# How would the ACA be against the commerce clause **URL:** \ **Category:** Great Debates\ **Created:** [June 29, 2012, 12:49am UTC](https://boards.straightdope.com/t/how-would-the-aca-be-against-the-commerce-clause/626646 "2012-06-29T00:49:03Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Wesley\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wesley_clark/32/20581_2.png) [@Wesley\_Clark](https://boards.straightdope.com/u/Wesley_Clark)\ **Post date:** [June 29, 2012, 12:49am UTC](https://boards.straightdope.com/t/how-would-the-aca-be-against-the-commerce-clause/626646/1 "2012-06-29T00:49:03Z")
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. > **[Gonzales v. Raich](https://en.wikipedia.org/wiki/Gonzales_v._Raich)** > > Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005), was a decision by the U.S. Supreme Court ruling that under the Commerce Clause of the U.S. Constitution, Congress may criminalize the production and use of homegrown cannabis even if state law allows its use for medicinal purposes. > California voters passed Proposition 215 in 1996, legalizing the use of medical marijuana. The Federal government of the United States has limited the use of marijuana since the Marijuana Tax Act of ... 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? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 29, 2012, 1:48am UTC](https://boards.straightdope.com/t/how-would-the-aca-be-against-the-commerce-clause/626646/2 "2012-06-29T01:48:07Z")
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. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [June 29, 2012, 2:01am UTC](https://boards.straightdope.com/t/how-would-the-aca-be-against-the-commerce-clause/626646/3 "2012-06-29T02:01:04Z")
> [@John\_Mace](#): > > 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. 😉 ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [June 29, 2012, 2:13am UTC](https://boards.straightdope.com/t/how-would-the-aca-be-against-the-commerce-clause/626646/4 "2012-06-29T02:13:11Z")
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. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 29, 2012, 2:24am UTC](https://boards.straightdope.com/t/how-would-the-aca-be-against-the-commerce-clause/626646/5 "2012-06-29T02:24:21Z")
> [@Left\_Hand\_of\_Dorkness](#): > > 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. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [June 29, 2012, 2:26am UTC](https://boards.straightdope.com/t/how-would-the-aca-be-against-the-commerce-clause/626646/6 "2012-06-29T02:26:02Z")
> [@John\_Mace](#): > > Why? We now have a SCOUTS ruling saying otherwise. They were prepared. (That was my personal opinion, not the opinion of the scouts.) ---
**Author:** ![Shayna](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/shayna/32/17976_2.png) [@Shayna](https://boards.straightdope.com/u/Shayna)\ **Post date:** [June 29, 2012, 2:26am UTC](https://boards.straightdope.com/t/how-would-the-aca-be-against-the-commerce-clause/626646/7 "2012-06-29T02:26:43Z")
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: [http://www.judiciary.senate.gov/pdf/11-02-02%20Fried%20Testimony.pdf](http://www.judiciary.senate.gov/pdf/11-02-02%20Fried%20Testimony.pdf) > [@Charles Fried](#): > > "I come here today not as a partisan supporter of the Obama Administration’s health care legislation. I am not an expert in health care economics or policy, and I am sure there are many arguments for and against the wisdom and feasibility of this legislation. I do not enter into that debate. I am an expert on constitutional law, which I have been teaching and practicing for many years and on which I have written books and articles, most to the point my 2004 book, SAYING WHAT THE LAW IS: THE CONSTITUTION IN THE SUPREME COURT. > > \ > > [T]he business of insurance is commerce. That’s what the Supreme Court decided in 1944 in United States v. South-Eastern Underwriters Ass’n, and the law has not departed from that conclusion for a moment since then. One need only think of the massive regulation of insurance that is represented by ERISA to see how deep and unquestioned is that conclusion. > > If insurance is commerce, then of course the business of health insurance is commerce. It insures an activity that represents nearly 18% of the United States economy. (In this connection recall Perez v. United States, which held that a very local loan sharking operation was within Congress’s power to regulate commerce.) And if health insurance is commerce, then the health care mandate is a regulation of commerce, explicitly authorized by Article I, Section 8 of the Constitution. > > There is the argument, which I believe is entirely wrong and even worse quite confused, that the health care mandate is not a regulation of commerce because it requires an economic act – entering the health insurance market – rather than prohibiting or limiting an economic activity. This is what Chief Justice Marshall, who had been an active member of the Virginia legislature at the time the Constitution was adopted, wrote in 1824 in Gibbons v. Ogden Regarding Congress’s Commerce power: > > ``` > What is this power? > > It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. . . If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, declaring war, the sole restrains on which they have relied, to secure them from its abuse. > > ``` > > To my mind that is sufficient to provide the constitutional basis for the mandate. The mandate is a rule (more accurately, part of a system of rules) “by which commerce is to be governed.” Neither the Constitution nor the great Chief Justice said anything about limiting such rules to those that prohibit or limit commerce. But to those who may argue that, for some reason not disclosed in any constitutional text or known constitutional doctrine, this is not sufficient, there are these words of Marshall in 1819 in McCulloch v Maryland, often invoked, most recently in United States v Comstock, in an opinion joined by Chief Justice Roberts, and in Gonzales v Raich, in an opinion joined by Justice Scalia: > > ``` > [T]he powers given to the government imply the ordinary means of execution. . . The government which has a right to do an act, and has imposed on it, the duty of performing that act, must, according to the dictates of reason, be allowed to select the means. . . The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers, to insure, so far as human prudence could insure, their beneficial execution. . . We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. > > ``` > > Mandatory enrollment by all in the health insurance system seems close to absolutely necessary – though, as Marshall wrote, the necessity need not be absolute – to a scheme that requires private health insurers to accept virtually all applicants regardless of preexisting conditions and to retain them no matter how large the cost they impose on the system. To allow the young and well to wait until they are older and sicker to enroll is to design a system of private insurance that cannot work. Everyone knows that. > > \ > > Is the health care mandate an invasion of constitutionality protected by liberty? That question was answered in 1905 by a unanimous Court in Jacobson v. Commonwealth of Massachusetts, upholding against a liberty argument the imposition of a fine for refusing to submit to a state-mandated smallpox vaccination. By refusing to submit to a state-mandated smallpox vaccination, Jacobson was endangering not only himself but others whom he might infect. By refusing the much less intrusive and less intimate imposition of a requirement that one purchase health insurance if one can afford it, a person threatens to unravel – in the view of Congress and the health insurance industry, but Congress is enough – the whole scheme designed to protect by health insurance the largest part of the population. > > \ > > To sum up: > > Insurance is commerce. > > Health insurance is undoubtedly commerce. > > Congress has the power to regulate commerce, and that means that Congress may prescribe, in Chief Justice Marshall’s words, a rule for commerce. > > The health care mandate is a rule for commerce. And in any event it is a necessary and proper part of the particular regulation of health insurance that Congress chose to enact. > > \ > > The objection that the mandate is an imposition on the individual is an objection not to Congress’s exceeding its power to lay down a rule for commerce, but to Congress’s violating an individual liberty as guaranteed by the 5th Amendment. But the Jacobson case, which has been settled precedent for more than one hundred years, shows conclusively that the mandate is not an unconstitutional imposition on individual liberty." > > \ Then, after oral arguments were televised and Democrats went nutso over General Verrilli’s allegedly poor performance, he answered some interview questions about it, > [@Charles Fried](#): > > I’ve never understood why regulating by making people go buy something is somehow more intrusive than regulating by making them pay taxes and then giving it to them. I don’t get it. It was comical to read the Heritage Foundation’s brief attempting to explain why they were changing their position on this. Something needed to be done about this problem. Everyone understood that. So, the Heritage Foundation said let’s do an individual mandate because it keeps it within free enterprise. The alternative was single payer. And they didn’t want that, and I’m in sympathy with that. So now all of a sudden the free-market alternative becomes unconstitutional and terribly intrusive where a government imposition and government-run project would not be? I don’t get it. Well, I do get it. It’s politics. > > … > > Politics, politics, politics. You look at the wonderful decision by Jeff Sutton\*, who is as much of a 24-karat gold conservative as anyone could be. He is a godfather to the Federalist Society. Look at his opinion. Or look at Larry Silberman’s opinion. I don’t understand what’s gotten into people. Well, I do I’m afraid, but it’s politics, not anything else. > > \ > > There’s all this stuff that got in there about creating commerce in order to regulate it. … But quite apart from that, what is the commerce? The commerce is not the health insurance market. The commerce is the health-care market, as [current solicitor general Donald] Verrilli said a million times. And it’s very hard to deny that. > > There is a market for health care. It’s a coordinated market. A heavily regulated market. Is Congress creating the market in order to regulate it? It’s not creating it! The market is there! Is it forcing people into it in order to regulate them? In every five-year period, 95 percent of the population is in the health-care market. Now, it’s not 100 percent, but I’d say that’s close enough for government work. And in any one year, it’s close to 85 percent. Congress isn’t forcing people into that market to regulate them. The whole thing is just a canard that’s been invented by the tea party and Randy Barnetts of the world, and I was astonished to hear it coming out of the mouths of the people on that bench. > > [Reagan’s solicitor general: ‘Health care is interstate commerce. Is this a regulation of it? Yes. End of story.’](http://www.washingtonpost.com/blogs/ezra-klein/post/reagans-solicitor-general-health-care-is-interstate-commerce-is-this-a-regulation-of-it-yes-end-of-story/2011/08/25/gIQAmaQigS_blog.html) 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. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 29, 2012, 2:51am UTC](https://boards.straightdope.com/t/how-would-the-aca-be-against-the-commerce-clause/626646/8 "2012-06-29T02:51:11Z")
> [@Left\_Hand\_of\_Dorkness](#): > > They were prepared. > > (That was my personal opinion, not the opinion of the scouts.) They have you tied up in knots! ---
**Author:** ![Wesley\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wesley_clark/32/20581_2.png) [@Wesley\_Clark](https://boards.straightdope.com/u/Wesley_Clark)\ **Post date:** [June 29, 2012, 3:09am UTC](https://boards.straightdope.com/t/how-would-the-aca-be-against-the-commerce-clause/626646/9 "2012-06-29T03:09:51Z")
You laugh but the scouts will leave you with some serious indian burns when they are finished. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [June 29, 2012, 3:25am UTC](https://boards.straightdope.com/t/how-would-the-aca-be-against-the-commerce-clause/626646/10 "2012-06-29T03:25:36Z")
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. ---
**Author:** ![CandidGamera](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/candidgamera/32/2878_2.png) [@CandidGamera](https://boards.straightdope.com/u/CandidGamera)\ **Post date:** [June 29, 2012, 1:07pm UTC](https://boards.straightdope.com/t/how-would-the-aca-be-against-the-commerce-clause/626646/11 "2012-06-29T13:07:37Z")
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. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [June 29, 2012, 1:56pm UTC](https://boards.straightdope.com/t/how-would-the-aca-be-against-the-commerce-clause/626646/12 "2012-06-29T13:56:43Z")
> [@John\_Mace](#): > > You could say that consumer electronics is a huge % of the economy, but the government can’t compel you to buy an iPad. 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. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [June 29, 2012, 2:04pm UTC](https://boards.straightdope.com/t/how-would-the-aca-be-against-the-commerce-clause/626646/13 "2012-06-29T14:04:22Z")
> [@CandidGamera](#): > > 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. A very succinct description. The court considered both points of view, accepting the former and rejecting the latter. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [June 29, 2012, 2:07pm UTC](https://boards.straightdope.com/t/how-would-the-aca-be-against-the-commerce-clause/626646/14 "2012-06-29T14:07:01Z")
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. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [June 29, 2012, 3:08pm UTC](https://boards.straightdope.com/t/how-would-the-aca-be-against-the-commerce-clause/626646/15 "2012-06-29T15:08:18Z")
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? ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [June 29, 2012, 4:20pm UTC](https://boards.straightdope.com/t/how-would-the-aca-be-against-the-commerce-clause/626646/16 "2012-06-29T16:20:29Z")
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. –Cliffy ---
**Author:** ![Hentor\_the\_Barbarian](https://avatars.discourse-cdn.com/v4/letter/h/8edcca/32.png) [@Hentor\_the\_Barbarian](https://boards.straightdope.com/u/Hentor_the_Barbarian)\ **Post date:** [June 29, 2012, 4:24pm UTC](https://boards.straightdope.com/t/how-would-the-aca-be-against-the-commerce-clause/626646/17 "2012-06-29T16:24:03Z")
> [@Iggy](#): > > 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. 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. ---
**Author:** ![CandidGamera](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/candidgamera/32/2878_2.png) [@CandidGamera](https://boards.straightdope.com/u/CandidGamera)\ **Post date:** [June 29, 2012, 4:28pm UTC](https://boards.straightdope.com/t/how-would-the-aca-be-against-the-commerce-clause/626646/18 "2012-06-29T16:28:08Z")
> [@Iggy](#): > > A very succinct description. > > The court considered both points of view, accepting the former and rejecting the latter. 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. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [June 29, 2012, 4:30pm UTC](https://boards.straightdope.com/t/how-would-the-aca-be-against-the-commerce-clause/626646/19 "2012-06-29T16:30:40Z")
> [@Hentor\_the\_Barbarian](#): > > 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. They are a consumer of health care, but not necessarily consumers of health insurance. ---
**Author:** ![Pleonast](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pleonast/32/1183_2.png) [@Pleonast](https://boards.straightdope.com/u/Pleonast)\ **Post date:** [June 29, 2012, 4:36pm UTC](https://boards.straightdope.com/t/how-would-the-aca-be-against-the-commerce-clause/626646/20 "2012-06-29T16:36:44Z")
Can somehow explain how the law(s) requiring hospitals to treat medical emergencies is constitutional? [Next page](https://boards.straightdope.com/t/how-would-the-aca-be-against-the-commerce-clause/626646.md?page=2)