# Majority of States Now Challenging Health Care Law **URL:** \ **Category:** Great Debates\ **Created:** [January 14, 2011, 2:01pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588 "2011-01-14T14:01:07Z")\ **Posts on this page:** 20\ **Page:** 7
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 1, 2011, 11:23am UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/121 "2011-02-01T11:23:12Z")
> [@Fear\_Itself](#): > > Roberts and Alito both signed off on the["Necessary and Proper" clause in _US v._ _Comstock,_](http://blogs.forbes.com/danielfisher/2010/12/13/obamacare-defenders-may-have-precedent-they-need/?boxes=Homepagechannels) so they would be hard pressed not to support it here: Yes. But since the challenge to the health care law doesn’t rest on the Necessary and Proper clause, it’s not relevant to this discussion. The question here is whether the purchaes mandate falls within Congress’ power. If it does, then Congress certainly may make laws to put it into effect under the Necessary and Proper clause. If it does not, then Congress can’t. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 1, 2011, 11:27am UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/122 "2011-02-01T11:27:40Z")
> [@E-Sabbath](#): > > Hey, Bricker? As I understand it, the Florida judge heard no arguments, just tossed out the entire bill. If I understand this right, and I may not, didn’t he have to assume that all claims the defense made were factual in that case? Specifically, didn’t he have to toss it out as a matter of fact, rather than law? Or am I thinking of something else? > > What makes me curious about this is the entire ‘toss out the whole law without hearing arguments’ thing. > > Can his actions cause this suit to get tossed out? Say, the next court up decides he was incorrect on his decision to rule in such a manner, what happens next? If he heard no arguments, then he does have to assume that the facts alleged by the losing side were true, yes. But this typically means he tossed it out as a ammater of law – that is, even assuming each fact the defense alleged were true, the law did not support the defense. In this case, that’s not unusual; there are no real factual disputes. The question is: does Congress have the power to require people to buy health insurance? That’s a question of pure law. The judge doesn’t have to resolve any questions of fact in order to answer it. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 1, 2011, 11:29am UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/123 "2011-02-01T11:29:58Z")
> [@villa](#): > > It’s certainly been part of the discussion. It’s why, in my opinion, if the Court rules this unconstitutional, it will do it in a very circumspect way. Overruling _Wickard_ isn’t on the cards, because it would destroy so much other jurisprudence, and the fall out from that would be too huge. The Court is, at heart, a political body. It realizes it has power only as long as it is backed by the democratic branches. And the perils of destroying so much are too great. Agreed. The only utterly honest way to “get there from here” is to overrule Wickard, which is why I initialy dismissed these efforts as quixotic. But now I think that the Court will draw a line (a highly arbitrary one, I might add) between regulating economic activity and compeliing economic activity. This will allow them to uphold Wickard and still scuttle HCR. ---
**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:** [February 1, 2011, 3:02pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/124 "2011-02-01T15:02:15Z")
> [@Bricker](#): > > But now I think that the Court will draw a line (a highly arbitrary one, I might add) between regulating economic activity and compeliing economic activity. This will allow them to uphold Wickard and still scuttle HCR. As I said before, Wickard, IIRC, involved a farmer growing wheat for his own use. That flew afowl (heh) of the federal law limiting what farmers could produce. Fillburn’s growing his own wheat meant he would not be purchasing wheat on the open market, which affected interstate commerce. It was Fillburn’s failure to purchase wheat on the market that was properly regulated. Just as a non-purchaser of health care fails to purchase insurance can be properly regulated. I don’t see how they could (properly) overrule Wickard and scuttle the individual mandate. And everyone is going to use health care sooner or later, so it’s not an issue of whether they’ll be in the market, it’s how they are going to participate in the market. I fully expect any vote to go along partisan lines, though. ---
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [February 1, 2011, 3:16pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/125 "2011-02-01T15:16:33Z")
> [@Hamlet](#): > > And everyone is going to use health care sooner or later, so it’s not an issue of whether they’ll be in the market, it’s how they are going to participate in the market. But is the market for health care the same as the market for insurance? I wouldn’t call collision repair the same market as auto insurance. ---
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [February 1, 2011, 3:56pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/126 "2011-02-01T15:56:33Z")
> [@Bricker](#): > > But now I think that the Court will draw a line (a highly arbitrary one, I might add) between regulating economic activity and compeliing economic activity. This will allow them to uphold Wickard and still scuttle HCR. Why is this line arbitrary? [QUOTE=Hamlet] And everyone is going to use health care sooner or later, so it’s not an issue of whether they’ll be in the market, it’s how they are going to participate in the market. [/QUOTE] Everyone will be in the transportation market. Everyone will be in the food market. Does not the same rationale allow the government to compel the purchase of government-approved cars and broccoli? Really, you can keep going. Everyone will be in the clothing marketplace (after all, public nudity is illegal), so government may mandate you buy clothes. Everyone will be in the communication market, so they can order you to buy pens. Everyone will be ass-wiping market, so the federal government may dictate what toilet paper you use. And those are just the things you have to do; you can choose not to have children, but if you do, the market for all kinds of things is profoundly affected. Although actually, one can just as easily say that the choice _not_ to have children affects the marketplace in the same way that not selling wheat or not buying insurance does. I have never yet seen an argument that addressed these arguments with anything other than “they’d never do that.” And as the judge noted in his ruling, some of the law’s _supporters_ have expressly agreed with the idea that under this rationale, the government could compel car ownership (see page 47 of the ruling). ---
**Author:** ![gonzomax](https://avatars.discourse-cdn.com/v4/letter/g/e8c25b/32.png) [@gonzomax](https://boards.straightdope.com/u/gonzomax)\ **Post date:** [February 1, 2011, 4:07pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/127 "2011-02-01T16:07:53Z")
States that are saying you can not force people to buy heath insurance have no difficulty compelling people to buy auto insurance. In a great new business model, we should have business be involved in health, auto and life insurance for their employees. It you think it is good for health insurance to be part of our business model, then adding auto and life is a small step forward. ---
**Author:** ![Kearsen](https://avatars.discourse-cdn.com/v4/letter/k/82dd89/32.png) [@Kearsen](https://boards.straightdope.com/u/Kearsen)\ **Post date:** [February 1, 2011, 4:20pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/128 "2011-02-01T16:20:14Z")
> [@gonzomax](#): > > States that are saying you can not force people to buy heath insurance have no difficulty compelling people to buy auto insurance. > In a great new business model, we should have business be involved in health, auto and life insurance for their employees. It you think it is good for health insurance to be part of our business model, then adding auto and life is a small step forward. You really need to play catch up. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 1, 2011, 4:26pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/129 "2011-02-01T16:26:49Z")
> [@furt](#): > > Why is this line arbitrary? Well, it is two sides of the same coin to be honest. Telling a farmer that he cannot grow wheat in excess of his allowance, if he needs more than that can be argued to be functionally speaking identical to telling him he must buy it on the open market. Relying on “he can stop being a farmer” isn’t the strongest of arguments, IMHO. ---
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [February 1, 2011, 5:03pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/130 "2011-02-01T17:03:33Z")
> [@villa](#): > > Well, it is two sides of the same coin to be honest. Telling a farmer that he cannot grow wheat in excess of his allowance, if he needs more than that can be argued to be functionally speaking identical to telling him he must buy it on the open market. > > Relying on “he can stop being a farmer” isn’t the strongest of arguments, IMHO. I don’t see why that is the case. If someone decides the regulations concerning a given industry are too onerous, he can get out of the industry. There are people getting out of the healthcare industry precisely because they don’t want to deal with ever-increasing red tape. Certainly the judge in this case thinks the line isn’t arbitrary, as that distinction was a part of his ruling. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 1, 2011, 5:15pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/131 "2011-02-01T17:15:28Z")
> [@furt](#): > > I don’t see why that is the case. If someone decides the regulations concerning a given industry are too onerous, he can get out of the industry. There are people getting out of the healthcare industry precisely because they don’t want to deal with ever-increasing red tape. Indeed. But I’d say that expecting a small farmer in the middle of a the Great Depression to allow his livestock to die, and quit farming is not really a realistic choice, and I don’t think _Wickard_ was based on the idea that he could go and do something else. > [@furt](#): > > Certainly the judge in this case thinks the line isn’t arbitrary, as that distinction was a part of his ruling. Certainly he doesn’t. But District Court judges make mistakes (as indeed to other judges. It’s why we built an appelate system. ---
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [February 1, 2011, 5:33pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/132 "2011-02-01T17:33:16Z")
> [@villa](#): > > Indeed. But I’d say that expecting a small farmer in the middle of a the Great Depression to allow his livestock to die, and quit farming is not really a realistic choice, and I don’t think _Wickard_ was based on the idea that he could go and do something else. True enough, I suppose. I guess more properly, the distinction is between someone already engaged in a profit-seeking economic activity as part of an industry (e.g. farming) and someone who is wholly and completely a consumer. There is no human act that does not have an economic impact on some market or other. If everyone did nothing, the economy would collapse. Nonetheless, I tend to think people should have the right to do nothing. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 1, 2011, 5:36pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/133 "2011-02-01T17:36:23Z")
That would be a less arbitrary distinction, I agree. Bet it isn’t the one they make, if they do overturn this (which, unlike **Bricker** , I am not sure they will). ---
**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:** [February 1, 2011, 5:37pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/134 "2011-02-01T17:37:49Z")
Are you talking about the law or the ruling? ---
**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:** [February 1, 2011, 5:44pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/135 "2011-02-01T17:44:32Z")
> [@furt](#): > > Everyone will be in the transportation market. Everyone will be in the food market. Does not the same rationale allow the government to compel the purchase of government-approved cars and broccoli? The simplest way is that those things don’t have the commercial effect of shifting costs to others. When you buy a car, or broccoli, you have money and you pay for it. You don’t get the car or broccoli and then have someone else pay for it for you. The individual mandate makes sure that you have the ability to pay for (at least in part) your car or broccoli or health care, before you get it. Health care providers (unlike car dealers and grocers) are, as a general rule, required to treat people, to give them their (car/broccoli/health care) goods without getting the money first. The individual mandate is, in part, to make sure that while you get your car/brocolli/health care, you can pay for it. I know that’s an overly simplistic way of explaining it, but hopefully it makes sense. ---
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [February 1, 2011, 6:09pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/136 "2011-02-01T18:09:36Z")
> [@villa](#): > > Well, it is two sides of the same coin to be honest. Telling a farmer that he cannot grow wheat in excess of his allowance, if he needs more than that can be argued to be functionally speaking identical to telling him he must buy it on the open market. > > Relying on “he can stop being a farmer” isn’t the strongest of arguments, IMHO. But Filburn did have options other than getting out of farming. He was only restricted in growing wheat. He could grown plenty of other crops for feeding his chickens. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 1, 2011, 6:21pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/137 "2011-02-01T18:21:01Z")
> [@Nars\_Glinley](#): > > But Filburn did have options other than getting out of farming. He was only restricted in growing wheat. He could grown plenty of other crops for feeding his chickens. Was that the basis of the Court’s decision? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 1, 2011, 6:22pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/138 "2011-02-01T18:22:10Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Are you talking about the law or the ruling? Sorry, if they overturn the law. I’d like to say I was presuming the Circuit would overturn this decision, but that would be fibbing. ---
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [February 1, 2011, 6:40pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/139 "2011-02-01T18:40:19Z")
> [@villa](#): > > Was that the basis of the Court’s decision? I’m not disagreeing with Wickard. I’m disagreeing that it was “two sides of the same coin” since he had other legal options for feeding his chickens other than buying on the open market or getting out of farming. With the health care bill, there are no such other options. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 1, 2011, 6:43pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/140 "2011-02-01T18:43:00Z")
Yeah, the Wickard part was a bit of a tangent to be honest, to the extent that any alternatives he had weren’t, to the best of my knowledge, considered by the court. But it is a hell of a long time since I have read the opinion, and I doubt I have ever read it in full… [Previous page](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588.md?page=6) [Next page](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588.md?page=8)