Constitutional Law

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.

NEXT: Is the Supreme Court Skeptical of ObamaCare's Insurance Mandate?

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  1. It’s also conceptually shaky (distinguishing between an action and a lack of action is not so easy, if you think about it.)

    “Distinguishing between A and !A is not so easy, if you think about.”

    This motherfucker is the anonbot of commentators.

    1. To be fair, if he shares the Misesian viewpoint of action, then it would be difficult to distinguish between what most people consider to be action and inaction.

      But something tells me this fella isn’t exactly on the same page as Mises on that one.

      1. Mises said to act is to choose from among several options and to choose not to choose is still an action (IIRC).

        However, with a mandate, there is no choice except for the lucky few who are exempt.

        1. If you choose not to decide, you still have made a choice.

          1. Ayn Rand, von Mises and Rush, all in the first 4 posts at the top. That’s gotta be a record!

            1. Pretty sure WI had already set that precedent.

            2. And the anonbot, don’t forget.

          2. That’s not what I wrote, you sang it wrong and then it was too late. Damn vocalists.

  2. Please, please tie Wickard to the ACA.

    That way maybe the SCOTUS will destroy Wickard, too.

    There are lots of bad SCOTUS decisions out there, but Wickard has to be in the bottom 10.

    1. I bet OWH is involved with at least 8 of them.

      1. Three generations of robc are enough!

        (And get off my lawn!)

      2. Holmes was off the Court by the time the New Deal cases were decided. I think he probably only gets one in the top ten, is Buck v. Bell were he said forced sterilization was just great.

        1. Thanks for clarifying “OWH” – I erroneously interpreted it as “Obama White House”, although it may come to pass that the Obama White House IS eventually involved with at least 8 of the worst SCOTUS decisions of all time. **SHUDDER!**

      3. Brennan. What a cocksucker.

      4. My favorite still has to be everyone’s favorite “you can’t shout fire in a crowded theater.”

        Which, when uttered, was used to sentence an anti-war protestor to prison for distributing anti-war pamphlets.

        1. Was he distributing them in a crowded theater?

    2. Wickard is a terrible decision. But as pointed out above, it is easy to distinguish. You can still opt out of the government control imposed in Wickard by not growing wheat. It is impossible to opt out of the mandate.

      1. You can always choose to stop living.

        Mmm, freedom.

  3. Answering Jonathan Chaits assertions is every bit as useless as responding to [MARY]+[STACK]!

  4. Did Chait really write this sentence?

    distinguishing between an action and a lack of action is not so easy, if you think about it

    Is he one of the Anonbots?

    Makes sense, if U think about it.

    1. It is not so easy to determine if I do or do not play in the NBA, if you are as dumb as Chait.

    2. …if you think about it…

      …is a rhetorical trope for, “I am a thinker = you are not. Trust me.”

      It’s really sort of a linguistic, “fuck you, idiot”, kind of expression. It suggests that no one up until this point has really done any *thinking*. Patronizing, to say the least.

      1. Yeah. “If you think about it”. Well no shit, isn’t the fact that you are writing about it necessarily mean you are thinking about it?

        1. Not in Chait’s case.

        2. isn’t the fact that you are writing about it necessarily mean you are thinking about it

          You’re new to this punditry game.

    3. Tyson punch Chait in face, or Tyson not punch Chait in face? Hard to tell difference, and legally pretty much the same, according to Chait.

  5. A better answer to (b) is that the draft is bullshit and unconstitutional as well.

    1. It’s my understanding that during the waning days of Vietnam, DOD quietly settled a few cases involving draft dodgers because DOD was afraid of some precedents being set. Some bright boys apparently read the 13th Amendment and realized it just might mean what it said.

      1. Could you provide a citation for that? I’m not trying to be a dick; I genuinely want to read more about this.

        1. Wish I could. It’s been years since I read that, and was only recently reminded during a conversation about why I never registered for selective service.

        2. Sorry. It’s been a long time since I read that, and have idea where I found it.

          1. Goddamit, squirrels.

      2. I’d be very surprised if this was true. The draft was legally rooted in the militia clause of the Second Amendment with cases going back to the Civil War.

      3. You might be mixing up Article I Section 8 cases, claiming that a draft can’t be used in an undeclared war with 13th amendment cases. Cecil Adams wrote it up back in 1979:
        http://www.straightdope.com/co…..-amendment

        1. I’m not mixing up anything. I think the draft is slavery. Further applying the draft of only males between certain ages is a violation of equal protection.

  6. I just realized that one good result of the “national freak-out” about the Martin/Zimmerman story is that it’s somewhat mitigated the tidal wave of stupidity about the DemCare arguments.

  7. The wheat industry has been a problem industry for some years. Largely as a result of increased foreign production and import restrictions, annual exports of wheat and flour from the United States during the ten-year period ending in 1940 averaged less than 10 percent of total production, while, during the 1920s, they averaged more than 25 percent. The decline in the export trade has left a large surplus in production which, in connection with an abnormally large supply of wheat and other grains in recent years, caused congestion in a number of markets; tied up railroad cars, and caused elevators in some instances to turn away grains, and railroads to institute embargoes to prevent further congestion.

    Wickard cant even get the basics right. I fail to see a problem with the industry. I see cheap wheat for the American consumer. Where is the problem again?

    1. [had to cut two sentences from the quote…way to institute a worthless solution squirrels]

    2. FDR gets. (to the tune of Lola)

      1. He drinks champagne that tastes like cherry cola?

  8. One other thing to consider. There are people out there who are either personally wealthy and choose to self insure or are religious nuts or some such and refuse to see a doctor. So it is not true that every person who doesn’t have insurance will somehow affect interstate commerce by showing up at an emergency room.

    1. You still affect it. Taking the religious example (aren’t the all nuts? heh heh), by not consuming a service another individual in the same circumstances might otherwise consume, you are artificially reducing Demand. And for the self-insured, your non-participation leads to increased rates for pool members, since you are restricting the absolute size of the pool.

      1. But you are not affecting it in the way that the mandate supporters are arguing.

        1. I think that is one of their arguments.

          They want to force everyone, esp. the young and healthy to do it. If you only have those who are sick then there is no one to share the cost.

      2. by not consuming a service another individual in the same circumstances might otherwise consume, you are artificially reducing Demand.

        Except that to replicate the exact circumstances would mean that the individual wouldn’t WANT to consume the service; past and present feelings and beliefs are a valid part of the decision-making process, and thus a valid portion of the determination of demand for a product.

        Example: If we all believe that mandrake root will cure cancer, the demand for mandrake root will increase independent of the validity of the belief; no “artificial” change is necessary.

        1. Yes, but we don’t all believe that mandrake root will cure cancer, and that lack of belief thus affects the market for mandrake root.

          Right now, I’m not even thinking about buying mandrake root. I am thus affecting the market for it.

          Both Raich and Wickard left us with a non-participation principle.

          1. “Right now, I’m not even thinking about buying mandrake root. I am thus affecting the market for it.”

            That’s like saying that people who don’t exist are “affecting the market.”

            Example: “Bobby and Mary have 1 child, when they could have 12. Those 11 unborn children are affecting all markets by virtue of never entering into those markets.” Patently ridiculous drivel. You can’t effect the market until you enter the market. Growing wheat, then not entering it into the market has the same effect as not growing the wheat at all: none.

            1. Typo: “effect” should be “affect”.

            2. Growing wheat, then not entering it into the market has the same effect as not growing the wheat at all: none.

              Not true. Assuming there is a utility for the wheat, it means that you are not buying it from someone else.

              It’s a pernicious argument, and one that makes a total mockery of the stated intent of the Constitution, but it’s probably going to work. Liberals have completely rejected the notion that man has any inherent rights whatsoever. There isn’t a 10,000 word section in the Constitution saying that you cannot force people to buy health insurance, so therefore they can get away with doing so.

              Of course, they have also managed to interpret “no law” as “some laws,” so maybe there is no way to ever limit the beast. The anarchist have that one right, I think.

            3. You may believe this. I may believe this. But Raich and Wickard don’t support this. Non-entry is an affect according to SCOTUS precedent. The only issue is the potential of non-entry. I would posit that it’s not much of a leap between being a producer but not entering vs. being a potential producer and non-entering.

              Thus, your very existence is an act of influence on every market imaginable, as it’s only based on your potential influence.

              Thus spoketh SCOTUS.

              1. Thus, your very existence is an act of influence on every market imaginable, as it’s only based on your potential influence.

                Exactly. you are a participant in every market in the world simultaneously.

                1. All the peeps buying Lamborghinis should cut me in on a share of the savings I provide to them by not driving up demand.

                  1. Can I get the Democrats to pass a bill making it illegal for other people to purchase the items I buy, thus driving up the cost to me for those items ?
                    That sounds like a perfectly valid extension of the “they are affecting commerce” argument they are making.

              2. Good point about non-entry. I should inform some girls I once knew just how badly they affected my psyche.

            4. Good point! You just gave me some ideas for future bills.

              1. Me too!

      3. you are artificially reducing Demand

        Seems like a very natural way of reducing demand. What is artificial about it?

        1. Agreeing with Alack here, if anything, the mandate on the religious abstainer is creating artificial demand. The natural demand is lower due to the religious decision.

      4. “you are artificially reducing Demand.”

        No artifice involved; demand is as demand is. Imagining it *should* be higher than that is merely fantasizing.

      5. So why is the reduction in demand for health services considered “artificial”? Can’t we consider it natural that people have a diversity of religious and moral beliefs, and that the refusal to engage in something one considers immoral is in no way an “artificial” reduction in global demand for that thing?

        Do we say that the demand for alcohol is “artificially” reduced by the adherents to religions that preach against the consumption of alcohol?

        I would argue that forcing such people to engage in a market they would otherwise choose to refrain from (whether based on personal wealth, personal or religious beliefs, or both) represents an artificial, government-mandated increase in demand.

      6. no, you are NATURALLY reducing Demand, because you are not demanding.

    2. You forgot about the people who are only temporarily uninsured, a large portion of the uninsured. Even though they lack insurance at a given point in time, the supporters assumption that they will eventually get uncompensated care paid for by the rest of us assumes that they will never buy insurance.

  9. I wish we would get another ruling as historic as Lochner v. NY, it seems like a fantasy that the case even existed in the past.

  10. You’ve got to at least admit that the ObamaCare mandate has a far bigger scope than Wickard’s prohibition.

    Oh, no, I DON’T! [sticks fingers in ears] La, la, la…I can’t HEAR you…

  11. Googled for worst 10 cases…first two lists I found were very right wing and very left wing. They had a few cases in common:

    Plessy v Ferguson
    Dred Scot
    Lochner v NY

    Really, Lochner, wtf?

    1. Loving v. Virginia? Buck v. Bell? How are both of those cases not on any top ten list? Do liberals just forever love sterilizing the unfit?

      1. Are you sure you mean Loving v. Virginia? Isn’t that the case that struck down bans on inter-racial marriage? Or maybe you consider that a bad thing, but if so, I’d like to hear the reasoning.

        1. Yes. My mistake. Buck v. Bell was a Virginia case. And it, not Loving, should be in any top ten list.

      2. Do liberals just forever love sterilizing the unfit?

        You would think that eventually that would cut into their pool of useful idiots.

      3. Oh, and Buck v. Bell was an 8-1 decision with famous conservative justices Devanter, Sutherland, and McReynolds joining Holmes in the majority opinion. It seems a love for sterilizing the unfit crosses political lines.

        1. In 1928, it crossed all political lines. I would hope that today, dislike of it would do the same.

      4. Korematsu is an obvious miss.

        Shelley v. Kramer is tied with Wickard, in my book.

        1. Korematsu, the Slaughter House Cases, Plessy, Dred Scott, Buck v. Bell, Abrams v. US (upholding the 1917 Espionage Act), Wickard, and Shelly v. Kramer.

          There is 8 of your top then there. Can’t see how any top ten list doesn’t include all of those.

          1. Do Kelo and Raich live up to those?

            1. Maybe that is your last two.

            2. Hiibel deserves at least a dishonorable mention.

              1. Which one granted the Congress the spending power?

    2. Slaughter House Cases have to go in any top ten. There wouldn’t have been a Plessy without first destroying the P&I clause.

    3. Was this one of the lists?

      1. Nope.

        BTW, the liberal one I saw had Bush v Gore and Citizens United on it.

        The conservative one had Lawrence v Texas and Griswold on it.

    4. Roe v. Wade and Griswold v. Connecticut.

      The decisions relied on “penumbras and emanations” to suggest that the Constitution did in fact allow you a right to privacy that the states were required through the 14th to respect. They should have just said “9th amendment, bitches.”

      These decisions turned the Constitution on its’ head – the default position is that government has the right to regulate absent some specific Constitutional prohibition.

      BTW – Whatever else you may have thought of Robert Bork and the whole “borking” thing, the man did say that his interpretation of the Constitution was that you only had the rights spelled out in the Constitution. That neckbeard should have been beat with a stick.

      1. And you do know that Bork is Romney’s judicial advisor, don’t you?

        In his 1991 bestseller The Tempting of America, for example, former federal appeals court Judge Robert Bork denounced Lochner as “the symbol, indeed the quintessence, of judicial usurpation of power,” linking it to the Court’s later rulings securing privacy and abortion rights under the 14th Amendment.

        (That’s from somebody named Damon Root writing in some whacko rag named “Reason”, so feel free to ignore it.)

  12. Chait is a serial, partisan liar. I’m happy to see his bullshit called out for what it is, but he is not an honest dealer.

    1. In my day they were called “hack journalists”.

      1. They’re still “Hack Journalists”.

      2. Today they are just call “journalists” (they are all hacks now).

    2. If you are too stupid to know the difference, does that still make you a liar?

  13. Of course, a more basic problem with the mandate is that it was intentionally structured so that the government could establish universal health insurance while reducing the need to hike taxes or account for the spending.

    So the politicians contrived a process wherein they claim credit for increasing access to health insurance, but they have less need to hike taxes and can’t be forced to present accounting and financial statements on the cost of that access.

    If the state exercised its tax and spend powers, which unfortunately probably would be constitutional, then there’d be a forthright debate on the merits of raising taxes on consumers and an ongoing accounting metric on the continuing costs of the programs. The politicians sidestepped this aspect of government transparency and accountability by foisting the payments and outlays into non-government entities.

    1. The fact that the government had a more direct alternative (tax and spend on a big-government welfare scheme), but it was widely acknowledged to be too unpopular to be enacted, should be a warning flag. The government is trying to do an end-run around accountability by disguising unpopular tax hikes and spending outlays as premiums and payouts.

      The Court frequently defers to the Congress on the basis that it is elected and subject to the will of the voters. But this law was crafted specifically to smuggle unpopular tax hikes and spending outlays past the public. The law is trying to avoid the democratic accountability that is supposedly why Congress deserves so much deference.

      1. If the supreme court overturns, I think it will be on grounds similar to these. I’m sure they will reinforce the fact that if implemented as a tax, the mandate would be constitutional but congress way too far out of its way to specifically say the penalty associated with the mandate was NOT a tax.

  14. A couple of ways to think about Wickard as laying the groundwork for OCare:

    (1) Wickard was a ruling that the farmer could not be self-sufficient for wheat. That’s all he wanted to do: grow enough wheat to meet his own needs. SCOTUS said no, you can’t be self-sufficient because it has an affect on interstate commerce.

    Obamacare says, no, you can’t be self-sufficient for health care because it has an effect on interstate commerce.

    (2) Wickard was saying that he didn’t want to participate in the interstate wheat market; that he wanted, in effect, to be inactive in that market. SCOTUS said, no, if your inactivity in a market affects interstate commerce, then Congress can force you to be active in that market.

    Obamacare says, you inactivity in the health care market affects interstate commerce, so Congress can force you to be active in that market.

    1. That all makes sense. But there is a key distinction. In Wickard, the guy chose to grow wheat. Nothing said he had to do that. He could have grown corn or barley or some other crop that was not subject to the law.

      Wickard says that if the federal government regulates all growing of wheat, it regulates all growing of wheat, period.

      The mandate is different. In that there is no affirmative act. It is not saying if you buy insurance or sell insurance, you must do X. It is saying, you must buy insurance. That is distinguishable if the court chooses to distinguish.

      1. The mandate is different. In that there is no affirmative act.

        This is how ObamaCare brings us to the end of the line for the Court’s unlimited Commerce Clause cases.

        The Court has never said there has to be an affirmative act. It has only ever said there has to be an affect on interstate commerce.

        Even if you buy the idea that a person has to commit an “affirmative act” to trigger Commerce Clause regulation, it is trivially easy to identify an “affirmative act” that has the required effect on interstate commerce. There is no one alive in the US that does not commit innumerable affirmative acts every day that affect interstate commerce.

        1. Sure. But if the federal government only regulates you when you enter the market, versus forgoing such, you can at least opt out of being regulated. Yes, I affect commerce in tons of ways. But if I have to act to do that, i can at least choose what ways I do rather than be forced to do so.

          1. But if I have to act to do that, i can at least choose what ways I do rather than be forced to do so.

            We are talking here about whether Commerce Clause jurisdiction over you is triggered by an affirmative act that you took that affected interstate commerce.

            All that matters is that you do act in a way that affects interstate commerce, not how you act to do so. Once you have acted, Congress has authority to impose mandates on you. They do this all the time, now, mostly on “producers”, but there is no connection, really, between the act that triggers their authority, and the mandates they impose with that authority.

            1. “All that matters is that you do act in a way that affects interstate commerce, not how you act to do so. Once you have acted,”

              Not buying insurance is not an act. If it is, then not buying anything is also an act. And we are back to the nonsense claim that we are a part of every market in the world.

    2. Minor correction? If your inactivity could potentially become activity and potentially affect a market ……… ??

  15. As far as the distinction between producers and consumers:

    The fact is, there is no exit from affecting the health insurance market. Not having health insurance does not remove you from the global risk pool; your risk, and eventually your care, still has to be financed.

    Are we really going to argue that Congress can regulate producers all it wants, because you can always change jobs? But regulating the consumer side of the economy is completely off limits, because you can’t stop consuming? I think that’s a losing argument, myself, in part because its gets to be really hard to distinguish between production and consumption. Being a producer entails consuming inputs. Being a consumer entails being a producer of some kind (absent, of course being a complete tax leech).

    1. your risk, and eventually your care, still has to be financed.

      Not true. You could be a Christian scientist and refuse to see a doctor. Or you could die instantaneously in a car wreck or of a heart attack and never require any medical care beyond writing the death certificate.

      To me it goes back to what it means to “participate” in a market. By your logic, every one of us is simultaneously participating in every market on earth, either directly by buying things in it or indirectly by choosing not to buy things in it. That to me seems like both a necessary conclusion of your logic and an extremely silly result meaning that the logic is extremely silly.

      1. Regardless of whether, or when, you actually seek care, the risk that you present to the health care financing system exists today, regardless, and that risk must be financed today.

        You affect the health insurance system every day, regardless of whether you ever actually consume health care.

        every one of us is simultaneously participating in every market on earth,

        Just by existing in the US, you affect the health care financing system in the US. That is not true of other markets. My existence in the US, without more, does not affect the market in broccoli.

        If it makes you feel better, the Giant Brains at the Solicitor General’s office don’t seem to have figured this angle out.

        Your objections are valid as against their argument, which (stupidly) focusses on health care, rather than health care finance, where they actually would have a much stronger argument.

        1. My mere existence affects every market on earth. I am either directly participating in the market or choosing not to. Again, your logic leads to the nonsensical conclusion that everyone participates in every market in the world.

          And no, not everyone affects healthcare finance. I can be a Christian Scientist or new age believer and refuse health care or I could die quickly and never need it.

          1. My mere existence affects every market on earth.

            No, it doesn’t. There are millions of markets that are completely unaffected by your existence.

            However, the global risk pool for healthcare in the US, and the interstate market for health insurance/health care finance, is affected by your mere existence. Sorry, but that’s the way it is.

            The reason is that you cannot definitively and permanently, in advance, exit the market for health care. If we passed a law that said “a person who has no insurance may not (or even shall not) be treated for what tehy cannot pay out of pocket”, then this would be a different story. But we don’t have that law, and never will. Instead, we have laws that say the opposite.

            1. No, it doesn’t. There are millions of markets that are completely unaffected by your existence.

              By your logic it does. My choosing not to buy a Aston Martin affects the world market for Aston Martins. My choosing to fast for lent affects the market in meat because there is that much less consumption of it. You can apply the same logic you are applying to health care finance to any market in the world.

              Indeed this is the reason why affirming the mandate creates unlimited government. If not buying insurance affects the health finance market and I can therefore be compelled to buy insurance, then not buying anything affects that market and I can be forced to purchase said thing.

              Your logic creates that conclusion RC. And yes, it is wrong. But so is your logic.

              1. If we passed a law that said “a person who has no insurance may not (or even shall not) be treated for what tehy cannot pay out of pocket”, then this would be a different story. But we don’t have that law, and never will. Instead, we have laws that say the opposite.

                RC’s argument works because health care providers are forced, by law, to care for patients regardless of whether the patient has insurance or not. In essence, every person in the US is “in the market” because of this. Not every person ends up using health care services, but because providers must provide care de jure, persons are de facto, in the market.

                1. Doesn’t matter. Because of public accommodation laws, pretty much any business in the country has to sell me their product if I can afford it. Sure, they don’t have to give it to me. But they have to do business with me. I don’t see the difference.

                  1. The difference is that health care providers are required to do business with you regardless of whether you can afford it. That isn’t true elsewhere, even with public accomodations laws.

                    You can walk into a Maserati dealership, but they don’t have to sell you squat. You roll into a hospital ER, they have to take care of you.

                    1. That is a distinction without difference. Your rational assumes that I will somehow have to at some point see a health care provider. And while that is true in most cases, it is not true in every case.

                    2. Your rational assumes that I will somehow have to at some point see a health care provider.

                      Since you will eventually need a health care provider, and since health care providers must, by law, provide health care regardless of your ability to pay, you are already “factored in” to the “market equation”. Hence, you are committing economic activity, even without seeing a health care provider.

                      And that is the kernel of reasoning that places all people in the US, “in the market”. I don’t agree with the reasoning, but these are the premises of the argument at hand. Frustratingly, neither SCOTUS, the gov’t, or opponents to Obamacare will consider the argument otherwise. That is, none of the key players will consider that you and I are not actually “in the market”.

          2. Everyone does participate in every market in the world, at least indirectly; that’s globalization. What’s nonsensical isn’t the idea that the scarce nature of resources necessarily implies a complex interconnected web of commerce, but that the existence of this web is justification for regulation.

    2. Not having health insurance does not remove you from the global risk pool; your risk, and eventually your care, still has to be financed.

      Says who?

      1. Its the way we manage risk pools, Fluffy. The company carrrying my health insurance risk has to finance that risk, regardless of whether I actually use health care.

        1. Don’t get me wrong. I think the mandate is laughably unconstitutional. However, under our current SCOTUS doctrine, I think it is very easily defended, and very hard to strike down without calling into question a lot of precedent.

          Those precedents aren’t easily distinguished (although the Solicitor General has done a fine job of trotting out shallow arguments that can be distinguished).

          I honestly believe, though, that there really isn’t that much difference between what Congress and the regulators have done routinely for decades, and the individual mandate.

          1. I honestly believe, though, that there really isn’t that much difference between what Congress and the regulators have done routinely for decades, and the individual mandate.

            That has been my argument all along. Looking at Wickard, you can easily argue that – just as growing wheat for your own consumption affects interstate commerce because you are not participating in interstate commerce – everything you do or don’t do affects every market. Therefore – unlimited government.

            Also, I notice that a huge chunk of the argument over Obamacare is over whether or not it is a good idea. The SC isn’t supposed to be deciding whether or not it is a good idea – they are supposed to be deciding if it is Constitutional.

  16. 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.

    A) The only reason that emergency rooms must treat everyone, including the uninsured is that Congress made it a condition of hospitals receiving Medi-Care money.

    B) If the cost of providing care to the uninsured is greater than the benefits gained by accepting federal dollars hospitals are free to stop accepting those dollars.

    C) This line of argument is based on increasing the profit margin for the hospitals and insurance companies. Wasn’t there some 99% movement a while ago decrying companies exploiting the American people to improve their bottom line?

    1. This line of argument is based on increasing the profit margin for the hospitals and insurance companies.

      Well, not really. The cost is shifted to insurance companies (in part), so it actually hurts their profits.

      As far as hospitals go, shifting the costs imposed on them by EMTALA (and other mandates) isn’t so much a matter of fattening the bottom line as it is of keeping the doors open. There are very few (not-tax-supported) hospitals out there that would remain solvent if they had to (a) meet every existing mandate and (b) could not shift the costs thus imposed.

  17. … distinguishing between an action and a lack of action is not so easy, if you think about it.

    It may not be an easy distinction for Mr. Chait to make, even with a great deal of thought, but it is actually quite easy for anybody with the capacity for rational thought and a correctly functioning brain.

  18. http://volokh.com/2011/10/16/f…..rns-wheat/

    The writer and the commentators need to get their facts straight when it comes to Wickard.

    1. The only “facts” that matter, legally speaking, on Wickard are the ones that are actually in the SCOTUS opinion.

      The rest is interesting to historians, but irrelevant to Commerce Clause doctrine.

      1. Not sure what you meant by that, but the decision has been widely held to prevent the farmer from growing food to feed his family. The “facts” of the case are otherwise. That’s why I provided the link.

  19. There is a lot of pro/con argument re the commerce clause, but very very little about how compelling someone to involuntarily sign an insurance contract violates centuries of well-settled contract law.

  20. My limited understanding of the law leads me to the conclusion that the best precedent for the individual mandate is Korematsu vs. US of 1943 which required a Japanese American to report to his concentration camps, despite not having committed a crime, and despite there being no military need (Japanese Americans in the crucial area of Hawaii were not required to report to concentration camps).

    I merely offer a quiet hope that the SCOTUS uses the Obamacare case to overturn that bad, rotten, very not good decision.

  21. Actually, the “necessary and proper” clause is not an independent source of Congressional power. It merely states that Congress may pass whatever laws are “necessary and proper” to exercise only those enumerated powers listed previously in Art. I, Sec. 8. Clause 12 of that section gives Congress the power to “raise and support Armies”. The military draft is justified as “necessary and proper” to exercise the enumerated power to “raise and support Armies.”

  22. Are you thinking what we’re thinking?

  23. What is left out of the ‘we all pay for the uninsured’s healthcare’ argument is the part where the federal government passed a law mandating that emergency rooms treat whoever walks in the door, regardless of their ability to pay. So we’re just piling government iniquity upon government iniquity?

    No thanks. Count me out. And Wickard was entirely wrongly decided. But hey, let lawyers into the picture, and you get bad law…

  24. thread was too long to read it all but “(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.”

    Is not correct. I looked it up some years ago. In a case in 1917 (or so) the Supreme Court held that the draft is in fact the Congress’ method for “organizing” the Militia, where in members of the Militia had been previously defined as all able bodied males from the ages of 18 to 45.

  25. Shika Dalmia > Dhalsim

  26. I simply cannot understand why the SG arguing the case before SCOTUS is doing such a lousy job.

    None of the points he is floundering on are new or surprising. Surely, if the case for the Individual Mandate is as clear as it is claimed, the SG should be making devastating points about why it is so. Not requiring the liberal justices to make arguments for him.

  27. People not buying insurance have an impact on health care costs far more than insurance costs. Arguing the need to regulate insurance because it raises the insurance price for others is seriously flawed. While everyone may eventually require health care, that doesn’t mean they will participate in the insurance market.

  28. If the mandate falls, things will get very silly.
    Progressives will blame the SG for not arguing well enough and think up some excuse for why there should be a “Mulligan” declared.

    Also followed up with a “Conservative justices are hypocritical idealogues” narrative they have been prepping for over the last several weeks.

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