Obamacare

Don't Worry: Congress Can Make You Buy Broccoli, but You Don't Have to Eat It (Maybe)

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The other day, Peter Suderman noted the tendency of ObamaCare's defenders to insist that its constitutionality is beyond question, even though the policy of forcing Americans to buy government-approved health insurance is unprecedented and judges (including a Democratic appointee who voted to overturn the law) have come down on both sides of the issue. While the Supreme Court seems to think ObamaCare's opponents have raised arguments that need to be addressed, many supporters of the health insurance mandate (but not all) prefer to pretend there is no real controversy. Writing in The New York Times, Harvard law professor Einer Elhauge offers a fresh example of this genre, claiming that ObamaCare must be constitutional because Medicare is.

Leaving aside the question of whether Medicare actually is authorized by the Constitution, there is little doubt that the current Supreme Court would say it is, based on a long line of decisions that have expanded the power of the federal government beyond anything contemplated by the Framers. Elhauge says forcing Americans to buy medical coverage from private insurers is essentially the same as making them pay for Medicare. But the Supreme Court might well conclude that making people buy a product or service from a private company—something that Congress has never tried to do before—is fundamentally different from taxing them to fund an entitlement program. Aside from the public/private distinction, Americans are required to pay for Medicare, but they are not required to enroll in it. By contrast, the health insurance mandate demands that people obtain a minimum level of coverage but does not necessarily require that they pay for it (since the mandate can be satisfied by employer- or government-provided insurance). Furthermore, Medicare taxes current workers to cover the medical expenses of current retirees, whereas private insurers collect premiums to cover the medical expenses of the people who pay the premiums. In the latter case, people are paying for a service; in the former case, they are not really buying anything. 

If Elhauge's Medicare analogy is not the ironclad argument he thinks it is, the Commerce Clause conclusions he draws from the program's presumed constitutionality are downright alarming. Instead of grounding Medicare in the power to collect taxes, he portrays it as an exercise of the power to regulate interstate commerce. Why? Because paying Medicare taxes is "a condition of entering into a voluntary commercial relationship, namely employment." That means "Congress can mandate the purchase of health insurance as long as it conditions that mandate on engagement in some commercial activity," which "is effectively the same as the mandate, because it is hard to believe that anyone in this nation has never bought or sold anything in his life." So according to Elhauge, if you buy a pack of gum, you thereby authorize Congress to make you buy health insurance.

Since the Supreme Court has allowed Congress to regulate intrastate economic activities when they have a "substantial effect" on interstate commerce, Elhauge argues, "a statute saying 'anyone who has engaged in any activity that affects commerce must buy health insurance' would clearly be constitutional." Although the "substantial effects" doctrine is perniciously permissive (and should be abandoned for that reason), it is not quite as malleable as Elhauge implies, since the regulated activity itself has to affect interstate commerce. Hence the Court has said Congress may stop people from growing wheat or marijuana for their own consumption because such cultivation, when aggregated across all the people engaged in it, substantially affects the interstate markets in those commodities. It has never said that growing wheat or marijuana makes people subject to federal regulation in areas completely unrelated to those activities, which is what Elhauge seems to be suggesting.

Elhauge does not shrink from the implications of his argument. If you engage in any activity that affects interstate commerce, he says, Congress has the authority to make you buy not just health insurance but anything it thinks you should have, including broccoli:

That certainly sounds like a stupid law. But our Constitution has no provision banning stupid laws. The protection against stupid laws that our Constitution provides is the political process, which allows us to toss out of office elected officials who enact them. This is better than having unelected judges decide such policy questions, because we cannot toss the judges out if we disagree with them.

Is there any limit to what Congress can do in the name of regulating interstate commerce? While forcing people to buy broccoli is clearly constitutional, Elhauge says, forcing them to eat broccoli "would be likely to violate bodily integrity and the right to liberty." So "the right to liberty" may include decisions about what you consume (a point that Congress seems to have overlooked when it formulated our drug laws), but it does not include decisions about how to spend your money. I would ask about the basis for this distinction in the text or historical understanding of the Constitution, but Elhauge clearly is unconcerned about such matters.

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    1. Link contains malware.

      1. Rectal is malware incarnate.

        1. We ignore it, regardless.

          1. reason.com 5,517
            right bitches

            1. 5517 total, or by unique IP? Either way, L-O-FUCKING-L!

              1. Hmm, I don’t do IP but visits from individual cities. The above is Reason from my own link here.

                Hmm, what city do you live in? 😉

    2. tyranny without liberty is 0bamacare

  1. This is off-topic, but the follow-up on the story about the kid who turned in his parents for weed said the stepdad had 8 pounds and that he used it to relieve pain. 8 pounds? I’m not buying it.

    1. “Officers found more marijuana, drug paraphernalia and a black digital scale inside a vehicle and an RV camper on the property.”

      I guess he needed the scale to get the dosage right.

      For the record, I am for the legalization of all drugs, but I know bullshit when I see it.

      1. What is the bull shit?

        The kid should be strapped to Jerry Sandusky for life. His biological father should be made to watch. The father’s snitching is FAR, FAR WORSE than Jerry taking showers with the boys.

        1. The bullshit is that he claimed he had no intent to distribute.

          Again, I am for the legalization of all drugs and unlike you, not a proponent of cruel and unusual punishment, doubly so when it is a pre-teen who rather than breaking any laws, simply exercised poor judgment.

          I don’t think the word ‘Liberty” means what you think it does, Mikey.

          1. You have no verifiable information / facts that the step-dad indeed had an intent to distribute as intent can not logically be inferred from the allegation that he had 8 pounds.

            I know people who do have that much on hand for personal use.

            Liberty means no DARE programs and no state propaganda being pushed on kids to cry to daddy cuz mommy and step daddy like their weed.

            An 11 year old kid who cries to daddy as this kid did is an indicator that the kid is nasty.

            Cruel and unusual punishment?

            1. He had a fucking scale. It is possible that in my younger years I too had a scale as did other people with whom I was allegedly engaged in shall we say, commercial intercourse and I know god damned well what it was used for.

              1. So, “it [was] possible” that you had a scale back in the day?

                “Possible”? Great factual foundation upon which to asseverate that this guy’s defense is bs?

                1. It is possible that you have deep comprehension skills…

                  1. So I’ve been told…………

              2. What the fuck does having a scale have to do with anything? I have a god damn scale, and I don’t even do any illegal drugs.

        2. The father’s snitching is FAR, FAR WORSE than Jerry taking showers with the boys.

          Yes, snitching on someone you believe (rightly or wrongly) to be committing a crime is worse than forcing yourself on a small child. Way worse.

          1. Yes, snitching on someone you believe (rightly or wrongly) to be committing a crime is worse than forcing yourself on a small child. Way worse.

            I hope Libertymike is never EVER left alone with children. Ever.

            1. Paul shows he’s comfy being a statist slaver.

              1. Don’t argue “liberty” with a guy who has it in his fucking handle.

        3. Mike, get the hell off my side.

          1. I’m pretty sure even the Lewbertarians don’t want LM on their side.

            1. Prove it, slaver.

    2. This is off-topic

      I’m pretty sure you no longer have to announce that.

  2. This is better than having unelected judges decide such policy questions, because we cannot toss the judges out if we disagree with them.

    So what exactly is the purpose of the Supreme Court in this guy’s opinion? If a law is popular enough with the people, there is a process to get around it called amending the Constitution. Maybe he has heard of it.

  3. forcing them to eat broccoli “would be likely to violate bodily integrity and the right to liberty.”

    “Likely”? So he’s on the fence about whether he thinks the government can force you to eat food you don’t like? Or he thinks they should go there eventually, but the electorate isn’t passive yet to make that argument?

    1. He had to contort the law and basic common sense to such a ridiculous extent in order to defend Obamacare, that he has to leave himself some wiggle-room to defend the constitutionality of any law that actually does mandate something like ‘eating broccoli’… a leftist shill.

      1. This is where our legal system is right now. Inventing shit out of whole cloth and trying to make it so complicated that us lay-dumbasses can’t understand it.

  4. “Americans are required to pay for Medicare, but they are not required to enroll in it.”

    That’s not entirely accurate:

    http://forhealthfreedom.org/Pu…..lment.html

  5. But by not eating the broccoli you have a substantial effect on your caloric intake which has a substantial effect on the other foods you will need to purchase. Also a substantial effect on your health, which is apparently the government’s business now (as long as it doesn’t involve a uterus).

  6. Shorter Elhauge: derp!

    1. derp!

      Ha! Funny!

  7. Man, the framers were stupid as hell. Here they went through years of acrimonious debate to craft a document which very carefully restricted government power, only to let slip one line that effectively grants an unlimited power to force everyone to buy anything! Talk about a faux-pas!

    1. If the commerce clause weren’t there, they’d be arguing that the power to coin money gives Congress authority to do whatever they want.

      FDR wanted the New Deal to stand, so did the population at that time, so a way was found to justify it.

      1. And if by some strange reason they couldn’t find a vaguely credible way of justifying it, they probably would have just scratched the entire document.

      2. If there were no Commerce clause, they could still use the Good n Plenty clause, right?

  8. “…even though the policy of forcing Americans to buy government-approved health insurance is unprecedented.”

    I’m on the record here railing against ObamaCare–for years–but the government does already require people to buy liability insurance for our cars.

    I’m also on the record–here at Hit Run–railing against the government requiring us to buy auto/liability insurance.

    However, considering that there are so many states that require people to buy liability insurance when they drive, I’m not sure we can call the ObamaCare individual mandate “unprecedented”.

    Requiring people to buy something just because they’re driving and requiring people to buy health insurance just because they’re alive are two different things. But I’m not sure “unprecedented” is the right word here.

    1. ….

      However, considering that there are so many states that require people to buy liability insurance when they drive, I’m not sure we can call the ObamaCare individual mandate “unprecedented”.

    2. ken,
      liability insurance is protect others from your doing something stupid while driving. In choosing to drive, you have agreed to do so responsibly and that the rest of us have some protection if you violate that agreement.

      1. No.

        I am not responsible for insuring your property for you.

        If you want to buy insurance to protect your property from uninsured drivers, there’s no law against you buying that.

        I am not obligated to pay to insure your car for you. Just like I am not obligated to buy you health insurance.

        Driving is an inherently risky activity, and if you choose to take your car out into the street without insuring it against uninsured drivers, then that’s your choice.

        That’s the risk YOU take. Not me.

        1. You don’t have to buy insurance for your car as long as you don’t take it on the public way.

          If I don’t drive my car on the public way, I don’t have to insure it. I can do doughnuts in my back yard with no insurance all I want.

          1. I’m not responsible for insuring your possessions for you–no matter where they are or where I go.

            If I can’t pay for your damages, and you want to sue me? That’s fine.

            But I am not responsible for insuring your car for you.

            By the way? If you’re not buying insurance for an uninsured motorist? You’re not really covered anyway.

            It’s all a big power grab by the insurance industry to compel people to buy more insurance–once again with the poor really taking the hit.

            It’s just like the individual mandate with ObamaCare. I’m not responsible for insuring your car–I’m insuring mine.

            We’re all responsible for our own stuff. Not for other people’s.

            People have been brainwashed into thinking that other people are responsible for insuring their property for them–even when they take their property out and drive, which is an inherently risky activity.

            If you don’t want anything to happen to your car? Leave it in the garage. Don’t try to make me other people buy your insurance for you.

            1. Wrong. If you cause damage to someone or their property then you ARE responsible for making the person whole. Requiring you to carry liability protects your victim from you in case you are unable to make them whole. What if you ran into someone and left them paralyzed and you were uninsured? Do you personally have enough to compensate your victim? Would you want your victim to leave you and your family penniless because you foolishly didn’t want to buy insurance? If you had nothing and destroyed someone’s life and had no insurance, how would your victim be made whole? You CLEARLY don’t understand the purpose of auto insurance nor the difference between it and health insurance.

        2. “I am not responsible for insuring your property for you.”

          Nope. Unless you want a license from the government to drive on its roads, that is. But I suppose you’re right — we could just require a $50,000 security deposit from people that don’t buy insurance before giving them a license. That would be fair.

          1. Is there anything else I’m obligated to buy for you?

            Or is auto insurance the only thing?

            P.S. Buy your own insurance.

            1. You’re a damned idiot. If YOU wreck my car YOU are responsible, not me.

    3. States have much broader powers than the federal government, legally speaking. While I don’t think that’s right, either, there’s at least a legal basis for the state action.

      The federal government only has the power because it’s usurped it. The Constitution wasn’t drafted to include anything remotely like this kind of power, nor has it been amended to allow such things. All power usurped right in front of us by the government itself.

    4. “but the government does already require people to buy liability insurance for our cars.”

      Nothing easier. Do not buy a car.

      1. Not even true. It’s even easier than that. You can own a car without insurance. Don’t drive on public roads.

        1. It’s even easier than that!

          Insure your own damn car against uninsured drivers–and stop using the coercive power of government to force poor people to insure your car for you.

          Just because poor people can’t afford to insure your car for you–is no reason why they shouldn’t have the same right to drive as anyone else.

          1. Keep your car on your own property.

            Walk.

            See? There are easy solutions available if you don’t want to get insurance.

            Just because poor people can’t afford to insure your car for you–is no reason why they shouldn’t have the same right to drive as anyone else.

            Sure it is.

            I would argue that the only real violation of anyone’s rights going on with regard to the public ways are the laws prohibiting being a pedestrian on an interstate.

            The public ways should be open to all citizens, and every citizen should have a right to walk on all public ways – a right they enjoyed without interruption up until around the late 20’s.

            But if you want to drive around a ton of metal at high speed on those public ways, that’s something you’re undertaking above and beyond your basic right to walk on our public ways. And before you do that you get to indemnify all other citizens against the chance that you might smash some shit up with it.

            1. I have no obligation to insure your car for you.

              You’re responsible for your own house against fire too. Even if your next door neighbor smokes in bed, your neighbor isn’t responsible for insuring your house for you.

              If you don’t want anything to happen to your car? You should keep it off the road.

              Not prohibit other people’s freedom to drive. Not use the coercive power of government to force other people to insure your property for you.

              If you don’t want to insure your own property, then you can choose not to buy anything.

    5. You don’t have to have liability insurance to merely own a car. You need it when registering/operating the car to operate on public roads.

      Yes, most driving is on public roads. But, no state I’ve read up on requires a person who trailers their car to racing events to have liability insurance on it. Same company vehicles that operate on company property.

      1. Same thing with company vehicles

    6. But I’m not sure “unprecedented” is the right word here.

      You’re generally correct. There’s nothing left the federal government does that’s “unprecedented”.

    7. I hope none of you are expecting Klown Shultz to return and address your arguments.

      Dollars to donuts, two days from now he repeats the same bullshit like he never read your comments.

    8. Liability insurance, though, covers damage you do to the property of others and it is not enacted on a federal level anyway. The health insurance mandate is a universal requirement to cover your OWN health care expenses.

      If the requirement was for liability insurance for when you punch someone else in the face, I might accept the comparison.

  9. Leaving aside the question of whether Medicare actually is authorized by the Constitution,
    ————————-
    I am not a lawyer but how does one, particularly a professor at Hah-vud Law, leave out such a question. Evidently, the professor chooses to ignore that not everyone paying into Medicare uses it and that just about everyone who DOES use it also has a secondary insurance policy. If a govt program is so well-intentioned, why does it need a supplement in order to make sense? Then again, I am not a liberal hack using my Harvard standing to justify that which is obviously wrong.

  10. This is why all the hand wringing over the proposed Internet laws is Bullshit: Under the Commerce Clause, the government ALREADY has the authority to screw with the Intertubes any way it wants. After all, NOTHING says interstate commerce like the Intertubes.

    1. No, reading comprehension fail.

      Where in the constitution is there language authorizing any branch of gvt. to regulate the intertubes. It is not there and the absence of that language trumps the general language that Congress can regulate interstate.

      1. I think Dello was being sarcastic.

      2. Wasn’t I reading here on Reason that the Commerce Clause is already used to control what we’re allowed to buy based on interstate commerce grounds? How is the Intertubes any different?

  11. isn’t this small beans, since state governments have this power regardless of the commerce clause? is there such a difference in liberty between the federal and state government imposing such a mandate?

    1. Yes, there is a difference. It is much easier to change a law at the state level, and if you really don’t like a state’s laws, you can move to another state.

      1. Exactly, it is our freedom of mobility that keeps the states in check. Tax too much and you risk losing productive citizens and businesses. Regulate too much, same thing. When the Feds do it there is no escape or control via mobility.

    2. Good god. Yes, there is a difference.

  12. If you none of the three branches of government obey the constitution, then why obey the three branches of government?

    To stay out of prison.

    Not much of a deal for the governed, is it?

    Secede v. – to withdraw formally from membership in an organization, association, or alliance.

    When in the course of human events…

    Meanwhile, back at the Constitution:

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    1. Re: Mr. Mark,

      If you none of the three branches of government obey the constitution, then why obey the three branches of government?

      That’s crazy talk. Tony The Pederast told me that without government, people would stop blinking, hurting their eyes.

  13. The protection against stupid laws that our Constitution provides is the political process, which allows us to toss out of office elected officials who enact them.

    Like when elected officials decide to suspend elections and vote themselves into office for life. The only way the Constitution can prevent that is through the political process, right?

  14. That certainly sounds like a stupid law. But our Constitution has no provision banning stupid laws.

    Yes – see 9th Amendment.

    1. Does that mean we can ban stupid law professors?

  15. GONZALES v. RAICH clearly demonstrates that the commerce clause is really limited only when a particular law offends the whims of five justices on the Supreme Court. In this case, interstate “commerce” was defined to include a good that was neither exchanged in trade nor even legal to exchange in trade.

    Justice Thomas was alone in this dissent of the Supreme Court’s ruling: “Respondent’s local cultivation and consumption of marijuana is not ‘Commerce … among the several States.’ Certainly no evidence from the founding suggests that ‘commerce’ included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.”

    1. Thomas is essentially correct but is definitely gilding the lily somewhat. The Alien & Sedition Act was a blatant violation of even the narrowest interpretation of the First Amendment, and it was not merely thought of but indeed passed and enforced by many of the same folks who wrote the Constitution less than a decade after the Bill of Rights was ratified.

  16. “The protection against stupid laws that our Constitution provides is the political process, which allows us to toss out of office elected officials who enact them.”

    Which is no protection at all, in America’s ossified political system, where there are only two parties that are allowed to hold power, and both parties advocate the same basic statist political ideology. Basically this argument amounts to: you have no liberty by right, Washington can regulate your life however it wants, and your only recourse is to wait to the next election and vote for an alternative if one happens to be offered to you.

  17. What a fucking embarrassment that article is. If I was teaching a class and a student handed that in, I might give it back to them and tell them to redo it. Or I might just give them a failing grade.

  18. “Congress can mandate the purchase of health insurance as long as it conditions that mandate on engagement in some commercial activity,” which “is effectively the same as the mandate, because it is hard to believe that anyone in this nation has never bought or sold anything in his life.”

    Huh?

    1. Yup, as long as you have engaged in some buying or selling as some point in your life the government has complete control over your life (not just limited to mandating you buy things).

  19. And yet Harvard Law continues to rank at or near the top annually despite the continuous flow of nonsensical horseshit that comes out of it. Maybe that’s why they’re considered so great: the ability of a Harvard lawyer to spout bullshit on a given topic is second to none.

    1. [smiles modestly, bows, polishes monocle on silk cravat]

  20. It’s amazing how many otherwise smart, intelligent people completely misunderstand the commerce clause.

    “It lets congress regulate what you do if money changes hands!”

  21. It has never said that growing wheat or marijuana makes people subject to federal regulation in areas completely unrelated to those activities, which is what Elhauge seems to be suggesting.

    The court has never said that federal regulation is only allowed in areas that are related (in some way) to your interstate economic activities.

    In fact, it generally doesn’t care whether individuals are engaged in interstate commerce, etc. at all. It pretty much assumes that everyone is. What it has looked at it is whether what Congress is regulating (the wheat market, gun ownership, etc.) affects interstate commerce.

    For them to say that (1) an individual has to be engaged in interstate commerce, or they are exempt from the law and that (2) the regulation itself has to be related in some way to the commerce that the individual is engaged in,

    well, that would be completely new, across the board. Unprecedented, you might say.

    1. Are you auditioning for full-time contrarian now? Coming from me that’s saying something.

      None of the prior SCOTUS commerce clause decisions really talk about inactivity vs. activity. So of course SCOTUS hasn’t exempted inactivity in prior decisions.

    2. That’s not what he’s talking about.

      What he’s saying is that people growing wheat or marijuana are in the “wheat market” or the “marijuana market”, and are therefore subject to regulation since the wheat and marijuana markets are interstate in nature. (I’m paraphrasing what the court thinks here).

      The point is that in both Wickard and Raich the plaintiffs were actively engaged in a regulated market, and thus subject to regulation.

      By contrast, people not purchasing health insurance are not actively engaged in the health insurance market, and thus not “proper” subjects of regulation.

      Similarly, people growing marijuana and wheat should not be subject to regulation of the corn market, since they aren’t growing corn.

  22. If Congress has the power to force me to not touch a leaf, then congress surely has the power to force me not to abstain from buying health insurance. Of course, I don’t think the Constitution gives congress the power to do either. But if you support drug prohibition (at least on the federal level) and oppose the individual mandate, you’re a jackass hypocrite.

    1. Are you familiar with a double negative, Bruce? “Forcing me not to abstain from X” is the same thing as “Forcing me to partake in X”, semantic disguises notwithsanding.

      1. I don’t think that was an attempt at disguise, but rather a re-framing, like when you solve for y instead of x to get an equation into a more useful form.

        1. (or when you have to say -(-x) instead of +x, as another mathy example.)

        2. Sort of, but it’s more like saying that x is always a negative number, since x = -(-x).

  23. Hence the Court has said Congress may stop people from growing wheat or marijuana for their own consumption because such cultivation, when aggregated across all the people engaged in it, substantially affects the interstate markets in those commodities. It has never said that growing wheat or marijuana makes people subject to federal regulation in areas completely unrelated to those activities

    This is a really crucial point.
    The argument of the mandate is that people can be compelled to participate in the health insurance market, as an act of regulation of the health insurance market. Effectively regulating people outside the market being regulated by forcing them to be in it.

    The court has never held that people who are not participants in the market being regulated may be subject to regulation.

  24. Congress shouldn’t be able to force you to buy broccoli directly. But it’s pretty well settled (under our short-sighted Constitution) that Congress can tax you for the cost of broccoli and then give you broccoli as a welfare handout.

    The difference in process is meaningful. People hate taxes, so it becomes politically more difficult to enact the broccoli-funding tax than it is to pass the buy-broccoli mandate. Which is why single-payer and Medicare-for-all were nonstarters for Congress and the country, but the mandate was able to barely squeak through Congress after a year of wrangling.

  25. Sorry Jacob but you are completely wrong and I suggest you retread the Constitution.

    The Constitution isn’t a list of things the government CANNOT do, it is a very brief list of the things it CAN do. The enumerated powers of the federal government are explicitly listed and were so because the founders were rightly wary of a strong centralized government with unlimited authority.
    The federal government may only act where specifically authorized by the Constitution. Where the Constitution is silent, then per the 10th Amendment the authority resides with the states and the people.
    The meaning of the Commerce Clause is quite clear. Just because a Roosevelt era court abused the Constitution doesn’t mean they were able to successfully change its plain meaning. We ate not subjects, we are free citizens and it is WE who are in charge, not Congress.

  26. Note to self…invest in broccoli futures.

  27. What interests me the most about the argument being critiqued in this article, is that the other author throws out entirely the notion of checks and balances within the three branches, and supposes that the only recourse people have against unchecked power is the vote. Further, he states, maximum federal power should be given to Congress, for whom we can vote, and minimum power to the bench, for whom we do not vote.

    Frankly, I’m gobsmacked at such a short-sighted view of government and I’m surprised the article does not call him out on this bizarre interpretation of federal power.

  28. I remember about a year ago, so-called experts were saying that the arguments against the constitutionality of the law were just a Republican charade to appease their base. Many of these proponents of the health care reform law have never taken these legal arguments seriously, and it looks like that continues, despite several federal courts accepting them as valid.

    Admitting that opponents of the law may possibly, theoretically, plausibly have a point is apparently a bridge too far.

  29. Well of course buying health insurance affects interstate commerce… I mean sure we have laws now that you can’t buy health insurance from other states; so you can’t buy across state lines, so it never crosses state lines…

    But buying something that can never cross state lines MUST affect interstate commerce because… um… because the liberals want it to, which makes it part of that “living evolving constitution thingy”.

    That’s pretty much the argument, right? Or is there some other rationale why a purchase that can never cross state lines is interstate commerce anyhow?

  30. “That certainly sounds like a stupid law. But our Constitution has no provision banning stupid laws.”
    Well, according to Elhauge, it would appear that our Constitution has no provision banning pretty much any law at all. Free speech? Searches and seizures? Religion? No doubt those are all important, but who says they’re more important than interstate commerce? Perhaps the Constitution only guarantees those rights when they don’t interfere with Congress’ overriding right to run our lives.

    1. David, you should read some of Stevens’ decisions. His guiding principle is that the government can disregard Constitutional limitations on its power whenever it has a “compelling interest” in doing so. Scary stuff.

  31. I could easily be one of those 30 million without insurance if I allowed it. I do not have insurance through an employer…I did for many years but that got dropped. Instead we buy our insurance and sacrifice in other areas.(we have for years) We insist on this because we have always contributed to society instead of becoming a burden. Why do we do this? Because we love our country and there are enough out there that we think do not and who have decided to rape this great nation. (I am referring to the able body who refuse to contribute.) We have plenty of laws in place to help the poor with medical care. Obamacare is just making easier to abdicate our responsibilities as Americans. If we are to survive…we have to have more givers and less takers and this Elhauge has only promoted takers…and that will end up destroying America.

  32. So essentially the argument is that the Founders wrote a constitution and then in the Commerce Clause said “Forget what we said earlier?” Because that’s the argument being made. Hey, the federal government’s powers are limited unless you buy or sell something, then they can do anything would want. Genius.

  33. Well of course buying health insurance affects interstate commerce… I mean sure we have laws now that you can’t buy health insurance from other states; so you can’t buy across state lines, so it never crosses state lines…

  34. The difference in process is meaningful. People hate taxes, so it becomes politically more difficult to enact the broccoli-funding tax than it is to pass the buy-broccoli mandate. Which is why single-payer and Medicare-for-all were nonstarters for Congress and the country, but the mandate was able to barely squeak through Congress after a year of wrangling.

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