Commerce Clause

Jonathan Chait's "Contrived Hysteria" Against Opponents of the ObamaCare Mandate

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Jonathan Chait of New York Magazine accuses those (like me) who believe that allowing ObamaCare to stand would give Uncle Sam unprecedented powers to regulate economic "inactivity" of being hysterics – and then manages to whip himself into hysteria. "The 'regulating inactivity' argument is a pure contrivance," he declares. Why? Because:

The distinction is factually shaky (there are, in fact, examples of regulating inactivity, like not getting a vaccine or not joining the military.) It's also conceptually shaky (distinguishing between an action and a lack of action is not so easy, if you think about it.) They emphasize over and over that regulating inactivity is unprecedented. Therefore the Court can ignore reams of precedent and rule pretty much any way they'd like – which, for at least four and probably five justices, means striking down the law.

Let's take these claims one at a time, and I'll try and speak slowly and calmly.

Factual Shakiness: The issue, facing the court, Jonathan, is not Congress regulating inactivity. It is Congress regulating inactivity under the Commerce Clause. Your examples of Congress mandating vaccines and military service don't work because:

(a) Congress has never required Americans to get vaccinations, only states have.  As the Congressional Research Service pointed out last year: "Current federal regulations do not include any mandatory vaccination programs; rather, measures such as quarantine and isolation are generally utilized to halt the spread of communicable diseases."  (Might I implore you to check your facts before accusing others of "factual shakiness.")

(b) Congress' power to draft Americans was based on the Constitution's "necessary and proper" clause. This clause gives Congress the authority to do whatever is "necessary" to discharge its "proper" functions. And declaring war is constitutionally "proper," regardless of what one thinks of war or the draft. Regulating individuals' health care decisions is an entirely different matter.

Conceptual Shakiness: You think that there is no meaningful distinction between Congress prohibiting a farmer from producing wheat for his personal consumption, something the Supremes said it could do in Wickard vs. Filburn, and requiring individuals to purchase health insurance. Unless opponents of the individual mandate are willing to challenge Wickard, they can't challenge ObamaCare – not without becoming guilty of serious contradictions and inconsistencies, in your view.

I confess that I do think Wickard is a terrible ruling and – insha Allah – one day the time might be ripe to overturn it. But let me take another crack at explaining why there is no contradiction in letting Wickard stand (for now) and killing the individual mandate.

In Wickard, Congress was regulating the producer of a good by telling him to stop producing that good. This is awful, but not as awful as the ObamaCare mandate.

For starters, given that there are gazillion things one can produce to make a living, if the farmer did not like the government's diktats, he still had the option of finding some other line of business. The individual mandate, however, applies not to producers but consumers. There is no escaping it. It requires Americans to consume a very specific, government-approved product as a condition of lawful residence in the country. If they don't, they face fines and/or jail time. You've got to at least admit that the ObamaCare mandate has a far bigger scope than Wickard's prohibition.

But, beyond the scope issue, the more crucial point that goes to the heart of the matter is that in Wickard, Congress was compelling the farmer not to do something and in ObamaCare it is compelling health care consumers to do something.

Mandate supporters argue that if Congress can force someone to quit producing wheat for personal consumption to regulate national wheat prices, why can't it force someone to buy personal health coverage to regulate national healthcare prices? After all, when people who don't have coverage land in an emergency room, they force others to pick up the tab for their care, raising the price of coverage for everyone else.

This entire line of argument rests on the assumption that everyone who lacks coverage will inevitably get emergency care and there is no way to stop them. That, however, doesn't follow. Uninsured individuals could die before ever needing emergency care. Or they might opt to pay cash for their care when they need it – something that they could do far more easily if a third-party system of coverage were not jacking up prices of medical services in the first place. (Why not look for ways to make health care more affordable to prevent people from going into the emergency room for a broken leg rather than forcing them to buy coverage?) Indeed, the problem with the mandate is that it effectively bans Americans from making alternative arrangements to take care of their health care needs, declaring the government prescribed one as the only legitimate option. Because the mandate applies to every potential consumer of health care prophylactically, before he or she has declared any intention of using emergency care, and not just to existing producers of a commodity, it goes much further than Wickard in its attempt to control prices (which is not its job in the first place).

In any event, one can debate whether the mandate will of will not lead to a more rational health care system. But one can't argue that it doesn't stretch the constitution to a breaking point – even given standing precedent.