Perhaps the worst constitutional defense of Obamacare you will ever read
Now that the Supreme Court has officially taken up the question of Obamacare, we are in store for even more legal analyses attempting to predict which way the justices will rule, or argue which way they ought to rule.
A quick prediction of my own: Few, if any, of these analyses will be as worthless as the one Einer Elhauge offers in today’s New York Times.
Elhauge, a law professor at Harvard University and founding director of Harvard’s Petrie-Flom Center in Health Law Policy, makes one point that is patently — inane? specious? vacuous? let’s go with specious — and one point that unintentionally undercuts his own argument. Let’s look at each.
First, the patently specious point:
For decades, Americans have been subject to a mandate to buy a health insurance plan — Medicare. Check your paystub, and you will see where your contributions have been deducted, whether or not you wanted Medicare health insurance.
Many opponents dismiss this argument because Medicare (unlike the new mandate) requires the purchase of health insurance as a condition of entering into a voluntary commercial relationship, namely employment, which Congress can regulate under the commerce clause. Thus, they say, the Medicare requirement regulates a commercial activity, whereas the new mandate regulates inactivity.
Now, I have followed the Obamacare debate pretty closely, including attending the oral arguments at the 11th Circuit Court of Appeals this summer, and I have never heard or read even a single person offering the rationale that Elhauge claims “many opponents” of the law make. However, I am willing to stipulate that the director of a center on health law policy may have been privy to more arguments than I have been, and that there may in fact have been some Obamacare opponents who have concocted such a line of reasoning.
Anyway, that’s not what makes his point patently specious.
What makes it specious is that Elhauge would have the reader believe this is the best, or maybe only, argument about the difference between Medicare and Obamacare. That is bunk. The best, clearest argument that’s been made about the distinction between Medicare and Obamacare is that Medicare is a government program, and the paycheck deductions are a tax to pay for that government program.
No one on the right argues that Congress can’t enact a tax to pay for a government program such as Medicare. What nearly everyone on the right argues about Obamacare, however, is that a) health insurance is a private product, and there’s no constitutional authority to mandate the purchase of a private product; and b) the consequences written into Obamacare for failure to comply with a mandate are not a tax but, in Congress’s own language, a “penalty.” Congress used the word “tax” elsewhere in the law, but not in the section that enforces the mandate. (Whether that’s because, as in other cases, congressional Democrats were sloppy in drafting the law or because they simply didn’t want to be seen enacting a tax is debatable, but irrelevant to the legal discussion.)
So, to distinguish between Medicare and Obamacare, one doesn’t need to resort to the tortured argument Elhauge offers up so that he can knock it down. There’s a much more straightforward and prevalent argument he avoids entirely, while making sure to weave the specious “anyone who has engaged in any activity that affects commerce must buy health insurance” claim into the rest of the piece.
Now, about his unwitting undercutting of his own position. Here’s what Elhauge writes:
Opponents of the new mandate complain that if Congress can force us to buy health insurance, it can force us to buy anything. They frequently raise the specter that Congress might require us to buy broccoli in order to make us healthier. …
There are, of course, limits to what Congress can do under the commerce clause. If it tried to enact a law requiring Americans to eat broccoli, that would be likely to violate bodily integrity and the right to liberty. But the health insurance mandate does not require Americans to subject themselves to health care. It requires them only to buy insurance to cover the costs of any health care they get.
And Elhauge thinks conservatives are the ones making distinctions without differences?
Here, I defer to Mickey Kaus, because I’m not sure anyone can improve on his rebuttal to this point:
Well, OK then! As long as we can just leave it rotting in the fridge.** … But it’s a little suspicious — and surely not a selling point — that under Elhauge’s argument the only limits on government would be the rights — like “bodily integrity” and privacy — that liberal lawyers have dreamed up but not the limit — i.e. whether or not something is “interstate commerce” — the Founders dreamed up.
** — Rotting broccoli might breed disease and suppress appetites, inhibiting interstate commerce. Could Congress ban every means of disposing of the broccoli (that it has made you purchase) other than eating it? Is that any different from making you eat it? To enforce the right to “bodily integrity,” would the courts have to step in and void at least some of these rules for broccoli disposal, even if they are obviously regulations of commerce and do not, in themselves, violate bodily integrity? Elhauge’s rule may not get the courts out of the complicated business of meddling with federal regulations and striking down some of them. They’d just be meddling on grounds that he likes. (emphasis original)
Is this the best the law’s most erudite defenders can come up with?
– By Kyle Wingfield
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217 comments Add your comment
the
November 17th, 2011
8:59 pm
@@ is the most crass of any commenter I’ve ever read ever. Imagine Rush Limbaugh with three sets of cheeks.
Lil' Barry Bailout (Revised Downward)
November 17th, 2011
9:00 pm
Keep your religion off my blog, thumper.
the
November 17th, 2011
9:10 pm
Okay. Obamacare. We are on the precipice of diseases that have evolved over the millenia along with us. We get these localized scares, like the airborne ebola virus, but somehow mankind gets out of it intact.
Well, guess what folks. Every once in a while, a disease gets real smart and evolves a strategy that overcomes our slow-paced immunities.
Without Obamacare, and the justice that such legislation rest upon, we will be sitting ducks for any smart-virus that decides to destroy America. If we don’t have free healthcare for all, then the Dustys and the @@ will succeed in abetting these microscopic demon viruses to infect us all. Look, history shows us that mankind always get a warning, and without Obamacare, then the first instances of this new plague will go unnoticed and untreated and thus will be allowed to fester and infect and probably kill us all.
But go ahead and listen to the Rush Limpdouches like @@ and Dusty. Then watch your family sing that famous song, “…. ring around the rosie, pockets full of posies, ashes ashes we all fall DOWN!!!”
Dusty and @@ are evil sirens, and total cuckoo birds of hate.
Tiberius - Your lightning rod of hate!
November 17th, 2011
9:15 pm
Dlink, I do believe you’re rambling.
Try succinct and cogent sentences, please.
Tiberius - Your lightning rod of hate!
November 17th, 2011
9:17 pm
Uh, the? Nothing in Obamacare will do anything towards treating any exotic or new diseases.
Nothing.
David Green
November 17th, 2011
9:19 pm
Lil barry bailout insults and name calling isn’t debating and for the record when I submitted my complaint to the ajc about your post I requested that you be banned.
JDW
November 17th, 2011
9:26 pm
@Rafe…”JDW
The Powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Didn’t see requirement to force people to purchase Health Care among the enumerated powers, Article 1, section 8,allocated to the Federal Gov.”
Guess you missed Article I, Section 8, Clause 18 …”The Congress shall have Power To,,, make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers ”
That bit about all Laws includes ALL Laws assoicated with the specifically granted right to regulate commerce as granted in Article I, Section 8, Clause 18 …even those with individual mandates.
So that means that in the case of healthcare regulation The Powers have been delegated to the United States, by the Constitution.
Tiberius - Your lightning rod of hate!
November 17th, 2011
9:28 pm
JDW, you keep equating “regulate” with “purchasing a private product”. It doesn’t fly, no matter how many times you repeat it.
Lil' Barry Bailout (Revised Downward)
November 17th, 2011
9:31 pm
David Green: I requested that you be banned.
———–
Typical of people who can’t cut it. The next debate you win will be the first.
JDW
November 17th, 2011
9:31 pm
@Streetracer..” If the government can compel people to buy a product or service from one class of vendors, why not others? For example, would it not be good for the economy if each household were required mto buy a new GM vehicle?”
They could, if they could get it passed by Congress. See thats how this stuff should be resolved. If you don’t like it elect a Congress that will make different laws.
Lil' Barry Bailout (Revised Downward)
November 17th, 2011
9:35 pm
Wishful thinking, JDW. Forcing people to purchase a product is not among the enumerated powers, so there can be no laws executing this non-existing power.
Keep trying!
Tiberius - Your lightning rod of hate!
November 17th, 2011
9:38 pm
“They could, if they could get it passed by Congress. See thats how this stuff should be resolved. If you don’t like it elect a Congress that will make different laws.”
Except that even Congress knows that such a law would be un-Constitutional, JDW.
As they should have with the mandate in Obamacare.
JDW
November 17th, 2011
9:38 pm
@Tiberius…”JDW, you keep equating “regulate” with “purchasing a private product”. It doesn’t fly, no matter how many times you repeat it.”
Actually it does in case after case. Just as Judge Silberman said a couple of weeks ago.
“The majority addressed Congress’s regulatory authority in the insurance market and found that, “Broad regulation is an inherent feature of Congress’s constitutional authority in this area; to regulate complex, nationwide economic problems is to necessarily deal in generalities.” Further “The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.”
He doesn’t like the law but understands that the right to regulate the market in any way they see fit falls to the Congress. You don’t like it, elect other Congresspersons.
Tiberius - Your lightning rod of hate!
November 17th, 2011
9:41 pm
LBB, I usually have an issue with people saying “it isn’t specified in the Constitution”, so it can’t be Constitutional.
The Constitution doesn’t spell out specifically what the government can do, but rather, is a limiting document on the powers of government. Therefore, the argument about “It isn’t in the Constitution” really doesn’t fly.
Tiberius - Your lightning rod of hate!
November 17th, 2011
9:42 pm
Judge Silberman is not the be-all and end-all in Constitutional authority, JDW. He is but one justice on one Appeals Court
Tiberius - Your lightning rod of hate!
November 17th, 2011
9:47 pm
“Actually it does in case after case.”
JDW, there is only ONE case where Congress has mandated purchasing a private product – Obamacare. Therefore, this statement of yours is patently false.
JDW
November 17th, 2011
9:57 pm
@Tiberius…well hop on over to Intrade and put your money where your mouth is….you can buy cheap because the smart money understands the definition of the phase “The Congress shall have Power To,,, make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers ”
http://www.intrade.com/v4/home/
getalife
November 17th, 2011
10:03 pm
You cons love corporate welfare so you should like this bill.
You cons can’t protest for two months straight.
OWS kicked your con azzes.
Lil' Barry Bailout (Revised Downward)
November 17th, 2011
10:09 pm
The Constitution doesn’t spell out specifically what the government can do
——–
Incorrect. The Constitution enumerates the powers of the federal government.
Welcome to the Occupation
November 17th, 2011
10:10 pm
What sort of thug town is New York City anyway?
DLink
November 17th, 2011
10:10 pm
Yo Tybee, you don’t like the way I talk, don’t read the truth of the matter. You bore me.
Welcome to the Occupation
November 17th, 2011
10:19 pm
Nothing’s more dangerous to Newt Gingrich than a little success.
DLink
November 17th, 2011
10:34 pm
Take care of your people, people. It’s the only solution that’s ever worked, present and past. Apparently, it worked for Jesus, Tybee, you should tell us all about how that works.
What happens when you die?
(I know, don’t feed the trolls), but a guy’s gotta have fun, eh?
Welcome to the Occupation
November 17th, 2011
10:41 pm
Hey Barr, think Bloomie wishes he’d just let them all stay in Zucotti Park now?
DLink
November 17th, 2011
10:54 pm
OH PLEASE, I know better than to feed the troll. Not everyone is an idiot.
Dusty
November 17th, 2011
11:00 pm
I just came back and read a little more. (and put my ID and email in again).
Do not worry, “the”. USA will not be wiped out by disease if we don’t have Obamacare. I am a part of the HealthCare of this country and you will be receive care just like always. You might ;also notice that the leaders of many countries come here for the best medical care in the world.. I just hope it stays that way.
Socialized medicine is not the same as you get from you and your doctor. You will go through a “chain” such as an aide, then an LPN, then a RN, then a Nurse Practicioner or a PA. If you are not dead by then, you will see the first MD that is available, only if necessary.
It is not the best of medical care. And the cost to the government is almost uncontrollable.
If you can settle with all that, then ObamaCare will suit you fine. But careful. Getting TOO old may cause you problems. Think about it. It might be very expensive and the government may decide that……….. well, nevermind, You have enough to worry what with ebola in Africa and you might get it. Now go get some rest. We do not want you sick.
Lysander
November 18th, 2011
1:04 am
Regardless of your political persuasion, constitutional precedent requires but one outcome here: Obamacare is a constitutional exercise of Congress’s enumerated power to regulate commerce. Two cases dictate this result: Gonzales v. Raich and Wickard v. Filburn (throw in Comstock for good measure). Go read them: we’re farther down the rabbit hole than you think.
And as much as I personally disagree with this remedy to a serious national problem, these cases would have to be overruled in order for SCOTUS to hold that Obamacare is unconstitutional. Unfortunately, the Court is unlikely to overrule these cases – if for nothing more than their precedential entrenchment in constitutional jurisprudence.
Elmer Gantry
November 18th, 2011
4:42 am
the health care act is creating quite a kerfuffle in the Supreme Court this normally staid reserved, dignified, scholary men and women cannot understan the consternation over the health bill. They have been in a kerfuffle situation for sometime now.
Techfan
November 18th, 2011
5:39 am
See: The Second Militia Act of 1792, and The Relief of Sick and Disabled Seamen Act of 1798 as to mandates.
Lil' Barry Bailout (Revised Downward)
November 18th, 2011
6:30 am
constitutional precedent requires but one outcome here
———————
Constitutional government requires but one outcome here. The smacking down of Obozo and his fascist power grab.
Techfan
November 18th, 2011
6:38 am
Since the founding fathers were members of Congress, John Adams was President, Jefferson was President of the Senate, they might have a pretty good idea on the original intent on the Constitution.
Real Athens
November 18th, 2011
7:20 am
Dusty:
How much “socialized medicine” have you been subjected to? I have been treated for the same ailment in VA, GA, LA, Vancouver, BC, UK, Sweden and Denmark. The treatment was less expensive, quicker, did not involve a hospital stay or emergency room visit and patently much more humane in Vancouver, Sweden and Denmark.
Whether that is the fault of socialized medicine or a better class of physician (or both) — I don’t know. I just know what the outcome was.
Uncle Jed
November 18th, 2011
7:24 am
If the Obamacare was such a good and wholesome change for all of us “mere citizens”, any clue as to why the democrats worked in the wee dark hours of a cold December night? I guess it must have been a big ol’ dose of that transparency promised back in January of 2009. I think the most telling statement came from Pelosi. To paraphrase: “we must pass it to find out what’s in it”. Sort of like riding a blind man pass[sic] barns in chicken country.
I think the mandate will be found to be unconstitutional in spite of the willing accomplice; the conventional media outlets. (and if any recusal is in order, it would be Kagan, as if we can’t figure out why she was installed)
Uncle Jed
November 18th, 2011
7:26 am
@Real Athens
November 18th, 2011
7:20 am
++++++++++++++++++
Delllta is readyyy when you arrre
Real Athens
November 18th, 2011
7:31 am
Dusty:
“You will go through a “chain” such as an aide, then an LPN, then a RN, then a Nurse Practicioner or a PA. If you are not dead by then, you will see the first MD that is available, only if necessary.”
You forgot you have to get a referral from your PCP first — he has to get his piece from the insurance companies,
This is exactly what happened to me last week when trying to get a prescription re-filed that the doctor had written. Guess what? I have very good, company provided, health insurance.
The Patient Protection and Affordable Care Act (PPACA) (that’s what it’s called, Kyle) reforms certain aspects of the private health insurance industry and public health insurance programs, increases insurance coverage of pre-existing conditions, expands access to insurance to over 30 million Americans, and increases projected national medical spending despite lowering projected Medicare spending under previous law.
Is it perfect? No.
However, it ain’t “socialized medicine” and any buffoon who says otherwise is … well, uninformed.
Real Athens
November 18th, 2011
7:34 am
Jed:
I travel for my job. I pay taxes in Georgia.
Hate the message, not the messenger, tool.
JDW
November 18th, 2011
7:48 am
@LBB..” The smacking down of Obozo and his fascist power grab.”
Delusional yes…Constitutional no
@@
November 18th, 2011
7:50 am
Common ground in the South.
Occupy Memphis, Tea Party Members Meet
Then he said the Occupy groups should go home and work within their community to try to bring about change.
“Get people elected,” Gregory said.
OWSers should listen to their elders.
@@
November 18th, 2011
7:51 am
An “evil siren”!!??!!
I kinda like that one.
Lil' Barry Bailout (Revised Downward)
November 18th, 2011
8:11 am
David Green…whazzaaaaap? LMAO!
Bob
November 18th, 2011
8:14 am
Is the Harvard scholar trying to tell us that if you do not work and you make no income that you are still compelled to “buy” medicare ? I think it was Bill Clinton that told us that our tax system is voluntary, if you do not work of generate income, you pay no fed tax. Do people that pay no tax have to send in premiums to the gov for medicare ?
Now with Ten Percent More Flavor
November 18th, 2011
8:21 am
No one on the right argues that Congress can’t enact a tax to pay for a government program such as Medicare.
If you give yourself artistic license to make such a patently false claim upon which to build your case, anything is possible, Kyle.
Poll Position: Should Obamacare’s day in court be televised? | Kyle Wingfield
November 18th, 2011
8:30 am
[...] week, the Supreme Court agreed to weigh the constitutional merits of Obamacare. But even if the court decides to throw out the president’s health reform, [...]
Lil' Barry Bailout (Revised Downward)
November 18th, 2011
8:38 am
It should be noted that getting your health care via Medicare is completely voluntary, not forced by government. For the moment, we have the freedom to get healthcare where we want, when we want. Democrats want to take those freedoms away.
Streetracer
November 18th, 2011
8:43 am
The commerece clause gives the Feds authority to regulate interstate commerece. The problem here, as I see it, is that the purchase of insurance is intrastate commerece. Any insurance product I buy in Georgia is subject to the laws, regulations and rules established by GA’s Insurance Commission, not to some Federal or other authority. Therefore, no other state has skin in the game and it is NOT interstate commerece.
Real Athens
November 18th, 2011
8:44 am
Democrats want to take choices away? It is common knowledge that in the early 1990s Newt Gingrich and the conservative Heritage Foundation backed the idea of a mandate compelling individuals to purchase health insurance.
Streetracer
November 18th, 2011
8:54 am
LBB:
There are some compulsory facats to Medicare. One must enroll within a 7 month window (the month one turns 65 and 3 months either side of it) or be subject to various penalties and lapses of coverage for ever.
JDW
November 18th, 2011
9:02 am
@LBB…”It should be noted that getting your health care via Medicare is completely voluntary, not forced by government. For the moment, we have the freedom to get healthcare where we want, when we want. Democrats want to take those freedoms away”
It should also be noted that buying healthcare insurance under the Individual Mandate is also completely voluntary and not force by the government. It is simply a matter of pricing. You wll have the complete freedom to getto get healthcare where you want, when you want.
No one has tried to remove a single freedom from you…now if you want to talk “Patriot Act” that would be another story but since that was a Republican folly I don’t suppose you do.
Lil' Barry Bailout (Revised Downward)
November 18th, 2011
9:51 am
I guess the term “individual mandate” doesn’t lead you to believe that there is some “mandatory” aspect?
Think before posting.
Democrats: Fascist control freaks.
Welcome to the Occupation
November 18th, 2011
10:08 am
Democrats: Fascist control freaks.
Flabby spined democrats “constrol freaks”? Sure you don’t want to save that line of attack for leftists?