# 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:** 18
**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, 9:29pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/342 "2012-04-03T21:29:44Z")
> [@Frylock](#): > > Where does the Constitution say or imply that the correctness of the SC’s decisions depends only on what the SC says? Where does it say anyone but SCOTUS can reverse a SCOTUS decision? ---
**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, 9:40pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/343 "2012-04-03T21:40:28Z")
Why do you think “no one but SC can reverse the SC” means “the correctness of SC’s decisions depends only on what SC says”? In general, “what I say goes” is not logically equivalent to “what I say is true.” I believe (but do not know, as I don’t follow sports) that if an umpire calls a strike, even for something that was clearly a ball by any objective measure, and refuses to revise his decision, then it will be considered a strike. But its being considered a strike doesn’t make it _actually_ a strike. A strike is not defined as “whatever the umpire calls a strike.” Rather, a strike is defined as “a ball that is over the base but not swung at, or else swung at but not hit.” Even if the umpire calls it incorrectly, and the incorrect call is the one that must be tallied up officially, this makes the call no less incorrect. Mutatis mutandis the SC. Just because the SC says it, doesn’t make it correct. It does make it the law, but it doesn’t make it _right_. ---
**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, 9:42pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/344 "2012-04-03T21:42:45Z")
> [@Frylock](#): > > Why do you think “no one but SC can reverse the SC” means “the correctness of SC’s decisions depends only on what SC says”? Because for all legislative and legal intents and purposes, it is a truism. What individuals think is irrelevant if it has no impact on legislation or the prosecution of laws. ---
**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, 9:43pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/345 "2012-04-03T21:43:52Z")
> [@Frylock](#): > > But _if_ a leg is a tail, then tail legislation applies to the leg. But a leg is not a tail no matter whether SCOTUS decides it is or not. ---
**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, 9:44pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/346 "2012-04-03T21:44:52Z")
> [@Fear\_Itself](#): > > Judicial review is not unconstitutional. Did I say that it was? ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [April 3, 2012, 9:44pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/347 "2012-04-03T21:44:52Z")
> [@Hamlet](#): > > You’re confusing the means with the ends. Shodan said: “That’s the purpose of Obamacare - to force everyone to buy health insurance.” That’s wrong. The ends are not to force everyone to buy health insurance, the end is to have more people receive affordable health care they can pay for. One of the means (and not by any stretch the only means) of doing so is to encourage people who don’t have health insurance to buy it, but if they choose not to, to have more money in government coffers to cover the costs if/when people need health care beyond what they can pay for. This makes sense, and is convincing. > [@Shodan](#): > > Like I said, when it is pointed out that you made a false statement, you repeat yourself. The purpose, or the end, or the effect, or whatever meaningless distinction-without-a-difference you want to posit, of Obamacare, is to compel people to buy health insurance, and your protests to the contrary are false. . . . This doesn’t make sense, and is not convincing. ---
**Author:** ![gamerunknown](https://avatars.discourse-cdn.com/v4/letter/g/6bbea6/32.png) [@gamerunknown](https://boards.straightdope.com/u/gamerunknown)\ **Post date:** [April 3, 2012, 9:46pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/348 "2012-04-03T21:46:40Z")
I was informed in politics class legislation can be passed that overturns a SCOTUS interpretation… However, that doesn’t appear to be true unless they meant a constitutional amendment. Can anyone clarify? ---
**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, 9:48pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/349 "2012-04-03T21:48:16Z")
> [@Fear\_Itself](#): > > Because for all legislative and legal intents and purposes, it is a truism. What individuals think is irrelevant if it has no impact on legislation or the prosecution of laws. There certainly a moral aspect that the framers saw. How would you respond to a Supreme Court decision that said you couldn’t criticize the GOP or you were required to attend a Baptist Church on Sunday? Would you not contend that was unconstitutional? Would it be a good thing for the local police for to refuse to arrest you? For the prosecutor to refuse to charge you? For the grand jury not to indict? Would it be getting near time for a revolution? The Supreme Court still must rely on the President to enforce its orders and for Congress to allow them to continue having jurisdiction. They aren’t the final word on the matter any more than any despot in history had the final word just because he was in a position of power. ---
**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 3, 2012, 9:49pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/350 "2012-04-03T21:49:51Z")
> [@Shodan](#): > > 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 more nuanced than that. The administration argues that everyone will eventually participate in the market, even if they aren’t doing so at this very moment. They are also, as far as I can tell, arguing that the “crisis” nature of health care in this country enables Congress to act where in other case, lacking such a “crisis”, Congress might not have the authority to act. Not that I buy either one of those arguments, but it is more nuanced than you say, even if said nuance appears to be nothing more than a fig leaf. ---
**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, 9:50pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/351 "2012-04-03T21:50:29Z")
> [@gamerunknown](#): > > I was informed in politics class legislation can be passed that overturns a SCOTUS interpretation… However, that doesn’t appear to be true unless they meant a constitutional amendment. Can anyone clarify? Generally you are correct, but some decisions read as: “The government wishes us to rule X, however we feel that if X is what Congress intended, then they would have included X specifically in the law. Since they didn’t include X specifically, then we decide that X is not appropriate under these circumstances.” Then Congress passes a law that amends their earlier law and says that “Yeah, we really mean X.” That has the effect of overruling a decision, but not really overruling the power of the court. ---
**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, 9:52pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/352 "2012-04-03T21:52:01Z")
> [@Terr](#): > > But a leg is not a tail no matter whether SCOTUS decides it is or not. Which is fine, because there is some objective truth that we can refer to when determining whether a leg is a tail. But there is no objectively true Great List of Interstate Markets that we consult when deciding whether, for example, landscaping is a matter of interstate commerce. And, for what it’s worth, the statement: “If [all] legs are tails, then legislation applying to [all] tails would apply to legs,” is logically true, irrespective of whether legs are, indeed, tails or not. ---
**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 3, 2012, 9:52pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/353 "2012-04-03T21:52:20Z")
> [@gamerunknown](#): > > I was informed in politics class legislation can be passed that overturns a SCOTUS interpretation… However, that doesn’t appear to be true unless they meant a constitutional amendment. Can anyone clarify? If the interpretation is concerning a law, Congress can pass further legislation to clarify the intent of the law and to overturn the SCOTUS ruling. If it’s a constitutional interpretation, then an amendment to the constitution is required (per the amendment that made the Income Tax legal). ---
**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, 9:55pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/354 "2012-04-03T21:55:12Z")
> [@MilTan](#): > > Which is fine, because there is some objective truth that we can refer to when determining whether a leg is a tail. But there is no objectively true Great List of Interstate Markets that we consult when deciding whether, for example, landscaping is a matter of interstate commerce. Here is an objectively true method: Take 1,000 random Americans. Ask them: do you think by mowing your lawn you’re engaging in “interstate commerce”? If you get more than one yes (and that one was probably confused), I’d be surprised. ---
**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, 9:55pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/355 "2012-04-03T21:55:57Z")
> [@yorick73](#): > > Did I say that it was? Did I misunderstand you? > [@yorick73](#): > > No judicial bending necessary. Surely, if it is not unconstitutional, we are not limited to amendment as the only remedy, correct? Or is there some definition of “judicial bending” that is different from judicial review? ---
**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, 9:58pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/356 "2012-04-03T21:58:57Z")
> [@Terr](#): > > Here is an objectively true method: > > Take 1,000 random Americans. Ask them: do you think by mowing your lawn you’re engaging in “interstate commerce”? > > If you get more than one yes (and that one was probably confused), I’d be surprised. I wonder how they’d react to the Wickard hypothetical. ---
**Author:** ![Mosier](https://avatars.discourse-cdn.com/v4/letter/m/7ea924/32.png) [@Mosier](https://boards.straightdope.com/u/Mosier)\ **Post date:** [April 3, 2012, 10:00pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/357 "2012-04-03T22:00:05Z")
> [@furt](#): > > So should Congress outlaw mowing one’s own yard because of the negative effect on the landscaping industry, Judge (and/or Justice) Bricker would uphold said law? I’m not being sarcastic, I’m trying to suss your logic. > > Can Congress require the purchase of cable TV, including the porn channels? Require Muslims to buy alcohol and Hindus beef? Require UPC tattoos or under-skin implants to facilitate transactions? Forbid or require the use of contraception (or indeed, sex itself) if they decide the economy requires more or less citizens? No, Congress should not pass those laws. They’re bad laws. Doesn’t necessarily make them unconstitutional though. If you want to argue that the ACA is unconstitutional, you’ll have to bring more to the table than just arguing why it’s bad legislation. > [@](#): > > If Congress decides to go the full Logan’s Run and decide that workers past the age of economic utility need to be executed, that’s allowed under _Wickard_? No, that would be unconstitutional. ---
**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, 10:02pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/358 "2012-04-03T22:02:07Z")
> [@The\_Other\_Waldo\_Pepper](#): > > I wonder how they’d react to the Wickard hypothetical. _If you grow wheat in your own backyard for your own consumption, does that mean you engage in “interstate commerce”?_ I bet you would get that same 999:1 response. ---
**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, 10:26pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/359 "2012-04-03T22:26:56Z")
> [@Terr](#): > > Here is an objectively true method: > > Take 1,000 random Americans. Ask them: do you think by mowing your lawn you’re engaging in “interstate commerce”? > > If you get more than one yes (and that one was probably confused), I’d be surprised. That 999 randomly selected people don’t think that mowing a lawn is engaging in interstate commerce has almost nothing to do with whether mowint a lawn is engaging in interstate commerce. You’d need to ask a bunch of economists and political scientists, since they are the ones with the relevant expertise. ---
**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 3, 2012, 10:27pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/360 "2012-04-03T22:27:56Z")
I get the impression **Terr** and a lot of people grumbling about Wickard haven’t actually [read it](http://supreme.justia.com/cases/federal/us/317/111/case.html). Wickard was not deemed to be engaging in interstate commerce. The Court said he (and others similarly situated) were exerting a substantial effect on interstate commerce, and that power to regulate him was incidental to Congress’ power to regulate it. > [@](#): > > Appellee says that this is a regulation of production and consumption of wheat. Such activities are, he urges, beyond the reach of Congressional power under the Commerce Clause, since they are local in character, and their effects upon interstate commerce are, at most, “indirect.” In answer, the Government argues that the statute regulates neither production nor consumption, but only marketing, and, in the alternative, that, if the Act does go beyond the regulation of marketing, it is sustainable as a “necessary and proper” implementation of the power of Congress over interstate commerce. > > \ > > The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce. . . . The power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. > > \ > > It is said, however, that this Act, forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers. It is of the essence of regulation that it lays a restraining hand on the self-interest of the regulated, and that advantages from the regulation commonly fall to others. **The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process**. Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation, we have nothing to do. Is that an expansive view of Congressional power? sure. It’s also a textbook case of the judiciary doing what the right always tells it to: restraining itself. Americans who mow their own lawns are obviously not engaging in interstate commerce, but they may be exerting a substantial effect on it bringing them under the ambit of Congress’ regulatory authority. ---
**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, 10:29pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/361 "2012-04-03T22:29:32Z")
> [@Fear\_Itself](#): > > Because for all legislative and legal intents and purposes, it is a truism. What individuals think is irrelevant if it has no impact on legislation or the prosecution of laws. Regarding SC decisions as correct by definition robs us of any groud for discussing SC decisions critically. That can’t be good. [Previous page](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961.md?page=17) [Next page](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961.md?page=19)