pageok
pageok
pageok
Does a Federal Mandate Requiring the Purchase of Health Insurance Exceed Congress' Powers Under the Commerce Clause?

I come late to the debate over whether a federal law requiring people to purchase health insurance exceeds Congress' powers under the Commerce Clause. In my view, the answer under current precedent is clearly "no." At the same time, I do think that such a law would be unconstitutional under the correct interpretation of the Commerce Clause - or any interpretation that takes the constitutional text seriously.

I. The Health Insurance Mandate Under Current Supreme Court Precedent.

Current Supreme Court precedent allows Congress regulate virtually anything that has even a remote connection to interstate commerce, so long as it has a "substantial effect" on it. The most recent major precedent in this field is Gonzales v. Raich, where the Court held that Congress' power to regulate interstate commerce was broad enough to uphold a ban on the use of medical marijuana that was never sold in any market and never left the confines of the state where it was grown. This regulation was upheld under the "substantial effects" rule noted above. As I describe in great detail in this article, Raich renders Congress' power under the substantial effects test virtually unlimited in three different ways:

1. Raich holds that Congress can regulate virtually any "economic activity," and adopts an extraordinarily broad definition of "economic," which according to the Court of encompasses anything that involves the "production, distribution, and consumption of commodities."

2. Raich makes it easy for Congress to impose controls on even "non-economic" activity by claiming that it is part of a broader regulatory scheme aimed at something economic.

3. Raich adopts so-called "rational basis" test as the standard for Commerce Clause cases, holding that "[w]e need not determine whether [the] activities [being regulated], taken in the aggregate, substantially affect interstate commerce in fact, but only whether a rational basis exists for so concluding." In legal jargon, a "rational basis" can be almost any non-completely moronic reason for believing that a particular claim might be true.

Any of these three holdings could easily justify a federal requirement forcing people to purchase health insurance. The decision to purchase or not purchase health insurance is probably "economic activity," as Raich defines it, since it involves the distribution and consumption of commodities such as medicine. When you buy health insurance, you are contracting with the insurance company to provide you with medicine and other needed commodities should you get sick.

Even if the purchase of health insurance is "non-economic" in nature, it could easily be upheld as part of a broader regulatory scheme aimed at economic activity - in this case regulation of the health care industry. As I discuss on pp. 516-18 of my article on Raich, The Court makes it very easy to prove that virtually any regulation can be considered part of a broader regulatory scheme by not requiring any proof that the regulation in question really is needed to make the broader scheme work. Finally, even if a court concludes that the government was wrong to assume that the decision to buy health insurance is "economic activity" under Raich's broad definition and wrong to believe that the mandatory purchase requirement was part of a broader regulatory scheme, the requirement could still be upheld because there was a "rational basis" for these ultimately mistaken beliefs.

II. Why Current Doctrine is Wrong.

For reasons laid out in my article, I think that Raich and other decisions interpreting the Commerce Clause very broadly were wrongly decided. I also agree with most of Randy Barnett's arguments to that effect in this post. Looking at the text of the Constitution, the Commerce Clause merely grants Congress the power to regulate "Commerce ... among the several states." Choosing to purchase (or not purchase) health insurance is not interstate commerce, if only because nearly all insurance purchases are conducted within the confines of a single state. Obviously, the decision to purchase health insurance may well have an impact on interstate commerce, and modern doctrine even before Raich allowed congressional regulation of any activities that have such a "substantial effect." However, this "effects" test is badly misguided. If the Commerce Clause really gave Congress the power to regulate any activity that merely affects interstate commerce, most of Congress' other powers listed in Article I of the Constitution would be redundant. For example, the very same phrase that enumerates Congress' power to regulate interstate commerce also gives it the power to regulate "Commerce with foreign Nations" and "with the Indian tribes." Foreign trade and trade with Indian tribes (which was a much more important part of the economy at the time of the Founding than today) clearly have major effects on interstate trade. Yet these two powers are separately enumerated, which strongly suggests that the power to regulate interstate commerce doesn't give Congress the power to regulate any activity that merely has an effect - substantial or otherwise - on that commerce.

Be that as it may, it is highly unlikely that the Supreme Court would invalidate a major provision of the health care bill, should it pass Congress. In addition to requiring the overruling of Raich and considerable revision of other precedents, such a decision would lead to a major confrontation with Congress and the president. The Court is unlikely to pick a massive fight with a still-popular president backed by a large congressional majority. Of course, it is still possible that the Court could invalidate some minor portion of the bill on Commerce Clause grounds. But even that is unlikely so long as the majority of justices remain committed to Raich. Five of the six justices who voted with the majority in that case are still on the Court. The only exception - Justice David Souter - has been replaced by a liberal justice who is unlikely to be any more willing to impose meaningful limits on congressional power than Souter was.

troll_dc2 (mail):
This is the correct way to distinguish "is" from "ought."
9.20.2009 7:38pm
J. Aldridge:
Looking at the text of the Constitution, the Commerce Clause merely grants Congress the power to regulate "Commerce ... among the several states." Choosing to purchase (or not purchase) health insurance is not interstate commerce, if only because nearly all insurance purchases are conducted within the confines of a single state.


Commerce among the states doesn't permit Congress to anything because to regulate commerce requires imposts and duties on imports/exports, not authoritative legislation over buying and selling. If that is what it mean then congress could pass a health care bill for all Rusians within Rusia becaue they can regulate commerce with other nations.
9.20.2009 7:54pm
Gail (mail):
And a good example of de jure vs. de facto.
9.20.2009 7:59pm
Michael Corleone (mail):
Your analysis about current Supreme Court precedent is lacking because you assume the power to "regulate" includes the power to mandate individuals to spend their money.

No doubt, your analysis is correct to the extent that current Supreme Court precedent permits the government regulation of health care. Therefore, this unfortunately means that the federal government can regulate health care using traditional methods like price controls and taxation.

But you have cited no precedent that permits the government to force individuals to part with their property under the rubric of "regulation." Moreover, the Supreme Court has never overturned Butler v. United States to the extent that Butler proscribes Congress from using the taxation power as a guise to coerce individual behavior if Congress' true goal is to dictate individual behavior as opposed to raising revenue.
9.20.2009 8:17pm
shertaugh:
Ilya:

The only exception - Justice David Souter - has been replaced by a liberal justice who is unlikely to be any more willing to impose meaningful limits on congressional power than Souter was


And that's based on what exactly -- her opinions so far on the Supreme Court, or her rulings as a circuit judge where she was bound to follow the law of a higher court.

That's the kind of characterization I'd expect listening to the radio.

You're better than that.
9.20.2009 8:27pm
Bart (mail):
Michael made the pertinent point before I could. Regulation is generally considered to be a negative function of government limiting or prohibiting acts that are contrary to the public good. How does negative regulation transform into affirmative direction if words have meanings?

Along these lines, has a similar challenge been brought in state court against Mitt Romney's mandates to purchase health insurance?

I would not think that precedent concerning auto insurance mandates would be on point. A mandate to purchase health insurance is qualitatively different from mandates to buy auto insurance. Driving is considered a privilege, the auto insurance mandate would be one of the requirements to exercise the privilege and could be avoided by declining to drive. In contrast, the mandate to buy health insurance does not arise from any privilege and you could not avoid the mandate to buy health insurance.
9.20.2009 8:28pm
Bama 1L:
Driving is considered a privilege

That depends on whether you are borrowing your mom's car or not.
9.20.2009 8:44pm
Tim Nuccio (mail) (www):

Your analysis about current Supreme Court precedent is lacking because you assume the power to "regulate" includes the power to mandate individuals to spend their money.


Unless you think the government lacks the authority to tax, then this is an illegitimate criticism.
9.20.2009 9:05pm
Just a Reader (mail):
"Regulate" and "mandate" each end with "ate". Accordingly, a provision that one must purchase insurance should easily pass the "You mean there is a limit on Congress under the Commerce Clause" test that currently seems in vogue.

With this line of thinking I reckon that a mandate requiring those of us who eat to purchase and consume only "organic" food would likewise pass constitutional muster.
9.20.2009 9:09pm
PersonFromPorlock:
Sigh. Humpty Dumpty*, please call the office!

*"When I use a word, it means what I want it to mean; neither more, nor less."
9.20.2009 9:29pm
Ariel:
Driving is also regulated by the states, not the federal government.
9.20.2009 9:37pm
Lior:
Insurance is an economic service. As such, there should be no doubt purchase of insurance is an "economic activity". The purchase of medical treatment (and of medicines) is also economic activity, but a separate one. No-one wonders whether loaning money is an economic activity separate from the uses the loaned money is put for.

Whether Congress may regulate this kind of economic activity is a separate matter. It depends on what "Commerce" meant in the late 18th century, that is whether real estate, services, and financial transactions were considered "commerce" or whether only physical goods count.
9.20.2009 10:03pm
Off Kilter (mail):
"it is still possible that the Court could invalidate some minor portion of the bill on Commerce Clause grounds. But even that is unlikely so long as the majority of justices remain committed to Raich. Five of the six justices who voted with the majority in that case are still on the Court."

Doesn't that require assuming, against all evidence, that Scalia was casting a vote on judicial principle as opposed to dislike of marijuana?
9.20.2009 10:03pm
Duffy Pratt (mail):
Re Humpty:

All the king's horses, and all the king's men, etc... (And the King isn't inclined to put Humpty together again anyways.)
9.20.2009 10:04pm
David M. Nieporent (www):
Commerce among the states doesn't permit Congress to anything because to regulate commerce requires imposts and duties on imports/exports, not authoritative legislation over buying and selling.
A claim for which you've never presented the slightest bit of evidence, and which textually makes no sense whatsoever.
If that is what it mean then congress could pass a health care bill for all Rusians within Rusia becaue they can regulate commerce with other nations.
What's your point? Congress could indeed do that. Might have trouble enforcing it, though.
9.20.2009 10:07pm
Repeal 16-17 (mail):
Sadly, the Commerce Clause has been read by SCOTUS to be The Federal Government Can Do Whatever The Hell It Wants Unless The Bill Of Rights Says Otherwise Clause. So unless a majority of the Justices believe such a mandate violates a part of the Bill of Rights, it's highly unlikely SCOTUS would declare such a mandate to be Unconstitutional.

Of course, there's always State Nullification and passive resistance. California continued to allow sales of medical marijuana after the Raich decision and President Obama has told the DEA to stop raiding places conducting those sales. So it appears that California successfully nullified Raich, and the Controlled Substances Act, within California and regarding medical marijuana.
9.20.2009 10:10pm
Ilya Somin:
Your analysis about current Supreme Court precedent is lacking because you assume the power to "regulate" includes the power to mandate individuals to spend their money.

Actually, the precedents I cited allow regulation of any economic activity, very broadly defined, which surely includes decisions to spend (or not spend) money. Moreover, many Commerce Clause precedents do in fact uphold various regulations (e.g. - labor regulations) that require employers among others to spend money.
9.20.2009 10:12pm
Ilya Somin:
The only exception - Justice David Souter - has been replaced by a liberal justice who is unlikely to be any more willing to impose meaningful limits on congressional power than Souter was



And that's based on what exactly -- her opinions so far on the Supreme Court, or her rulings as a circuit judge where she was bound to follow the law of a higher court.

That's the kind of characterization I'd expect listening to the radio.

You're better than that.


Liberal justices and legal theorists have almost uniformly opposed the imposition of any limits on Congress' Commerce Clause authority. It is theoretically possible that Sotomayor (who is generally very liberal) will prove to be an exception, but highly unlikely. In the same way, Roberts or Alito could be said to be unlikely to vote to uphold affirmative action policies because they were strong conservatives - even though neither had ruled on the issue prior to joining the Supremes.
9.20.2009 10:15pm
Lior:
Oddly enough, "Commerce" sounds like "production, distribution, and consumption of commodities", while "economic activity" should be far more general &emdash; precisely because it should encompass finance, insurance, and the like.
9.20.2009 10:16pm
Ilya Somin:
"it is still possible that the Court could invalidate some minor portion of the bill on Commerce Clause grounds. But even that is unlikely so long as the majority of justices remain committed to Raich. Five of the six justices who voted with the majority in that case are still on the Court."

Doesn't that require assuming, against all evidence, that Scalia was casting a vote on judicial principle as opposed to dislike of marijuana?


Even without Scalia's vote, there are still the votes of the 4 liberal justices plus Kennedy. Moreover, Scalia's reasoning is broad enough to cover a lot more than just marijuana, and he surely knew that. Even if his original motive was just to indulge his dislike of marijuana, i doubt he would readily agree to take back his statements now. Moreover, Scalia is no record as generally being skeptical of attempts to role back the extensions of congressional authority under the New Deal-era precedents.
9.20.2009 10:17pm
Michael Corleone (mail):
Tim Nuccio,

As a addressed in the second part of my post, the taxing power is limited; the government's the taxing power only permits the generation of revenue, it does not permit the government to do whatever the hell it wants so long as the government calls it a "tax." See United States v. Butler and O'Connor's concurrence in Dole.
9.20.2009 10:19pm
Oren:

Moreover, the Supreme Court has never overturned Butler v. United States

They would if a case presented itself. Quoting the switch-in-time as horizontal precedent is not convincing. Butler was even written by Owen!
9.20.2009 10:23pm
Oren:

See United States v. Butler and O'Connor's concurrence dissentin Dole.

FIFY.
9.20.2009 10:24pm
Tim Nuccio (mail) (www):


As a addressed in the second part of my post, the taxing power is limited; the government's the taxing power only permits the generation of revenue, it does not permit the government to do whatever the hell it wants so long as the government calls it a "tax." See United States v. Butler and O'Connor's concurrence in Dole.


Sin tax anyone?
9.20.2009 10:28pm
A. Zarkov (mail):
Not buying medical insurance is not an economic activity. When you don't buy insurance you do not engage in any kind of activity whatsoever. Being forced to buy medical insurance is not like being forced to buy automobile insurance because owning and operating a motor vehicle is an activity-- you have actually have done something. I can't think of any other instance where someone has to pay a tax for his mere existence.

I don't see how the commerce cause could possibly apply to mere existence. To claim so is to drain all the meaning from words. In Wickard v. Filburn, after all farmer Filburn did do something-- he grew wheat. I have little doubt that Ginsberg, Breyer, Sotomayor, and Stevens will fail to grasp the concept of taxing mere existence. It all comes down to Kennedy, and we don't really how how he would rule. If the Supreme Court puts us all into Obamastan, then we know the court is just a junta in black robes instead of military uniforms.
9.20.2009 10:54pm
Leamon Yellow (mail):
For reasons laid out in my article, I think that Raich and other decisions interpreting the Commerce Clause very broadly were wrongly decided.


Earth to Poindexter: the supreme court doesn't care what the constitution says. They will do whatever the F they want.
9.20.2009 11:26pm
Oren:

Sin tax anyone?

I don't see any serious legal complaints about the Federal tobacco tax ($.75/pack, funds SCHIP). Don't thank me, thank Orinn Hatch.
9.20.2009 11:34pm
glangston (mail):
A. Zarkov (mail):
Not buying medical insurance is not an economic activity. When you don't buy insurance you do not engage in any kind of activity whatsoever. Being forced to buy medical insurance is not like being forced to buy automobile insurance because owning and operating a motor vehicle is an activity-- you have actually have done something. I can't think of any other instance where someone has to pay a tax for his mere existence.



Perhaps they'll require actual use by a mandated yearly physical.
9.20.2009 11:44pm
A. Zarkov (mail):
Oren:

"I don't see any serious legal complaints about the Federal tobacco tax..."

I don't see how that's pertinent. Buying and smoking tobacco products involves actions: transactions and smoking-- commerce. If I don't smoke (and I don't) I don't pay anything.
9.20.2009 11:50pm
Michael Corleone (mail):
Ilya,

Like you mentioned, there may be Supreme Court precedent that permits Congress to coerce employers to pay for certain things. However, before the employer has to pay for things that employer makes a predicate decision to employ somebody. So there is an element of free will; the individual chooses to engage in certain behavior before they are required to part with their money. The same logic applies to car insurance -- the individual makes a predicate decision to drive a car before they are subject to the requirement of having to purchase insurance. In all of these situations, the individual makes a decision to do something before he is required to participate in the regulatory scheme.

Those situations are completely distinguishable from the idea of forcing people to pay for health insurance. There is absolutely no free will in the mix -- the person has to pay for their "mere existence." Not only is there no enumerated power to support this idea, but there may be an independent objection on due process grounds (deprivation of property without due process of law.)

When you can show me a precedent in which the government is permitted to force an individual to pay for something without that individual first making a decision to participate in some activity, I'll agree with your assessment that individual mandates are constitutional under current precedent. But I suspect you cannot point to such a precedent, so I stand by my statement that the power to "regulate" does not encompass the power to mandate individual behavior.
9.20.2009 11:56pm
LibertyCowboy (www):
I think a true mandate could be ruled unconstitutional. Even the current court would likley recognize a limit needs to be set somewhere. Although cotton is used in interstate commerce, most jurists would probably object to citizens being forced to work growing cotton in a government field 16-hours a day even as part of a 'regulatory scheme' designed to increase availability of cotton and 'create jobs'. Nothing congress has done during my lifetime could pass a legitimate rational basis test.

Raich was actually a rather limited ruling based on the fungability of her C. Sativa. In theory, Angel Raich could produce some non-fungable cannibis and be lawfully allowed to live within the union.

A mandate would violate religious freedom (and is probably worth joining a religion to avoid) as coded both in the constitution and regligous freedom restoration act.

Currently a mandiate would violate HIPPA unless it can be enforced anonymously and insurance forms lack OMB control numbers in violation of the paperwork reduction act. It would be unusual for the high-court to order someone to consume a service from a private entity.

Congress could however probably increase taxes by 30,000/person and allow a deduction if insured. Insurance will probably cost that much by the time this is over.
9.20.2009 11:59pm
Kazinski:
Even under Ilya's view of the Commerce clause, a individual health insurance mandate would be constitutional. It would merely need to be structured as a head tax on individuals and families offset by a credit for having health insurance.
9.21.2009 12:42am
juris_imprudent (mail):
When you don't buy insurance you do not engage in any kind of activity whatsoever.

Wickard was growing wheat for his own {and his livestock's) consumption. Raich was growing her own marijuana. Care to bet on how your above rationale would fare under the hammer of the federal govt? At best you'll get one vote - Thomas.
9.21.2009 1:09am
geokstr (mail):

A. Zarkov (mail):

Oren:
"I don't see any serious legal complaints about the Federal tobacco tax..."

I don't see how that's pertinent. Buying and smoking tobacco products involves actions: transactions and smoking-- commerce. If I don't smoke (and I don't) I don't pay anything.

Zark, while I agree with your logic and that of others here that not buying something is not commerce or even an economic activity, why is there the least reason to believe that there is anything that will stop those who think that they are now mandated to do anything they please because they won? They really do believe that their stealth candidate who barely won in a perfect electoral storm where any Democrat still breathing should have taken 75% of the vote now has an absolute mandate to radically restructure the country.

If you don't buy insurance, the first time you want to go to a doctor for any reason, even if you're willing to pay for it yourself, you have now engaged in the defined "economic activity". They'll probably have the forms in every doctor's office and hospital that you'll have to fill out to apply for insurance before you get treated.
9.21.2009 1:12am
A. Zarkov (mail):
geokstr:

"If you don't buy insurance, the first time you want to go to a doctor for any reason, ..."

A Christian Scientist has no first time at a doctor. Do they get exempted from the tax? Suppose I go abroad to the doctor. For example a San Diego resident goes into Mexico for all his medical care.
9.21.2009 1:18am
/:
If you don't buy insurance, the first time you want to go to a doctor for any reason, even if you're willing to pay for it yourself, you have now engaged in the defined "economic activity".

What if the doctor was trained within the State in which he's providing service? (For the sake of argument, say all office materiale was bought and/or constructed in-State).
9.21.2009 1:20am
A. Zarkov (mail):
"Wickard was growing wheat for his own {and his livestock's) consumption. Raich was growing her own marijuana."

That's true, and I think both Wickard and Raich were wrongly decided. But the mandate is worse, and has not the slightest connection with commerce. Filburn did something: he grew excess wheat. Raich did something: she grew marijuana. One might as well have said that in 1938 anyone not consuming wheat products was affecting commerce by their non-consumption, therefore they were engaging in commerce. Even a lunatic wouldn't buy that logic. If we can apply the commerce clause to non-commerce then we live in a world of magic.

As George Orwell wrote: "One has to belong to the intelligentsia to believe things like that: no ordinary man could be such a fool."
9.21.2009 1:34am
David Schwartz (mail):
A.Z.: How is the mandate not related to commerce? Isn't medical insurance a form of commerce? How is it any different from laws requiring indoor plumbing? Or laws requiring parents to bring their children to school?

And how is it not within the taxing power? It's perfectly reasonable to tax behavior that creates a statistical risk of imposing costs on others. Internalizing what would otherwise be externalities is a classic government function. This is (effectively) what almost every State does when it mandates auto insurance.
9.21.2009 1:46am
jab:
There is a simple solution:

The law could be written that if you do not purchase insurance by a certain date, then the health insurance companies can impose whatever pre-existing condition clause they want, and they have the right to reject you for whatever reason.

The reason why the "forced" mandate to buy insurance exists is to prevent the moral hazard of people not buying insurance until they are already sick... you cannot have "no exceptions for pre-existing conditions" and "no mandate to buy insurance" simultaneously...

So fine... give people a choice... buy insurance by a certain date and be guaranteed acceptance with no pre-existing condition clause, OR choose not to buy insurance, but then be subject to said pre-existing condition clauses.
9.21.2009 2:00am
jab:
AZarkov bleated:

If the Supreme Court puts us all into Obamastan [eg secret Muslim Manchurian Communist], then we know the court is just a junta in black robes instead of military uniforms.


geokstr whined:

They really do believe that their stealth candidate [eg secret Muslim Manchurian Communist] who barely won in a perfect electoral storm where any Democrat still breathing should have taken 75% of the vote now has an absolute mandate to radically restructure the country.


Please, sir, can I have some more. The more you sound like jackasses, the better for the Democrats... by all means... continue.
9.21.2009 2:06am
A. Zarkov (mail):
David Schwartz:

Your arguments might work at the state level, but not at the federal level. What part of the US constitution gives the federal government the power to levy such a tax, other than the commerce clause? Not buying insurance is not commerce.

"Isn't medical insurance a form of commerce?"


It is. But not buying medical insurance is not commerce. Mere existence is not commerce.

How is it any different from laws requiring indoor plumbing?

Those laws are state and municipal building codes. Moreover you have to build or buy a house to be subject to a law requiring indoor plumbing.

"Or laws requiring parents to bring their children to school?"

Those are state laws and they don't require commerce.

"And how is it not within the taxing power?"

Because there is nothing to tax. No transaction no tax. No action no tax. The federal government does not have the power to tax mere existence.

"It's perfectly reasonable to tax behavior that creates a statistical risk of imposing costs on others."


There is no behavior. Not doing something is not behavior in the context of the commerce clause. You keep forgetting that the whole authority for the mandate rests with the commerce clause.
9.21.2009 2:09am
A. Zarkov (mail):
jab:

"Please, sir, can I have some more. The more you sound like jackasses, the better for the Democrats... by all means... continue."

You know very well that I was just fooling around with a little invective for entertainment purposes. My comment on "Obamastan" has nothing to do with the substance of my argument.
9.21.2009 2:14am
A. Zarkov (mail):
jab:

"OR choose not to buy insurance, but then be subject to said pre-existing condition clauses."


That's what we have now. Some large employers have plans that cover pre-existing conditions, but if you go in as an individual pre-existing conditions are not covered.
9.21.2009 2:16am
David Schwartz (mail):
AZ: The authority is argued to rest within the modern understanding of the commerce clause only because that renders it unassailable under current law. It does not follow that it could not be justified under other provisions of the law, not the least of which being the taxing power.

Because there is nothing to tax. No transaction no tax. No action no tax. The federal government does not have the power to tax mere existence.
That would have been news to the framers of the Constitution, who had no problems with capitation taxes.
9.21.2009 2:17am
jab:

You know very well that I was just fooling around with a little invective for entertainment purposes. My comment on "Obamastan" has nothing to do with the substance of my argument.


Well, it's hard to tell... there are more than a few of your fellow compatriots who are dead serious with such invective.
9.21.2009 2:22am
jab:

jab:

"OR choose not to buy insurance, but then be subject to said pre-existing condition clauses."

That's what we have now. Some large employers have plans that cover pre-existing conditions, but if you go in as an individual pre-existing conditions are not covered.


Not quite. There is no option really for people who are not employed by large employers. I personally an unfortunate to have 3 long-term chronic conditions... if I wasn't employed by a large employer, I would be screwed... previously when I tried to purchase private insurance I was denied by every single company... I had to go into a high-risk pool offered by the state that had outrageous deductibles... I would have appreciated a public option at that time.
9.21.2009 2:25am
A. Zarkov (mail):
jab:

"Not quite."

You said what I said. Reread.
9.21.2009 2:39am
A. Zarkov (mail):
David Schwartz:

"That would have been news to the framers of the Constitution, who had no problems with capitation taxes."

I should have wrote "mere existence under the commerce clause," but from context I thought that was obvious. More to the point, the Constitution does not provide for capitation taxes. We did have poll taxes, but those were at the state level. Other than the poll tax, I can't think of any capitation tax even on the state level.
9.21.2009 2:45am
Anon Y. Mous:
But, isn't the implication of your argument that although it's unconstitutional for the federal government to mandate everyone purchase medical insurance on the private market, it would be constitutional for them to expand Medicare to cover everyone (and, of course, raise everyone's taxes to pay for it). Or, do you also take the position that Medicare is unconstitutional? (That is my position, by the way.)
9.21.2009 2:58am
A. Zarkov (mail):
"... it would be constitutional for them to expand Medicare to cover everyone (and, of course, raise everyone's taxes to pay for it)."

That's a good question. If Medicare is constitutional then such a plan would be too. You don't pay FICA if you don't work, and no one is forced into Medicare. At this point there is no going back on Medicare, so that's a moot issue.
9.21.2009 3:23am
Oren:



Sin tax anyone?

I don't see any serious legal complaints about the Federal tobacco tax...

I don't see how that's pertinent. Buying and smoking tobacco products involves actions: transactions and smoking-- commerce. If I don't smoke (and I don't) I don't pay anything.

I was not address your argument, AZ, but rather Tim's thin gruel (one pre-stitch New Deal and one modern dissent) that purports to forbid Congress from having the subjective intent to influence behavior through taxation. Butler is a dead letter, and O'Conner didn't convince anyone otherwise.

The cigarette tax, for instance, is both a revenue generation tax and a tax to discourage cigarette smoking. There is ample evidence from the sound-bites at the time that both rationales were present.
9.21.2009 3:41am
Oren:

When you can show me a precedent in which the government is permitted to force an individual to pay for something without that individual first making a decision to participate in some activity, I'll agree with your assessment that individual mandates are constitutional under current precedent.

You should read up on Shay's Rebellion, which was precipitated by a capitation tax and the attempts to collect it.

Spoiler alert: it does not end very well for Shay.
9.21.2009 3:48am
Ricardo (mail):
As long as the federal government has the power to mandate that hospitals treat ER patients regardless of whether they have the resources to pay or not, I would imagine the federal government has similar power to mandate that Americans purchase health insurance. Same goes for the power to power to enact Medicare: the government already has the power to force you to pay for insurance you will only benefit from after a certain age. If it has that power, it can certainly force you to buy insurance that benefits you now.
9.21.2009 7:34am
Brett Bellmore:

Earth to Poindexter: the supreme court doesn't care what the constitution says. They will do whatever the F they want.


Yeah, that pretty much sums it up: "Constitutionality" has squat to do with the Constitution, they only call it "Constitutionality" to fool the rubes who still think the Constitution counts for something, and might get testy if told otherwise.
9.21.2009 7:47am
Cato The Elder (mail) (www):
Even a waffling libertarian/conservative should oppose any attempt by the Democratic Congress on meaningful health-care "reform" based exactly on what we're seeing here in this thread; even if the program is an utter failure, even if it leads to egregious rights violations, no one on the other side of the ideological spectrum will debate you honestly once the reform is instutionalized. They will always default to "rachet" precedents so as to keep intact that much higher political goal: plausible deniability in the face of error.
9.21.2009 9:42am
californiamom:
The Amish do not believe in health insurance. When one of their members is seriously ill, the entire community gives to cover the medical expenses. Any bill mandating the purchase of health insurance would have to exempt the Amish (as they are specially exempted from Social Security). The argument then becomes: Does it violate the First Amendment to favor one religious group by giving them a special exemption when others, not of that religion, would also like an exemption?
9.21.2009 10:04am
Jake.in.hou (mail):
Whatever.

The US as a constitutional republic of LIMITED government powers died decades ago.

We're just arguing over the corpse, while proud men and women in black robes perform kabuki dances pretending we're all free.

Jake
9.21.2009 10:20am
aaCharley (mail):
I have seen the question posed before concerning the legality of an insurance requirement.

What should also be interesting is the associated situation. IF Congress cannot require someone to purchase health insurance, should Congress have the power to take my taxes and provide health care to that person without charge? My opinion is that they should not be allowed to do either one.
9.21.2009 10:35am
David Schwartz (mail):
AZ: Again, people defend this law under the commerce clause because they know that under current commerce clause doctrine, it's a slam dunk argument that it's constitutional. That's the only reason they make that argument. If you reject current commerce clause jurisprudence, then this argument isn't wrong, it's simply inapplicable. But so what? It's not the only argument for why this would be constitutional.

And to the taxing clause, capitation taxes were never a problem. Nobody felt they were unconstitutional. In fact, Article I expressly permits them and there were any number of them levied by the United States Federal government in the 18th and 19th centuries.

They were later replaced by income taxes because the complexity of apportionment became a problem. So your argument would have to be that basing the amount of the income tax on whether or not you have health insurance is somehow impermissible.
9.21.2009 10:44am
shertaugh:
Ilya:

If this SCOTUS were to strike any part of a healthcare bill, would not the lower courts be obliged to strike down 18 U.S.C. 1347, the federal criminal healthcare fraud statute -- at least insofar as a private health insurers are concerned. The constitutional lynchpin of 1347 is the requirement that the victim healthcare benefit program "affect commerce" (per 18 U.S.C. 24(b)).

In other words, are you arguing that the modifier "affect commerce" is not sufficient to justify health care legislation?
9.21.2009 10:52am
A. Zarkov (mail):
Ricardo:

"As long as the federal government has the power to mandate that hospitals treat ER patients regardless of whether they have the resources to pay or not,..."


Hospitals engage in transactions, and they do something. It's not a question of mere existence.
9.21.2009 11:25am
A. Zarkov (mail):
David Schwartz:

"Again, people defend this law under the commerce clause because they know that under current commerce clause doctrine, it's a slam dunk argument that it's constitutional."

Do you think that current doctrine asserts that anything is interstate commerce? That kind of argument failed in Lopez.

"In fact, Article I expressly permits them and there were any number of them levied by the United States Federal government in the 18th and 19th centuries."

That's interesting, and I wish you would be more specific. But do you really think the health care mandate will get defended as a capitation tax, and not under the commerce clause? Is forcing people to buy something from a private insurer anything like a capitation tax? I suppose Congress could frame it that way, but I doubt they will.

My larger point here is that the mandate stretches the commerce clause beyond the breaking point.
9.21.2009 11:35am
David Schwartz (mail):
AZ: Under current commerce clause jurisprudence, it's part of a comprehensive plan to regulate health care, a fundamentally commercial activity. However, it's also a tax. So I don't see how you can justify it without at least some reference to the taxing powers.

"Is forcing people to buy something from a private insurer anything like a capitation tax?"

That's a crazy way to frame it. Does offering a deduction based on the number of children you have force anyone to have children? No, it simply recognizes that people with more children statistically tend to have more expenses. Similarly, people without health insurance statistically tend to impose more costs.

This is simply a tax to force people to internalize what would otherwise be an externality. There is nothing whatsoever unusual about that.
9.21.2009 11:45am
Jon Roland (mail) (www):
David Schwartz:

How is the mandate not related to commerce?

Can you acknowledge that the word "commerce" did not have the same meaning in 1787 than it has today, and that the change in meaning is important?
9.21.2009 11:55am
Kevin Murphy:
So, if Congress was subsidizing hat manufacturers, they would have the power to make me buy a red hat and wear it on Tuesdays? There is no end to the power you suggest they have.

There is a big difference between regulating commerce and making me engage in said commerce.
9.21.2009 12:14pm
Another realist:
Can you acknowledge that the word "commerce" did not have the same meaning in 1787 than it has today, and that the change in meaning is important?


Can you acknowledge that the economy of the United States has changed from 1787 to today, and that the change in the economy is important?

Not just important, but Constitutionally significant. Insamuch as the Constitution is not merely a quaint old paper from a bygone era, but a practical plan for the nation's governance?
9.21.2009 12:14pm
Kevin Murphy:
Reading the comments it is AMAZING how many people miss the point. No one is saying that the feds cannot regulate the medical insurance biz, nor even if this is a good idea or not. So, please stop arguing the point. It's stipulated.

The argument is simple: Can they regulate the commerce to the point that they can MAKE me engage in the commerce? Or fine/tax me for not doing so? BIG difference.
9.21.2009 12:18pm
David Schwartz (mail):
Can you acknowledge that the word "commerce" did not have the same meaning in 1787 than it has today, and that the change in meaning is important?
If you're trying to make some sort of argument, it would be helpful if you actually made it. If you're trying to say that the words in the Constitution should mean precisely what they meant in 1787, then I couldn't disagree with you more (and I submit that this is not what the framers intended either). As I've argued in more detail elsewhere, this kind of "originalism" is internally inconsistent and fails by its own criteria.

For example, if you ask one of the framers "when you said 'speech' in 1787, did you intend to include blog posts" they would have to say "of course not". But if you ask them "should 'freedom of speech' be understood today to include blog posts" I'm quite sure they would say "of course".

Ditto for "due process". It is incoherent nonsense to argue that "due process" means "whatever process would have been considered due in 1787". On the contrary, a right to "due process" means that if you can show that some process is actually in fact due, you have a right to it. That's what those words meant in 1787 and that's what they mean now.
9.21.2009 12:28pm
geokstr (mail):
One of the big demographics that went overwhelmingly for Obama was the 18-29 year old voters. IIRC, that is also the same group making up a big chunk of those many millions who choose not to buy insurance.

I wonder if their opinion of Obama will change when they are presented the bill for their insurance, in whatever form it may take, and they realize they've been hoodwinked?
9.21.2009 12:40pm
cubanbob (mail):
There is a certain low level comedy in democrats forcing the uninsured to buy health insurance lest they become a public charge but enable and encourage people to be welfare parasites. Taking their logic to its conclusion would require the abolishment of the welfare state.
9.21.2009 1:08pm
Joseph Somsel (mail):
Congress has many ways to make health care fees apply to all citizens without invoking the Commerce Clause and the problems noted.

For example, Congress has set the nation-wide drinking age at 21 via non-Commerce Clause methods - withholding of transportation funding.

If doubts about the constitutionality of a health care mandate were serious, work-arounds would be found.

As to Scalia and Rausch, this was a major disappointment. Here was his chance to push back on the New Deal power grab but he declined because of his anti-drug perspective.
9.21.2009 1:13pm
Oren:
geokstr, one of the main reasons that we don't buy health insurance (speaking as a 18-29) is that the coverage is basically useless. Lifetime benefits cap? Per-condition benefit caps? "Pre-existing condition"?

My employer gives me the minimum required by law (here in MA) and I've read the policy and determined that is pretty much designed to never pay out any significant benefits.
9.21.2009 1:20pm
ShelbyC:
If an agency like the Nevada State Gaming Commission were vested with the authority to regulate gambling in the state of Nevada (I don't know anything about the Nevada State Gaming Commission or it's authority) and it tried to mandate that Nevadans spend at least $100 a week in the casinos, I doubt many folks would find that a reasonable interpretation of its authority. I'm not sure why it's different with interstate commerce.
9.21.2009 1:25pm
troll_dc2 (mail):

The Amish do not believe in health insurance. When one of their members is seriously ill, the entire community gives to cover the medical expenses. Any bill mandating the purchase of health insurance would have to exempt the Amish (as they are specially exempted from Social Security). The argument then becomes: Does it violate the First Amendment to favor one religious group by giving them a special exemption when others, not of that religion, would also like an exemption?


But the non-Amish religion would have to provide a truly comprehensive way to address the medical needs of its members. The Amish essentially form their own risk pool, which is activated when the need arises; this is exactly what the insurance industry does to protect policyholders when a company collapses.
9.21.2009 1:32pm
Jon Roland (mail) (www):
Another realist:

Can you acknowledge that the economy of the United States has changed from 1787 to today, and that the change in the economy is important?

Of course, but that change is not a delegation of new powers, and if it presents situations that require new delegations to solve, then the Constitution should be amended, and I might support some such amendments, as I propose here. Unless or until such amendments are ratified, the exercise of undelegated powers is illegitimate, regardless of any adverse consequences that might ensue. The old argument that "the Constitution is not a suicide pact" is bogus. If we encounter a threat to our national survival that requires the exercise of an undelegated power, then exercise it illegally for as long as it takes to amend the Constitution, and impeach and remove, and perhaps prosecute, the officials who acted illegally after the crisis is over. As a matter of law unlawful acts should be prosecuted even if justified by necessity, and let a jury decide.
9.21.2009 1:32pm
troll_dc2 (mail):
Can someone tell me in non-fancy language why I should care whether the Commerce Clause allows or does not allow the sort of reforms that Obama is pushing? (For the record, I have insurance coverage that I will hav to pay tax on if the proposal to tax so-called "gold-plated" plans becomes law.)
9.21.2009 1:36pm
Jon Roland (mail) (www):
Kevin Murphy:

No one is saying that the feds cannot regulate the medical insurance biz, nor even if this is a good idea or not.

Many of us are. Neither medical practice nor insurance are "commerce" within the meaning of that term in 1787, nor is anything that might "have a substantial effect" on commerce. The power to regulate is only to make a certain kind of limited effort, not to do whatever it might take to get a regulated outcome. The only way to get a regulated outcome might be to exterminate the entire population, but there is no delegated power to do that.
9.21.2009 1:38pm
Jon Roland (mail) (www):
David Schwartz:

If you're trying to say that the words in the Constitution should mean precisely what they meant in 1787,

Delegations of powers should mean precisely what they meant in 1787. The Constitution is not just about powers. It is also about rights, which are the complement of delegated powers. Powers must be interpreted strictly means rights must be interpreted broadly.


For example, if you ask one of the framers "when you said 'speech' in 1787, did you intend to include blog posts" they would have to say "of course not". But if you ask them "should 'freedom of speech' be understood today to include blog posts" I'm quite sure they would say "of course".

They would probably have said that blog posts are "press", not "speech". "Speech" was understood as the creation of messages; "press" as the dissemination of them. However, we are discussing rights at this point, which are not delegations of powers, but restrictions on the exercise of delegated powers, and those must be interpreted broadly.


Ditto for "due process". It is incoherent nonsense to argue that "due process" means "whatever process would have been considered due in 1787". On the contrary, a right to "due process" means that if you can show that some process is actually in fact due, you have a right to it. That's what those words meant in 1787 and that's what they mean now.

Again, "due process" is not the delegation of a power, but a right, a restriction on the exercise of delegated powers. As such, it includes everything that would have been considered due process in 1787, but is not limited to that. As technology, the economy, and various practices change and evolve, we are bound by the Constitution to find ever newer ways that delegated powers must be restricted. That does not mean the originally delegated powers vanish altogether. They continue to operate. But their exercise becomes ever more complicated as new ways are found in which their exercise is improper and unconstitutional.
9.21.2009 1:52pm
David Schwartz (mail):
Jon Roland: As a quasi-Libertarian, I very much like a scheme where the Constitution automatically gets more Libertarian over time as rights expand and powers either contract or stay constant. However, I don't see any rational way you can claim that that's what the Constitution "actually means", "should mean" or any such thing.

There are some delegation clauses, in fact, that appear specifically intended to expand. The "necessary and proper" clause, for example, seems to be designed to do this. What is "proper" to accomplish the enumerated powers is necessarily a societal judgment that will change over time.
9.21.2009 2:03pm
Jon Roland (mail) (www):
David Schwartz:

I don't see any rational way you can claim that that's what the Constitution "actually means", "should mean" or any such thing.

The only way for a person to really convince himself of that is to immerse himself in the primary source material, treated as the study of a foreign language. Admittedly, that is a lot of work for busy people, but worth it. In the meantime, you can give at least a little nod to those of us to do that. We aren't just popping off casual impressions.


There are some delegation clauses, in fact, that appear specifically intended to expand. The "necessary and proper" clause, for example, seems to be designed to do this. What is "proper" to accomplish the enumerated powers is necessarily a societal judgment that will change over time.

Not intended to expand as much as it has been used to support. First, the words "necessary" and "proper" are conjunctive restrictions. Such a power must be both "necessary" and "proper", and they are further restricted by the phrase 'carry into execution", which means "make a certain kind of effort", not "get a desired result". In other words, it is only intended to authorize administrative actions, not expansions of the subject matter for the exercise.

So, for example, it might be deemed "necessary" for "carrying into execution" a power to "regulate", to lease offices, hire agents, and print forms. But suppose there was not enough money in the budget to pay for all that. It would then be "improper" to incur a debt and not pay it, even if the objects of regulation go unregulated.

To invoke another example, albeit extreme, suppose our agents, in their wisdom, decided the only way to regulate, that is, to get a regulated outcome, some merchants is to kill them all. After all, no merchants means no commerce among them and that may be the only "regulated" outcome possible. But it would be "improper" to do so. Contrary to Justice Marshall in Ogden, delegations of power are not "plenary" within their spheres. All delegations are restricted to reasonable means toward reasonable and legitimate public purposes. The details of that might not be spelled out in detail in either the Constitution or in statutes or court orders, but it was understood then and should be understood now.
9.21.2009 2:30pm
Another realist:
To invoke another example, albeit extreme, suppose our agents, in their wisdom, decided the only way to regulate, that is, to get a regulated outcome, some merchants is to kill them all.


Let us suppose that “Murder Incorporated” is holding out in a fortress in the Rockies. The mountain fastness is surrounded by U.S. Marshals, FBI agents, and revenuers. The outlaw merchants of death have vowed to “never surrender!”

Does anyone doubt the federal power here?
9.21.2009 2:51pm
Melancton Smith:
Oren wrote:

You should read up on Shay's Rebellion, which was precipitated by a capitation tax and the attempts to collect it.

Spoiler alert: it does not end very well for Shay.


His name was Daniel Shays, not Shay. His death sentence was ultimately pardoned and he died in obscurity.
9.21.2009 4:56pm
DMzxy:
troll_dc2 writes: "...the non-Amish religion would have to provide a truly comprehensive way to address the medical needs of its members. The Amish essentially form their own risk pool..."

The Troll is right about the Amish forming their own risk pool, but I wonder how Troll's suggestion of judicial fact-finding and analysis would work in practice. Imagine the spectacle of judges trying to decide whether a religion provides "truly comprehensive" medical care, or whether it's merely sufficient. Does "truly comprehensive" medical care include funding for abortions? Circumcision? Tubal ligation? Subsidized yoga? How about mandatory end of life counseling?

Egads.
9.21.2009 5:15pm
sbowers3:
Only a judge/justice could reach the absurd conclusion that declining to engage in commerce (i.e. not buying health insurance) is a form of interstate commerce.
9.21.2009 6:22pm
GatoRat:

The reason why the "forced" mandate to buy insurance exists is to prevent the moral hazard of people not buying insurance until they are already sick


Partly true, but it's mostly because for most people who choose to not purchase insurance do so out of sound economic reasoning; their gross medical expenses are less than the insurance. To make insurance successful, you must have a large pool of whom half take out less than they put in.

(Due to running my own start-up, I was without insurance for the last half of the nineties. I paid for prescriptions, dozens of doctor visits, several ER visits, one MRI and a child birth out-of-pocket. Using the full cost of medical insurance from the job I held before starting my own company, I saved over $30,000. [FYI, The baby was born using a midwife—cost less than $1000. My MRI cost $1200. The ER visits were $190, $250, and $1000.])
9.21.2009 6:54pm
David Schwartz (mail):
GatoRat: But what if you had needed, say, a $150,000 operation? Or a $300,000 procedure? And when you decided to take the risk that you would need more medical care than you could afford, did you factor in the fact that you would likely get the medical care no matter what and the worst case scenario was probably that you'd have to declare bankruptcy?
9.21.2009 7:30pm
Ricardo (mail):
Hospitals engage in transactions, and they do something. It's not a question of mere existence.

An academic point. As long as you exist but do not purchase health insurance, you are a potential liability sitting on the balance sheet of every hospital in the country under current law. If that law is constitutional, it is surely constitutional to require you to take action that prevents you from being a potential liability to anyone else.

I don't see how any court would ever say that the federal government has the power to force hospitals to offer care to the indigent but a regulatory scheme designed to prevent people from freeloading too much off of this scheme is unconstitutional.
9.21.2009 9:25pm
Mom (mail):
Well, as a non-lawyer, "ordinary" citizen, my opinion is that requiring me to obtain health insurance is unconstitutional. Requiring me to obtain health care is too (unless I'm Typhoid Mary - and that comes under Public Health, the only real role gov't should have in health care). And as a law-abiding tax-payer who has never cheated on my 1040, the idea that I would pay a "penalty" tax because I hadn't obtained health insurance is abhorrent. I will not do it!
9.21.2009 9:37pm
Fat Man (mail):
I guess the real question is whether SCOTUS will notice the riots.
9.21.2009 11:59pm
Sam Dinkin (mail):

Congress does not have the power to tax mere existence.



Actually they do. That predates income tax. Congress can demand a head tax from the states from Article I. They can also used the money raised from the states that pay up to subsidize private health purchase a la vouchers and let buyers keep the change. They can also condition federal highway money on payment of the head tax.
9.22.2009 3:35pm
ManekiNeko (mail):
Congress can impose a head tax, but that tax has to be apportioned because it is a direct tax. And it seems that a tax for mere existence (a "breathing tax") is more like a head tax than an indirect tax.
9.23.2009 7:05pm
markm (mail):
ManekiNeko: A head tax, by definition, is apportioned by population. What the apportionment requirement did was to make other forms of direct federal taxation too complex to administer. (Imagine an Article I income tax where you mailed in your return, then the feds added up all the returns in each state, calculated a rate table for each state to make the average tax come out the same per capita, and mailed you your tax bill. Now imagine that without computers and with the mail carried by stagecoach and horseback...)

Head taxes fell out of use because they were one of the most unpopular forms of taxation ever invented. The apportionment requirement was the only reason that Congress ever tried to collect them. Finally, they amended the Constitution to allow income taxes without apportionment.
9.25.2009 6:59am

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.