# 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:** 19
**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, 10:31pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/362 "2012-04-03T22:31:59Z")
> [@Terr](#): > > _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. Sounds like you are arguing for direct democracy, and not a republic. ---
**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, 10:32pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/363 "2012-04-03T22:32:23Z")
> [@Frylock](#): > > 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. Sure. Because the Constitution was written for economists and political scientists, not for the peasants. ---
**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, 10:33pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/364 "2012-04-03T22:33:51Z")
> [@Terr](#): > > Sure. Because the Constitution was written for economists and political scientists, not for the peasants. I don’t understand this comment–neither where it comes from nor where it’s going. Don’t you agree that “999 randomly selected americans think X is true” does not generally mean that X is true? ---
**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, 10:34pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/365 "2012-04-03T22:34:51Z")
> [@Fear\_Itself](#): > > Sounds like you are arguing for direct democracy, and not a republic. Worse, he seems to think votes can settle matters of fact. ---
**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, 10:37pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/366 "2012-04-03T22:37:29Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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. That’s even more absurd. If someone is not engaging in interstate commerce, the Congress cannot regulate his actions. If there is a salesman who works cross state lines, and his wife refused sex to him, that may affect his salesmanship. Taken collectively, such refusals may have effect on interstate commerce. Ergo - Congress can legislate that wives cannot refuse sex to salesmen husbands. If I jaywalk, I may interfere with trucks that are going from state to state carrying valuable goods. Taken collectively, jaywalking may have effect on interstate commerce. Ego - Congress can legislate against jaywalking. Where exactly is the limit? ---
**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, 10:38pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/367 "2012-04-03T22:38:00Z")
> [@Terr](#): > > Sure. Because the Constitution was written for economists and political scientists, not for the peasants. Who do you think it was written for? Most states did not grant the franchise to anyone but property owners until the 1820s and restrictions were not repealed in many states until the 1840s. For example, New York did not expand the franchise to non-property owners until 1821, when it adopted a new constitution. ---
**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, 10:38pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/368 "2012-04-03T22:38:47Z")
> [@Frylock](#): > > I don’t understand this comment–neither where it comes from nor where it’s going. > > Don’t you agree that “999 randomly selected americans think X is true” does not generally mean that X is true? 999 out of 1000? I would say it does. Outside of SC decisions, can you give me something that 999 out or 1000 randomly picked Americans would think is true that wasn’t? ---
**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, 10:41pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/369 "2012-04-03T22:41:18Z")
> [@Frylock](#): > > Worse, he seems to think votes can settle matters of fact. Then there is hope for the whole leg/tail controversy. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 3, 2012, 10:41pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/370 "2012-04-03T22:41:20Z")
> [@Terr](#): > > Where exactly is the limit? Why should there be one? ---
**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, 10:42pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/371 "2012-04-03T22:42:31Z")
> [@ElvisL1ves](#): > > Why should there be one? There has to be one in order for the 10th amendment to have any meaning. ---
**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, 10:43pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/372 "2012-04-03T22:43:43Z")
> [@Terr](#): > > Where exactly is the limit? The limit, as it always does, falls where the exercise of congressional power infringes on another power or right under the constitution. Common sense should tell you that the power to regulate interstate commerce does not extend to forcing women to have sex, which would among other things be a deprivation of liberty without due process of law. [QUOTE=Terr] There has to be one in order for the 10th amendment to have any meaning. [/QUOTE] Even with one, the 10th amendment has no meaning. It’s a tautology. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 3, 2012, 10:49pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/373 "2012-04-03T22:49:56Z")
> [@Terr](#): > > There has to be one in order for the 10th amendment to have any meaning. How so? What powers are being exercised by the federal government that are not delegated to it by the Constitution, via the commerce clause and the necessary-and-proper clause? Where are those powers prohibited to it by the states? If all you have is a vague wish for the ideals of the time of Jefferson, fuhgeddaboudit - they didn’t exist even then. ---
**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, 10:53pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/374 "2012-04-03T22:53:22Z")
> [@Terr](#): > > 999 out of 1000? I would say it does. Outside of SC decisions, can you give me something that 999 out or 1000 randomly picked Americans would think is true that wasn’t? I think you took “generally” to mean “usually,” but I meant it with the force of “always.” Sorry for the confusion. 999 out of 1000 people thinking something is true doesn’t always mean it’s true. For matters where expertise or technical knowledge can apply, these exceptional cases are bound to pop up. What is or isn’t “interstate commerce” is one of those cases. The layman thinks you’re engaging in interstate commerce only if you exchange money across state lines. But the layman might be wrong about this, if economists, political scientists, and so on, have determined that a useful concept of “interstate commerce” muts include transactions which don’t, by themselves, cross state lines. As for the example you asked for, it’s unnecessary for the reasons I just gave, but for completeness, I’ll answer. Note, however, that “outside of SC decisions” is a qulaification which makes your query irrelevant to the current discussion. Note also that if there’s something 999 out of 1000 people would think true, which is false, it’s extremely unlikely that I’d be able to name such a truth–since I’d be most likely tobe one of the 999. Nevertheless: 999 out of 1000 randomly selected americans would probably think it true that philosophers typically task themselves to think about the meaning of life. ---
**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, 10:55pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/375 "2012-04-03T22:55:24Z")
> [@ElvisL1ves](#): > > How so? What powers are being exercised by the federal government that are not delegated to it by the Constitution, via the commerce clause and the necessary-and-proper clause? Where are those powers prohibited to it by the states? For the 10th amendment to have any meaning, there have to be SOME powers not delegated to the federal government. If, as you say, there is no limit to federal government powers, and if anything at all can be twisted to fit under the “commerce clause”, that subverts the meaning of article 1, section 8 and the 10th amendment. If there is no limit to the federal government powers then there is absolutely no need for any enumerated powers in article 1, section 8. And the 10th has no meaning. Since the presumption is that the writers of the Constitution and the amendments didn’t waste their time on writing something that was not needed, that means there has to be a limit to federal government’s powers and the commerce clause is not all-enveloping. ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [April 3, 2012, 10:59pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/376 "2012-04-03T22:59:42Z")
> [@Terr](#): > > Where exactly is the limit? > [@](#): > > There is a view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce. Motion at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center. A society such as ours ‘is an elastic medium which transmits all tremors throughout its territory; the only question is of their size.’ Per Learned Hand, J., in the court below. The law is not indifferent to considerations of degree. Activities local in their immediacy do not become interstate and national because of distant repercussions. What is near and what is distant may at times be uncertain. Cf. Board of Trade of City of Chicago v. Olsen, 262 U.S. 1 , 43 S.Ct. 470. There is no penumbra of uncertainty obscuring judgment here. To find immediacy or directness here is to find it almost everywhere. If centripetal forces are to be isolated to the exclusion of the forces that oppose and counteract them, there will be an end to our federal system. Justice Cardozo concurring in _Schechter_. I’ve found it to be a pretty handy rule of thumb that anytime I think I’ve got something figured out that the Supreme Court is too dumb to consider, maybe I should check and see if they by any chance already dealt with it 50 years before I was born. In other words, there’s a limit. ---
**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, 11:00pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/377 "2012-04-03T23:00:27Z")
> [@Terr](#): > > Since the presumption is that the writers of the Constitution and the amendments didn’t waste their time on writing something that was not needed, Why presume that? It could well be that they royally screwed up and failed to understand the implications of what they themselves wrote. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 3, 2012, 11:02pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/378 "2012-04-03T23:02:34Z")
> [@Terr](#): > > For the 10th amendment to have any meaning, there have to be SOME powers not delegated to the federal government. There was quite a bit of debate in the Constitutional Convention to the point that the amendment did indeed have no meaning, as you may know. But, assuming it does anyway, what powers do you think are not delegated to the federal government, and on what basis do you think so? > [@](#): > > If there is no limit to the federal government powers then there is absolutely no need for any enumerated powers in article 1, section 8. Better read the Ninth too, then - it explains how the list is not exhaustive. So, again, where do you think the limit you insist upon is found? ---
**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, 11:12pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/379 "2012-04-03T23:12:05Z")
> [@Fear\_Itself](#): > > Did I misunderstand you? > 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? Yes, you did misunderstand me. I took your comment about the inflexibility of the constitution as an excuse for the Judiciary to bend the rules in ways that may be unconstitutional. I would argue that it is better to amend the constitution rather than bend logic such that unconstitutional laws pass muster. Maybe I misunderstood your comment. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [April 4, 2012, 2:09am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/380 "2012-04-04T02:09:34Z")
> [@ElvisL1ves](#): > > But, assuming it does anyway, what powers do you think are not delegated to the federal government, and on what basis do you think so? All those not listed. As the Tenth says: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. > [@ElvisL1ves](#): > > Better read the Ninth too, then - it explains how the list is not exhaustive. Here is the Ninth: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. That says that the powers listed in the Constitution _that belong to the people_ is not exhaustive. It means that _the people_ have more powers than those indicated in The Constitution. It is not saying that the federal government has more powers. ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [April 4, 2012, 3:16am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/381 "2012-04-04T03:16:07Z")
> [@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 bet once you pointed out to them that the gas powering their mower was produced somewhere other than their home state, they’d answer yes. And once you pointed out that the lawn mower they were using was manufactured in another state. And the fertilizer they use. And that weed whacker. And that edger. Heck, where I live, we even have to import grass from another state. ETA: Believe me, I’m no fan of the commerce clause. But most, in fact the vast VAST majority, of commerce that we engage in nowadays is interstate commerce. [Previous page](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961.md?page=18) [Next page](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961.md?page=20)