Category Archives: Commerce Clause

On promises made and broken

Commerce Clause, Constitution, Election '10, Hubris, Socialism, Strategies For Advancing Liberty, The Nanny State, The Welfare State

In the lead up to the vote on H.R. 3962, the “Affordable Health Care for America” Act (scare quotes intentional), Barack Obama offered this encouragement to legislators to vote for the bill:

“This is their moment, this is our moment, to live up to the trust that the American people have placed in us,” Obama told reporters in the White House rose garden. “Even when it’s hard, especially when it’s hard, this is our moment to deliver.”

Two-hundred and fifteen did live up to the trust we placed in them, while two-hundred and twenty failed to do the same. How exactly is that trust defined? In the oath of office taken by each and every United States Representative:

“I, (name of Member), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

Each and every Representative took a solemn oath to “bear true faith and allegiance” to the Constitution. Each and every Representative who affirmed the House health care bill, with its threats of fines and prison for not buying “government-approved” health insurance, has forsaken that oath. The mandates contained in the Pelosi bill are a kludge, a poor attempt to graft a clearly unconstitutional power such as this on to the enumerated powers of the commerce clause and taxation.

To attempt such a thing, one cannot bear true faith and allegiance to the Constitution. At best, those who attempted this hold the Constitution in the same regard that the 17-year-old script kiddie in his parents’ basement has for security measures–both are interesting challenges that require interesting solutions. At worst, they hold the Constitution in contempt and are actively working to debase the very core of the social contract between the government and the people.

In either case, it is now our turn as patriots to remind our Representatives that while they do not hold themselves to their oaths and promises, we do. In a little less than a year from now, voting booths across this great land will open again, and one of 435 representatives will be seeking your affirmation. If your representative has forsaken his or her oath to the Constitution, withhold it. It’s not about party affiliations or common views, it’s about holding legislators accountable for the promises they make to us.

Do your duty as a patriot. Refuse to support legislators who vote to abuse the Constitution or the People of the United States.

Quincy

Is An Individual Health Insurance Mandate Constitutional ?

Commerce Clause, Constitution, Federalism, Healthcare, Individual Rights

Over at Findlaw, Cornell University Law Professor Michael Dorf criticizes the libertarian argument that a government requirement that every citizen purchase health insurance is unconstitutional:

A federal statute that was already in effect in 1994 provides that “all citizens shall have . . . an obligation to serve as jurors when summoned for that purpose.” To be sure, the mechanisms used to assemble a pool of prospective jurors enable some people to slip through the cracks, but then, that surely would also be true of the individual mandate to obtain health insurance. Many look to learn more about how to do this, but no law can be perfectly enforced. The important point here is that jury duty, like draft registration, serves as a precedent for the imposition by the federal government of an affirmative duty on citizens.

The difference, of course, between a jury duty mandate or the draft and a law requiring every citizen to purchase health insurance is that both of these obligations of citizens predate the drafting of the Constitution and therefore it’s simply illogical to say that they are barred by the Constitution today, or that the Framer’s contemplated that in allowing the state to compel people to serve on juries, they were opening the door to a whole host of mandates that, if enforced would make freedom a mockery.

Regardless of the situation, it is very important for everyone to have health insurance and work towards Medicare changes so as many people as possible as it can help save you a lot of money when it comes to medical bills and other important benefits. As well as health insurance, it is also essential for people to have policies like 250,000 term life insurance. All form of insurance is beneficial to you and is used to look after your health long term. You would rather have it in place, just in case something was to happen, than not have it there at all. This is why it makes sense to look into looking into finding a health insurance quote to help find the right insurance for you and your family too. As there are many things health insurance can cover, it is best to do your research into this before committing to anything.

Since there doesn’t seem to be much precedent in Federal law, though, Dorf quickly moves on to state law:

Consider that states may impose an affirmative obligation of vaccination on residents. Even in an era when the Supreme Court was otherwise vigorously enforcing libertarian constitutional principles, in 1905, in Jacobson v. Massachusetts, the Court rejected a constitutional challenge to mandatory vaccination.If the government interest in public health is sufficient to overcome libertarian objections to injections into the very bodies of citizens, then surely the public health interest–which is, at bottom, what is at stake in the health insurance reform bills–should suffice to require Americans to buy health insurance or else pay a tax.

Again, it’s clear that Dorf makes the mistake here of finding an exception and turning into a rule. The important thing to note about Jacobson is that it dealt with mandatory vaccination of children for smallpox which was, until defeated by aggressive vaccination, a highly contagious, virulent disease with a high rate of mortality. Which there is a long argument on both sides of the mandatory vaccination issue, the argument in favor is certainly stronger when it involves combating the spread of a disease that poses such a severe risk to public health when balanced against the individual liberty interest in not getting vaccinated. It’s by no means clear, for example, that the result would be the same if the disease in question were something far less threatening to public health, like the seasonal flu.

Unless Dorf can make the argument that lack of health insurance poses an imminent threat to public health on a par with a smallpox epidemic, the Jacobson precedent would seem inapplicable.

The question of the Constitutionality of a health insurance mandate was addressed in a Washington Post Op-Ed by lawyers David Rivkin and Lee Casey and their argument bears repeating:

The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.

Although the Supreme Court has interpreted Congress’s commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress’s reach.

The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress’s authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that – as in the wheat case – “the activities regulated by the [Controlled Substances Act] are quintessentially economic.” That simply would not be true with regard to an individual health insurance mandate.

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the “production, distribution or consumption of commodities,” but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

That’s the question that Dorf fails to answer — where in Article I Section 8 is Congress authorized to pass this mandate ?

The fact that he doesn’t address it suggests that there isn’t really an answer in the affirmative.

Doug Mataconis
http://www.belowthebeltway.com

Republican Senator Expresses Support For Mandatory Health Insurance

Commerce Clause, Constitution, Healthcare, Individual Rights, Politics, Republicans

Former Republican Senator Bill Frist starts out the U.S. News And World Report article in which he comes out in support of a government requirement that each American have health insurance with what can only be described as a fair degree of irony:

I believe in limited government and individual responsibility, cherish the freedom to choose, and generally oppose individual mandates-except where markets fail, individuals suffer, and society pays a hefty price.

Or, to put it another way, I believe in individual government and individual responsibility, cherish the freedom to choose, and generally oppose individual mandates — except when I don’t.

While Frist spends much time in his article talking about the alleged benefits that an individual mandate would bring, he spends no time whatsoever addressing the fundamental issues that need to be talked about if we’re seriously going to pass what amounts to the Health Insurance Industry Subsidization Act of 2009.

First, there’s the issue of why a mandate is necessary. Frist does not address at all the “market failure” that he claims exists which would be remedied by forcing everyone to purchase health insurance. What he does do, though, is reveal what the individual mandate is really all about — forcing young, healthy people who otherwise might choose to forgo the several-hundred-dollars-a-month worth of premiums they’d have to pay:

When healthier people opt not to carry insurance, only those with poorer health, and thus higher costs, remain in. This leads insurance prices to spiral up. Whilst in other countries people can go to places like Covered to help with this, access isn’t as easy in the US. And it further impedes markets’ ability to mitigate risks and prevent personal economic catastrophe. The “free-riders” who do not purchase insurance and the “voluntarily uninsured” who depend on emergency room care paid by others would then pay their fair share for services received.

What Frist doesn’t address, of course, is the fact that an individual mandate is likely to create upward pressure on premiums for one very simple reason — once insurance companies know that you have to buy their product whether you want to or not, they have zero incentive to keep premiums down. That’s the reason why, for example, auto insurance rates (which in most states are mandatory if you want to own a car) are higher than most other forms of insurance that individuals typically purchase.

What the individual mandate really does is to force the young and healthy to subsidize the older and sicker. It’s worth noting that hat’s the same logic that Social Security and Medicare are built on, and they’re in the process of going into an demographically inevitable bankruptcy. One can foresee much the same thing happening under an individual-mandate health scenario.

First goes on to cite Massachusetts as an example of an individual mandate plan that “works,” but that isn’t necessarily true:

The Massachusetts experiment with the same scheme has left the state with the nation’s most expensive insurance, with program spending up 70 percent in just three years and with a third of the uninsured remaining so. The cheapest insurance we can find in Massachusetts for an average family of four is $906 per month. In Iowa, it’s $145. Different coverage, certainly, but at least in Iowa cheaper coverage choices exist.

That’s what could come to America if we adopt the individual mandate.

Frist also fails to address a more important issue — what right does the Federal Government have to force me or you to buy health insurance ? I don’t just mean to ask what Constitutional provision authorizes it, although that is certainly important, but also why should the government be allowed to do this at all, even if it technically had the power to do so ? As a Republican who claims to “believe in limited government and individual responsibility, cherish the freedom to choose, and generally oppose individual mandates,” that’s a question that should be relatively easy for Frist to answer.

His silence, and the silence of other Republicans, is deafening.

Updated to reflect my failure to note that Frist is in fact a former Republican Senator

Doug Mataconis
http://www.belowthebeltway.com

Are Health Insurance Mandates Constitutional ?

Commerce Clause, Constitution, Federalism, Separation Of Powers, The Nanny State

After a piece last month in the Washington Post, which I wrote about here, lawyers David Rivkin and Lee Casey are back with a piece in the Wall Street Journal expanding on their argument that a requirement that every American buy health insurance would be unconstitutional. This time, they argue that, even under current commerce clause precedent, there is no Constitutional authority for a Federal health insurance mandate:

The Supreme Court construes the commerce power broadly. In the most recent Commerce Clause case, Gonzales v. Raich (2005) , the court ruled that Congress can even regulate the cultivation of marijuana for personal use so long as there is a rational basis to believe that such “activities, taken in the aggregate, substantially affect interstate commerce.”

But there are important limits. In United States v. Lopez (1995), for example, the Court invalidated the Gun Free School Zones Act because that law made it a crime simply to possess a gun near a school. It did not “regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity.” Of course, a health-care mandate would not regulate any “activity,” such as employment or growing pot in the bathroom, at all. Simply being an American would trigger it.

Article 1, Section 8, Clause 3 of the Constitution sets forth Congresses commerce power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Strictly construed the Commerce Clause would not seem to be that broad of a grant of power. After all, the chief ill that it was aimed at was to allow goods and business to flow easily between the respective states, something that was not possible under the Articles of Confederation. However, the Supreme Court has interpreted the clause so loosely that it has gone far beyond the point where it actually imposed any limits on Congressional authority. For example, in 1942, in Wickard v. Filburn, the Supreme Court ruled that a farmer who grew wheat on his own land for his own consumption affected interstate commerce and was therefore subject to the regulations of Agricultural Adjustment Act of 1938. Once that happened, the door was open to allow Congress to use the Commerce Clause to justify extensions of Federal power into areas that the Founding Fathers would never have conceived it would be exercised.

The post-Wickard history of the Commerce Clause has been one of expanding federal power and increasing regulation of activities that have only a tangential relationship to interstate commerce. But there have been some bright spots recently.

As the article notes, in 1995, the Supreme Court ruled in United States v. Lopez that the commerce clause could not be used to justify a Federal Law that made it a crime to carry a gun with a certain distance from a school. In 1996, it ruled in Seminole Tribe v. Florida, that the Commerce Clause did not give the Federal Government the right to abrogate the soverign immunity of the state. And, most notably, in a dissent in Gonzalez v. Raich, the 2005 case that upheld the supremacy of Federal drug laws over state medical marijuana laws, Justice Thomas said the following:

Respondent’s local cultivation and consumption of marijuana is not “Commerce … among the several States.” Even if a grower were to incorperate a grow room design in the cultivation process, as long as it is local then it is not automatically “Commerce among the several states”.
“
Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

Given this trend, the a Constitutional challenge to an individual mandate would seem to be a potentially successful argument. However, as Eugene Volokh pointed out in a post responding to the original WaPo article, that isn’t necessarily the case:

As much as I oppose the various health care reforms promoted by the Obama Administration and current Congressional leadership (and as much as I would like to see a more restrictive commerce clause jurisprudence), I do not find this argument particularly convincing. While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of “commerce” as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate. (Among other things, if health care reform requires insurers to issue insurance to all comers, and prohibits refusals for pre-existing conditions, then a mandate is necessary to prevent opportunistic behavior by individuals who simply wait to purchase insurance until they get sick.)

At best then, this would seem to be a very close call and, given almost 200 years of Supreme Court precedent it seems unlikely that a Court would overturn something as far reaching as a health care reform plan — although as the National Recovery Administration learned in 1935, it’s not impossible.

Doug Mataconis
http://www.belowthebeltway.com

Happy Constitution Day

Commerce Clause, Constitution, Federalism, Free Speech, Freedom of the press, History, Individual Rights, Keep and Bear Arms, Privacy, Property Rights, Religious Liberty, Reproductive Rights, Separation Of Powers, The Bill Of Rights

Constitutionalconvention

Two Hundred Twenty Two years ago in Philadelphia, the Constitution Convention in Philadelphia completed it’s work.

At the close of the Constitutional Convention in Philadelphia on September 18, 1787, a Mrs. Powel anxiously awaited the results, and as Benjamin Franklin emerged from the long task now finished, asked him directly: “Well Doctor, what have we got, a republic or a monarchy?” “A republic if you can keep it” responded Franklin.

222 years later, Mrs. Powell’s question, and Franklin’s response, remain undecided.

Do yourself a favor — read The Constitution, and then ask whether we’re still following it the way the Founders intended, and whether we’re going to be able to keep the Republic that Franklin was talking about.

Doug Mataconis
http://www.belowthebeltway.com
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