How would the ACA be against the commerce clause

I don’t understand or know the law. But how does health care, being 1/6 of the economy, not be considered part of commerce?

Scalia and Kennedy both upheld convictions for people growing marijuana for personal use in states where medical marijuana was legal, and they used the commerce clause to do it.

If growing marijuana within a state (not across state boundaries) that you are not going to sell on the market is part of the commerce clause, then what exactly is the commerce clause and why would the ACA not fall under it?

The government can’t force you to buy something from a private company. It’s that simple. They can’t compel commerce where none exists.

You could say that consumer electronics is a huge % of the economy, but the government can’t compel you to buy an iPad.

Yet. :wink:

I tend to think that the Interstate commerce clause has become so pervasive, not because of judicial/legislative overreach, but because interstate commerce has become nearly universal.

It’s as if Congress were specifically empowered to deal with matters of the Divine Spark of Electricity, something relatively small when the constitution were written, but they had no idea of the advent of the electronic age.

Obviously there were more interstate transactions in 1787 than there were iPads, but the central point remains: back then, seeing a doctor wasn’t necessarily involving interstate commerce in the way it necessarily does now. Essentially everything now involves interstate commerce. If folks don’t want congress to have power over all transactions in the country, there needs to be an amendment limiting the interstate commerce clause.

Why? We now have a SCOUTS ruling saying otherwise.

They were prepared.

(That was my personal opinion, not the opinion of the scouts.)

Former Reagan Solicitor General Charles Fried spelled out quite clearly how Insurance is Commerce and how compelling the purchase of insurance amounts to “making a rule” as to how said Insurance Commerce is governed, in his testimony in front of the Senate Judiciary Committee:

Then, after oral arguments were televised and Democrats went nutso over General Verrilli’s allegedly poor performance, he answered some interview questions about it,

So my answer would have to be twofold:

  1. Ya got me.
  2. Politics.

I have written to Dr. Fried and asked him this very question. I’ll let you know if he replies, and how he answers it.

They have you tied up in knots!

You laugh but the scouts will leave you with some serious indian burns when they are finished.

In the opinion Roberts wrote that all of the history of the Commerce Clause cases Congress was regulating activity. He emphasized that word and notes you couldn’t really get away from it. The Commerce Clause regulates activity that is already occurring.

It explains the broccoli problem. Congress cannot force you to buy broccoli. Your choice to remove yourself from the market for broccoli is not activity that Congress can regulate.

In Wickard the Supreme Court ruled that Congress can prevent a farmer from growing wheat to feed to his own farm animals on his own farm. Under today’s decision Congress could not force a farmer (or anyone else) to start growing wheat if he was not already doing so.

There seem to be two views on the subject concerned the currently-uninsured and this law.

One is that they are non-participants - as they do not buy insurance - and the Commerce Clause therefore cannot justify compelling them to become participants.

The other view is that they are participants - everyone participates in the healthcare system as a whole, even if they don’t buy insurance to do so. In that view, Congress can compel them to buy insurance as a condition of their participation in the health care system.

I subscribe to the latter view, personally, but I am content with the ruling.

The thing is health insurance is not the same thing as an iPad and I am not sure why this distinction wasn’t drawn. I do not mean the obvious difference but the root of it, the buying of “something”.

An American can get through life easily without ever owning an iPad and many won’t ever own one.

Health care however is something we all consume at some point in our lives (I suppose there may be a rare individual who somehow manages to never use it but the vast majority will eventually). When health care is consumed, if the person cannot pay for it, then we are ALL left with the bill and pay for that person (via higher health care costs and insurance premiums). The only way to avoid this is to turn people away at the door of an emergency room if they cannot immediately show an ability to pay.

Given the distinct differences between buying health care and buying an iPad it would seem to me a perfect fit for the commerce clause without being an overreach at all.

A very succinct description.

The court considered both points of view, accepting the former and rejecting the latter.

Remember that even though there is a long history of court rulings on Commerce Clause cases that talking about activity, the wording in the Constitution talks about regulating trade.

Roberts said that the founders understood this to require a pre-existing trade upon which regulations could be passed.

I guess I’m confused by the OP. The Chief Justice explained yesterday how the ACA violated the Commerce Clause, in the view of a majority of the only people who matter. Are you asking for an explanation of Roberts’ opinion? Or whether we think there are other grounds that are more palatable?

I’m with the OP – the opinion is inane. I forgive him, but it’s inane. There’s no principled distinction between this case and Wickard and Raich. The only way you could possibly make the argument is if a particular person never consumed health care services, and that is true of practically no one in this country.


Okay, fine. Let’s just say that anyone who has not used any health care is exempt from the law.

So, all those people who were not born in hospitals and who have never gotten vaccinations or physical examinations or eye exams or dental care or have otherwise never used health care are exempt if they so choose. Everyone else is a health care consumer.

Indeed, but narrowly. I think this is a point on which rational people may disagree, but it seems the majority of people on either side can’t comprehend the possibility of someone thinking the other way.

They are a consumer of health care, but not necessarily consumers of health insurance.

Can somehow explain how the law(s) requiring hospitals to treat medical emergencies is constitutional?