# 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:** 17
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [April 3, 2012, 6:16pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/322 "2012-04-03T18:16:54Z")
> [@MilTan](#): > > I am not Justice **Bricker** , but I would say that the landscaping market would be found to not be an interstate one. Sure it is an interstate one. Lawn mowers built in one state are bought in another. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [April 3, 2012, 6:22pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/323 "2012-04-03T18:22:54Z")
> [@Hamlet](#): > > If the entirety of the ACA was the individual mandate, if you completely ignore the rest of the legislation, if there was nothing else relevant to determining the Constitutionality of the legislation, the question would certainly be much closer. Had Congress not bothered with the Guaranteed Issue and Community Rating and had simply enacted a law that required everyone to buy health insurance or go to jail, you may even be right. I’m not sure I follow you. Why do you figure one part of the legislation gets a pass on being unconstitutional so long as the rest of the legislation is okay? Can the next Congress get away with, say, mandating a cruel and unusual punishment – so long as there’s enough other stuff in the bill to set up a _“sure, if you completely ignore the rest of the legislation”_ reply? Can they retroactively set up such a punishment in best ex post facto style, so long as the legislation is voluminous enough and otherwise passes muster? Can all that stuff about jury trials or women voters or whatever get bypassed so long as they (a) of course don’t simply enact a law to that effect, but instead (b) bother to take up a whole bunch of pages doing something else? ---
**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 3, 2012, 6:29pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/324 "2012-04-03T18:29:54Z")
> [@The\_Other\_Waldo\_Pepper](#): > > I’m not sure I follow you. Why do you figure one part of the legislation gets a pass on being unconstitutional so long as the rest of the legislation is okay? It’s not “get a pass”, it’s the determination of whether or not the action affects “interstate commerce”. As I pointed out, if Congress just decided that everyone has to buy health insurance or go to jail so that they could increase health insurance company’s profits, I don’t think that passes Constitutional muster. But requiring a person to buy health insurance or pay an additional tax to make the Guaranteed Issued and Community Rating, both of which are clearly matters of interstate commerce, it’s a much closer question. ---
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [April 3, 2012, 6:35pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/325 "2012-04-03T18:35:36Z")
> [@Hamlet](#): > > If you only focus on the individual mandate and ignore all the rest of the legislation, you’re description could be apt. But if you actually consider the legislation as a whole (which is what a deferential Supreme Court would do) and you actually consider the purpose of the individual mandate (hint: it’s not to force people to buy health insurance, it’s to regulate interstate commerce), then I’m much closer to the mark." So unconstitutional measures are allowable if they are part of a larger legislative package intended to accomplish a constitutional purpose? Is this a commonly-recognized legal principle? I’m struggling to think of an example. ---
**Author:** ![MilTan](https://avatars.discourse-cdn.com/v4/letter/m/71e660/32.png) [@MilTan](https://boards.straightdope.com/u/MilTan)\ **Post date:** [April 3, 2012, 6:55pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/326 "2012-04-03T18:55:52Z")
> [@Terr](#): > > Sure it is an interstate one. Lawn mowers built in one state are bought in another. Well, OK, then. That’s why I added in the second part of that paragraph. Were the Supreme Court to determine that landscaping is an interstate market, then upholding the ban on self-landscaping would be a direct application of _Wickard_. Likewise with banning home-cooked meals. To borrow a phrase from Potter Stewart, such laws would be “uncommonly silly,” but nevertheless, Constitutional. I’m with Akhil Reed Amar on this one (which is why I am not Justice Bricker, of course): the check on such laws is not the Constitution, but the ballot box. > [@The Other Waldo Pepper](#): > > Can the next Congress get away with, say, mandating a cruel and unusual punishment – so long as there’s enough other stuff in the bill to set up a “sure, if you completely ignore the rest of the legislation” reply? Can they retroactively set up such a punishment in best ex post facto style, so long as the legislation is voluminous enough and otherwise passes muster? Can all that stuff about jury trials or women voters or whatever get bypassed so long as they (a) of course don’t simply enact a law to that effect, but instead (b) bother to take up a whole bunch of pages doing something else? No, because those provisions fail the “Proper” part of Necessary and Proper: their effects are plainly unconstitutional. I don’t see any evidence that the actual _effects_ of the mandate are unconstitutional: the same effects could have been achieved through a plainly Constitutional application of the taxation power. ---
**Author:** ![Zeriel](https://avatars.discourse-cdn.com/v4/letter/z/58956e/32.png) [@Zeriel](https://boards.straightdope.com/u/Zeriel)\ **Post date:** [April 3, 2012, 8:13pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/327 "2012-04-03T20:13:48Z")
> [@Shodan](#): > > You have to pay a penalty for not buying health insurance. > > That’s the purpose of Obamacare - to force everyone to buy health insurance. There is no exemption for those who are willing and/or capable of paying all their own health care costs out-of-pocket. Presumably individuals with sufficient cash reserves are capable, as some larger corporations do now, of setting up self-funded insurance. Presuming such a person met the requirements set forth in (IIRC) ERISA (1974) Section 514 and in any applicable state laws, I see no reason to think they’d be legally obligated to pay the penalty. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [April 3, 2012, 8:20pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/328 "2012-04-03T20:20:39Z")
> [@MilTan](#): > > Well, OK, then. That’s why I added in the second part of that paragraph. Were the Supreme Court to determine that landscaping is an interstate market, then upholding the ban on self-landscaping would be a direct application of _Wickard_. And that is absurd. Were the Supreme Court to determine that a leg was a tail, it could apply the legislation for tails to legs. Once you allow the Constitution to be bent to absurdities, it loses all meaning. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [April 3, 2012, 8:33pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/329 "2012-04-03T20:33:56Z")
> [@Terr](#): > > And that is absurd. Were the Supreme Court to determine that a leg was a tail, it could apply the legislation for tails to legs. Once you allow the Constitution to be bent to absurdities, it loses all meaning. I think **MilTan** meant something different than what you say here–though I do think his words could be read either way. I’d state **MilTan** ’s point thus: “If landscaping is an interstate market, then upholding the ban on self-landscaping would be a direct application of Wickard.” And, to answer your point, I’d also say that: “If legs are tails, then legislation applying to legs also applies to tails.” That appears unproblematically true to me. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [April 3, 2012, 8:38pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/330 "2012-04-03T20:38:25Z")
> [@Terr](#): > > Once you allow the Constitution to be bent to absurdities, it loses all meaning. And an inflexible constitution is a suicide pact. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [April 3, 2012, 8:40pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/331 "2012-04-03T20:40:11Z")
> [@Frylock](#): > > I think **MilTan** meant something different than what you say here–though I do think his words could be read either way. > > I’d state **MilTan** ’s point thus: > > “If landscaping is an interstate market, then upholding the ban on self-landscaping would be a direct application of Wickard.” > > And, to answer your point, I’d also say that: > > “If legs are tails, then legislation applying to legs also applies to tails.” > > That appears unproblematically true to me. A leg is not a tail. Even if the Supreme Court says it is. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [April 3, 2012, 8:45pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/332 "2012-04-03T20:45:32Z")
> [@Terr](#): > > A leg is not a tail. Even if the Supreme Court says it is. For all legislative and legal purposes, the Supreme Court is the final word on legs and tails. To suggest otherwise is to bend the Constitution to absurdity and render it meaningless. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [April 3, 2012, 9:00pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/333 "2012-04-03T21:00:03Z")
> [@Fear\_Itself](#): > > For all legislative and legal purposes, the Supreme Court is the final word on legs and tails. To suggest otherwise is to bend the Constitution to absurdity and render it meaningless. Actually the notion that the Constitution says whatever a majority of the Supreme Court says it says, even if it doesn’t say it, is what makes the Constitution meaningless. As in this case. The individual mandate strips the term “interstate commerce” of all meaning. If you don’t buy insurance, you aren’t engaging in commerce. And if you aren’t doing something, you aren’t crossing state lines doing it. But Congress is claiming the right to force you to do something under the notion of its power to regulate interstate commerce. Even though no commerce is occurring. It’s rather like Kelo v. New London, where you can be kicked out of your house by someone who pays more taxes than you would. They said they could do that under the public takings clause. But it wasn’t for any public purpose - it was a private real estate developer. So “public” means anything or everything they want, or nothing at all. “Public” means “private”, “commerce” means “no commerce”, “interstate” means “whether it crosses state lines, or not”. Regards, Shodan ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 3, 2012, 9:03pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/334 "2012-04-03T21:03:22Z")
> [@Bricker](#): > > There’s a single door. Wickard opened the door. If subsequent courts decide to stop Congress from walking through the door, then they are no longer deciding the cases on the principle, but on the effect. > > Why shouldn’t Wickard be upended? Because we have sixty years worth of federal government regulation, all hanging its hat on Commerce Clause powers. > > Could the court say, “OK, enough’s enough!” Sure they could. Sounds like they might, actually, and I won’t weep at the effect of that, because I dislike the ACA. > > But I will weep at the court’s decision to evaluate their decision on the results of the law, and not on the principle. If we, the people, sovereign as we are, don’t like the power we’ve handed our government, we cannot run crying to Uncle Nino to fix it for us. Amend the Constitution. > > This is what I always say when the left goes crying to the courts to fix something they can’t win at the ballot box. Why should I exempt my own side? As you conceded, Wickard never decided whether the government, by force of law, could require Wickard to go to the local farmer’s market and buy wheat. Since the Court was silent, why can’t they squeeze a distinction in there? Distinctions are made all of the time. Judicial activism is creating something out of whole cloth. How would it be inconsistent with Wickard to rule: Congress may regulate a product in interstate commerce even if your particular use of the product is intrastate. Once it has done so, it can prohibit you from manufacturing your own product. But, what it cannot do is force you to participate in that market. Seems very consistent to me. > [@Fear\_Itself](#): > > And an inflexible constitution is a suicide pact. It’s not inflexible. There are two procedures in the document itself that ask for amendments. “Amending” it by pretending certain words go away is, IMO, a suicide pact because you can’t rely on anything in it. A judge can waive it away. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [April 3, 2012, 9:03pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/335 "2012-04-03T21:03:51Z")
> [@Shodan](#): > > Actually the notion that the Constitution says whatever a majority of the Supreme Court says it says, even if it doesn’t say it, is what makes the Constitution meaningless. So if SCOTUS strikes down the mandate, it isn’t necessarily unconstitutional? ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [April 3, 2012, 9:04pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/336 "2012-04-03T21:04:35Z")
> [@Fear\_Itself](#): > > And an inflexible constitution is a suicide pact. The constitution is not inflexible…there is a way, I’m sure you are aware, to amend it. No judicial bending necessary. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [April 3, 2012, 9:06pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/337 "2012-04-03T21:06:09Z")
> [@yorick73](#): > > The constitution is not inflexible…there is a way, I’m sure you are aware, to amend it. No judicial bending necessary. Judicial review is not unconstitutional. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [April 3, 2012, 9:19pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/338 "2012-04-03T21:19:24Z")
> [@Fear\_Itself](#): > > So if SCOTUS strikes down the mandate, it isn’t necessarily unconstitutional? It’s un-Constitutional whether or not they strike it down, because it contradicts the plain sense of the text. But I get the feeling you and I are using “un-Constitutional” in different ways. _Plessy v. Ferguson_ was un-Constitutional no matter whether the Supreme Court changed its mind later or not. Likewise with _Kelo_, no matter that it still stands. The Supreme Court can be wrong - if nothing else, _Plessy v. Ferguson_ showed that. Regards, Shodan ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [April 3, 2012, 9:25pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/339 "2012-04-03T21:25:03Z")
> [@Shodan](#): > > The Supreme Court can be wrong - if nothing else, _Plessy v. Ferguson_ showed that. Only because they reversed themselves. They are, by definition, never wrong if there is no reversal. You may disagree, or believe they decided wrongly, but Constitutionally, they are only wrong if they say they are wrong. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [April 3, 2012, 9:26pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/340 "2012-04-03T21:26:50Z")
> [@Terr](#): > > A leg is not a tail. Even if the Supreme Court says it is. But _if_ a leg is a tail, then tail legislation applies to the leg. And _if_ landscaping involves interstate commerce, then Wickard applies to landscaping. The absurdity of the statement “a leg is a tail” is irrelevant. It has no relevance to the question whether Wickard applies to landscaping. That’s the point. What is relevant is the question of whether landscaping involves interstate commerce. If the SC believes landscaping involves interstate commerce, then the SC ought to apply Wickard to it. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [April 3, 2012, 9:28pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/341 "2012-04-03T21:28:31Z")
> [@Fear\_Itself](#): > > Only because they reversed themselves. They are, by definition, never wrong if there is no reversal. You may disagree, or believe they decided wrongly, but Constitutionally, they are only wrong if they say they are wrong. Where does the Constitution say or imply that the correctness of the SC’s decisions depends only on what the SC says? [Previous page](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961.md?page=16) [Next page](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961.md?page=18)