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
Find me on Facebook or follow me on Twitter
Tweet this blog post: Tweet
Tell us what you think about the site
Customer Care »
Vacation stops, manage subscriptions and more
AJC Services
Sections
Other Editions
Visitor Agreement | Privacy Statement
© 2013 The Atlanta Journal-Constitution
116 comments Add your comment
Save America: Agitate A Liberal Daily
February 25th, 2011
1:07 pm
What’s the state count right now against Obamacare? 27? Even if it does go into effect, Boehner’s House will defund it, essentially cutting the head off the socialist snake. And a snake it is. Of course, many of the blue states in favor of it are in financial dire straits thanks to liberal socialist spending and need federal bailout help, so what do they care what it costs?
And you have to love the situation in Wisconsin where governor Walker & Republican Co. passing a bill to reduce public employee union thuggery (so-called public sector collective bargaining which should NEVER be protected or even granted). Private sector, let unions do whatever the hell they want. Companies can always pack their bags and haul ass to another state or nation (and they do). Put public sector employees are paid by the TAXPAYERS. The taxpayers should have a say through referendums and votes on bills by legislature.
But back to Obamacare (anyone hear that moonbatic liberal Dem on the House floor whine about “Obamacare” as being derogatory?). No really:
http://washingtonexaminer.com/opinion/columnists/2011/02/obamacare-itself-what-offensive-not-name
And I agree with the article – Obamare ITSELF is offensive to Americans who want liberty and economic freedom away from the liberal socialist Dem Nanny State. We still do not know how much it will cost long term in both money and quality terms. Anyone who doesn’t think it will eventually lead to at least *some* rationing is a blind fool.
Ragnar Danneskjöld
February 25th, 2011
1:16 pm
Dear Allen @ 11:31, you ought not confuse rationality with emotion. You affirm that it is rational to enslave health care providers to treat without expectation of remuneration. That is not a rational argument, that is a value judgment (and, as you infer, one with which I disagree.) On the other hand, the rule of contract – my basis for argument – is eminently rational, founded on free exchange.
Allen
February 25th, 2011
2:03 pm
Ragnar @ 1:16: Fine then, draw me into a epistemological meta-debate. There is no ultimately conclusive way to adjudicate among value judgments. One cannot debate the most basic propositions — like “murder is bad” or “happiness is better than sadness” — without making value judgments. Indeed, your claim that health care providers need only treat paying customers contains obvious and inherently unprovable value judgments. Emotions and rationality often operate in tension, but rationality and value judgments are inextricably linked in any debate over civic priorities. This, by the way, is not an argument for moral relevancy, but an argument that rationality is our only available referee among competing value judgments.
Your system of free exchange would fall apart without a government to enforce contract law. Market economies need governments to mitigate negative externalities, or at least prevent monopolies from inhibiting the efficient allocation of resources. A long tradition of progressive government laws – for example, food inspection and prohibitions on child labor – have at first been derided as harmful government intrusions and ultimately been embraced as necessary checks against the vagaries of the market. It is at least arguable that the individual mandate fits squarely within that tradition. Claiming the exclusive imprimatur of rationality for your own value-laden viewpoint or deriding your opponents motives as purely emotional betrays your close-mindedness and lack of respect for the opinions of others.
Allen
February 25th, 2011
2:16 pm
Ragnar — You are such a civil debater, and my last sentence reads a bit harshly in retrospect. Let me rephrase: “Claiming your side of the argument as the exclusive province of rationality betrays a certain unwillingness to give the considered opinions of others a fair and open-minded hearing.” Many thanks for your responses.
John Galt
February 25th, 2011
2:20 pm
“There is no ultimately conclusive way to adjudicate among value judgments.”
And this is why the Founding Fathers chose to limit the powers of the Federal government. It ends up being not based upon a concrete principle, but a varying set of principles based upon mob rule.
Intown
February 25th, 2011
2:22 pm
“Mr_B and Intown: And there is no check on Congress? Its power is absolute?
There is no historically accurate way you can argue that the Constitution created such unlimited power for Congress, or for any branch of the federal government.”
There are three checks on Congressional power I can think of off the top of my head even if someone like me does not subscribe to the recent bout of conservative judicial activism under the broad legal theory of “Federalism’s Inherent Limitations on Congressional Power”.
(1) Elections. Under the Constitution, the House and 1/3 of the Senate turn over every 2 years.
(2) Executive Branch. Can decide not to enforce a law. For example, Obama dropping its defense of the Defense of Marriage Act.
(3) Judicial Branch. Can declare a law unconstitutional.
I just happen to disagree with you about the third check on Congressional power.
The Healthcare bill just does not offend my sensibilties. It was a good faith effort to start to fix our healthcare mess. I doubt we’ll see as strong an effort anytime in my generation.
Ragnar Danneskjöld
February 25th, 2011
2:31 pm
Dear Alan @ 2:16, no offense taken, no apology necessary. We magnify different values.
Ragnar Danneskjöld
February 25th, 2011
2:33 pm
Dear Allen @ various times, my misspelling of your name was not a willful tweak – I am not so clever. Apologies for the slight nevertheless.
the watch dog
February 25th, 2011
2:40 pm
By having two judges make a ruling on whether a citizen has to buy health insurance or have health insurance is what I call “progressive democracy” Progress is slow and at times seems like unnecessary strife and resistance. But our weapons are reason, not gun fire and rebellion like the middle east. No where in the world can comparable dignity and power in citizenship be seen. Progressive democracy is what our constitution is all about. Democracy does not lead through violence and revolts. Progressive democracy leaves our destiny with no limitations.
Allen
February 25th, 2011
3:21 pm
Ragnar: It’s cool. I want a literary name like yours, anyway.
I Report (-: You Whine )-: mmmmm, mmmm, mmm! Just sayin...
February 25th, 2011
4:57 pm
“First of all, he campaigned in favor of [the law]. He is breaking his word to the American people,” Gingrich says.
“Second, he swore an oath on the Bible to become president that he would uphold the Constitution and enforce the laws of the United States. He is not a one-person Supreme Court. The idea that we now have the rule of Obama instead of the rule of law should frighten everybody.
“The fact that the left likes the policy is allowing them to ignore the fact that this is a very unconstitutional act,” Gingrich said.
Gingrich said it is too early to call for Obama’s impeachment, but did not rule it out if he fails to comply with Congress and the constitutional process.
Finally, Gingrich has something deeply intelligent to say.
Hot damn, let’s do it!
independent thinker
February 25th, 2011
8:07 pm
Easy solution -repeal the socialist unfunded mandate of Reagan call EMTALA and refuse emergency medical care to the deadbeats and illegals who are running up the costs of hospital care. I doubt Kyle or any Republican has the backbone to advocate that. Unfunded mandates passed by Republican presidents like EPA, Clean Water, ADA, EMTALA, and No child left Behind are wonderful ways to sneek unconstitutional and unfunded mandates on the states and buy votes. It is the American way isn’t it?
tjatl
February 26th, 2011
12:15 am
Ragnar and Allen, I have to say that the quality of your repartee gives me hope.
If you read the works of the founding fathers, you cannot but come away with the conclusion that reasoned, nuanced, spirited, but civil exchange was at the heart of the birth of this country.
We have somehow now come to view erudite arguments as pretentious and genuine debate as something that occurs only among the “unprincipled”
Our preferred media is largely to blame — talk radio, blogs, internet news sites, cable tv. Not their fault entirely, but those formats do not readily support sustained reasoned argument. Rather, they support soundbites and sensationalism.
That said, I will repeat what I wrote earlier — if everyone in this country is *entitled* by law to receive treatment at a hospital, regardless of ability to pay, then the commerce clause can most certainly be invoked to require that those with entitlement to this service (which is everyone) purchase insurance in order to best manage the economical delivery of this entitlement.
Marilyn
February 28th, 2011
10:58 am
“Today, advocates of big spending cuts often claim that their greatest concern is the burden of debt our children will face.” (Paul Krugman, NYT)
Apparently the Reptilians (err, Republicans) forgot to consider the fate of our grandchildren.
When one contrasts how much conservatives love to talk about family values with how often they vote to make a healthy family life harder and harder to maintain, one of their key assumptions becomes clear. Often left stated — because it is far from “compassionate” and does not always play well to the middle — is that everyone, including children, will “make it” in America if they work hard enough and pray hard enough — in short, if they deserve it. There is no other way to explain, for example, how so many Americans can have a grasp of the conditions in inner-city schools and then insist that America is post-racial because everyone has equal legal rights.
This callousness — and ignorance — extends to children. However mainstream Reptilians – err Republicans – are smart enough never to say so publicly, so they leave it to the far-right mouthpieces and Tea Partiers to openly state and thus nourish these viewpoints.
I would much prefer a society that taxed me more but had clear ethical underpinnings than a society that taxed me less and let even the most innocent among us pay the difference with the quality of their lives.
Single payer health care – just like many of the more advanced nations of the world.
Ed
March 2nd, 2011
5:49 pm
Allen,
Fried also said the government can force you to buy broccoli and gym memberships. This clown is kookier than kooky.
Ed
March 2nd, 2011
5:53 pm
Marilyn,
Feel free to move to one of those more advanced nations. However, do some research first if you think their health care systems are better. Health care is not a right any more than food and water and heating oil is a right. You need food and water, heat and housing every bit as much, and even more than, health care, but I don’t see all you liberals professing that government should raise our taxes for those things!