# Justices signal possible trouble for health insurance mandate **URL:** \ **Category:** Great Debates\ **Created:** [March 27, 2012, 5:11pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961 "2012-03-27T17:11:45Z")\ **Posts on this page:** 20\ **Page:** 13
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 2, 2012, 5:07pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/242 "2012-04-02T17:07:27Z")
_Ubi jus ibi remedium._ ---
**Author:** ![2ManyTacos](https://avatars.discourse-cdn.com/v4/letter/2/3da27b/32.png) [@2ManyTacos](https://boards.straightdope.com/u/2ManyTacos)\ **Post date:** [April 2, 2012, 5:18pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/243 "2012-04-02T17:18:57Z")
Could it be said that the hypotheticals and pointed questions that the Justices were asking might actually point to them being in _favor_ of the law? I mean, many of the things that they were asking were just so damned ridiculous that it stands to reason that those questions were posed simply to drum up the best support for the law that Verilli could come up with. They might already support the ACA; their stupid questions were solely them playing devil’s advocate. ---
**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:** [April 2, 2012, 6:33pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/244 "2012-04-02T18:33:06Z")
> [@Bricker](#): > > No. There is no fundamental right to be free of entanglements like health insurance. My own opinion is that the mandate is constitutional, because we confronted this issue in 1943 and decided it. I don’t think it was the wise decision then, but we’ve now built up sixty years of caselaw and infrastructure that relies on that decision. It’s too late to turn back the clock. The mandate is constitutional, in my view, and does not infringe on any fundamental rights. Can you explain (or point to a post where you perhaps already explained) how you extrapolate the power of Congress to regulate activity (ie, something that is actually happening) granted in _Wickard_ to the power of Congress to compel economic activity (ie, something that isn’t actually happening) per the HCRA? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 2, 2012, 6:35pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/245 "2012-04-02T18:35:57Z")
> [@John\_Mace](#): > > Can you explain (or point to a post where you perhaps already explained) how you extrapolate the power of Congress to regulate activity (ie, something that is actually happening) granted in _Wickard_ to the power of Congress to compel economic activity (ie, something that isn’t actually happening) per the HCRA? I’ve written about this a lot, but it’s easier to just say this rather then search: In _Wickard_, Farmer Filburn was growing wheat on his own land and using it himself – no interstate commerce. Congress sought to regulate that under the theory that interstate commerce was involved because Filburn was not buying any wheat from interstate commerce, since he had his own wheat to use. If that isn’t regulating inactivity, what is? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 2, 2012, 6:37pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/246 "2012-04-02T18:37:16Z")
> [@lawbuff](#): > > Isn’t that like what Prosser said, and I assume of Prosser and Keaton on Torts “For Every Wrong, the Law Provides a Remedy” Yes. ---
**Author:** ![Fenris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fenris/32/498_2.png) [@Fenris](https://boards.straightdope.com/u/Fenris)\ **Post date:** [April 2, 2012, 6:45pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/247 "2012-04-02T18:45:11Z")
> [@Bricker](#): > > I’ve written about this a lot, but it’s easier to just say this rather then search: > > In _Wickard_, Farmer Filburn was growing wheat on his own land and using it himself – no interstate commerce. Congress sought to regulate that under the theory that interstate commerce was involved because Filburn was not buying any wheat from interstate commerce, since he had his own wheat to use. > > If that isn’t regulating inactivity, what is? 1. Regulating Farmer Filburn was about him growing wheat and not using it in commerce. For your analogy to work, the Supremes would have had force everyone to grow wheat. Filburn was told “If you’re growing wheat (activity) you have to participate in commerce (regulation)”, not “Filburn (and everyone is else) is now required to grow wheat because they HAVE to participate in commerce.” 2. When it comes down to it, Wickard was a stupid decision, up there with Dred Scott (although the consequences are less horrible, of course). At what point to you just say “Screw it. Those old guys just screwed up and compounding error with error upon error decade upon decade isn’t helping.”? Stare Decisis is a nice idea but it’s based on the silly notion that whoever rules first on an issue is always right. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [April 2, 2012, 7:31pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/248 "2012-04-02T19:31:45Z")
> [@furt](#): > > It can be; the first ruling is going to cause people and groups to regard the matter as settled, and act accordingly. Consider _Kelo_; in the years since it’s been decided, any number of companies and individuals have factored that into their real estate decisonmaking. Reversing that case now would produce financial windfalls for some and ruin for others. > > I think it was a horrible decision, and I’d prefer to see it reversed … but then I’m not someone who invested my life savings into a business predicated on a city making an eminent domain claim, or sold my house for less than I wanted to because I figured it’d be seized if I didn’t. Or be underrepresented in your state’s legislature. ([16 years](http://en.wikipedia.org/wiki/Baker_v._Carr)) Or get an inferior education because you were colored. ([58 years](http://en.wikipedia.org/wiki/Brown_v._Board_of_Education)) Or move to another state to marry the person you love. ([84 years](http://en.wikipedia.org/wiki/Loving_v._Virginia)) If a decision is wrong, it’s no less wrong years later. ---
**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:** [April 2, 2012, 7:32pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/249 "2012-04-02T19:32:04Z")
> [@Fenris](#): > > 1. Regulating Farmer Filburn was about him growing wheat and not using it in commerce. For your analogy to work, the Supremes would have had force everyone to grow wheat. Filburn was told “If you’re growing wheat (activity) you have to participate in commerce (regulation)”, not “Filburn (and everyone is else) is now required to grow wheat because they HAVE to participate in commerce.” Which is what I was thinking, although slightly different. What about all the people who aren’t even farmers? Can Congress require them to become farmers so they can regulate their activity? To me, _Wickard_ is narrower than what we’re seeing here, and you have to broaden _Wickard_ to make it apply to the HC Mandate. That’s not _stare decisis_. > [@](#): > > 1. When it comes down to it, Wickard was a stupid decision, up there with Dred Scott (although the consequences are less horrible, of course). At what point to you just say “Screw it. Those old guys just screwed up and compounding error with error upon error decade upon decade isn’t helping.”? Stare Decisis is a nice idea but it’s based on the silly notion that whoever rules first on an issue is always right. Well, I think it’s more than that. It’s a question of how entrenched the ruling is and how “wrong” it was to begin with. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 2, 2012, 7:53pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/250 "2012-04-02T19:53:25Z")
> [@Fenris](#): > > 1. Regulating Farmer Filburn was about him growing wheat and not using it in commerce. For your analogy to work, the Supremes would have had force everyone to grow wheat. Filburn was told “If you’re growing wheat (activity) you have to participate in commerce (regulation)”, not “Filburn (and everyone is else) is now required to grow wheat because they HAVE to participate in commerce.” Then I can recast this debate the same way: “If you’re using the health care system (activity) you have to participate in the mandate (regulation).” And wait until you hear how I define “using the health care system.” > [@](#): > > 1. When it comes down to it, Wickard was a stupid decision, up there with Dred Scott (although the consequences are less horrible, of course). At what point to you just say “Screw it. Those old guys just screwed up and compounding error with error upon error decade upon decade isn’t helping.”? Stare Decisis is a nice idea but it’s based on the silly notion that whoever rules first on an issue is always right. It’s not just “first.” It’s first plus sixty years. ---
**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:** [April 2, 2012, 8:00pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/251 "2012-04-02T20:00:45Z")
> [@Bricker](#): > > And wait until you hear how I define “using the health care system.” Being alive? ---
**Author:** ![Fenris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fenris/32/498_2.png) [@Fenris](https://boards.straightdope.com/u/Fenris)\ **Post date:** [April 2, 2012, 8:15pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/252 "2012-04-02T20:15:16Z")
> [@John\_Mace](#): > > Being alive? In which case, it becomes a poll tax. And I can’t see anyone really wanting to go down that path. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [April 2, 2012, 8:19pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/253 "2012-04-02T20:19:15Z")
> [@Bricker](#): > > Then I can recast this debate the same way: “If you’re using the health care system (activity) you have to participate in the mandate (regulation).” No. Both Filburn and Raich were producing a product that could be regulated. Insurance companies are offering a product that is plenty regulated. Being involved in the health care system does not constitute “activity” in the insurance market. To use the _Wickard_ case as an example…this would be the equivalent of the court mandating that all consumers purchase a certain amount of wheat because they are involved in the “activity” of eating. ---
**Author:** ![Fenris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fenris/32/498_2.png) [@Fenris](https://boards.straightdope.com/u/Fenris)\ **Post date:** [April 2, 2012, 8:24pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/254 "2012-04-02T20:24:40Z")
> [@Bricker](#): > > Then I can recast this debate the same way: “If you’re using the health care system (activity) you have to participate in the mandate (regulation).” Cool–so I can opt out if I choose to not buy insurance. Except that the current mandate doesn’t allow for that. Hence…unconstitutional. > [@](#): > > It’s not just “first.” It’s first plus sixty years. A mistake with 60 years of compounded mistakes is still a mistake. I’m not using the phrase in the classic sense, but all decisions based on Wickard are fruit of a poisoned tree\*. If the initial decision is insanely wrong (and Wickard is), then all subsequent decisions based on it are. We can’t redress them, but we can stop making new ones. Plus, Wickard was already limited once by the Supremes back in '95-ish when some congressional weasels tried to make the case that guns in a house near a school could cause disruptions in education and an educated populace was needed for commerce to occur (because, Roman citizens couldn’t, say, trade or barter, despite no formal schooling for the masses), so Congress could pass a law saying you couldn’t have a gun in your home within 1000 feet/yards/meters of a school…and that argument was laughed at. So 15-ish years of precedent have said that “Hey Congress: Wickard doesn’t give you carte blanche to do anything you want. There are limits.” It’s reasonable to argue that forcing you to pay a tax for being alive is one of those limits. \*weed? I can never remember. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 2, 2012, 8:31pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/255 "2012-04-02T20:31:10Z")
> [@yorick73](#): > > To use the _Wickard_ case as an example…this would be the equivalent of the court mandating that all consumers purchase a certain amount of wheat because they are involved in the “activity” of eating. Yes, exactly. And that’s what _Wickard_ says they can do. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [April 2, 2012, 8:35pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/256 "2012-04-02T20:35:31Z")
> [@Bricker](#): > > Yes, exactly. > > And that’s what _Wickard_ says they can do. How do you get that from the Wickard decision? Are you saying the court mandated that every individual purchase a certain amount of wheat? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 2, 2012, 8:36pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/257 "2012-04-02T20:36:35Z")
> [@Fenris](#): > > Plus, Wickard was already limited once by the Supremes back in '95-ish when some congressional weasels tried to make the case that guns in a house near a school could cause disruptions in education and an educated populace was needed for commerce to occur (because, Roman citizens couldn’t, say, trade or barter, despite no formal schooling for the masses), so Congress could pass a law saying you couldn’t have a gun in your home within 1000 feet/yards/meters of a school…and that argument was laughed at. So 15-ish years of precedent have said that “Hey Congress: Wickard doesn’t give you carte blanche to do anything you want. There are limits.” Yes, but in Lopez (and Morrison) the problem was how attenuated the activity being regulated was from the commerce. Here, the activity being regulated is the commerece, or lack thereof. There is no attenuation of the type contemplated by Lopez and Morrison. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 2, 2012, 8:37pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/258 "2012-04-02T20:37:40Z")
> [@yorick73](#): > > How do you get that from the Wickard decision? Are you saying the court mandated that every individual purchase a certain amount of wheat? No, but I am saying that is a natural consequence of the power the court approved. Look, I’m the first to agree it’s a terrible decision. But we built the house on top of the sand. It’s done. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [April 2, 2012, 8:40pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/259 "2012-04-02T20:40:38Z")
> [@Fenris](#): > > Cool–so I can opt out if I choose to not buy insurance. Except that the current mandate doesn’t allow for that. Ummm, you can refuse to buy insurance. You just have to pay an additional tax. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [April 2, 2012, 8:42pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/260 "2012-04-02T20:42:08Z")
> [@Bricker](#): > > No, but I am saying that is a natural consequence of the power the court approved. > > Look, I’m the first to agree it’s a terrible decision. > > But we built the house on top of the sand. It’s done. No, it is not. As bad as the decision was it still only affected those producing the commodity or providing the service. What you are saying is the exact opposite of the decision. Nothing in the \*Wickard \*decision **compels** the consumer to purchase wheat. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 2, 2012, 8:45pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/261 "2012-04-02T20:45:15Z")
> [@yorick73](#): > > No, it is not. As bad as the decision was it still only affected those producing the commodity or providing the service. What you are saying is the exact opposite of the decision. Nothing in the \*Wickard \*decision **compels** the consumer to purchase wheat. Of course not. But that’s because there was no government law at issue in Wickard that compelled the customer to purchase wheat. If the government had subsequently passed such a law, it would have been constitutional, under the same rationale with which Wickard was decided. [Previous page](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961.md?page=12) [Next page](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961.md?page=14)