It’s up to Congress to decide how they are going to regulate consumption of health care services. So long as the method they choose is rationally related to the goal, the Court should not intercede. Therefore, the fact that someone might not be an insurance customer is inapposite. So long as they’re a health care services customer, then they’re engaged in Interstate Commerce, and Congress has chosen to regulate the provision of health care services through an insurance regime.
It’s pretty well settled that people who do engage in commercial activity may be forced to do things they don’t want to do as a consequence of Congress’ power to regulate commerce. That’s why Congress can regulate working hours and conditions, for example, or require automakers to meet safety and emissions standards, or require mortgage companies to make certain disclosures regarding their lending products.
Making hospitals provide emergency care without regard for ability to pay is a subset of such regulation. The upshot is that if you don’t like it, you can go engage in some other sort of commerce.
A lot of people have suggested that the mandate is an overreach because it regulates everyone, even those who have not voluntarily entered the health care market. This is true, in some sense. However, Social Security taxes are collected from people who have not entered any market other than general employment. It is then argued that you can opt out of Social Security by not working - after all, no income means no taxes. Accepting the premise that “not working” is a meaningful way to opt out, this seems to be a distinction between Social Security taxes and the mandate.
Except that it isn’t. People are just as free to opt out of the mandate as they are to opt out of Social Security. If you don’t work, the mandate won’t apply to you, because you won’t have any income.
Well, if it’s unconstitutional to require a person to buy health insurance, I’d naively think it’s also unconstitutional to require a person to provide medical services.
Let’s expand on this metaphor. Congress chooses not to force people to buy broccoli. Broccoli-haters decide not to buy any, and instead spend their money on brussels sprouts, bagels, and 3D TVs.
The problem is that sometimes – and it can’t be predicted – people need large amounts of broccoli or they will die! In some cases, hundreds of thousands of dollars worth of broccoli!
And the body politic is not content to watch people die merely for lack of broccoli. So Congress, while not forcing people to buy broccoli, also has passed laws mandating certain groups to provide broccoli, in whatever quantity needed, regardless of a person’s ability to pay, if they really need it. So, if I am a broccoli provider, I am legally obligated to provide folks who need broccoli on an emergency basis with every bit of broccoli I have. This forces the folks who planned sensibly and bought broccoli all along to pay vastly more for their broccoli than it’s actually worth, so they can subsidize me for those occasions when I’m legally obligated to provide you massive intravenous doses of broccoli, or splint your broken bones with broccoli, or use broccoli to stop your bleeding and safe your life if you get into a car accident, or thread cameras up through your arteries to insert broccoli into your coronary arteries.
Do you see where the metaphor starts to break down when you examine it? Given the fact that Congress has already decided that you must be provided with broccoli when you need it, it’s perfectly rational for them to also require you to buy broccoli insurance even if you don’t think you want it. You’re already part of the broccoli system as a matter of law, and that law will never change because the public will never agree that your asthmatic kid should be allowed to die just because you didn’t buy broccoli insurance. The non-participant argument is nonsense.
Roberts’s opinion, in rejecting the Commerce Clause argument, is inconsistent with precedent and incoherent, and if conservative jurists stick with it (hint: they won’t) it’ll hamstring their own future uses of it. The conclusion was right, but the way he got there was sadly politicized and logically inane.
Which is part of what makes the “deregulation” stance on this issue so silly. Since the government already provides such a huge portion of our nation’s health care via Medicare, health care providers are locked in because they need those Medicare dollars. It’s already a system under intense government control as it is.
Well, yeah, I get that they say that. But I don’t think the Chief offered any reason to believe it. He just said by fiat that regulation of insurance and regulation of services are different beasts. Wickard and Raich say they’re not. Given the circumstances, Roberts’ fiat is the law of the land. But that don’t make it right.
They needn’t be a consumer of health insurance to be compelled to buy health insurance, if Congress deems that health care itself is commerce and the rule they set forth for regulating it is that everyone must buy insurance.
Chief Justice Marshall in Gibbons v. Ogden wrote in 1894:
What is this [Congressional] 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.
And in citing Ogden, Roberts in United States v Comstock, and Scalia in Gonzales v Raich, concurred, saying further:
[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.
Looks like both Roberts and Scalia contradicted themselves in NFIB v Sebelius, and upturned over 100 years of precedent.
I concur. I’m really looking forward to hearing back from Dr. Fried (if I do [crosses fingers]).
Edited to say: I acknowledge that even great legal minds can view various laws and their application differently from one another. I don’t necessarily have a problem with that. What boggles the mind is when the same Justice rules one way in one case, then completely abandons that principle to rule differently in another case. It seems to me there’s no other explanation than that those cases hinge on the Justice’s political leanings, and that’s not just mystifying, it’s offensive.
I’ve seen it suggested in another thread that Congress could simply make it illegal for health care providers to accept direct payment from patients, and require that all payments be made by an insurer. I don’t see how anyone could find that unconstitutional.
Yeah, they could also just create a truly socialized, taxation-funded system like the NHS. In neither case is there any question that that wouldn’t be constitutional if you accept that the provision of health care services is IC (which it is). Instead, Congress decided that it would regulate the provision of care, in part, via third-party private insurers. It’s still the same commerce, and it’s Congress’ choice how they’re going to regulate. There is no principled distinction.
But, as I noted upthread, this isn’t the place to make the stand – we won. And it doesn’t seem likely that the issue will come up very much in the future. If it does, it’d be easy for a sympathetic Court to find a way to distinguish this case.
I don’t see that in his opinion. He spent 11 pages explaining why he sees a distinction between activity and inactivity for purposes of the Commerce Clause. Certainly, there are plenty of ways to disagree with what he wrote, but to skip over that and posit that he’s saying something different doesn’t seem constructive.
Similarly, I don’t think Shayna’s engaging with what Roberts actually wrote in this case. That excerpt from Gibbons expressly recognizes that the Constitution prescribes limits to Congress’s Commerce power, and Roberts explains why he thinks that the PPACA is beyond those limits.
If I’m not engaged in commerce now, you can’t regulate me under the commerce clause. If you want to regulate me sometime in the futures when I am engaged in that commerce, then knock yourself out.