Do you understand what a public policy argument is?
So the question before us is, does a decision NOT to purchase something count as an economic activity? (Mr Smashy’s answer: nope). And if we find that it does, then have we eviscerated virtually all Constitutional checks on Congressional power, causing the founding fathers to do flips in their graves, etc (Mr Smashy’s answer: yup).
But this is all academic and parlor games anyway. There’s only one vote in the country that matters in this case.
On another note, did anyone see the lead editorial in the USA Today, which makes a really good case as to why we’re pretty much going to hate Obamacare? It’s a little threadjacky, just deals with the coming gloomy reality of healthcare under the new law.
You can certainly argue all you like that SCOTUS’ traditional interpretation of Congress’ powers under the Commerce Clause is ridiculously overbroad. You’ll have a lot of company, too; that appears to be a pretty mainstream view.
But that IS their interpretation, they DO entrench it deeper with every case they rule accordingly, and therefore it IS the law of the land. A decision not to purchase something IS, legally, an economic activity. IOW your “nope” don’t mean nuthin’.
I think you are mistaken here. The Wickard decision did not touch on economic inactivity. As much as I disagree with the decision it sought to regulate an activity…not inactivity. To me this is the equivalent of telling those who want to purchase an insurnace policy what type they must purchase…as opposed to telling them that they MUST purchase a policy. Do you see the difference?
Another way to explain it is if we think about buying a car. There are all types of federal regulations that deal with safety standards, CAFE standards, etc. Basically, if you are going to buy a car, you MUST buy a car that meets these standards. Contrast that with the government making us buy a car…any car.
If you have something to add then, by all means, jump right in. Is there some larger point to your question?
It’s true that the distinction you raise is at the heart of many of the state challenges to the law. I don’t regard it as persuasive, but I admit it’s a colorable argument.
[HEART OF ATLANTA MOTEL](HEART OF ATLANTA MOTEL, INC. V. UNITED STATES, 379 U. S. 241 (1964)), INC. V. UNITED STATES, 379 U. S. 241 (1964) however, does touch upon inactivity. You can try to say that somehow it’s not relevant because that was a “civil rights” issue, but I don’t see why that’s legally relevant. The commerce clause was the justification that enabled that law to take effect, and just like in this case it touched upon what someone didn’t do. If a restaurant owner simply ignores a black person walking into his door, not saying a word and not taking his order, he’s not really engaging in any “activity” now is he? Nonetheless he’s still penalized for it.
Of course the restaurant owner is engaging in “activity” by virtue of serving people in a restaurant. As I stated, the owner can stand on principle and serve nobody, thus no longer engaging in commerce. Then he/she is free to ignore black people all he/she wants. Do you see the difference there? Both the Motel owner and the restaurant owner are engaged in commerce and, thus, can be regulated under the commerce clause. A person who does not wish to purchase insurance is not engaged in commerce WRT the insurance agency and, thus, cannot be forced to be involved in commerce.
Really?
Wickard, which so many here are hanging their hats upon, was decided in 1942.
Lopez, which struck down the gun-free school zone bullshit by limiting Congress’ power under CC, was 1995. Morrison, which was 2000, struck down their violence against women (even those asking for it… 
) law on the same grounds. Raich, the case about medical marijuana, was in 2005, and most people think Scalia went the way he did only because he’s so virulently anti-drug (which is why I’ve been saying it’s a lousy precedent to use). My guess is that O’Connor’s vote in Raich, which will now be Alito’s, will flip to the other side here (O’Connor was big on letting states do experiments w/drug laws like this).
So you tell me which way the court as actually been trending.
The problem is that while we accept as a society that a person can avoid the obligations of anti-discrimination laws by swearing off being an entrepreneur altogether, we don’t accept that people can avoid the obligations of the insurance mandate by swearing off health care altogether. Even if people wanted to promise they would never ask for any charity health care in order to avoid the individual mandate, we would still give them care because we don’t believe in letting people die because they’re stupid.
One does not follow from the other. People involved in health care commerce (i.e. going to the hospital) ARE responsible for the bill. If they refuse to pay, they can be sued. The indigent can, as they have, rely on government handouts or charity. Just because people are involved in health care commerce it does not follow that they MUST be forced into insurance commerce.
Also, as I stated earlier, this argument is putting the cart before the horse. Government cannot guarantee that everyone will receive adequate health care first, and then demand that, since government or the hospitals are forced to provide this service, we must be compelled to insure ourselves to offset their costs.
The problem is that many uninsured people don’t pay, and never will be able to pay the cost of their treatment, thus shifting the cost on to other people. This, in the aggregate, has a substantial impact on interstate commerce. Unlike the Lopez decision, where Congress used a bunch of unsubstantiated speculation to tie having a gun in a local school zone with interstate commerce, in this case Congress (and the District Court) was actually able to cite a number ($43 billion) for what the impact is of this cost shifting.
Sure, that is a problem. Nonetheless, it does not directly involve individuals in interstate commerce WRT insurance. I think you are missing the point here. Those who already in the insurance market can be manipulated by the federal government under the commerce clause (i.e. told what kind of policy to buy, etc.) It does not follow that individuals who do not participate in the insurance market can be compelled to do so because of any cost shifting.
It doesn’t have to directly involve individuals in commerce. Wickard vs Filburn involved an individual who harvested wheat on his own property, for his own personal consumption, without intending to sell it. This exceeded the “quota” that was alloted to him by the regulations at the time.
IANAL, but didn’t Wickard the farmer also choose to not take part in the wheat market by not buying chicken feed and instead use his own (over quota) wheat for that purpose?
How would this different than a person who does not purchase health insurance and funds health care on their own?
Again, as horrible as the Wickard decision was it had nothing to do with economic inactivity. Filburn could have decided not to buy the wheat if he wanted to. Since he was actively producing wheat he fell under the government quota rules.
Article I, Section 8, Clause 3 of the Constitution:
[quote]
Article I, Section 8, Clause 3:
Notice that the Commerce Clause simply says “regulate commerce.” There’s no activity/inactivity distinction made in that sentence.
Article I, Section 8, Clause 18:
Congress (correctly) discerned that an individual mandate was necessary and proper in order to address the problem with “preexisting conditions” being denied insurance. They couldn’t implement a “guaranteed issue” law without also having a mandate. To do one without the other would cause an insurance death spirall, as only the very sickest would ever sign up for insurance (since they know they can wait until they are sick to sign up, why sign up when they are healthy?)
There is also no mention of individuals there either. You can keep staring at it but you won’t find in that definition the right for government to compel its citizens to enter into a binding contract with a private company.
[QUOTE=Blalron;13055191Article I, Section 8, Clause 18:
Congress (correctly) discerned that an individual mandate was necessary and proper in order to address the problem with “preexisting conditions” being denied insurance. They couldn’t implement a “guaranteed issue” law without also having a mandate. To do one without the other would cause an [insurance death spiral]
(Death spiral (insurance) - Wikipedia)l, as only the very sickest would ever sign up for insurance (since they know they can wait until they are sick to sign up, why sign up when they are healthy?)
[/QUOTE]
This is a government-caused problem. By eliminating the pre-existing condition exclusion insurance companies had in place, they inadvertently created the problem of people NOT getting insured until they need it. This is called the Law of Unintended Consequences. So, now they want to force everyone to purchase insurance to solve the very problem they created.
There’s nothing that prohibits it.
Absolutely not. The problem existed for a long time before the government did anything about it. Millions of people [PDF file] have been left without access to affordable health coverage because of their “pre-existing conditions.” The mandate is the only means by which Congress can effectively address this issue. Thus the individual mandate fulfills the U.S. vs Lopez criteria of being “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” It’s also why the comparison of forcing everyone to buy a car is silly (presumably your hypothetical Congress just did that for shits and giggles) . I can’t imagine what broader regulatory framework would require everybody to buy a car. In this case Congress has an aim besides just being assholes who take people’s money.
Oh, so you are one of those who actually believes that, unless it is specifically prohibited, anything is allowed? We’ve already been over that in this very thread.
Try to respond to what I posted as opposed to what you wanted me to post. Here…I’ll post it for you again: