Two Years On: Obamacare

I see what you've done as laying out a case as to why there should be no activity/inactivity distinction. However, because Wickard used the term "activity," I think a principled opinion would have to recognize that upholding this law (on those grounds) would be going further than even in Wickard.

Wickard: personal use = commerce
Florida v. HHS: non-use = commerce

 

If you don't think numerous laws passed by Congress over the decades have gone beyond "enumerations," you're nuts. The Constitution was meant to be a flexible document, changing with the times, with one example being the right to bear arms being stretched beyond "toward a well-regulated militia."

And stop with the high-and-mighty constitutionalizing. You just plain don't like Obamacare and are looking for a hook to knock it out.

 

What's more likely: franklin lincoln pining for the Constitution or franklin lincoln wanting Obamacare gone however that needs to be accomplished? I didn't say anyone was biased or unbiased; was just calling b.s.

 

Can we dream that somehow we come out with a clear 9-0 mandate like Brown v. BOE? Well that would be awesome but overly optimistic. We can dream though.

 

Here's a different question: What happens if this gets upheld on the basis of "it's a tax." Obama has his victory and the GOP has a nuclear arsenal to unleash on him and every Democrat in Congress. It is a given that 30-second America isn't going to sort out nuance.

 

I'd strike the law down, too, frankly. It's dumb and unwieldy.

The Dems always play so many games on health care. Just push a Canadian system replete with waiting lines and rationing and serve it up until you get the votes. It's a better system than the joke we have, where rationing and waiting lines are invisible-but-real, and called "denied to reimburse" and "I can't afford to go to the doctor, so I won't get my angina checked out."

 

Sorry that what follows is so long-winded, but Zeke is right that this is an easy case if the Justices follow precedent. If they feel no need to worry about a couple of centuries of precedent, then, sure, it could be a difficult case.

Of course, as many of you have said, the federal government can only exercise its enumerated powers. One of those is the power to regulate interstate commerce. The Commerce Clause, as the Supreme Court held in United States v. Lopez, allows Congress to regulate activities that substantially affect or substantially relate to interstate commerce. (Lopez also set forth limiting principles on the commerce power, which many of the Justices seemed to forget about on Tuesday.) The activity/inactivity distinction made by the challengers sounds good, but ultimately, they're two sides of the same coin. Why isn't a decision about how to obtain your health care -- including a decision to forgo health insurance -- an activity? Is it possible that the government could use similar justification to make you buy broccoli? Yes. But it won't. Why? Because we'd all think it was a stupid law, and throw the bums out. (Hey! There's another limiting principle!)

Lopez did not overturn or disavow Wickard or other Commerce Clause cases. So if the government can limit the amount of wheat a farmer grows to keep wheat prices up, if it can require restaurants and motels to serve minorities (Heart of Atlanta Motel v. United States and Katzenbach v. McClung, both of which upheld Title II of the Civil Rights Act of 1964 as a valid exercise of Congress's power under the Commerce Clause to prevent the negative effect of racial discrimination on interstate commerce), why can't it require people to purchase insurance to keep the price of health care low? You may not like the precedents, but they're settled law, and the challengers aren't saying they're bad law. Also, there is no fundamental right not to act. If there were, any federal or state law that required you to take some action -- including everyone's favorite example, the state requirement that you buy auto insurance -- would be constitutionally suspect because it infringed on your fundamental right.

Moreover, the challengers have conceded that the government could require people to buy insurance when they need care. So the argument a lot of people are making here -- that the government can't require you to purchase something -- doesn't fly. The only question in this case is the timing. Obviously, the law wouldn't work, or wouldn't work as well, if people had to buy insurance when they walk into the emergency room. Given that virtually everyone is going to require health care at some point, it makes much more sense for the government to require us to purchase insurance beforehand.

That brings us to another enumerated power that the federal government possesses: the power to make all laws necessary and proper for carrying into execution its enumerated powers, including the commerce power. Congress's power to make necessary and proper laws is great and broad. That's the way it's supposed to be. Someone cited Madison earlier; it's too long to post here, but check out Federalist No. 44. He explains why, without the Necessary and Proper Clause, "the whole Constitution would be a dead letter." And he explains why Congress is not limited only to the powers expressly set forth in the Constitution. Chief Justice Marshall agreed in McCulloch v. Maryland, where he laid out the deferential standard that's still used today to determine if a law is necessary and proper:

As I see it, the end here (regulating the cost of healthcare) is obviously legitimate and within the scope of the Constitution, because healthcare is interstate commerce. And the means (the individual mandate) are appropriate, plainly adapted to that end, and consistent with the Constitution. I don't see where the Constitution prohibits this. Remember, the challengers have conceded that the government could mandate the purchase of insurance, at least at a later point in time, so there's no constitutional prohibition on requiring a purchase. And there's no fundamental right not to act.

So, easy case. (The Justices' votes won't reflect that, of course.) As I've said before, it may be a bad law, but that doesn't make it unconstitutional.

 

If a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house.

 

A system like Canada's will never pass here. The industry's lobbying groups are too powerful, and too many politicians (and voters) are scared to death by the idea of even state government having so much control over health care, let alone the federal government having so much control. If you thought the ACA caused the right to freak out, it's nothing compared to what would ensue if Dems tried to push a system like Canada's.

Hell, Joe Lieberman wouldn't even tolerate a public option.

 

So as long as we pretend that "lack of commerce" and "commerce" are interchangeable, then the case law is settled. Noted.

 

Which, in a way, is my point earlier with the recent new abortion laws on ultrasounds.

Let's say the health insurance mandate gets struck down. With these new laws, how does someone not challenge them and cite this Court's precedent on mandates?

If you can't be forced to buy broccoli, then how can you be forced to have an ultrasound in order to have an abortion?

 

I hope not, but again: once you add a conditional, it's not the same anymore.

"You have to X" and "In order to Y, you have to X" are not equivalent statements.