Sure, but thus they knew full well it was of doubtful Constitutionality when they passed it. They didn’t need a layman pointing it out.
Probably the same reason past congresses favored the expansion of drug testing in businesses and schools while specifically exempting themselves from it.
There will be a court test, because although Congress’ power to regulate commerce has been interpreted pretty broadly, there are two reasons an individual mandate might not pass muster with SCOTUS:
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Most importantly, it is a new extension of Congress’ commerce power for which there is no precedent. SCOTUS can overturn an individual mandate without disrupting existing precedent. They might have to, since if Congress can force you to buy health insurance, they can force you to buy anything. Corporations will be lining up to get Congress to make purchase of their goods or services mandatory.
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SCOTUS has recently been establishing limits on the commerce power. Two cases, Lopez and Morrison, established the first post-New Deal limits. The court ruled in Lopez that Congress could not regulate guns near schools because it wasn’t interstate commerce nor did it have a substantial effect on interstate commerce. In Morrison, they determined that Congress did not have the power to enact parts of the Violence Against Women Act. This wasn’t even a commerce clause ruling per se, SCOTUS actually said, “Congress can’t do that because the Constitution doesn’t give it the power to do that.”
Bonus reason: SCOTUS has five conservatives, four liberals. I don’t think they’ll be too shy about reining in Congress, especially when no precedents are being overturned. I’d say there’s a 60% chance an individual mandate gets struck down.
I’d say that extremely few laws passed by Congress are so obviously unconstitutional that the Supreme Court nullifies them by a 9-0 ruling.
That would be because SCOTUS justices are human and they have policy preferences. If they favor the policy preference, they usually won’t overrule Congress.
I’d agree that a 5-4 ruling isn’t a binding precedent(although SCOTUS usually considers it to be in practice). But I wouldn’t be surprised to see the individual mandate go down 7-2, or even 8-1. John Paul Stevens, although he hasn’t actually taken action yet, has said several times in decisions that although he’d let Congress get away with expansion of commerce power X, he said there are definitely limits beyond which Congress cannot go. The interstate commerce clause is not a blank check for Congress to do anything it wants. Due to the unprecedented nature of the individual mandate, I could see Stevens going against it. Stevens, should he be against this expansion of Congress’ power, can probably persuade one or two other liberals on the court on civil libertarian grounds.
It seems as if what many in this thread are arguing gives Congress, under the Commerce Clause, the right to do almost anything. In fact, I would go so far as to say anything that isn’t expressly prohibited to it. Everything can be said to have touched upon or affects or otherwise has to do with something that at one point in time had a component of it that crossed a state line.
It turns the 10th amendment on its head, and makes a mockery of the idea that the National Government was to be one of few and enumerated powers while the vast majority of plenary powers were to be left to the states.
What is an example of something that Justice Stevens believes is outside the power of Congress?
Or anyone else in the thread? You name the law, I can argue a link to commerce. That expansive interpretation is without merit.
What is an example of something that Justice Stevens believes is outside the power of Congress?
He hasn’t given an example yet. He’s just said that in theory, Congress could go too far and cause him to have to open a can of judicial whup-ass on them.
Or anyone else in the thread? You name the law, I can argue a link to commerce. That expansive interpretation is without merit.
That’s absolutely correct. I call such people “butterfly effecters”. Since everything could conceivably affect interstate commerce in some way through a butterfly effect, everyone can be regulated by Congress. Which is a direct contradiction of the 9th and 10th amendments.
That being said, the current jurisprudence goes something like this:
Congress may regulate interstate commerce directly(of course), and they may also regulate whatever affects interstate commerce. But Lopez established that they can only regulate first order things, not second order things. To explain more clearly, guns near schools affects interstate commerce only if you assume that education is important to interstate commerce(which it is) and that guns near schools will affect education(questionable). But since education itself isn’t interstate commerce, but only something that affects interstate commerce, Congress was passing a “butterfly effect” law. They were regulating something that affected something that affected interstate commerce. That was a bridge too far for the court.
Hmmm… You must have a really good HMO or a big wallet. When my dad needed a gall bladder operation in NJ, he had to argue with Blue Cross. They claimed gallstones were a pre-existing condition since they take years and decades to grow undetected. He certainly was not going to have that operation until the issue was settled.
In Canada, yes, my wife had to wait 3 months for her gall bladder removal. A lot of bureacratic back and forth, the doctor pointed us to a friend at another hospital who could get her in a month earlier. That never happens in the USA, right? The most expensive thing was the parking fee at the hospital when we took her there.
Yes, my boss spent 16 months back and forth with tests for his hip, schedule the operation, then discover that the shortened thigh had never had the screws removed, so schedule that removal, then finally - hip remplacement. OTOH, my wife’s 84yo grandfather fell and broke his hip, it was replaced that night. With both, no cost- no copay, no deductible, no lifetime limits, just health care. It’s not perfect, but it beats being ripped off by your HMO.
We had an American consultant visit once, who had recently changed jobs. The new job’s health care did not cover his wife’s prexisting condition, so he was also paying a $350/month premium for her to stay covered by his previous plan. (Back in the early 90’s, when $350 was a lot of money).
The rule is simple in Canada - the doctor is either in or out of medicare. If he is in - then he charges the set rate. If he is out, then even if you see him, medicare will not pay him or you. This prevents the doctor from overbilling, which would turn medicare into a joke. Surprisingly, there are almost no dcotors outside of the system. The big problem is, there are not enough doctors, and many do not want to relocate to remote locations. that never happens in the USA, does it? “Northern Exposure” was a fantasy?
We can trade horro stories all year, but it should tell you something that every civilized country in the world has health care, subsidized or fully paid by the state. The USA does not. If the government decides it is time to get civilized and have health care, that is probably a legitimate use of tax dollars; and it is constitutional to introduce a tax to pay for it; and legal to require citizens to pay a tax with whatever penalties are appropriate.
it’s about time the USA joined the 20th century.
That’s just doublespeak, though:
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One year after this decision, Congress passed the same law except they added, “Oh, by the way, we think that this affects interstate commerce” That was exactly what the government argued the year before that SCOTUS said “No way” to.
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Thirteen years later the new federal gun free school zones law still stands. Gee, thanks SCOTUS for taking that bold stand there.
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I could argue a primary effect. Guns near schools make the businesses near the school, which operate in interstate commerce, far less safe and make people less likely to patronize them.
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Even with such a weak argument, it was still 5-4, with the Congressional Watchdog Justice Stevens believing that regulating gun possession within a thousand feet of a school in North Pole, Alaska, is “regulating commerce among the states”.
I’m still waiting for an example of a federal law that is invalid under the liberal interpretation of the commerce clause.
I think the distinction is rather clear. If you are granted the authority to regulate traffic on your street, you can pass speed limits, install traffic control devices, etc.
However, you can’t tell a guy in the next town that he can’t buy his kids a Nintendo DS, because that takes money away from a possible car purchase which could be used on a potential travel on your street.
ETA: Just like Raich. Private growing of marijuana for personal use is not interstate, nor is it even commerce. The nexus there is very laughable. So, Congress wants more customers in the illegal interstate marijuana market so that it can provide drug traffickers with higher prices for their product?!?
I’m going to try to keep my response GQ–I’m not trying to debate what the commerce clause should mean–but just to point out what the law is, and correct some factual points.
First, the distinction that seems clear to you isn’t one the Supreme Court recognizes (except, perhaps, Thomas). It just plain isn’t the law that congress can legislate in you first example, and can never legislate in your second example.
Congress also added a requirement that the prosecutor show the gun in question had traveled in, or affected interstate commerce. It adds an additional requirement to show the gun is linked to commerce–so it’s not just what the government argued the year before.
Or, in the alternative, SCOTUS thinks the new law is constitutional–that the changes make a difference. And they get to decide how to interpret the constitution clause.
Further, if the changes didn’t make a difference, why do you think SCOTUS (or lower courts) didn’t act?
Since the new statute blatantly matches the old one in many respects, (as you point out), if the changes really are irrelevant, the new statute would have been invalidated a long time ago.
So, are you arguing every district and circuit court in the land has refused to obey the binding precedent in Lopez, or might it be possible that the new statute is permissible under Lopez?
Six justices, including Scalia, did not think the nexus was laughable.
And again, regulation of commerce does not mean encouraging, or permitting it. Congress can regulate interstate commerce to try to reduce the number of customers–as in Raich.
What gun has not traveled in interstate commerce? Under the “affects” test, every gun would do that. The revised law added no meaningful difference to its effect other than linguistic juggling.
The fact that is what the law is currently understood to be was not lost on me. I just can’t understand why that is.
And the government was caught with the same foot in mouth that you are in that they said they wanted to reduce the number of marijuana customers, when in fact their law does the opposite.
By not allowing a person to grow marijuana in his backyard, he must enter the interstate market for the (albeit illegal) product. So the effect of this law is to force MORE people into the marijuana market, driving the prices and profits for drug dealers HIGHER.
But that isn’t even my point. The government isn’t concerned with the health of the interstate marijuana trade. They are enacting a social policy. Surely anyone who is attempting to be intellectually honest can see that.
Again, how can the marijuana in question be “commerce…between the several states” when it is:
- Not commerce at all
- And it is not between states
It seems as if in all of the legal wrangling, justices can’t read and apply simple words.
This doesn’t make sense. How does the fact that almost every gun has traveled in interstate commerce count against the power to make laws about them through the power to regulate interstate commerce? That fact is exactly what makes them a more legitimate subject for federal lawmaking based in the commerce clause power.
Cite? Seriously–laws restricting the possession of marijuana in fact lead to more marijuana customers?
Or, he might stop smoking it.
Ah, but it is. It wants that health to be very poor indeed. How is that not a concern for the health of the trade?
Is it inconsistent to achieve a social policy and regulate commerce at the same time? The GQ argument here is that the policy is unconstitutional, as beyond congressional lawmaking power.
Now, you seem to be contending that something brings a law outside of the commerce clause when it regulates commerce to achieve some policy goal.
First, of course, it’s absurd to say the government shouldn’t make laws to achieve policy goals–are you in favor of congressional lawmaking only when they don’t further some kind of policy goal?
Secondly, and most simply, there is no textual argument for that restriction. The commerce clause does not say “regulate commerce between the states, unless that regulation is for policy reasons.”
I’m sure your question is rhetorical–but here is what the court said. You may disagree with how they have “read and appl[ied]” those simple words–but SCOTUS is the entity that gets to interpret them.
Yes. I’d like everybody to try to do this. If necessary, we can have a related thread in Great Debates, but this one asks what the law is–not what it ought to be. That’s sometimes a tough distinction to make, but let’s do our best to keep this one “factual.”
Gfactor
General Questions Moderator
I agree with the narrower interpretation of the commerce clause, but what we’re trying to figure out is the likelihood that SCOTUS would strike down an individual mandate.
I say it’s fairly likely, given precedent, or the lack thereof, for the government requiring someone to buy something, and the ideological makeup of the court. So this could be an opportunity for strict constructionists to win a victory of sorts.
It’s completely unlikely. Passing a tax is well within Congress’ power. They can decide to tax anything they want as long as it’s not something like taxing black people more than others. There is basically zero chance they would rule any healthcare law unconstitutional based on a theory that it’s not within the constitutional power of the Federal government.
The government requires you to buy a lot of things already. They force you to buy highways, even if you don’t drive. They force you to buy pollution control equipment on your car. They force you to pay for health care for poor people and retirees. If you think that the tax forces you to buy insurance, you are incorrect. You get a tax break/credit for having insurance under the plan. If you want to think about it as the government forcing you to buy something, how do you support any tax deductions? The mortgage interest deduction says you get a mortgage or you pay more taxes. You get tax credits for buying energy efficient appliances and cars. Hell, there is a tax credit for donating a kidney – the government is clearly not forcing you to donate a kidney.
And your reliance upon a more “conservative” court is misplaced. There is zero doctrinal support, even from “strict constructionists”, for the position that the government can’t tax/not tax in order to effect a policy.
Please don’t take this as an insult; it’s not. But claiming the health care plan is unconstitutional for the reason you’ve given is akin to the income tax denyers’ reasons why they think the income tax is unconstitutional. It’s simply an incorrect understanding of constitutional law, combined with denial of a long, long list of precedent stretching back to almost day one of the existence of the United States.
You are talking about different cases.
If the government decided everyone would be required to own a car, could the government impose a tax penalty on all who didn’t own one?
Also, Congress may not use its tax power as a punitive measure.
Finally, Congress may not use the tax power to reach what it can’t reach with its regulatory power. I don’t know which SCOTUS decisions established that, but they exist, I’ll just have to find them.
Under your interpretation, Congress’ power is absolute. Any interpretation that gives Congress absolute power, even absolute power checked only by the Bill of Rights, is wrong, because that would contradict the 9th and 10th amendments.
It’s true that SCOTUS has given Congress massive leeway since the New Deal, but whenever Congress expands its reach, it is usually followed by warnings in decisions from justices that there are places Congress may not go(such as commandeering state powers). While SCOTUS has very rarely been willing to actually rein in Congress, that’s because of an unspoken, tacit agreement: we won’t strike down your laws as long as you show at least minimal restraint.
Since this is a new expansion of both Congress’ commerce power and its taxing power, it will be very closely scrutinized by the Court. They may approve it, but if you expect an easy rubber stamp, you are mistaken.
Okay, now I remember, Bailey v. Drexel Furniture. It established the precedent that a) Congress may not use its tax power as a punitive measure, and b) it may not use its tax power to reach what it cannot legally reach through its regulatory powers.
It’s an old decision, pre-New Deal, but it has never been overruled in any subsequent court case, and I do not believe Congress has ever tested SCOTUS’s patience that way since.
Apologies. I saw that it was GQ, started to type, then forgot about it.
But to address the narrow question that adaher poses here, I can’t see this law being struck down under the current interpretation of the commerce clause.
It is clearly commerce, buying and selling of a service in this case, and while it is currently not interstate, it does touch on it in a far more significant way that other things which have passed muster touch on it.
Health care spending is a huge part of our economy, and a law requiring people to carry health insurance certainly would have a substantial affect on interstate commerce in health care. This being GQ, I think that is the wrong standard, but certainly one that would be applied. I don’t see any SCOTUS justice, save possibly Thomas, agreeing with your position here.
Health care spending is a huge part of our economy, and a law requiring people to carry health insurance certainly would have a substantial affect on interstate commerce in health care.
Ah, but you’re putting the cart before the horse here. Congress is passing a law that has an effect on interstate commerce, therefore it’s legal because Congress can regulate interstate commerce?
Even if we accept that logic, it’s still new. And any new precedent will be scrutinized by the courts. I don’t disagree that the court may very well approve the individual mandate, but it’s hardly a slam dunk. The very nature of the arguments for the constitutionality of the individual mandate attest to that. They tend to be rather indirect, meandering arguments. I doubt any of the justices will have much patience for them.
What it’s going to come down to is, “Can Congress force people to buy things as part of its commerce or tax power?” If so, then Congress can force us to buy anything. There’s no way the court can credibly limit such a precedent to only health insurance. The mischief that could result from Congress being able to dictate what people must own as a condition of breathing is unending. I can’t see SCOTUS arriving at such a decision easily.