that purchase mandates are unconstitutional, even if lack of purchase has a very substantial effect on interstate commerce, and even if the lack of purchase will utterly wreck a big primary legislative regime of control over a massive component of interstate commerce (viz., medical insurance).

    Which one of these two “unprecedented” paths the majority of the court will choose is open to conjecture, but, either way, new law will be made in bold, large strokes.

  22. Having a gay middle name.

    Fenimore?

  23. Buh buh buh but the slope! It’ll get so slippery!

    1. We’ve gone from going through a metal detector to getting our genitals patted-down in a few short years. Slippery indeed.

  24. D.C. is also known as the United States,Congress has total control over you.

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