A clear constitutional choice from two ObamaCare rulings
One of the key legal arguments in the various ObamaCare lawsuits concerns the “individual mandate.” Can Congress require citizens to buy a good or service under its Commerce Clause power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”? Does the specific decision not to purchase health insurance constitute an “economic activity” that Congress can regulate?
This week, we got an answer from U.S. District Judge Gladys Kessler that contradicts the determination made last month by U.S. District Judge Roger Vinson. While the Supreme Court may not directly compare the two judges’ respective reasonings when it eventually decides the fate of the health-reform law — and I’ll note again that the “score” on the district- or appeals-court level doesn’t matter in the end — I think the following passages get to the heart of the conflict.
First, Kessler’s conclusion, which pretty well tracks the Obama administration’s argument:
It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.
Now, what Vinson had to say about this argument:
If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” [the quote comes from the Supreme Court's Lopez ruling], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended. … In Lopez, the Supreme Court struck down the Gun Free School Zones Act of 1990 after stating that, if the statute were to be upheld, “we are hard pressed to posit any activity by an individual that Congress is without power to regulate.” If some type of already-existing activity or undertaking were not considered to be a prerequisite to the exercise of commerce power, we would go beyond the concern articulated in Lopez for it would be virtually impossible to posit anything that Congress would be without power to regulate. (emphases original to the Vinson ruling)
I know it is difficult to do so, given the attention we’ve all paid to the health-reform debate, but try for a moment to imagine that these arguments were being made about a different law — one in which the federal government required every citizen to purchase, say, a gym membership in order to keep themselves in better health, on the grounds that this will lead to less obesity and thus lower health-care costs across the nation.
In that case, which of these arguments would be more in line with the Constitution?
– By Kyle Wingfield
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116 comments Add your comment
williebkind
February 24th, 2011
3:41 pm
There is no problem! We will elect another president in 2012, retake the senate, and then repeal the unconstitutional Obamacare. I will make a large investment in Kleenex. The liberals will cry me to riches.
Dave M.
February 24th, 2011
3:47 pm
The power to regulate commerce implies a power to set the procedure by which a transaction takes place, or to prohibit such transactions. It does not imply the power to compel such transactions, especially where that transaction is compelled solely to bring it within reach of federal regulation.
Imagine if the soda pop lobby, backed by the corn-agro lobby, decided that your decision not to consume their bubbly product chock full of HFCS was harming the U.S. economy. Therefore, they lobby Congress to make everyone consume soda pop, under the ostensible explanation of “we need to help our corn farmers and our domestic enterprises.” There’d be howls of corruption and unconstitutionality from both sides…
Yet, when the health insurance lobby does exactly the same thing, and does it by donating en masse to a current White-House-holding Democrat who was elected in 2008… Apparently then, for the left, it’s all kosher, and there’s no reason to pay any attention to the man behind the curtain.
Gimme a break.
that's goofy
February 24th, 2011
3:48 pm
it is too late now but…
When I wrote about protecting us from ourselves – I didn’t mean in a nanny state way. I was thinking along the lines of giving up our rights or impeding others based on majority rule.
Sorry I wasn’t clear.
Dave M.
February 24th, 2011
3:50 pm
How do we deal with the free loaders?
Easy. Repeal the federal law that mandates all emergency rooms to treat all comers, whether in critical condition, or those with a sniffle but without insurance.
Allen
February 24th, 2011
3:50 pm
The distinction between “unconstitutional” and “bad” is important. It would be constitutional for Congress to raise tax rates to 90% of income to fund a multi-billion dollar amusement park for my springer spaniel, Annie, but bad.
More conservatives should be willing to admit that the individual mandate is constitutional — or at least in line with more than a century’s worth of settled judicial precedent — and that they simply think it’s bad.
Charles Fried, Reagan’s solicitor general, addresses the activity-as-prerequsite-to-commerce issue here.
Dave M.
February 24th, 2011
4:06 pm
@Allen: The fact that Fried is basing his legal analysis on John Marshall in McCulloch v. Maryland is a de facto concession that the mandate isn’t based on the Commerce Clause, but instead is based upon the Necessary and Proper Clause (McCulloch was not a Commerce Clause case).
Following from that concession then, I have to agree with Judge Vinson that while regulation of the insurance market is commerce, and that the mandate is necessary to that regulation, the mandate is not a proper regulation within a constitutional system where the federal head is one of limited and enumerated powers.
Never in the history of the United States has Congress conditioned lawfully residing in this country upon the purchase of a private good under the Commerce Power. The fact it’s taken that long is itself evidence that the power doesn’t exist and has only been recently imagined to exist.
that's goofy
February 24th, 2011
4:12 pm
@ Dave
1. Pretty sure not treating people goes against the ethics of most doctors. But the corporate hospitals might like this plan.
2. The solution to the problem is to allow the uninsured (poor) to suffer?
Wow.
Allen
February 24th, 2011
4:13 pm
Dave M @ 3:47 – There is a clear difference between mandating the purchase of health insurance (if one can afford it) and mandating the consumption of food items. Mandating that citizens consume something — in addition to being so stupid that Congress would never do it — is an obvious violation of the personal liberties guaranteed by the Bill of Rights.
The federal government uses tax dollars to purchase billions dollars worth of vegetables, meat, and dairy products now — often with the explicit mission of stabilizing agricultural markets or improving the health of the citizenry. So, the government actually does force “us” to purchase food already.
It’s not clear to me how this “central mandate” differs from an “individual mandate” with respect to the Constitution. Obviously, central food purchasing is more efficient. In fact, many observers think a central purchasing (or ’single payer’) model for health care would be more efficient.
Your critique should reckon with these factors.
carlosgvv
February 24th, 2011
4:14 pm
The Constitution is no more or less than what the Supreme Court says it is. Since the current Court tilts to the conservative side, Obamacare will probably be struck down. A liberal court would uphold it. It’s just that simple. So don’t waste your time and energy pondering all the complex legalities of Obamacare. They mean nothing in the end. It’s all about politics.
poison pen
February 24th, 2011
4:14 pm
Jeff In Michigan, totally wrong, the last polls showed that the voters didn’t want Obamacare. Please show us where the majority voted for it, please!
poison pen
February 24th, 2011
4:17 pm
carlsgvv, you are correct and it’s a shame that ploitics enters into so much of our lives. I can’t stand most politicans because they are all liars, and I mean all. I consider myself a Moderate person and I don’t mind ripping Repubs just as much as Dems.
I only wish more people would be more objective in their thoughts and be more honest with themselves.
poison pen
February 24th, 2011
4:21 pm
How do we deal with freeloaders? Well I don’t see anything written anywhere where we have to support them. They need to get a job and stand on their own two feet.
I am all for helping anyone who has a severe setback in their lives due to circumstances beyond their control, but only that way.
ElephantWhip
February 24th, 2011
4:27 pm
I have not heard it yet (I did not read all of these posts).
If non-action is un-regulatable, then why do men 18-25 have to register for selective service?
ElephantWhip
February 24th, 2011
4:30 pm
carlosgvv:
Don’t be so pessimistic. There is a swing-voter who might consider this a good thing. And some of the conservatives are going to have to back-pedal a lot because they used the commerce clause to enable the feds to regulate some pretty obscure things.
liam
February 24th, 2011
4:32 pm
selective service doesn’t fall under the commerce clause. it falls under a different part of the constitution (to raise and support armies) which provides for that.
carlosgvv
February 24th, 2011
4:34 pm
poison pen
Well said.
ElephantWhip
I hope you are right.
ElephantWhip
February 24th, 2011
4:34 pm
10-4, liam. I was thinking that as soon as I hit ’submit.’
Linda
February 24th, 2011
4:42 pm
Illinois has become a safe haven for immigrants: state Dem. senators on the lam, running away from their constitutional responsibilities they swore to uphold.
They have created a new congressional maneuver. It’s called killabillibuster.
Allen
February 24th, 2011
5:02 pm
Dave M @ 4:06 — Thanks, but Mr. Fried cites Gibbons v Ogden in establishing the applicability of the Commerce Clause. And even if most or all past regulations pertain to activity and not inactivity, no known constitutional text or doctrine limits Congress to regulating “activity.”
The claim “regulations of inactivity are novel” obviously fails to establish that that they are also unconstitutional. Many constitutional regulations have an element of novelty when enacted. In this case, all that matters is whether the novel feature is fatal to the notion that Congress is here regulating interstate commerce. And unless I am mistaken, you have conceded this point.
Even the definition of “inactivity” you use is suspect. While one can withdraw from an insurance market, one cannot withdraw from the larger health care market. Given that emergency rooms must provide treatment whether or not patients can pay for care, is it plausible to suggest that people can be “inactive” in the health care market?
Mr_B
February 24th, 2011
5:20 pm
Linda: I’m not sure, but I’d be willing to bet that the line “to appear in the Senate chamber and vote” is not in the oath of office for Wisconsin state senators.
Linda
February 24th, 2011
5:40 pm
Mr_B@5:20, Wouldn’t you guess that maybe, just maybe that oath might be to uphold the constitution of Wis. & that the Wis. constitution does not even mention the Holiday Inn or Best Western?
Jeff in Michigan
February 24th, 2011
6:15 pm
@poison pen – What, google doesn’t work on your computer? Newsweek just printed a pretty good summary earlier this month.
“Like the Democrats before them, the GOP has grown so used to winning the issue—with polls consistently registering public opposition to the reform law—that they seem blind to shifting public sentiment. While a January 16 AP-GfK poll found Americans virtually evenly divided on the healthcare law (40 to 41 against), only 26 percent favored a straight repeal. By contrast, 43 percent want to revise the law so that it “does more to change the healthcare system.” A January 18 Washington Post-ABC News poll found the law unpopular (50 percent disapproving), but one quarter of the critics opposed it for not going far enough. So it’s no surprise that less than 1 in 5 Americans favored a straight repeal. Likewise, a January 20 Pew Research poll found that nearly as many people want to expand the law (35 percent) as want to repeal it (37 percent).”
Next time do your own research before you post.
Jeff in Michigan
February 24th, 2011
6:22 pm
@ Jeffrey Burke – if you can convince a majority of congressmen to pass a law that requires me to wear pink panties, I would consider it an honor and my patriotic duty to do so. Besides they would be much more comfortable than my current commando preference.
Ed
February 24th, 2011
6:50 pm
The notion that those who go without insurance are still involved in commerce via their “decision” not to purchase insurance is akin to saying those who do not fly are part of the airline industry via their decision not to buy a 747.
all I know.....
February 24th, 2011
6:59 pm
Is if I don’t buy auto insurance and get stopped for some reason I am fined and can have my licenses revoked and if I don’t keep my home insured on my own the Mortage lender will purchase some for me and charge me accordingly.
Linda
February 24th, 2011
7:16 pm
all@6:59, Let’s not confuse state law (auto insurance) & contract law (between you & your lender) with fed. law & whether a fed. law is constitutional.
You are not required to buy auto insurance (or a tag or a driver’s license) just because you own a car, let it sit or drive it on your property. Auto insurance is only required by the state to drive your car on the roads.
AngryRedMarsWoman
February 24th, 2011
9:51 pm
I certainly don’t want to argue in favor of the auto insurance requirement inasmuch as I think it is a load of liability-shifting crap dreamed up by the insurance carriers anyway – but let’s not confuse a requirement that you carry insurance to cover the losses/injuries you cause to other people with a requirement that you do the same to cover your personal risk. I am not aware of any state that requires a person to carry comprehensive auto insurance, just liability. Assuming that I do not have a contract with a private lender that requires me to insure the vehicle itself for damage, I only have to carry the state minimum amount of liability for damages caused to others. And if the damages are in excess of that guess what? I am still personally liable. And if I don’t have comp and I total my car, guess what? I am SOL unless I can afford to replace my car. I am not required to have liability insurance in case someone is hurt in my home (unless my lender requires it), so why must I have insurance to cover my liability in an auto accident? Why not let people choose to carry uninsured motorist insurance or go naked and sue when they get hit by someone else? What makes cars so special? I can get hurt in your house, your place of business, walking on the sidewalk….and if you don’t have insurance then you are liable to me and while I am suing you and trying to get blood from a stone my health insurance (or my pocketbook) is paying the costs. Why not require every man, woman and child to carry an umbrella policy in case they ever hurt someone else?
Allen
February 24th, 2011
9:51 pm
Ed @ 6:50pm: It cannot be said enough that failure to purchase health insurance has a major effect on interstate commerce. Since emergency rooms must treat patients whether or not they can pay, some number of uninsured people will inevitably impose costs on the health care system.
People can freely choose whether or not purchase an airplane, but people cannot choose to magically avoid expensive health issues. The individual mandate holds people responsible for the costs that the rest of us would otherwise bear. And since health care costs account for 17% of GDP, few would argue that the issue does not affect interstate commerce.
TjAtl
February 25th, 2011
12:54 am
All of us pay (dearly) for people who don’t have insurance. People who don’t have insurance populate emergency rooms for all sorts of non-emergency conditions because they can go there and not be refused for treatment because they can’t pay up front. Any parent with small children who has had to visit a pediatric ER can testify. The hospital absorbs the cost of this care and passes it along to people who pay cash AND people who have insurance.
You’re already paying for it!
Bottom line: unless this country is willing to say that hospitals can *refuse* care to anyone who can’t pay up front or has insurance then the commerce clause has to apply. If everyone is entitled to partake of the services, then everyone can be compelled to have participate in insurance.
Do away with the law that requires ERs to treat anyone regardless of ability to pay and only THEN would the argument against an individual mandate make sense (philosophically or economically).
TjAtl
February 25th, 2011
12:54 am
All of us pay (dearly) for people who don’t have insurance. People who don’t have insurance populate emergency rooms for all sorts of non-emergency conditions because they can go there and not be refused for treatment because they can’t pay up front. Any parent with small children who has had to visit a pediatric ER can testify. The hospital absorbs the cost of this care and passes it along to people who pay cash AND people who have insurance.
You’re already paying for it!
Bottom line: unless this country is willing to say that hospitals can *refuse* care to anyone who can’t pay up front or has insurance then the commerce clause has to apply. If everyone is entitled to partake of the services, then everyone can be compelled to have participate in insurance.
Do away with the law that requires ERs to treat anyone regardless of ability to pay and only THEN would the argument against an individual mandate make sense (philosophically or economically).
Critical Thinker
February 25th, 2011
1:29 am
False Assumption # 1. ….” people cannot choose to magically avoid expensive health issues ”
It is true that some people can get a catastrophic illness that is not their fault. However, many health issues can be avoided with healthy eating habits and exercise. In addition, some people save money for their care. So to a certain degree, people can often avoid expensive health issues.
False Assumption # 2: ” The individual mandate holds people responsible for costs that the rest of us would otherwise bear. ”
If I come in and pay cash for my care, how is anyone else burdened ? Just because I don’t choose to have an insurance policy does not mean I am a free-loader. Again, health insurance is not the same as health care. Just ask some of the insured people in Massachusetts about their wait in a crowded emergency room because they can’t find a primary care doctor to care for them.
Michael H. Smith
February 25th, 2011
3:03 am
Kyle, really, this is not difficult in the least. What is in question has nothing whatsoever to do with the actions of the individual or the lack thereof. The Constitution was not given/written to restrict or authorized an individual by any means: Our rights, which includes the right to act or not to act are given to us by our creator, we need no further authority, for none on earth is greater. It was however, given/written to restrict or authorize the means by which government could act, for the rights of government are given to it by us, as we are its’ creator.
Where is the enumeration, the “specifically listed operative clause” under Article 1 Section 8 that gives to the federal government, Congress, the power to make an individual buy healthcare or healthcare insurance?
Yes, it must be “specifically listed” in order for the federal government to take any action “applicable to the commerce clause”. See the Federalist Papers numbers 41 and 45 if any doubts prevail. James Madison made it very clear that the powers of the federal government where to be extremely limited to only a very few by way of the enumeration. Where there is no enumeration giving the federal government the specific authority to act, whatever the issue no matter the importance, the matter is simply is not germane to the federal government, as it becomes then becomes solely germane to the individual State’s Rights.
independent thinker
February 25th, 2011
6:28 am
Saint Ronnie pases a bill in 1986 called EMTALA that requires all hospitals to treat anyone who shows up in an emergency room regardless of ability to pay. Thus other paying patients must cover the cost or the hospital goes broke. Many actually have closed up as a result of EMTALA.Tell me Kyle where in the Constitution is thispermitted? Why have have none of the states challenged Saint Ronnie and EMTALA? Where is the solution the Repubs have to this unconstitutional burden on hospitals and paying patients? Or is mandatory insurance a necessary and proper solution to EMTALA since the burden of paying for illegals and and deadbeats with no insurance effects commerce in that insurance companies are a part of interstate commerce?
jt
February 25th, 2011
7:45 am
Basically, everyone arguing this issue is admitting that nine Federal Government workers have the right to your property.(including your labor)(pay for this product or else).
Regardless if it is 2011 or not,
this is called slavery.
buck@gon
February 25th, 2011
9:23 am
What is missing from all this debate is the falacious assumption that anyone who is unwilling or incapable or making a decision for themselves is, under the liberal fantasy of Obamacare and all liberal politics, therefore incubent to elect someone who will order these things for them and for the rest of us.
By this we get Democrat sense from the senseless.
Ragnar Danneskjöld
February 25th, 2011
9:35 am
The Kessler argument is patently silly. One makes a conscious decision to not do many things, such as purchasing a GM car. By her “logic” Congress can compel us to buy a GM car, due to the Commerce Clause. Only a leftist could like that argument.
John Galt
February 25th, 2011
10:07 am
So under the Interstate Commerce Clause the government can force you to do something against your own best interests? I don’t think so.
What about forcing women to have abortions? After all, that fetus will require 12 years of schooling at 9k a year, not to mention food, clothing and a job or welfare after that.
Is there an impact on commerce there?
What about the opposite? Forcing women to have children so we can have enough payers in the future to support the Social Security payments those alive today are going to need. Can they do that?
It’s either all or nothing. To arbitrarily decide these issues may have worked for a while, but they won’t work forever.
getalife
February 25th, 2011
10:15 am
So, how many judges sided with the President?
I think the mandate sets a horrible precedent because corporate power controls corrupt Congress.
They came for the unions and will come for your wages and benefits next.
Then they can force you to buy their crap.
You cons should stop bowing down to corporate power.
Allen
February 25th, 2011
10:28 am
Ragnar & J. Galt — It cannot be said enough that failure to purchase health insurance has a major effect on interstate commerce. Since emergency rooms must treat patients whether or not they can pay, some number of uninsured people will inevitably impose costs on the health care system.
People can freely choose whether or not purchase a GM car, but people cannot choose to magically avoid expensive health issues. The individual mandate holds people responsible for the costs that the rest of us would otherwise bear.
Health care costs account for 17% of GDP, so this is a substantial matter of interstate commerce.
And the argument that “because the government can do one thing, it can do anything!” is just slippery-slope hysteria. Congressional power to mandate the purchase of health insurance does not imply Congressional power to mandate anything one might imagine.
Allen
February 25th, 2011
10:35 am
Critical Thinker @1:29am — Your false assumptions fail to address my argument. In the absence of a health insurance mandate, some uncertain slice of the population will definitely remain uninsured. And some slice of that uninsured population will definitely need health care treatment and receive it at the emergency room. And since virtually no one can afford to pay hospital bills out of pocket, the hospital must absorb that cost by passing it along to paying customers.
Of course, people can make lifestyle choices that are more or less healthy. But no one can be certain that they will never need expensive health care treatments. That’s magical thinking.
John Galt
February 25th, 2011
10:35 am
Allen,
Does having or not having a child have a major impact on interstate commerce?
It’s a yes or no question.
John Galt
February 25th, 2011
10:39 am
And Allen, people can freely choose to buy or not buy a GM car today. But what aspect of the Intestate Commerce Clause prohibits a change tomorrow?
Remember, it was the decision of a farmer to grow wheat “for his own personal consumption” that justified the ICC. In effect, a loaf of bread. In effect a 29 cent transaction.
So it is not the value of the transactions or expenses that are the needed justification to act under the ICC.
It is about control.
Dr. Pangloss
February 25th, 2011
10:41 am
… but try for a moment to imagine that these arguments were being made about a different law — one in which the federal government required every citizen to purchase, say, a gym membership in order to keep themselves in better health, on the grounds that this will lead to less obesity and thus lower health-care costs across the nation.
The government did require some of my high school classmates to buy a gym membership; it was called being drafted into the Army.
And it’s still 3-2 in favor of Obama as far as court decisions go.
Common Sense
February 25th, 2011
10:44 am
Keeping score is the domain of fools. The US Supreme Court will not base their decision on the score of lower courts.
Ragnar Danneskjöld
February 25th, 2011
11:08 am
Dear Allen @ 10:28, good morning, while I cannot improve on the answer of John Galt @ 10:39, I offer another view. There is no rational reason that anyone should “definitely need health care treatment and receive it at the emergency room.” Only an earlier-corrupt act of government compels the hospital to perform services without assurance of payment. In a rational world the hospital could elect to treat, or not, anyone.
John Galt
February 25th, 2011
11:15 am
Ragnar,
I agree completely. The failure of previous generations and their lack of adherence to sound principles has left the burden of correcting this upon our backs.
And to not correct it moves us towards serfdom.
Allen
February 25th, 2011
11:31 am
Ragnar @ 11:08 — While I wouldn’t say there is “no rational reason” that hospitals should treat patients regardless of ability to pay, this is a subject upon which reasonable people can disagree. A rational case can be constructed around the notion that it would be the height of immorality for the wealthiest society in history to allow its neediest citizens to suffer and die for want of health care. This is a proposition that I suspect you disagree with strongly. But that does not make it self-evidently untrue or irrational.
Also, wide margins of American support some provision of healthcare for the poor, so that law is unlikely to disappear in the near future.
Allen
February 25th, 2011
11:44 am
Galt at 10:25am: Of course having a child affects interstate commerce. But Congressional restrictions on having children — in addition to being so stupid that no Congress would ever pass them — are an obvious violation of the personal liberties enshrined in the Bill of Rights and subsequent amendments.
While I agree that the Commerce Clause can be stretched in theory, that does not persuade me that the Commerce Clause is being stretched in this instance. Again, health care costs account for 17% of GDP.
Your claim that an insurance mandate violates the Commerce Clause rests on the assumption that Congress cannot regulate inactivity. Setting aside the fact that no known constitutional text or doctrine limits Congress to the regulation of activity, I have already demonstrated that your definition of inactivity is at least arguable, since people cannot “opt out” of expensive health problems that affect interstate commerce.
What I’m trying to say is — you guys should consider focusing on criticizing the bill on its merits more than its constitutionality. A health insurance mandate is squarely in line with over a century of settled judicial precedent all the way back to Gibbons v Ogden.
Paul Prados
February 25th, 2011
12:05 pm
If this is the reasoning that will be used to support the constitutionality of the individual mandate, I think the Supreme Court is likely to strike down the individual mandate.
My detailed analysis and link to Judge Kessler’s opinion is below:
http://northernvirginialawyer.blogspot.com/2011/02/dc-healthcare-case-excellent-legal.html
Allen
February 25th, 2011
12:14 pm
Reagan’s solicitor general — an opponent of health care reform — defends the constitutionality of the mandate here: http://judiciary.senate.gov/pdf/11-02-02%20Fried%20Testimony.pdf