# Is there any limit to the commerce clause **URL:** \ **Category:** Great Debates\ **Created:** [March 26, 2012, 3:11pm UTC](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849 "2012-03-26T15:11:47Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [March 28, 2012, 12:42pm UTC](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849/61 "2012-03-28T12:42:11Z")
Any time there is a discussion of the commerce clause, I’m a bit bemused, since in Canada we have a very clear distinction between inter-provincial trade and commerce, which is subject to federal jurisdiction, and internal provincial commerce, which is under exclusive provincial jurisdiction. The courts do not seem to have much difficulty in applying that constitutional principle, largely because we have the equivalent of a 10th amendment that actually works to preserve provincial authority. Under our system, there is a list of federal powers, and a list of provincial powers, and the Parliament cannot pass legislation coming within the provincial powers. For instance, we do not have a federal securities regulator, and our Supreme Court recently ruled that Parliament does not have the authority to create one. In order to have a single securities regulator, joint federal provincial legislation is necessary. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 28, 2012, 1:01pm UTC](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849/62 "2012-03-28T13:01:24Z")
> [@Really\_Not\_All\_That\_Bright](#): > > What law would be applied to “nuisance claims between states”? The Supreme Court’s original jurisdiction for cases between states. They would use what little federal common law that there is. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 28, 2012, 1:07pm UTC](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849/63 "2012-03-28T13:07:47Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Health care is, of course, in a weird category, inasmuch as pretty much everybody uses health care services at some point in their lives. This near-universal use of the services means that you’re not regulating something by requiring them to use it; it’s already being used. You’re regulating how people pay for it, by requiring them to pay for the services they’ll use via insurance. Scalia made a good point about this argument. Sure, if you draw a circle that broad around health care, then of course everyone uses it. If you drew it narrower and said “cancer” then everyone would not use it. To be absurd, you could call a category “human commerce”, include everything in it, and state that the federal government can mandate the purchase of anything because everyone participates in “human commerce.” Do you agree with the arguments that the feds could mandate eating broccoli, buying a cell phone, and purchasing burial insurance under the guise that these will make the health care (and burial) market more efficient by keeping costs down? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 28, 2012, 1:19pm UTC](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849/64 "2012-03-28T13:19:02Z")
> [@Saint\_Cad](#): > > So fast-forward to today. I go to my local hardware store and buy a rake made in Missouri. Have I engaged in interstate commerce? The current interpretation is yes and the ridiculousness of \*Wickard \*and \*Raich \*is that if I make my own rake, I have participated in interstate commerce because but NOT buying a rake, I have affected the prices on the national rake market. Now the question SCOTUS was addressing is based on that interpretation of the ICC, can the Feds require me to buy a rake? Sorry for the triple post, I need to learn to use multi-quote. And where does it stop from there? Suppose you didn’t have any deciduous trees in your yard, and you didn’t need to rake leaves in your yard. Can Congress mandate that you plant X number of deciduous trees in your yard? (Of course, leaf raking is now mandatory). If the trees aren’t healthy, then they won’t shed and reproduce leaves, so you must get them scientifically tested every year for health. In fact, since some homeowners (you must own a home!) won’t pay out of pocket for tree health, you now need tree health insurance. And you must own a minimum of a 1/2 acre yard, because without that yard, less raking takes place. And if you don’t have a job, most people can’t afford a house with a yard, so you need a job (and job insurance so we won’t hear whining about how you can’t find one). And to get a job, you need a business professional wardrobe and an updated resume. We simply cannot have people without updated resumes because it will destroy the interstate rake market. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [March 28, 2012, 1:39pm UTC](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849/65 "2012-03-28T13:39:09Z")
> [@jtgain](#): > > Scalia made a good point about this argument. Sure, if you draw a circle that broad around health care, then of course everyone uses it. If you drew it narrower and said “cancer” then everyone would not use it. To be absurd, you could call a category “human commerce”, include everything in it, and state that the federal government can mandate the purchase of anything because everyone participates in “human commerce.” It’s called currency. I seem to recall that, indeed, it is up to the feds to make it. > [@](#): > > Do you agree with the arguments that the feds could mandate eating broccoli, buying a cell phone, and purchasing burial insurance under the guise that these will make the health care (and burial) market more efficient by keeping costs down? I don’t see how. The burial market has a point, but not the broccoli. If the cost of burial got as out of hand as health care, then we’d have a different situation. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [March 28, 2012, 1:43pm UTC](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849/66 "2012-03-28T13:43:49Z")
> [@jtgain](#): > > In fact, since some homeowners (you must own a home!) I easily envision people that don’t own property. There are millions of them. I cannot envision someone who doesn’t avail themselves of health care. Do you really think there is no difference? Would you think that the government should make an exception for all people who wish to stipulate that they will never use health care their entire life? Can someone sign that away? My guess is that they cannot. Then this can only be because the presumption that the average person could avoid healthcare is unreasonable. Then they have regulated the way you will pay for it: via insurance. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 28, 2012, 1:47pm UTC](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849/67 "2012-03-28T13:47:45Z")
> [@erislover](#): > > I easily envision people that don’t own property. There are millions of them. I cannot envision someone who doesn’t avail themselves of health care. Do you really think there is no difference? Why define it so broadly? Why not say “cancer”? It is very possible that many posters in this thread will not have to suffer that disease. Why does the government have the power to force us to purchase insurance against cancer? Because we might get cancer and might be in the market for cancer treatment services? We all might own property as well. ---
**Author:** ![gamerunknown](https://avatars.discourse-cdn.com/v4/letter/g/6bbea6/32.png) [@gamerunknown](https://boards.straightdope.com/u/gamerunknown)\ **Post date:** [March 28, 2012, 1:51pm UTC](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849/68 "2012-03-28T13:51:27Z")
The federal government may have an interest in mandating rake ownership if a lack of rakes caused the death of [several thousand](http://news.harvard.edu/gazette/story/2009/09/new-study-finds-45000-deaths-annually-linked-to-lack-of-health-coverage/) Americans a year. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [March 28, 2012, 1:53pm UTC](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849/69 "2012-03-28T13:53:31Z")
> [@jtgain](#): > > Why define it so broadly? Why not say “cancer”? Why define it so broadly? Why not say “invasive lobular carcinoma”? I mean, obviously you wouldn’t want to buy general health insurance, it’s a product that doesn’t exist. You want your insurance a la carte? I grant you: if insurance were a la carte, then I think you’d have a point. > [@](#): > > We all might own property as well. Not unless there are a lot more houses for a lot less money. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 28, 2012, 2:08pm UTC](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849/70 "2012-03-28T14:08:04Z")
> [@gamerunknown](#): > > The federal government may have an interest in mandating rake ownership if a lack of rakes caused the death of [several thousand](http://news.harvard.edu/gazette/story/2009/09/new-study-finds-45000-deaths-annually-linked-to-lack-of-health-coverage/) Americans a year. So the powers under the commerce clause turn on a dollar value of the product in commerce? > [@erislover](#): > > Why define it so broadly? Why not say “invasive lobular carcinoma”? I mean, obviously you wouldn’t want to buy general health insurance, it’s a product that doesn’t exist. You want your insurance a la carte? I grant you: if insurance were a la carte, then I think you’d have a point. Insurance isn’t a la carte, but there is such a thing as catastrophic insurance. It is much cheaper, and while you are younger, you can bank money to pay for future expenses. It will be illegal in 2014. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [March 28, 2012, 2:09pm UTC](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849/71 "2012-03-28T14:09:00Z")
> [@jtgain](#): > > Insurance isn’t a la carte, but there is such a thing as catastrophic insurance. It is much cheaper, and while you are younger, you can bank money to pay for future expenses. Like health care. LOL. ---
**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:** [March 28, 2012, 4:03pm UTC](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849/72 "2012-03-28T16:03:06Z")
> [@Bricker](#): > > Because, as Sister Margaret taught me when I learned to diagram sentences, the subject is Congress. The verb ‘regulate’ indicates the action taken by the subject. The direct object is “interstate commerce.” So “interstate commerce” receives the action of the verb. > > When Congress says _I_ have to do something, then they are regulating me, not interstate commerce. Mr. Greenlund taught me to diagram sentences, too, but I don’t remember where I picked up on the idea that some nouns describe actions. For example, the noun “commerce” describes the action you take when people perform the verbs of buying or selling. So when Congress regulates commerce, they may do so by regulating your performance of the verb “to buy” and “to sell.” I think the Sister Margaret argument is a weak argument. **jtgain** , I don’t know the answer to your question. I’m inclined to think that the laws Scalia suggests are very silly, but not necessarily unconstitutional. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [March 28, 2012, 4:50pm UTC](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849/73 "2012-03-28T16:50:10Z")
As much as I am for this law, I actually don’t know if I think it is constitutional, personally. But I _also_ don’t think banning marijuana is constitutional, or offering corn subsidies, or many other things which quite drastically alter behavior. If I am told all that is constitutional, then this isn’t even a particularly novel situation to me. It’s a novel combination of old stories of government meddling, which would matter if it were a copyright claim not a question of constitutionality. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 28, 2012, 5:56pm UTC](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849/74 "2012-03-28T17:56:23Z")
> [@Left\_Hand\_of\_Dorkness](#): > > **jtgain** , I don’t know the answer to your question. I’m inclined to think that the laws Scalia suggests are very silly, but not necessarily unconstitutional. So, let’s go back to the OP, then. What, in your view, would be a law that exceeds Congress’ commerce power? Keep in mind that this view should be consistent with a national government with “limited and few” powers and plenary powers reserved to the states. If you think that Congress could mandate broccoli consumption (even though you admit it is silly), then I’m at a loss to see anything that’s beyond their power. ---
**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:** [March 28, 2012, 6:39pm UTC](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849/75 "2012-03-28T18:39:24Z")
> [@jtgain](#): > > So, let’s go back to the OP, then. What, in your view, would be a law that exceeds Congress’ commerce power? Keep in mind that this view should be consistent with a national government with “limited and few” powers and plenary powers reserved to the states. > > If you think that Congress could mandate broccoli consumption (even though you admit it is silly), then I’m at a loss to see anything that’s beyond their power. As I said, I don’t know. It’s possible that the Constitution is, in this respect, broken, containing an internal contradiction. If that’s the case, then a textualist reading is fatally flawed. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 28, 2012, 6:46pm UTC](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849/76 "2012-03-28T18:46:55Z")
> [@Left\_Hand\_of\_Dorkness](#): > > As I said, I don’t know. It’s possible that the Constitution is, in this respect, broken, containing an internal contradiction. If that’s the case, then a textualist reading is fatally flawed. So, if one reading gives you an internal contradiction, why not go with the other reading that does not give you such a contradiction? Let’s make it simpler. Say you are going on vacation and want me to watch your house. We sign a contract that has these 4 provisions: 1. Caretaker may water the grass. 2. Caretaker may pick up the mail. 3. Caretaker may maintain good relationships with neighbors. 4. Every other thing about the house is homeowner’s right to do!!! So, you come back in two weeks and I’ve added a 2,500 sq. foot addition. I point to clause #3 and stated that I felt that it was in my power to build the addition because it made the neighbors happy. In fact, when I asked my brother, he agreed with my interpretation. You say that surely I can’t be right because under my interpretation, I could do anything I wanted to make the neighbors happy. What about #4? I shrug my shoulders and say that our contract must have just been broken and contains an internal contradiction. We must live with what we have.\* Would you accept that, or perhaps there is a better way of reading our contract? \*btw, You owe me $343,000 for the addition ---
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [March 28, 2012, 7:20pm UTC](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849/77 "2012-03-28T19:20:04Z")
> [@erislover](#): > > Why define it so broadly? Why not say “invasive lobular carcinoma”? I mean, obviously you wouldn’t want to buy general health insurance, it’s a product that doesn’t exist. You want your insurance a la carte? I grant you: if insurance were a la carte, then I think you’d have a point. Actually, it does. [Cite.](http://www.aflac.com/individuals/cancer_insurance.aspx) People commonly choose policy A over policy B because policy B includes things they don’t want (and don’t want to pay for), and I suspect most people would prefer they have a lot more flexibility to customize their insurance than they do; but that seems like a pretty good argument for making the insurance market freer and more diverse, not less. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [March 28, 2012, 7:25pm UTC](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849/78 "2012-03-28T19:25:00Z")
**furt** , the key issue there is that these augment plans which fail to cover everything. Aflac is supplemental. I suppose in principle someone could hedge their bets and dodge all insurance except to cover marginal costs of treating of testicular cancer and roll just with Aflac but if this were the underlying assumption I think I would probably have made entirely different arguments. ---
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [March 28, 2012, 11:57pm UTC](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849/79 "2012-03-28T23:57:18Z")
> [@erislover](#): > > **furt** , the key issue there is that these augment plans which fail to cover everything. Aflac is supplemental. I suppose in principle someone could hedge their bets and dodge all insurance except to cover marginal costs of treating of testicular cancer and roll just with Aflac but if this were the underlying assumption I think I would probably have made entirely different arguments. There’s no inherent reason why it can’t or shouldn’t be the underlying assumption: many, many people don’t _want_ a plan that covers everything. Unfortunately, since the government has chosen to enact laws that encourage a connection between employment and health insurance, and the vast majority of employers only offer comprehensive plans, they have no choice. I think it’s very likely that in a free insurance market you’d see a lot more diverse insurance products offered (e.g, illness-only, accident-only, catastrophic-only, women-only, etc.) Perhaps not. But the fact that such products are uncommon proves little, since such a market is prevented from coming into existence. Indeed, the fact that any exist at all despite the interference is remarkable. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [March 29, 2012, 2:13am UTC](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849/80 "2012-03-29T02:13:23Z")
> [@furt](#): > > There’s no inherent reason why [a la carte insurance] can’t or shouldn’t be the underlying assumption… > > I think it’s very likely that in a free insurance market you’d see a lot more diverse insurance products offered… I don’t have a documented history of insurance handy, but the problems with insurance markets are relatively well-known. The first exposition of the problems in the literature I’m aware of is from Kenneth Arrow, “Uncertainty and the Welfare Economics of Medical Care.” I don’t have a version handy which allows easy copy and paste of text, so I am skimming and editing a little heavy-handedly. Typos mine. Here are some aspects of medical care that he finds significant: > [@](#): > > The most obvious distinguishing characteristics of an individual’s demand for medical services is that it is not steady in origin as, for example, for food or clothing, but irregular and unpredictable… > In addition, the demand for medical services is associated… with an assault on personal integrity… The risks [which I omitted -erl] are not by themselves unique; food is also a necessity, but avoidance of deprevation of food can be guaranteed with sufficient income, where the same risk cannot be said of avoidance of illness. Illness is, thus, not only risky but a costly risk in itself, apart from the cost of medical care… > It is clear from everyday observation that the behavior expected of sellers of medical care is different from that of business men in general. These expectations are relevant because medical care belongs to the category of commodities for which the product and the activity of production are identical. In all such cases, the customer cannot test the product before consuming it… But the ethically understood restrictions on the activities of a physician are much more severe than on those of, say, a barber. His behavior is supposed to be governed by a concern for the customer’s welfare which would not be expected of a salesman. [This] distinguishes medicine and other professions from business, where self-interest on the part of participants is the accepted norm… > Uncertainty as to the quality of the product is perhaps more intense here than in any other important commodity… In most commodities, the possibility of learning from one’s own experience or that of others is strong because there is an adequate number of trials. In the case of severe illness, that is, in general, not true; the uncertainty due to inexperience is added to the intrinsic difficulty of prediction. Further, the amount of uncertainty… is certainly much greater for medical care in severe cases than for, say, houses or automobiles, even though these are also expenditures sufficiently infrequent so that there may be considerable residual uncertainty… These are significant to Arrow, as he begins with this: > [@](#): > > The failure of one or more of the competitive preconditions has as its most immediate and obvious consequence a reduction in welfare below that obtainable from existing resources and technology, in the sense of a failure to reach an optimal state in the sense of Pareto. But more can be said. I propose here the view that, when the market fails to achieve an optimal state, society will, to some extent at least, recognize the gap, and nonmarket social institutions will arise attempting to bridge it. After then detailing how the market is actually operating ineffectively, he then gets to the salient bits: > [@](#): > > Departures consist for the most part of insurance policies that might conceivably be written, but are in fact not. Whether these potential commodities are nonmarketable, or, merely because of some imperfection in the market, are not actually marketed, is a somewhat fine point. To recall what has already been said in Section I [omitted]… From the point of view of the welfare economics of uncertainty, [these] losses are risks against which individuals would like to insure. The nonexistence of suitable insurance policies for either risk implies a loss of welfare. He then details the problems of information uncertainty which plague insurance markets in many ways, including medical insurance. Secondly, medical professionals rendering services on behalf of the client involve a moral hazard since they’re spending the insurance company’s money, and the company is not there with the patient and doctor. He also mentions the problem that the existence of insurance payments remove incentives for individuals, patients, and physicians to shop around for better prices. “The market forces, therefore, tend to be replaced by direct institutional control.” The impact of more information imbalance between patient and doctor on health insurance follows. He wraps it up here: > [@](#): > > I wish to repeat here what has been suggested above in several places: that the failure of the market to insure against uncertainties has created many social institutions in which the usual assumptions of the market are to some extent contradicted. I think his point would be: what you see as a failure due to regulation may in fact be failures in regulation, but which only came about because of the original failures of markets the state tried to address (necessarily imperfectly itself). [Previous page](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849.md?page=3) [Next page](https://boards.straightdope.com/t/is-there-any-limit-to-the-commerce-clause/616849.md?page=5)