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.
All valid objections.
Against Wickard.
No one ever went broke…
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.
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.
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.
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?
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.
Fair enough.
Why did the insurance mandate pass, but not the public option?
Because the former was more palatable to Olympia Snowe.
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.
Like, say, these examples.
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:
Which is why Brown will never be used to overturn Plessy.
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).
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.
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.
I am really not sure what you are getting at here.
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.
Indeed. So fortunate for HCR supporters that Barack Obama shares my ignorance.
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.
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.
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.
Obama is a politician. You can’t really be surprised by that, can you?
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.
You’ve confused Olympia Snowe with Joe Lieberman.
And you’ve confused Joe Lieberman with his employers, Aetna and Cigna.