Well, according to Chief Justice Marshall, who had been an active member of the Virginia legislature at the time the Constitution was adopted, in Gibbons v. Ogden:
So then Rittersport and Enlightening Meditation opine:
To which the answer is, “not so,” as we know from Wickard v. Filburn, when the Supreme Court ruled that Congress had the constitutional right under the Commerce clause to force Wickard to buy wheat on the open market, because his non-participation in said commerce had an adverse effect on the economy.
In addition there is Jacobson v. The Commonwealth of Massachusetts. In 1905 a unanimous Court upheld the imposition of a fine for refusing to submit to a state-mandated smallpox vaccination, Jacobson’s refusal of which endangered the community at large.
So then the question becomes — as Scalia sneeringly got wrong yesterday, and that idiot Virrelli didn’t correct in his response — is health insurance “commerce”?
Why yes, yes it is! How do we know that health insurance is commerce? The Supreme Court decision handed down in 1944 in United States v. South-Eastern Underwriters Association, which held that the Sherman Act applied to insurance. From wiki, “To reach this decision, the Court held that insurance could be regulated by the United States Congress under the Commerce Clause, overturning Paul v. Virginia.”
Now clearly if insurance is commerce, surely Health insurance is commerce.
But we have this allegedly brilliant legal mind who blurted out in yesterday’s hearing:
[QUOTE=Justice Scalia]
JUSTICE SCALIA: Oh, no, it’s not. They all involved commerce. There was no doubt that what was being regulated was commerce. And here you’re regulating somebody who isn’t covered. By the way, I don’t agree with you that the relevant market here is health care. You’re not regulating health care. You’re regulating insurance. It’s the insurance market that you’re addressing and you’re saying that some people who are not in it must be in it, and that’s – that’s different from regulating in any manner of commerce that already exists out there.
[/quote]
Oh bullshit. Idiot. If this law is struck down because any of these clearly biased rightwing schmoes declare health insurance to not be commerce, or that the regulation of it is “different from regulating in any manner of commerce that already exists out there,” they should all be immediately impeached for dereliction of duty.
But since we here at the Straight Dope don’t put up with idiotic nonsense like that, we can acknowledge that health insurance is commerce following South-Eastern Underwriters, and that congress has the right to regulate commerce under the constitution. So the next question to address is, does Congress have the constitutional right to regulate the means by which they enforce the regulations they set forth?
Why yes, yes they do! Who said so? Chief Justice Roberts in United States v Comstock, Justice Scalia himself in Gonzales v Raich, quoting Chief Justice Marshall in McCulloch v Maryland:
To sum up:
Now, you may wonder what liberal jurist I’m getting all this stuff from. Allow me to introduce you to the Senate Judiciary Committee testimony of Charles Fried, former Solicitor General to Ronald Reagan, who argued 25 cases before the Supreme Court, and who finds the right to regulate health insurance as commerce and impose mandated participation as the means to regulate it, 100% constitutional.
I know it’s easy for Left Hand of Dorkness (whom I adore) to remind us that we all have our own biases and whatever the decision we’ll all swear up and down we were right, but I’m not looking to my own biases on these questions; I’m looking to someone much, much smarter than I am in constitutional law, who is much, much more familiar with long-standing precedent. And that person is as conservative as they come.
The farmer was not forced to buy wheat, he was prevented from growing it for his own use. This would only apply if people were not required to buy insurance but were disallowed from providing self care.
And a penalty fine is irrelevant because getting a shot did not force the party to spend money.
Then you should tell SCOTUS they fuck up the interpretation of the Takings Clause
[QUOTE=Kelo v New London]
After approving an integrated development plan designed to revitalize its ailing economy, respondent city, through its development agent, purchased most of the property earmarked for the project from willing sellers, but initiated condemnation proceedings when petitioners, the owners of the rest of the property, refused to sell. Petitioners brought this state-court action claiming, inter alia, that the taking of their properties would violate the “public use” restriction in the Fifth Amendment’s Takings Clause. The trial court granted a permanent restraining order prohibiting the taking of the some of the properties, but denying relief as to others. Relying on cases such as Hawaii Housing Authority v. Midkiff, 467 U.S. 229, and Berman v. Parker, 348 U.S. 26, the Connecticut Supreme Court affirmed in part and reversed in part, upholding all of the proposed takings.
[/QUOTE]
Health insurance is commerce. Not having health insurance is, by its very nature, withdrawing from that commerce and is hence, not commerce.
If I buy a candy bar from the convenience store, I am obviously engaging in commerce. If I don’t buy a candy bar, that is, I do nothing but sit in my boxers at home, am I engaging in candy bar commerce?
ETA: That leaves aside the obvious question (that, I know SCOTUS has already answered) as to how my working in Wyoming, getting health insurance from a Wyoming agent, and visiting a doctor in Wyoming is somehow “interstate.”
I don’t know your position on various things, and I surely don’t know the position of the law, but I have a hard time understanding this.
Suppose I wish to boycott CVS because they promoted SOPA or whatever stupid bill it was. What you are saying is that it is literally impossible for me to boycott CVS because by not buying from CVS, I am simply not engaged in commerce: it doesn’t count. But this “refusal to engage” is the cornerstone of capitalism. Not buying from CVS is exactly the only power I have as a consumer against CVS.
Now, for the purposes of legislation, we wish to craft some third case, where for the purposes of legislation, boycotting CVS is not a consumer action, it is just… what? I don’t even know.
Again… I don’t know the details of law here. But my understanding of economics would suggest that either you are engaging in commerce—by making a distinct choice about the product or supplier—or you have already engaged in commerce, and (possibly temporarily) satisfied your needs. It is impossible to not engage in commerce. Every choice is specifically a judgment in capitalism.
I just want to be entirely clear on this point. Your opinion is that a law outlawing providing medical services to ones self is constitutional? But a mandate to purchase health insurance or pay a penalty isn’t?
I keep getting mixed up between the various threads, but I still haven’t seen an answer to my question from those that think the mandate is unconstitutional (if it was answered, please point me to it). Is the federal law mandating hospitals provide treatment to anyone who shows up with an emergent need regardless of their ability to pay constitutional? It seems to me to be mandating that doctors, nurses, etc participate in commerce at the risk of a penalty (losing Medicare funding).
The doctors and hospitals are already engaged in commerce, so Congress may regulate how they do it. An uninsured person who never gets around to purchasing any is not participating in commerce, so Congress has no power over him.
…if he can guarantee he will never need medical care for the rest of his life. Because if he does someday get medical care, he will be engaging in commerce and foisting his medical costs on to everyone else.
So what percentage of the population never needs medical care? Or is it a percentage of the population that just wants to be irresponsible and get a free ride from everyone else?
Someone on SCOTUSBlog pointed out that if Kennedy were to vote to uphold, he would INDEED be the most senior member of the majority and could assign himself the opinion.
Solely under the commerce clause section, based on that judicial precedent, absolutely. The ruling could easily apply to a situation where acting as your own doctor or just providing free health care to your family was forbidden, if artificially inflating the price of health care was considered necessary.
Though a new precedent could potentially overturn that, since it was maybe the most extreme ruling about the commerce clause at the time.
It might be unconstitutional under some other part of the constitution, of course. I can think of a few but not the commerce clause.
It would be disturbing if it wasn’t, but not terribly surprising. Unconstitutional just means it’s an issue covered by the constitution. There are plenty of potentially disturbing things that aren’t prevented by it, other than in the vague sense of that it considers them safely determined by the states.
It may or may not be. I think it amounts to a direct tax, which is forbidden in that context. And the “creating commerce” notion is at least aimed in the right direction of a potential argument. But in any case, it’s legitimacy isn’t determined by the rulings of those two cases, which are not sufficiently applicable or analogous.
So, if the distinction is that the hospital has already agreed to engage in commerce, I’d like to move back to the broccoli example. If I buy groceries (engage in commerce) the government can force me to also buy broccoli? Or, from the provider side, a law requiring grocery stores to provide food to anybody starving is constitutional?
Could this one tweak make the law Constitional - the mandate only applies from the very first time you receive medical care (and thus engage in commerce in the health-care market)?
Let’s separate out some issues. First, my understanding is that the law requiring doctors and hospitals to provide emergency care, regardless of ability to pay on the spot, only applies to those hospitals who accept Medicare. It’s a consequence of participating in the program, not a separate mandate.
I think Congress could require it of all doctors and hospitals, and indeed, might be able to require free food of all supermarkets. Congress already requires expensive things of automakers, trucking firms, drug companies, even swimming pool operators.
Congress could argue that the health insurance market is an unusual kind of commerce that encompasses all of society over entire lifetimes, rather than being the usual type of voluntary transaction when needed. That makes the cell-phone mandate (to summon emergency services) a more useful hypothetical.
As for your tweak, yes, I think it would bring it within Congress’s power to regulate interstate commerce—but it would lead to a lot of people putting off seeing the doctor.
This hits right at the crux of the debate about this mandate and the limits of the commerce clause. There is no doubt that if I choose not to buy candy bars (and others do the same) that it will have an effect on candy bar sales at my local convenience store, will cause the regional distribution center to reroute its products, and subsequently affect the interstate candy bar market.
But under the guise of “regulating” interstate commerce, can the federal government constitutionally go that far? We already have the Wickard and Raich precedents that hold growing marijuana/wheat for personal consumption affects interstate commerce because the person growing is not in the interstate market. Those two decisions have drawn the ire of strict constructionists.
But the present case can even be distinguished from those two cases. At least there, the Plaintiffs were engaged in wheat and marijuana commerce. To allow them to get their wheat and marijuana elsewhere defeated the national regulatory scheme.
In this instance, the Plaintiffs aren’t and don’t want to be part of the market AT ALL. They aren’t keeping doctors locked up in their basement for personal treatments.
The better question would be could you force Wickard not only to quit growing wheat for personal consumption, but march his ass down to the local farmers market and buy a sufficient quantity of wheat or else fine/tax/penalize him? That is where this case takes an unprecedented step towards almost absolute federal power. Again, I dare say that nothing could fall outside of the commerce power if you include participants in a given market as those who: 1. Purchase 2. Produce Themselves or 3. Don’t use, a product.
By definition, everyone would be a participant in every market turning a limitation of power on its head and making it not a possibly valid construction of the power.
—I know. You will say that health care is unique in that everyone uses it. I contend that, yes, if you draw a line that broad around the category, then I can make one broad enough to include my pet project. Broccoli, wheat, or candy bars are all in the food market in which everyone participates. Marijuana is in the “health care” category at least in some states. Could the feds actually force you to purchase marijuana?
So name me one product that you believe is in a sufficiently small market that everyone doesn’t participate in to distinguish it from health care, so I can put it in a broader category to make it a market that everyone does participate in so we can or must regulate it.
jtgain, suppose I grant you your claim: this is overstepping its bounds. What I want to understand is how all these other government activities—which, in effect, are exactly the same—are permissible. It’s a question I’m asking you, not the supreme court of christmas past. How can the government actually do anything? Because the counter to your “I can make it broad enough to do anything” is what I am suggesting: I can turn everything the government does with respect to commerce into “do this or pay a penalty”. Tariffs especially are “buy American or pay a penalty.” If you find the “do this or pay a penalty” reasoning unsound, I will grant you it is unsound. But what remains?
I’m not sure I understand the question. The federal government has the enumerated power to collect taxes and to lay tariffs. Are you asking something like: Well, why couldn’t they have an income tax rate of 100% but give you an 85% deduction for having health insurance?
No, I’m asking you your opinion. You think “do X or pay a penalty” is overstepping the government’s authority. I presume that it is your opinion that finding some other way to do the same thing would still be inappropriate. I guess we should get that out of the way. If they found some other way to do the exact same thing, would you object because the effect is that you “do X or pay a penalty”? Or is your objection specifically only related to the enumerated powers, and if they instituted “do X or pay a penalty” is some other fashion, then wonder of wonders we have health care?
There is a very clear distinction between “you must do this” and “if you do it, do it in this manner”. And a further distinction between “you must do this” and “you must do this even if you do not have the capacity”.
Yes, I personally object to getting around it by calling it tax. SCOTUS disagrees and has given a lot of latitude to the taxing power. For example, machine guns aren’t illegal under federal law, just a tax must be paid (which when passed in the 1930s was the equivalent of $3k today)
I don’t like “do X or pay a penalty” because that is exactly what a plenary police power is and what the federal government does not have. Unless X is one of its enumerated powers, it shouldn’t be telling citizens to X or not to X.
