Reason.tv: Ilya Somin on Why The Individual Mandate is Unconstitutional and a Threat to Liberty

A Supreme Court ruling upholding the individual mandate "will really be, if not a death blow, then certainly a very severe blow to the whole idea that the federal government's powers are limited and that it's not the case that the federal government can do pretty much whatever it wants," says George Mason University law professor Ilya Somin, author of an amicus brief (PDF) in U.S Department of Health and Human Services v. Florida, a challenge to the Affordable Care Act that the Supreme Court is scheduled to hear later this month.

Reason.tv sat down with Somin to discuss why his brief focuses on the individual mandate, what the chances of success are, and whether or not a mandate to buy insurance could empower Congress to pass a mandate that all Americans buy a health food like broccoli.

"There's a lot of industries that have a lot of lobbying power and interest group clout that could promote mandates for themselves," says Somin.

About 9:30 minutes. Interview by Zach Weissmueller. Camera by Tracy Oppenheimer, Paul Detrick, and Sharif Matar. Edited by Weissmueller.

Visit Reason.tv for downloadable versions and subscribe to Reason.tv's YouTube channel to receive automatic notifications when new material goes live. 

Comments

[Sy]

User removed the video already? Lame.

[Danno]

Don't have much confidence on the Supreme Court making the right decision on this one. Seems they always go the wrong way on the really important cases.

[they'll protect corporate powr]

as they always do

[USSR Never Happened]

[American Indian Holocaust]

Never happened, in Fibertard lies.

[USSR Funded KOCH and REASON]

LOLOLOLOLOL!!! Stupid fibertard.

A People's History of Koch Industries: How Stalin Funded the Tea Party Movement
http://exiledonline.com/a-peop.....-movement/

[individual responsibility]

Individual responsibility for people causing health problems is the answer. But then, the KOCH Industries would be against that.

Pollution linked to birth defects
http://news.bbc.co.uk/2/hi/health/1731902.stm

[DesigNate]

All corporations are secretly owned and run by KOCH? This explains so much.

Do you have a newsletter I could subscribe to?

[Lord Humungus]

the crazy bag lady newsletter? Brought to you by GRIT.

[do you enjoy KOCHsucking?]

[no, shit for brains Fibertard]

But the Kochs are representative of the elite oligarchy.

[USSR Never Happened]

Corporate America has failed us. Clearly, we need to reorganize society on the ideas of Karl Marx.

[Marx Mises Axis of State Evil]

Officer, am I free to gambol about plain and forest?

MARX: NO!
MISES: NO!

Marx and Mises are both agricultural city-Statist fucks bent on Gambol Lockdown, which starves people into submission to work in their factories, offices, and armies.

[Sandra Fluke]

"Individual responsibility for people causing health problems is the answer."

Shut the fuck up and smile when I demand payment.

[Tman]

So apparently the Obama admin is moving the argument away from the Commerce Clause defense to the Necessary and Proper Clause.

http://thehill.com/blogs/healt.....re-defense

[Ex nihilo]

How does using the Necessary and Proper Clause defense work now if they have been using the Commerce Clause defense up til now? Is is standard to change defenses on the way up to the SCOTUS?

[Tman]

Because they want to get Scalia on board. I agree that it shows how weak the argument is, but it was weak to begin with so I'm not surprised by this.

[Ex nihilo]

I read where that was what it was for specifically, but in general doesn't that do more to show how weak your argument was from the Commerce Clause standpoint to begin with?

The reasoning behind the N & PC sounds weak as well. It is necessary to make the rest of the law work, without saying whether the law is constitutional to begin with.

[R C Dean]

Jeebus, that is weak. The N & P Clause requires that you have an enumerated power in the first place. Its not a freestanding grant of authority to do whatever is necessary and proper, regardless of what the Con law prof-in-Chief probably taught.

The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

[Hazel Meade]

The argument is N&P applied to CC.

I.e. This law is necessary to carry into execution our power to regulate interstate commerce markets.

Although, it's worth noting that people at the time were worried that N&P might ultimately result in an unlimited grant of power. That's why the "proper" was inserted.

The opposing argument is that while it might be "necessary" to make everyone buy insurance to enforce a regulation requring insurers to issue health insurance to people after they become ill, it is not "proper".

It's not "proper" because expanding the scope of the commerce clause to mandating purchases of goods in order to facilitate the regulation of any "economic activity" would effectively grant the government unlimited powers. (Which is the whole point of restricting the scope of the N&P clause).

[Hazel Meade]

I'd also argue it is "improper" because the regulation is applied to people who are not engaged in the regulated market. This is much like saying that as a regulation of the food packing industry, we're going to make cellular phone manufacturers purchase beef. It is an improper use of government power to impose a regulation of a market on individuals who are not involved in that market.

In all previous CC cases, where the court upheld the government's CC power, the regulation involved penalties or regulations imposed upon people who were already in some way engaged in the market being regulated.
There's a qualitative difference between Wickard, who was already growing wheat for sale on the wheat market, and a government regulation commanding farmers to switch from (say) soybeans to wheat, because the government thinks it would be good for the wheat market.

[Hazel Meade]

To elaborate on that a bit, I'd say that the proper reading of the N&P clause is that it extends the number of powers congress may use to effectuate a regulation, but it cannot be used to extend the scope of those powers to *people* who otherwise wouldn't be subject to regulation.

I.e. you can use military, police, criminal sanctions, whatever is necessary to enforce an otherwise legitimate commerce clause power. So long as it is directed at people in the regulated market. But you can't "commandeer the people". You can't conscript people, or subject people to penalties, who have not otherwise commited any act subjecting them to the jurisdiction of the CC power, to help you regulate the market.

[Kwanzaa Cake]

But liberals only have the best of intentions. They will use this unlimited power only for the good of us all.

Plus, it says right there in the penumbras that the only limitation on the powers of the federal government is abortion.

[P Brooks]

Threat to liberty?

"Liberty" has been rendered meaningless.

[sarcasmic]

Freedom has been redefined from being able to do that which is not specifically prohibited to being allowed to do that which is specifically defined.

[Kwanzaa Cake]

No, I thought it was being able to partake of goods and services at the expense of others?

[sarcasmic]

What goods and services you may partake of at the expense of others are specifically defined, are they not?

[Capitalists = Parasite TAKERS]

? Is any white person's right an individual or collective right?
? Is the right to take a negative or positive right?

"[The Native Americans] didn't have any rights to the land ... Any white person who brought the element of civilization had the right to take over this continent." ~Ayn Rand, US Military Academy at West Point, March 6, 1974

[Freedom = Free Shit]

Haven't you ever taken a public sector civics class where you are taught FDR's Four Freedoms.

[sarcasmic]

Freedom from want?

How does that work except by destroying the notion of private property by creating a claim to the property of others?

[Freedom = Free Shit]

Expand the money supply, and demand gets fulfilled. I don't even have to take your stuff because the dirty capitalist pigs will make more stuff just to get the money. Gahhh! Don't you libertarians know anything?

[Privation Property was TAKEN]

FIBertard ignores that.

? Is any white person's right an individual or collective right?
? Is the right to take a negative or positive right?

"[The Native Americans] didn't have any rights to the land ... Any white person who brought the element of civilization had the right to take over this continent." ~Ayn Rand, US Military Academy at West Point, March 6, 1974

[Enjoy Every Sandwich]

If the Court rules against the individual mandate, the lefties will absolutely shit themselves.

It won't be just because of the damage that it will do to their precious Obamacare. Their entire governing philosophy is anchored in the notion that the federal government's power is virtually unlimited. Their political wish list would go up in flames.

[matt]

i guess if this is unconstitutional so was the Militia Acts of 1792 and car insurance mandates... there are a lot of mandates... and the penalty is pretty much an income tax...

[Federal Dog]

"i guess if this is unconstitutional so was the Militia Acts of 1792 and car insurance mandates..."

The former is irrelevant (not a commerce clause issue), and the latter implicates only people who have already voluntarily decided to engage in driving vehicles on public ways.

Further, the fine was expressly not a tax (on the administration's and legislature's own assurances). They insisted it was specifically a penalty, not a tax. Shifting the argument on appeal because they uniwttingly shot down their own legal argument does not negate their own admissions about the nature of that fine.

So try again. And this time, break things down into discrete analytical stages and think them through by dint of material analogies and distinctions.

[Hazel Meade]

The mandate to purchase solar panels will be next.

Everyone consumes energy. You can't predict when you will need it. Consuming fossil fuels has an impact on everyone else via global warming, ergo ...

Retirement plans.
If you don't have one you'll end up relying on welfare programs. That imposes costs on society. Banking is an interstate mark

Renter's insurance. First we mandate that landlords pay for their renters stolen property. Then we say that irresponsible insuranceless renters cause cost shifting in the form of increased rents to those with insurance. Then we require everyone to have insurance and mandate that all rents be the same. Then we mandate that landlords MUST find rooms to rent to everyone, even if they have to split up existing tenants apartments. This will solve the homelessness problem.

[Hazel Meade]

The mandate to purchase solar panels will be next.

Everyone consumes energy. You can't predict when you will need it. Consuming fossil fuels has an impact on everyone else via global warming, ergo ...

Retirement plans.
If you don't have one you'll end up relying on welfare programs. That imposes costs on society. Banking is an interstate mark

Renter's insurance. First we mandate that landlords pay for their renters stolen property. Then we say that irresponsible insuranceless renters cause cost shifting in the form of increased rents to those with insurance. Then we require everyone to have insurance and mandate that all rents be the same. Then we mandate that landlords MUST find rooms to rent to everyone, even if they have to split up existing tenants apartments. This will solve the homelessness problem.

[Lunette Soleil]

La s?rie ? succ?s a dur? quatre ans, et a notamment ?t? progressive dans sa volont? d'int?grer les questions sociales, newsmaking y compris le sida, l'homophobie et la maltraitance des enfants. Mais 25 ans plus tard, "21 Jump Street" l'?mission de t?l? on se souvient surtout comme le kick de carri?re de Johnny Depp en tant que jeune acteur avec un quelque chose d'?vident. Comme il s'av?re, de vagues souvenirs et une nouvelle g?n?ration de consommateurs de la culture pop travailler pour le grand avantage de "21 Jump Street", le film: Qu'est-ce cette interpr?tation rapide, effront?, et tr?s dr?le des sacrifices pr?misse originale dans les moments propices ? l'apprentissage, il est pour des vertiges intelligente.

[mrdrawingguy]

http://www.youtube.com/user/Mr.....ature=mhee

[Revolutionary]

This is why the Federal government should be disbanded. If necessary to overthrow by force, then that is fine too. If it can't be Constitutional, then it can't be allowed to exist...and those who serve it must be purged from society so that we don't wind up as slaves to those who harbor the fascist belief that people are property. Those people who have this sick belief should be killed, and in a fashion as publicly visible as possible, so as to serve as a deterrent to other would be slavers and fascists.

[Diablo Blanco]

Hard to argue with that..... The plans for the mobile guillotines are ready to roll. Let's get to it.

[Abercrombie Deutschland]

The blog is absolutely fantastic. Lots of great information and inspiration, both of which we all need. Thanks.