# 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:** 9
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 2, 2011, 4:16pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/161 "2011-02-02T16:16:46Z")
> [@furt](#): > > I guess I’m struggling with your use of the word “arbitrary” here. ISTM that lots of precedents rest on fine distinctions; is the distinction between “regulating economic activity” and “compelling economic activity” any more arbitrary than the difference between, say “reasonable suspicion” and “probable cause?” In my view, the courts must create a line of some kind when discussing reasonable suspicion and probable cause, because they must decide how to hew to the command that unreasonable searches are forbidden by the Fourth Amendment. So while in a sense, it’s also arbitrary, that call is less arbitrary than one splitting the Wickard baby so finely. > [@](#): > > And as noted, if we interpret _Wickard_ to mean that yes, the government can compel you into commercial transactions, by what principle is this limited to healthcare? Can it not equally apply to all sorts of things? Does _Wickard_ not have any limit at all, or can anything at all be made legal under the heading “affects interstate commerce?” All valid objections. Against Wickard. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 2, 2011, 4:21pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/162 "2011-02-02T16:21:48Z")
> [@furt](#): > > Probably true. Presumably they’d be laughed out of the room.? No one ever went broke… > [@furt](#): > > I tend to think they would. Really? I think people care about the quality of the care and its cost. If they can get lower priced, higher quality health care, I don’t think they give a rat’s ass where it is from. Similarly, for the overwhelming majority of people if the care is better and cheaper from private companies, they will go for it. > [@furt](#): > > And this form of lying is okay with you? You aren’t uncomfortable with one officer of the federal government saying one thing under oath before a congressional committee, and another officer of the federal government (both of them expressly speaking on behalf of said government) arguing the opposite in court? Whoa there. You are the one using the lying word, not me. I am not commenting on motivations. But if Congress calls something a tax, and genuinely believes it to be a tax, that isn’t controlling on whether the Court finds it to be a tax. Similarly a minute of silence before class for contemplation and self-meditation may still be ruled to be a time for prayer. Or it may not. But what it is called isn’t the be all and end all. ---
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [February 2, 2011, 4:35pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/163 "2011-02-02T16:35:15Z")
> [@Bricker](#): > > All valid objections. > > Against Wickard. So you’re saying that, in your view, anything at all is permissable under Wickard? Teen pregnancies are an economic drain, so in the interests of healthy interstate commerce, we’re going to mandate that you buy your daughter condoms. If they are ineffective, we’re going to mandate you pay for her abortion. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 2, 2011, 4:38pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/164 "2011-02-02T16:38:35Z")
> [@furt](#): > > Teen pregnancies are an economic drain, so in the interests of healthy interstate commerce, we’re going to mandate that you buy your daughter condoms. If they are ineffective, we’re going to mandate you pay for her abortion. You do of course realize that just because the Federal government’s involvedment in something would be permissible under _Wickard_ doesn’t mean it is permissible under the rest of the Constitution? ---
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [February 2, 2011, 4:42pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/165 "2011-02-02T16:42:35Z")
> [@villa](#): > > Really? I think people care about the quality of the care and its cost. If they can get lower priced, higher quality health care, I don’t think they give a rat’s ass where it is from. Similarly, for the overwhelming majority of people if the care is better and cheaper from private companies, they will go for it. Oh, if such were the case, sure. But I think many, possibly, most will never, _ever_ believe it, and so it won’t get put in place. Promises won’t cut it. > [@](#): > > Whoa there. You are the one using the lying word, not me. I am not commenting on motivations. But if Congress calls something a tax, and genuinely believes it to be a tax, that isn’t controlling on whether the Court finds it to be a tax. Similarly a minute of silence before class for contemplation and self-meditation may still be ruled to be a time for prayer. Or it may not. But what it is called isn’t the be all and end all. Fair enough. ---
**Author:** ![sqweels](https://avatars.discourse-cdn.com/v4/letter/s/f19dbf/32.png) [@sqweels](https://boards.straightdope.com/u/sqweels)\ **Post date:** [February 2, 2011, 6:09pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/166 "2011-02-02T18:09:03Z")
Why did the insurance mandate pass, but not the public option? ---
**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 2, 2011, 6:12pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/167 "2011-02-02T18:12:59Z")
Because the former was more palatable to Olympia Snowe. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 2, 2011, 6:55pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/168 "2011-02-02T18:55:33Z")
> [@furt](#): > > So you’re saying that, in your view, anything at all is permissable under Wickard? No. As Morrison made clear, the activity regulated must be primarily economic. As Lopez made clear, the regulation has to bear a substantial relation to the economic interest in play. And, finally, “permissible under Wickard” does not end our constitutional inquiry. It may be permissible as a Commerce Clause power but violative of some other constitutional guarantee. > [@](#): > > Teen pregnancies are an economic drain, so in the interests of healthy interstate commerce, we’re going to mandate that you buy your daughter condoms. If they are ineffective, we’re going to mandate you pay for her abortion. Like, say, these examples. ---
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [February 2, 2011, 7:07pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/169 "2011-02-02T19:07:51Z")
> [@Bricker](#): > > No. As Morrison made clear, the activity regulated must be primarily economic. As Lopez made clear, the regulation has to bear a substantial relation to the economic interest in play. Okay, that’s more of what I was looking for. Did Morrison suggest under what criteria an activity is “primarily economic?” ISTM that a lot of activities that can be called primarily economic by one person would be not at all economic in another’s eyes. When I carry my bleeding child to the ER, I’m not thinking of it as a “primarily economic” situation, even though obviously has economic ramifications. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 2, 2011, 8:04pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/170 "2011-02-02T20:04:23Z")
> [@furt](#): > > Okay, that’s more of what I was looking for. Did Morrison suggest under what criteria an activity is “primarily economic?” ISTM that a lot of activities that can be called primarily economic by one person would be not at all economic in another’s eyes. When I carry my bleeding child to the ER, I’m not thinking of it as a “primarily economic” situation, even though obviously has economic ramifications. Well: > [@SCOTUS](#): > > In a sense any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so far… > . > . > . > We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [February 2, 2011, 8:08pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/171 "2011-02-02T20:08:16Z")
> [@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. Which is why _Brown_ will never be used to overturn _Plessy_. ---
**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 2, 2011, 8:46pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/172 "2011-02-02T20:46:37Z")
> [@furt](#): > > What I’m trying to find out is what _principle_ you’re applying here, and whether or not it is applicable to other industries, and if not, _why not_. I’m unaware of any other industries with the same cost shifting effect as the uninsured do in health care. I’ve already pointed out many of the distinctions in this thread. Your examples of car dealers and grocers aren’t in any real way, comparable to health care insurance. I’m not aware of any other industry that is comparable to health care (in point of fact, some of the rulings finding the individual mandate constitutional have relied on that fact). > [@furt](#): > > And while hospitals may be required by law to treat all patients (is that a federal law?), keep in mind that 1) the HCR affects far, far more than hospitals, 2) there are also laws requiring people to wear clothes and not be vagrants. To answer your question, yes there is a federal law (Emergency Medical Treatment and Active Labor Act, but also the law with the individual mandate in it), but many states also have laws requiring health care providers to treat patients regardless of whether they can pay or not. And laws to not allowing vagrants or nudity do not force other people to provide homes or clothes to people. > [@furt](#): > > I’m no lawyer, but I kind of always thought that in laws, words were important. I’m just a wacky literalist, I suppose, but ISTM that if the people passing a law repeatedly say “it’s not a tax,” they ought not be able defend said law’s constitutionality on the basis that congress has tax-raising powers. Hence your confusion between “tax” as a term of art in Constitutional law, and “tax” as a term used by politicians. I hope I’ve helped clear that up for you. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 2, 2011, 8:49pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/173 "2011-02-02T20:49:44Z")
> [@Saint\_Cad](#): > > Which is why _Brown_ will never be used to overturn _Plessy_. I am really not sure what you are getting at here. ---
**Author:** ![furt](https://avatars.discourse-cdn.com/v4/letter/f/439d5e/32.png) [@furt](https://boards.straightdope.com/u/furt)\ **Post date:** [February 2, 2011, 10:08pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/174 "2011-02-02T22:08:04Z")
> [@Hamlet](#): > > I’m unaware of any other industries with the same cost shifting effect as the uninsured do in health care. So the principle you’re arguing then, is that congress may insert themselves into economic affairs between two private parties if such an exchange is highly likely to shift cost onto third parties? Or not. I don’t want to put words in your mouth, but I’m trying to find out what principle is being applied here. If you’re so confident that precedent set by issuing mandates for heathcare will never, ever be applied to other markets, I want to know why, exactly. > [@](#): > > Hence your confusion between “tax” as a term of art in Constitutional law, and “tax” as a term used by politicians. I hope I’ve helped clear that up for you. Indeed. So fortunate for HCR supporters that Barack Obama shares my ignorance. ---
**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 2, 2011, 10:19pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/175 "2011-02-02T22:19:50Z")
> [@villa](#): > > I am really not sure what you are getting at here. That there’s a precedent for huge fallout? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 2, 2011, 10:22pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/176 "2011-02-02T22:22:40Z")
> [@Nars\_Glinley](#): > > That there’s a precedent for huge fallout? Oh. I don’t think the amount of fallout is comparable, to be honest. But I guess we won’t know unless it happens. ---
**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 2, 2011, 10:30pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/177 "2011-02-02T22:30:23Z")
> [@furt](#): > > So the principle you’re arguing then, is that congress may insert themselves into economic affairs between two private parties if such an exchange is highly likely to shift cost onto third parties? That’s one part of the determination of whether or not Congress can enact the legislation pursuant to it’s powers under the Commerce Clause. The cost shifting, in addition to the requirements of health care regulation on hospitals, the very high likelihood of use of health care, the inability to truly opt out, and the need for the mandate to in the broader regulatory scheme are all facets in that determination. > [@furt](#): > > Or not. I don’t want to put words in your mouth, but I’m trying to find out what principle is being applied here. If you’re so confident that precedent set by issuing mandates for heathcare will never, ever be applied to other markets, I want to know why, exactly. I don’t see the precedent as being so out of line as you do. Wickard and Raich are both Supreme Court cases that are right in line with this view. > [@furt](#): > > Indeed. So fortunate for HCR supporters that Barack Obama shares my ignorance. Obama is a politician. You can’t really be surprised by that, can you? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 2, 2011, 10:38pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/178 "2011-02-02T22:38:25Z")
> [@villa](#): > > Oh. I don’t think the amount of fallout is comparable, to be honest. But I guess we won’t know unless it happens. Actually, that’s a horrible statement by me. It isn’t the amoutn of fallout that isn’t comparable, it’s the type of fallout. In _Brown_, the Court knew it had the Federal Government at its back. If it eliminates _Wickard_ now, it knows it will have to face the onslaught of demolishing Civil Rights legislation and countless other popular federal programs without any degree of support from the Feds. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [February 2, 2011, 10:41pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/179 "2011-02-02T22:41:54Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Because the former was more palatable to Olympia Snowe. You’ve confused Olympia Snowe with Joe Lieberman. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 2, 2011, 10:47pm UTC](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588/180 "2011-02-02T22:47:34Z")
And _you’ve_ confused Joe Lieberman with his employers, Aetna and Cigna. [Previous page](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588.md?page=8) [Next page](https://boards.straightdope.com/t/majority-of-states-now-challenging-health-care-law/567588.md?page=10)