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.
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?
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.
It’s called currency. I seem to recall that, indeed, it is up to the feds to make it.
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.
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.
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?
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.
Not unless there are a lot more houses for a lot less money.
So the powers under the commerce clause turn on a dollar value of the product in commerce?
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.
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.
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.
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.
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:
Caretaker may water the grass.
Caretaker may pick up the mail.
Caretaker may maintain good relationships with neighbors.
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
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.
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.
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:
These are significant to Arrow, as he begins with this:
After then detailing how the market is actually operating ineffectively, he then gets to the salient bits:
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 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).