Activity and Inactivity and the Individual Mandate

It seems to me that inactivity can have just as profound affects as activity and likewise that it is rather difficult to argue that health care isn't part of interstate commerce.

(The following has its immediate inspiration in the comment thread from one of Doug Mataconis’ posts earlier today):

One of the arguments contra the individual mandate is that while Congress can regulate activity in regards to interstate commerce, it cannot regulate inactivity and since not buying insurance is inactivity, the provision is invalid.*

The proponents of this argument tend to be quite confident in its power, as if it is almost self-evident that choosing not to do something has no consequences.  However, this is not the case.  A simple, although granted not directly relatable example, is that there are in same states laws that require a person to render reasonable aid to a person in distress and the lack of action can lead to a fine.  Even setting aside the question of legal sanction, it can hardly be argued that inaction lacks consequence, for if I fail to call 911 for a person bleeding to death, there is a consequence.  A less extreme example would be one that my middle son is learning this evening:  lack of studying leads to a lack of knowledge which likely results in a poor grade on an exam.

I find the inactivity argument problematic in regards to the individual mandate for a variety of reasons including:

1.  The lack of purchase of insurance is, to my mind, still an action:  it is an active choice not to have adequate protection on the hope that one will not need it.

2.  The choice not to purchase insurance incurs a risk to the rest of us, as if the person choosing not to be insured becomes sick or injured, said person will likely end up in an emergency room, at which point said person’s choice to eschew insurance makes him/her part of the broader commerce of the health care industry (and indeed, through his/her original choice has made me and my fellow citizens at least partially responsible for his/her care).

Indeed, this latter point is why, at one point in time, the individual mandate notion was considered a conservative one as it underscored not state responsibility for health care, but rather individual responsibility.**

Putting #2 another way (and setting aside what one may want the answer to be):  is it, or is it not the case that the choice by large numbers of citizens not to buy health insurance affects others? (And, indeed, do not those collective decision ultimately affect interstate commerce?)  I think that the answer is “yes” because even if they don’t get sick or injured their lack of purchase does affect the cost of insurance for the rest of us given that the nature of the enterprise is that it assumes that some people who pay into the system will be basically healthy while others won’t be.  The willful abstention from insurance by the young and healthy, for example, has an effect on the system as a whole.  Indeed, this is indisputable.

Beyond that, the odds are quite good that a substantial number of these persons will get sick or will become injured, thus needing medical care.  Now, if they are independently wealthy they can absorb the costs of those conditions and not especially affect the system.  However, since they have chosen not to purchase insurance the likelihood is that they lack the funds to do so.

Taking it all yet another step, if some number of these persons attempt to pay their own way, but have a catastrophic injury or illness and end up going bankrupt that, too, will influence the broader economy.  As such it is unclear how the inaction vis-a-vis the purchase of insurance still did not, ultimately, affect interstate commerce.

It seems to me that the only way one can argue that the above actions (or inactions) do not have interstate commerce implications is to argue that all of the economic impacts discussed above remain confined to a given state, and that strikes me as unlikely.

And, yes, I understand having a policy preference that eschews the PPACA.  What I am having a hard time understanding is an argument that either states the broader health care/health insurance industry is not part of interstate commerce as well as the argument that inactivity doesn’t have consequences in that context.  I am especially at pains to see the argument in the context of now over 70 years of established precedents regarding the Commerce Clause.

I suppose, ultimately it seems to me that all this debate about health care and health insurance is really more properly a political debate rather than a constitutional one.  Opponents of the PPACA have lost the political debate and so are hoping to use the courts to achieve what could not be achieved in the Congress. Likewise, the proponents of the PPACA fear a court rejection as they know that the political stars are unlikely to realign any time soon to allow them a second bite at this particular apple.

Now, I will grant, this matter will be debated until such a time that an Appellate Court issues a ruling, and even then it will not be considered fully settled law unless the Supremes weigh in (and even then, the debate will rage).

*An interesting side note that strikes me about this argument is that it seems to concede that the Congress does have Commerce Clause powers in terms of health care/insurance.

**One of the things that find especially fascinating (as well as curious) about this shift is that not only is the individual mandate no longer considered “conservative” it is considered by most self-described conservatives as socialism of an extreme variety as well as anathema to the current conservative versions of constitutionalism.

FILED UNDER: Health Care, Law and the Courts, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Richard says:

    It’s disappointing that people are so stupid.

    Someone walks into a veterinarian’s office and pays for his poodle’s checkup out of pocket. That person has a hard time reconciling with the idea of paying for human health care. Even worse, they don’t know the cost of what they are getting.

    Armies of postdocs working on cutting-edge research has produced procedures, drugs, and devices that have prolonged life and eased suffering. People somehow expect to receive those things for free.

  2. […] at least part of the intellectual history of the individual mandate–which was, as I noted earlier (and at other times), once considered a “conservative” idea. FILED UNDER: Health […]

  3. MichaelW says:

    Steven:

    I don’t know what to tell you other than you seem to be either misinformed or uninformed about what the actual legal precedent is.

    Leaving that aside, the reason that “activity” is such a focus is because the federal government was created with limited powers. Through commerce clause jurisprudence over the past 70 years or so, the power of the federal government has been greatly expanded while always recognizing and reconfirming that the power is still limited. In the instant case, it is readily apparent that if inactivity (a category as yet unrecognized as being subject to Congress’ CC power) can be regulated by Congress via the CC, then the power is completely unlimited.

    Since the SCOTUS precedents all agree that, although the limits may not be thoroughly defined, they do indeed exist, and because accepting that the individual mandate is within the CC power would effectively removed all limits, then the individual mandate cannot be within the CC power of Congress. Judge Vinson relies especially upon Lopez in drawing this conclusion.

    The real exercise in understanding the argument that the IM exceeds Congress’ CC power is in identifying what limits could possibly be placed on Congress if the IM were held to be constitutional. IOW, what couldn’t Congress force you to buy or do? Because ever action or inaction has some aggregate (e.g. several individuals growing wheat for personal consumption) effect on the economy, then, the argument goes, there is no human action or inaction which cannot be regulated under the CC power. That would be anathema to the idea of a Constitutionally created government of limited powers.

  4. Tano says:

    Another hilarious irony in all this is that when you press the Republicans really hard as to what their ideas on improving health coverage are, the one thing that usually come up with is to allow health insurance plans to be bought across state lines – something that would absolutely, and unambiguously make the health insurance industry part of interstate commerce,and hence unquestionably within the federal government’s writ for regulation.

  5. anjin-san says:

    > It’s disappointing that people are so stupid.

    Probably a good reason for you to remove all the mirrors from your house. Being reminded and everything must be hard on you…

  6. ponce says:

    “What would you think if a Republican congress and President mandated the purchase of firearms by each citizen?”

    I old enough to have been required by the federal government to register for the draft, zels.

    I’d say that was several order of magnitude more intrusive than requiring me to buy a gun.

  7. Loviatar says:

    Steven,

    Kay at Balloon Juice makes the case for PPACA Health Care vs Health Insurance in a way that totally demolishes the right wing’s arguments (including Judge Vinson).

    Take away quote:

    You don’t have to buy health insurance. You don’t have to pay a private insurer. What you do have to do is contribute to the costs of covering the pool called “the uninsured” because if you don’t purchase the subsidized policy and instead pay the tax penalty, you’ll be uninsured. And it costs to provide emergency care to “the uninsured”. A lot. And the federal government reimburses part of that cost.

  8. Herb says:

    “Leaving that aside, the reason that “activity” is such a focus is because the federal government was created with limited powers. ”

    Hey, that’s awesome. But the only reason to crank on about limited powers is if you think the government is abusing its power by regulating the healthcare industry. Since the “healthcare industry” is most definitely part of interstate commerce, regulating it falls within the government’s “limited powers.”

    Unfortunately, regulating the healthcare industry in a way you don’t like doesn’t make it unconstitutional.

  9. Jay Tea says:

    OK, how about this argument: if my neighbor is obligated to buy insurance to minimize the costs he may or may not incur upon society as a whole, is that neighbor also obligated to take other steps to minimize their need for such insurance? In other words, in the interest of decreasing health risks to himself and health expenses on all of us, can he be required to stop smoking? To exercise regularly, and eat properly?

    Here’s a logical extension I came up with a while ago: we’re already paying for the health care of welfare recipients. Why not mandate that they undergo mandatory birth control and drug testing? We’re paying their bills, so we ought to be able to demand that they not make things even more expensive for us.

    Here’s another notion I’ve heard kicking around. We have a problem with the homeless, and a tanking real estate market. In the name of the common good, why not require everyone who can afford a home buy one — and the most expensive one they can? This will do wonders for the housing industry. And as more people “move up” in housing, it will free up cheaper housing downstream. Eventually, it will force people out of rental properties, depressing the rental market to the point where more people can afford apartments. It’s a win for everyone.

    The most fundamental freedom, I’ve always believed, is the right to say “no.” The right to say that an individual can not be compelled to take action against their will except in the most extreme circumstances.

    The “Good Samaritan” laws you cite are just such cases — the most extreme. Most people can go their entire lives without ever being in a position where they would apply.

    The example of conscription — even the registration, although conscription has been gone for about 40 years — is an odious one. I don’t think it’s ever been adequately tested against the 14th Amendment, and the arguments tend to boil down to “we’ve always had it, other countries have had it, and we really need it sometimes.”

    Let me use my own state as an example. New Hampshire has no mandatory seat belt or motorcycle helmet laws on the books. I agree with that. I am a seat belt militant; I’ve buckled up to back out of a garage. If you ride with me, then you buckle up. Period. But I don’t believe it’s the state’s duty to protect me from being an idiot.

    New Hampshire also has no mandatory auto insurance. Don’t want it? Don’t get it. But if you get into an accident, you better be prepared to pay any and all damages that are your fault. If you can’t, you lose your license until you pay off that debt AND get insurance or show in some other way that you’ve become more responsible financially.

    Guess what? We haven’t fallen apart yet. In fact, we’re doing just fine, thank you very much. Better than a lot of other states, in fact.

    As for the “inactivity is still a form of activity,” that reminds me of the “Rush” lyric: “”If you choose not to decide, you still have made a choice.” I just don’t agree with that. If a woman who wishes to have a child tries to conceive, does, bears the child, and keeps it, has she in any way participated in the abortion debate? Does simply being a man make me a “potential rapist” in the eyes of the law? Should nuns be considered “potential prostitutes” simply because they are women?

    I don’t drink. If I enter a store that sells alcohol, should I be asked for my ID on the chance that I’m going to try to buy booze?

    I’m not a a lawyer, so I don’t know all the legalistic minutiae that others cite. Nor am I interested in them. I’m more interested in the big picture, the general concepts, the underlying principles. And in that light, all those minutiae do is demonstrate how many times and in how many ways we’ve gone astray.

    J.

  10. Herb says:

    “OK, how about this argument: if my neighbor is obligated to buy insurance to minimize the costs he may or may not incur upon society as a whole, is that neighbor also obligated to take other steps to minimize their need for such insurance? ”

    That’s a question, not an argument. And it would also be easy to answer: NO. Once you buy health insurance for yourself, you’re not obligated to do anything for your neighbor so smoke all the cigarettes you and eat nothing but crap.

    “Here’s a logical extension I came up with a while ago: we’re already paying for the health care of welfare recipients. Why not mandate that they undergo mandatory birth control and drug testing? ”

    That’s not a “logical extension.” That’s a weird non sequitur introduced into an argument about the constitutionality of Obamacare that has nothing to do with Obamacare or the Constitution.

    “In the name of the common good, why not require everyone who can afford a home buy one — and the most expensive one they can? This will do wonders for the housing industry. ”

    I realize you’re trying to be facetious, but do you realize how forcing people to buy homes they don’t want wouldn’t result in “wonders for the housing industry?”

    “The most fundamental freedom, I’ve always believed, is the right to say “no.” The right to say that an individual can not be compelled to take action against their will except in the most extreme circumstances. ”

    Normally, I’d agree with you. But who is saying “No” to health insurance? I see a bunch of people who freely chose to get health insurance now pretending (to themselves mostly) that they’re being forced to get health insurance. It’s a nice bit of self-delusion, but I don’t see why anyone else should participate.

  11. @Michael;

    Your position seems to be that the federal government is limited (fair enough) but that the IM exceeds those limitations, so QED. I don’t see that is an argument.

    I honestly am having a difficult time seeing how health care and insurance don’t fall under the basic notion of interstate commerce.

    Further, I find the inactivity argument, as noted above, to be problematic, as ultimately it is activity unless one is going to utterly opt-out of the health care system (which no one is going to do).

  12. @Jay:

    None of what you are saying is actually an argument against the IM.

    What is your specific argument against the policy itself?

    And despite what you might think, I am amenable to an actual argument on the issue, as I am hardly an ardent supporter of the legislation in question.

    And what of the individual responsibility issue, which (as noted) was what made this a “conservative” policy proposal a decade plus ago? Everyone seems to avoid that issue.

  13. Jay Tea says:

    OK, I’ll cite a specific example. A friend of mine is in his early 20’s. He’s very healthy, but has a low-paying job. He believes he’ll not have any major health crises in the next few years, and the odds are definitely in his favor. He has carefully considered his options, and he would rather build up his savings by forgoing insurance for the next few years. He’s single, no kids, so he’s really got no one depending on him save himself. Why shouldn’t he be able to make that choice, after careful consideration and weighing the options? Why shouldn’t he be able to decide what to do with his money? What great, compelling principle authorizes us, as society, to say to him “no, you can’t make that choice, you have to buy this product that we agree that you will, in all likelihood, not truly need any time soon?”

    The answer is simple: because some of us do need it. (I’m one of them. Major pre-existing condition that will, in all likelihood, kill me.) And the principle of insurance is we all pay in, and those of us who will need more than we can afford, can draw from that pool of money. That’s dependent on others paying more than they take out. And the rationale behind that is that almost no one can count on being in the latter group.

    As a voluntary option, it’s a great idea. It’s a rational decision, a logical one. But do we, as a society, want to deprive people of the right to make wrong decisions? Do we want to take away people’s right to choose because they might choose poorly?

    Stripped of the optional aspect, the rationale behind the individual mandate is simple: it won’t work without “donor” members who pay in more than they take out. And those “donor” members are not likely to sign up voluntarily — at least not in sufficient numbers. So we need to make them, or those of us who need the system are screwed. They’ve got it, we need it, so we need to take it.

    Also known as “from each according to their ability, to each according to their need.”

    J.

  14. tom p says:

    “And what of the individual responsibility issue, which (as noted) was what made this a “conservative” policy proposal a decade plus ago? Everyone seems to avoid that issue.”

    That’s because “personal responsibility” is always someone else’s problem, Steve.

  15. tom p says:

    “As a voluntary option, it’s a great idea. It’s a rational decision, a logical one. But do we, as a society, want to deprive people of the right to make wrong decisions?”

    A question for you Jay: Do we, as a society, have an obligation to protect them from the consequences of their bad decisions? (for the record, we already have made that decision)

  16. Pug says:

    He’s single, no kids, so he’s really got no one depending on him save himself. Why shouldn’t he be able to make that choice, after careful consideration and weighing the options?

    Perhaps because with the choice he has made he is depending on the rest of us. Odds are very good he won’t get sick. He appears to have made a rational decision.

    There is a chance, though, that he will be injured in an accident or become sick. Can the rest of us make the choice not to help him should that occur? Will an ambulance arrive at the scene of the accident and leave without him when they find out he has decided he would rather build up his savings?

  17. Jay Tea says:

    tom p, it may seem odd to quote Michael Jordan here, but he raises a hell of a point:

    “I’ve missed more than 9000 shots in my career. I’ve lost almost 300 games. 26 times, I’ve been trusted to take the game winning shot and missed. I’ve failed over and over and over again in my life. And that is why I succeed.”

    If we protect people from the consequences of their bad decisions, how the hell can they learn how to make good decisions?

    I have another friend who decided he only needed “catastrophic” health insurance. (You know, one of the types that will be banned by ObamaCare as “not adequate.”) He was young, he was healthy, and he had two kids to support. Then he got hospitalized for a week, and was looking at several thousand in bills.

    Until he was officially diagnosed as having had swine flu, and his “catastrophic” coverage kicked in.

    Next year, he signed up for a more comprehensive plan.

    He learned his lesson — he’s not indestructible. He also started a 401K plan, and upped his life insurance. The swine flu didn’t scare some sense into him, a four-to-five-figure hospital bill did.

    He was not protected from the consequences of his bad decisions. He was lucky (in a sense). And he’s learned from his mistake, and is a better man (and father) for it.

    When he told me this story, I called him an idiot. He agreed. And it got him to look at his life beyond his insurance, and make further plans.

    His bad decision led to him making several very good decisions. If he’d had the ObamaCare minimum plan, he’d have gone to the hospital and come out none the wiser. He’d still not have his 401K, and wouldn’t have bumped his life insurance (we’re colleagues, and we get a minimal plan for free as part of our benefits.)

    So, we should protect him from those consequences? I don’t agree. And neither does he.

    J.

  18. @Jay Tea:

    The problem is that if he does get sick or injured at a certain level of cost he will end up relying on public largess to pay for his care.

    You are avoiding that rather central part of the equation.

    Further, later in life, when he does opt-in, he is going to be taking advantage of others who didn’t do what he did and paid in from the beginning.

    Your scenario is not one that underscores freedom and individual liberty, it is one that underscores a person hoping to be a free rider. Where is your friend’s responsibility in this matter?

  19. Jay Tea says:

    So, Pug, the freedom of others to manage their own life as they see fit is based on how it might, some day, tangentially maybe affect your wallet? By that principle, I ought to be able to prohibit anyone from voting for a Democrat.

    Or, if you prefer, can I demand that welfare recipients go on birth control? I’m already paying for them and their kids, can’t I demand they at least not cost me more?

    J.

  20. @Jay:

    In re: your sick friend. If he didn’t have the catastrophic insurance, who would have ended ultimately footing the bill for his care?

    You keep focusing on this as if the only person/persons affected by the choices you are discussing are the sick people. Were that the case, I would likely be in your camp.

    The problem is that uninsured people and those who go bankrupt from lack of coverage end up costing all of us.

  21. Pug says:

    If we protect people from the consequences of their bad decisions, how the hell can they learn how to make good decisions?

    There’s a lot more to being uninsured than simply making a bad decision. Medical insurance is so expensive that for many it isn’t even a decision. It’s about as hard for them to decide not to buy medical insurance as it is for me to decide that I won’t buy a Rolls Royce. It is beyond their means.

  22. Or, if you prefer, can I demand that welfare recipients go on birth control? I’m already paying for them and their kids, can’t I demand they at least not cost me more?

    Again, this is not an argument, it is a deflection and does not address the actual item under discussion.

  23. jpe says:

    2. The choice not to purchase insurance incurs a risk to the rest of us

    This is true, but the choice not to enter any market alters that market. Under this reading, my choice not to pay for cable TV impacts the pricing for everyone else. Under an inaction reading of the commerce clause, the state can compel me to pay for cable TV. This conceptualization of the commerce clause simply goes too far. Or: the broccoli argument is a winner, I think; where the logical extension of a given constitutional argument creates such broad and absurd consequences, the argument must be flawed. (or, of course, we must reconsider our intuition that the government can’t compel me to eat broccoli, but I doubt many people would be willing to give up that intuited belief)

  24. @jpe:

    Except that if you don’t pay for cable TV there will not be some moment in the future where you have a a catastrophic need for cable TV and society will then have to pay for massive amounts of on demand movies to keep you alive.

    The likelihood is, by the way, that most any argument can be taken to an absurd conclusion. Why that would invalidate the argument is beyond me.

    Indeed, I would counter that if the only way to generate a rebuttal to a given argument is to argue not against the argument itself, but an absurd version of said argument, may indicate that one’s has a problem with one’s attack on said argument.

  25. Some of these arguments seem to be saying since we’ve already started down the slippery slope we should just relax and ride it to the bottom. Resistance is futile.

  26. Herb says:

    “He has carefully considered his options, and he would rather build up his savings by forgoing insurance for the next few years. ”

    Do you really believe he is putting into savings what he would be paying in an insurance premium?

    “He believes he’ll not have any major health crises in the next few years, and the odds are definitely in his favor.”

    Odds are, perhaps. But this guy is one drunk driver away from costing other people a lot of money. If that were to happen, would you support the right of the paramedics and hospital staff to say “No” to treating him?

    I am glad, though, that you admit that the right you’re defending is the right to make poor decisions that negatively affect other people. It’s a breath of honesty in a pretty dishonest debate.

    Can you explain, then, why the right to poor decisions that affect other people trumps the right of other people to avoid being affected by the poor decisions of others?

  27. Jay Tea says:

    OK, if I’m going to get accused of deflecting, I might as well go all out.

    1) Then, Steven, where do you draw the line? At what point does the right of the individual to make their own choices have to yield to the collective’s desire to “protect them from the consequences of their own bad choices” because it might cost the rest of us money? Political rallies and protests are expensive, too, with police details and whatnot. That minister in Florida who threatened to burn a Koran? He needed police protection, too.

    B) In this specific case, the “wallet” argument fails because it’s already shown that it’s going to cost more to implement this dog’s breakfast of a “health care reform” law than it would to do nothing. We’ve already seen examples of this — the paperwork costs of the 1099 law, the prescription requirement for MSAs, the ending of child insurance plans by many companies. Even if I granted that it withstood Constitutional muster, this particular monstrosity is fatally flawed on so many pragmatic levels.

    J.

  28. anjin-san says:

    > Can you explain, then, why the right to poor decisions that affect other people trumps the right of other people to avoid being affected by the poor decisions of others?

    Take a dose of Libertairan, add a shot of “It’s all about me”.

  29. MichaelW says:

    @Steven:

    Your position seems to be that the federal government is limited (fair enough) but that the IM exceeds those limitations, so QED. I don’t see that is an argument.

    Well, I’m not sure why you can’t recognize an argument as an argument, but let me clarify it for you.

    (1) The federal government is one of limited powers (all precedents agree);
    (2) thusfar, only “activity” has been found susceptible to regulation under CC (all precedents agree);
    (3) the question concerning the IM is whether “inactivity” can be regulated under CC, which is a novel question (all courts addressing the issue agree);
    (4) accepting that Congress can regulate inactivity under CC power removes any limits on the exercise of federal government’s power, giving it general police power that is reserved to the states;
    (5) ergo, the precedents combined with an historical understanding of the Constitution (as creating a limited government) leads to the conclusion that the IM cannot be a constitutional exercise of Congress’ CC power.

    I honestly am having a difficult time seeing how health care and insurance don’t fall under the basic notion of interstate commerce.

    No one is arguing that they don’t — although there may in fact be cogent arguments to that effect. Judge Vinson’s opinion expressly acknowledges that health insurance is subject to the CC power, albeit, only under relatively recent SCOTUS precedent (see p. 23, n.11):

    As an historical aside, I note that pursuant to this original understandingand interpretation of “commerce,” insurance contracts did not qualify because “[i]ssuing a policy of insurance is not a transaction of commerce.” Paul v. Virginia,75 U.S. (8 Wall.) 168, 183, 19 L. Ed. 357 (1868) (further explaining that insurance contracts “are not articles of commerce in any proper meaning of the word” as they are not objects “of trade and barter,” nor are they “commodities to be shipped or forwarded from one State to another, and then put up for sale”). That changed in 1944, when the Supreme Court held that Congress could regulate the insurancebusiness under the Commerce Clause. United States v. South-Eastern Underwriters Assoc., 322 U.S. 533, 64 S. Ct. 1162, 88 L. Ed. 1440 (1944). “Concerned that [this] decision might undermine state efforts to regulate insurance, Congress in1945 enacted the McCarran-Ferguson Act. Section 1 of the Act provides that ‘continued regulation and taxation by the several States of the business of insurance is in the public interest,’ and that ‘silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States.'” Humana Inc. v. Forsyth, 525 U.S. 299, 306, 119S. Ct. 710, 142 L. Ed.2d 753 (1999) (quoting 15 U.S.C. § 1011). Thus, ever since passage of the McCarran-Ferguson Act, the insurance business has continued to be regulated almost exclusively by the states.

    And what of the individual responsibility issue, which (as noted) was what made this a “conservative” policy proposal a decade plus ago? Everyone seems to avoid that issue.

    If you’re referring to the Bob Dole proposal from ’93 or ’94, it was my understanding that was simply an intentional time-bomb intended to blow up HillaryCare. In any event, regardless of who proposes the IM, it is an unprecedented and unconstitutional arrogation of power.

  30. anjin-san says:

    > because it’s already shown that it’s going to cost more to implement this dog’s breakfast of a “health care reform” law than it would to do nothing.

    Really? Where? On “The American Thinker”?

  31. Jay Tea says:

    anjin, if you kept reading and didn’t jump as soon as you thought you had your “gotcha” moment, you’d see I cited examples of how this particular bill is already wreaking havoc. You wanna stick up for the examples I cited? I got plenty more.

    J.

  32. Fred says:

    It’s clear that those who oppose Vinson’s ruling, including Mr. Taylor, have not read it, or cannot agrue against his logic.

    The real question is whether the Executive branch will comply with this ruling that the law is VOID until such time as another court over-rules Vinson. If not, their actions become lawless.

    And if constitutional checks and balances are ignored by the central government, why should citizens behave any differently?

  33. anjin-san says:

    > I cited examples of how this particular bill is already wreaking havoc. You wanna stick up for the examples I cited?

    Yea, yea. The 1099 provision is poorly written. Democrats already tried to fix it, but the GOP blocked that exactly so folks like you could have something to complain about.

    > because it’s already shown that it’s going to cost more to implement this dog’s breakfast of a “health care reform” law than it would to do nothing.

    This is what you said. Do you know what “proof” is? Apparently not. It’s not an unsupported assertation on a blog by someone with a history of being factually challegened. Let’s see the proof.

  34. @Fred:

    I am not actually attempting top argue with Vinson’s ruling, although it is certainly part of the broader debate. Mostly I am trying to think through the inactivity argument and, for there, the commerce clause discussion as a general argument.

    And I concur that the executive branch is bound to follow a court’s ruling. I certainly have never said otherwise. I fully support this working its way through the process. I would note that, at least at the moment, Vinson’s ruling is not the final word on the subject, not by a longshot, and so I do not feel compelled to constrain eh discussion simply to his ruling.

    More later…no time at the moment to respond to anything else.

  35. Steven Plunk says:

    Fred, Stop with the logic and common sense. It will get you no where here.

    Like you say the judge’s ruling slaps down the drivel we are hearing here. I’ll side with the judge on this one. The simplicity of logic is being overlooked by our Obamacare proponents. There are limits to the federal government’s power. The line on what is and what isn’t interstate commerce has to be drawn somewhere and according to their logic any activity or non activity can be considered interstate commerce so there is no line and no limit. Clearly that contradicts the Constitution.

  36. Herb says:

    “At what point does the right of the individual to make their own choices have to yield to the collective’s desire to “protect them from the consequences of their own bad choices” because it might cost the rest of us money?”

    You don’t seem to understand a fundamental point here. We’re not protecting your friend from the consequences of his bad choices. We’re protecting ourselves from the consequences of your friend’s bad choices.

    You still haven’t answered why Bad Choice Guy has the right to make society pay for his bad choices and society doesn’t have the right to tell Bad Choice Guy to stop it.

  37. sam says:

    @Zels

    “What would you think if a Republican congress and President mandated the purchase of firearms by each citizen? ”

    Don’t be an idiot. The government can do this and has done this, see Militia Act of 1792. It can do so under the militia power.

  38. sam says:

    @Jay

    “The example of conscription — even the registration, although conscription has been gone for about 40 years — is an odious one. I don’t think it’s ever been adequately tested against the 14th Amendment”

    Such a test would fail, as Congress has the power to raise armies.

  39. Jay Tea says:

    Sam, “raise armies” doesn’t necessarily mean conscription. We’ve raised armies for a good 40 years without conscription, and our military is the best it has ever been.

    J.

  40. sam says:

    As interesting as all this discussion is, and I do find it interesting, the act’s fate rests with the Necessary and Proper Clause, and not, in the end, on the activity/inactivity distinction. Judge Vinson accepted that the individual mandate was necessary to the regulatory regime created by the act, but said it could not be proper because that would “effectively remove all limits on federal power” (Opinion pp. 62-63).

    But once he agreed with the government that the mandate was necessary to regulation of the insurance market, he should have confronted the test articulated in Comstock:

    [I]n determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.

    He did not do this.

  41. sam says:

    “Sam, “raise armies” doesn’t necessarily mean conscription. We’ve raised armies for a good 40 years without conscription, and our military is the best it has ever been.”

    Of course it doesn’t necessarily mean conscription. But the question was, is conscription constitutional, not is it desirable.

  42. Herb says:

    “I’ll side with the judge on this one. ”

    Surprise, surprise. I’m sure you carefully read the rulling, examined the opposing arguments, and decided to “side with the judge” (huh?) based on the merits of his (his???) case.

    Actually, I think the point Steven is trying to make is that when it comes to health insurance, unlike broccoli or whatever commercial product you want to use as a metaphor, there is no such thing as “inactivity.” Forgoing health insurance is an activity. It’s making a conscious choice to spread the costs of YOUR healthcare to other people.

    And now back to arguments ignoring this……

  43. […] […]

  44. MichaelW says:

    @sam:

    Vinson did review under Comstock. (See pp. 57 et seq.) You must remember that the N&P clause is not an enumerated power that may be individually exercised by Congress (see, e.g., “Kinsella v.United States ex rel. Singleton, 361 U.S. 234, 247, 80 S. Ct. 297, 4 L. Ed. 2d 268(1960); see also Raich, supra, 545 U.S. at 39 (Scalia, J., concurring in judgment)(stating that, while the Clause ’empowers Congress to enact laws . . . that are notwithin its authority to enact in isolation,’ those laws must be ‘in effectuation of [Congress’] enumerated powers’); Kansas v. Colorado, 206 U.S. 46, 88, 27 S. Ct.655, 51 L. Ed. 956 (1907) (stating that the Necessary and Proper Clause ‘is not the delegation of a new and independent power, but simply provision for making effective the powers theretofore mentioned’).”

    @Herb:

    Actually, I think the point Steven is trying to make is that when it comes to health insurance, unlike broccoli or whatever commercial product you want to use as a metaphor, there is no such thing as “inactivity.” Forgoing health insurance is an activity. It’s making a conscious choice to spread the costs of YOUR healthcare to other people.

    As stated in Vinson’s opinion, the aggregate effect of a bunch of individuals foregoing healthy eating and/or activity has a negative financial impact on the economy and on health care costs. Under the rubric that inactivity can be regulated, so long as in the aggregate it substantially affects the economy, then Congress could indeed force people to buy and eat more broccoli, or stop smoking and drinking, or myriad other things. Indeed, there is no end in sight as to what Congress could force individuals to do and pay for under this reading of the CC, which is exactly why it is unconstitutional.

  45. sam says:

    “Vinson did review under Comstock. (See pp. 57 et seq.)”

    He devoted one paragraph to Comstock and, in the end, agreed with those who claim that that decision did not set forth any “five-part” test (those five things were only “considerations” relevant to the issue in Comstock. He never mentioned the test I cited above.

  46. MichaelW says:

    @sam

    He devoted a lot more than that (just check the citations to Comstock). In any case, what you quote is not the test/guidance laid out in Comstock, but the general rule of N&P examinations. Since Vinson looked at the N&P clause under all the SCOTUS precedents before arriving at his conclusion, I don’t think your nit is a sound one.

  47. Under the rubric that inactivity can be regulated, so long as in the aggregate it substantially affects the economy, then Congress could indeed force people to buy and eat more broccoli, or stop smoking and drinking, or myriad other things. Indeed, there is no end in sight as to what Congress could force individuals to do and pay for under this reading of the CC, which is exactly why it is unconstitutional.

    I can see how that would make it undesirable, although not, per se, how it would make it unconstitutional if, in fact, that was the proper reading of the cc. This is not to say that I agree necessarily with your conclusion, but rather to point out the logic doesn’t lead where you want it to go.

    However, that is not my primarily objection to your position. The notion that because that there is a slippery slope that leads to forced consumption of broccoli does not provide a reason for why the IM itself is unconstitutional. It just means that you fear that the constitutional theory in question could lead to results that you do not like (and, in fact, let me state for the record that I oppose the Forced Broccoli Consumption Act of 2027). However, being opposed to forced broccoli consumption is not an argue for whether or not the IM is allowable under the cc.

  48. And, indeed, yes:

    Actually, I think the point Steven is trying to make is that when it comes to health insurance, unlike broccoli or whatever commercial product you want to use as a metaphor, there is no such thing as “inactivity.” Forgoing health insurance is an activity.

    Not buying health insurance is not a null act. It has broader consequences.

    Despite the way it may seem, I am amenable to an argument as to how I am wrong on this count and the question of whether health care/insurance doesn’t fall under the cc. I just haven’t heard one yet that isn’t just a policy preference dressed as an argument.

  49. DMan says:

    Putting aside whether this is a case of government regulating activity or inactivity, can someone explain to me how government regulating inactivity in one case is a slippery slope, whereas government regulating activity in another case is not? Does the slippery slope apply to just one or to both? Why?

  50. Herb says:

    “Indeed, there is no end in sight as to what Congress could force individuals to do and pay for under this reading of the CC, which is exactly why it is unconstitutional.”

    The idea that the passage of Obamacare obliterated all limits on Congressional authority is ludicrous. It did no such thing.

    This was no more of a slippery slop than all the other slippery slopes we’ve seen over the years.

  51. sam says:

    “In any case, what you quote is not the test/guidance laid out in Comstock, but the general rule of N&P examinations. ”

    Well, yeah. And he didn’t follow the rule. Once he determined the mandate was necessary to the regulatory regime, he should have asked the question, “Is the regime ‘rationally related to the implementation of a constitutionally enumerated power’.”

    Can you show me where he did this?

  52. Herb says:

    “Does the slippery slope apply to just one or to both?”

    The slippery slope argument applies to whatever the person making the argument wants it to. It’s almost always a bad argument that’s often, on its face, false.

  53. DMan says:

    “Under the rubric that inactivity can be regulated, so long as in the aggregate it substantially affects the economy, then Congress could indeed force people to buy and eat more broccoli, or stop smoking and drinking, or myriad other things.”

    Actually, forcing people to stop smoking or drinking is no different from stopping people from taking drugs. So I think, since making drugs illegal has not led to the slippery slope of making broccoli illegal, that would be regulating an ACTIVITY in your mind. Of course if these are considered an INACTIVITY like you suggest, well, then it’s scary to think Congress has the power to make broccoli illegal!

  54. MichaelW says:

    @Steven:

    The notion that because that there is a slippery slope that leads to forced consumption of broccoli does not provide a reason for why the IM itself is unconstitutional. It just means that you fear that the constitutional theory in question could lead to results that you do not like (and, in fact, let me state for the record that I oppose the Forced Broccoli Consumption Act of 2027). However, being opposed to forced broccoli consumption is not an argue for whether or not the IM is allowable under the cc.

    I’m sorry I haven’t be able to make this clearer to you, but in fact that reading of the CC, if correct, leads inexorably to the conclusion that the IM is unconstitutional. Perhaps you just need to read Vinson’s opinon (which, while long, is a very easy read), since I’m not able to help you understand.

    Of course, if you are bound and determined to dismiss any arguments against the IM as simply policy preferences (aren’t the pro-IM arguments just policy preferences for the opposite policy?), then I’m not sure you’re going to get anywhere.

    <a href="https://www.outsidethebeltway.com/activity-and-inactivity-and-the-individual-mandate/#comment-1365080"@DMan:

    Putting aside whether this is a case of government regulating activity or inactivity, can someone explain to me how government regulating inactivity in one case is a slippery slope, whereas government regulating activity in another case is not? Does the slippery slope apply to just one or to both? Why?

    Slippery slopes can occur anywhere, and have been found on both sides of the activity/nonactivity divide. In Raich, for example, it wasn’t a question of activity or nonactivity, but interstate vs. intrastate. There, J. Thomas found (in dissent) that distinction between wholly intrastate and interstate commerce had been obliterated (i.e. the slippery slop had been breached in Wickard and was in full effect in Raich).

    @Herb:

    The idea that the passage of Obamacare obliterated all limits on Congressional authority is ludicrous. It did no such thing.

    Who’s arguing that it did? The lawsuits are about one piece of that legislation — i.e. the individual mandate. That is where the limits on congressional power are obliterated.

  55. MichaelW says:

    @sam:

    Well, yeah. And he didn’t follow the rule. Once he determined the mandate was necessary to the regulatory regime, he should have asked the question, “Is the regime ‘rationally related to the implementation of a constitutionally enumerated power’.”

    Can you show me where he did this?

    Sure. Try looking at the discussion starting with the last paragraph on p. 60 through the middle of p. 63.

    @DMan:

    Actually, forcing people to stop smoking or drinking is no different from stopping people from taking drugs. So I think, since making drugs illegal has not led to the slippery slope of making broccoli illegal, that would be regulating an ACTIVITY in your mind. Of course if these are considered an INACTIVITY like you suggest, well, then it’s scary to think Congress has the power to make broccoli illegal!

    Not “making broccoli illegal” but forcing you to buy and consume it under penalty of law.

  56. Perhaps you just need to read Vinson’s opinon (which, while long, is a very easy read)

    I do appreciate the concern over my ability to handle the text.

    Of course, as noted, the purpose of this post is not to address the Vinson ruling, although I acknowledge that said ruling is part of the broader discussion.

  57. And:

    I’m sorry I haven’t be able to make this clearer to you, but in fact that reading of the CC, if correct, leads inexorably to the conclusion that the IM is unconstitutional

    I understand that you believe the existence of the slippery slope leads to your preferred conclusion. I simply don’t see that you have made your case. I do understand that you think that you have.

  58. MichaelW says:

    @Steven:

    I do appreciate the concern over my ability to handle the text.

    Lighten up, Hoss. I was addressing your desire to do so, not your ability.

    Of course, as noted, the purpose of this post is not to address the Vinson ruling, although I acknowledge that said ruling is part of the broader discussion.

    Well, that opinion is the best consolidation of the argument against the constitutionality of the IM. However, if you can’t recognize the arguments as anything other than policy preferences, then I’m not sure you are going to get anywhere.

  59. DMan says:

    MichaelW,

    I think you’re missing my point. You said under example of Congress regulating an inactivity that “Congress could indeed force people to… stop smoking and drinking.” I equated that with Congress stopping people from using drugs (same thing). If it’s an inactivity and all inactivities lead to a slippery slopes like you suggest, then by regulating drugs, Congress has the power to, gasp, regulate broccoli.

    But perhaps you misspoke and regulating drugs is regulating an activity. Is that the reason why the slippery slope argument no longer applies? Simply because it’s an activity? See what I’m trying to figure out is, in what reality does regulating an inactivity lead to a slippery slope while regulating an activity doesn’t. Of course you say that the individual mandate may lead to the government forcing us to eat broccoli, but in what reality is this going to happen but your own?

  60. MichaelW says:

    @Steven:

    I understand that you believe the existence of the slippery slope leads to your preferred conclusion. I simply don’t see that you have made your case. I do understand that you think that you have.

    Well, that’s not what I’ve said at all. Instead of pointed out that whereas the Constitution created a limited government of enumerated powers, if the SCOTUS were to recognize the CC power as unlimited in scope, that would mean that the government is no longer limited or subject to the enumerated powers.

    And although you keep stating that you don’t think I’ve made my case, you have yet to explain why other than to dismiss the argument as a mere policy preference. So what exactly is wrong with the argument?

  61. MichaelW says:

    @DMan:

    But perhaps you misspoke and regulating drugs is regulating an activity.

    Yes, I conflated the examples in my list.

    Is that the reason why the slippery slope argument no longer applies? Simply because it’s an activity? See what I’m trying to figure out is, in what reality does regulating an inactivity lead to a slippery slope while regulating an activity doesn’t.

    They are not related arguments. On one hand, no SCOTUS precedent has applied the CC to inactivity, and all CC cases have addressed some activity. The slippery slope arguments (which they really aren’t — they’re more of a “the cat’s now completely out of the bag” arguments, as in the bottom of the slope has been reached) are different regarding what activities may be regulated, and whether inactivity may be regulated.

    Of course you say that the individual mandate may lead to the government forcing us to eat broccoli, but in what reality is this going to happen but your own?

    It doesn’t really matter “what reality” it happens in, so much as understanding what the scope of the power is. If the scope is unlimited (as would be the case if the IM is recognized as a legitimate CC power), then it must be unconstitutional. It doesn’t make any difference that a particular application is unlikely, only that it would be constitutionally permissible under a certain construction. See, e.g., United States v. Stevens, — U.S. —, 130 S.Ct. 1577, 1591, 176 L. Ed. 2d 435 (2010) (“[T]he [Constitution] protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”).

    In any event, you could look to what’s going on Britain where people who are deemed too fat are denied health care because they cost the system too much.

  62. tom p says:

    “Fred, Stop with the logic and common sense. It will get you no where here.”

    Steve P… I wouildn’t look to you for either of those.

    Fred: Please tell me why I should accept Vinsons ruling (and reasoning) and not the rulings of the 2 federal judges who found that it DID pass constitutional muster? Or the 12 judges who dismissed the law suits out of hand? Or even the other conservative judge who while he found the mandate unconstitutional found it severable from the rest of the law?

    Why would I accept the opinion of a judge who quotes the Tea Party in his opinion, over these others?

  63. sam says:

    Michael, let me quote somebody that presents the argument much better than I can:

    Consider the following ..Necessary & Proper reasoning contained in Judge Vinson’s opinion striking down the individual mandate:

    (1) It is a legitimate end for Congress to regulate the insurance industry to prevent “insurers from excluding or charging higher rates to people with pre-existing conditions” (pages 60-61);
    (2) The Individual Mandate in the ACA is “necessary” to enable Congress to regulate the insurance industry in this manner (page 63). Yet…
    (3) “[T]he individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers.”

    Huh? How can a means that is conceded to be necessary for a legitimate end not be within Congress’ implied powers to pursue that end? [Source]

  64. Rick Almeida says:

    “(2) thusfar, only “activity” has been found susceptible to regulation under CC (all precedents agree);

    (3) the question concerning the IM is whether “inactivity” can be regulated under CC, which is a novel question (all courts addressing the issue agree);”

    These two points are categorically wrong. The federal government uses the Commerce Claus to regulate inactivity regarding, e.g., prohibitions against striking and a state’s choice to boycott companies choosing to business in Burma (Crosby v. National Foreign Trade Council, 530 U.S. 363). Justice Scalia, himself, wrote:

    “[I]t would not make much sense to say that one may not kill oneself by walking into the sea, but may sit on the beach until submerged by the incoming tide; or that one may not intentionally lock oneself into a cold storage locker, but may refrain from coming indoors when the temperature drops below freezing. Even as a legislative matter, in other words, the intelligent line does not fall between action and inaction…” (Cruzan v. Director, Missouri Department of Health, 497 U.S. 261)

  65. MichaelW says:

    @sam:

    Huh? How can a means that is conceded to be necessary for a legitimate end not be within Congress’ implied powers to pursue that end?

    Because it’s not a proper exercise of a legitimate power. Vinson discusses this in depth, but see especially p. 62 where he quotes Printz and Comstock (Kennedy’s concurring opinion).

  66. MichaelW says:

    @Rick:

    Cruzan doesn’t have anything to do with Congress, the CC, or the N&P clause.

  67. mantis says:

    At what point does the right of the individual to make their own choices have to yield to the collective’s desire to “protect them from the consequences of their own bad choices” because it might cost the rest of us money?

    At the point the people decide, through our representative democracy. And there’s a lot more to it than ” it might cost the rest of us money.”

    It ain’t complicated. Republicans want more Americans to suffer, go broke, and die early. Democrats want the opposite. Which side are you on?

  68. Rick Almeida says:

    MichaelW,

    No, indeed it does not, but I see my comment may have implied differently.

    I was trying to make two interrelated points:

    1. Economic inactivity has been and is regulated under the Commerce Clause

    2. Legally, even Justice Scalia acknowledges that activity vs. inactivity may be a meaningless distinction.

    Cheers.

  69. MichaelW says:

    @Rick:

    1. No it has not.

    2. That distinction involved a State’s (MO’s) general police power, not the limited CC power granted to Congress.

  70. @Michael:

    Instead of pointed out that whereas the Constitution created a limited government of enumerated powers, if the SCOTUS were to recognize the CC power as unlimited in scope, that would mean that the government is no longer limited or subject to the enumerated powers.

    I think I understand your argument to go like this:

    1. The Constitution is one of limited, enumerated powers.
    2. The IM represents an interpretation of the CC that grants unlimited scope to the powers of Congress
    3. Therefore, the IM has to be unconstitutional because it would mean that #1 is no longer true.

    Is that correct? (I will avoid further comment until I am sure, as why waste the electrons if I have got it wrong).

    And, btw, I do think that in many ways all of these types of fights are over policy preferences, which is why they tend to be settled via political means.

    One of the problems I have with this general debate is that the assertion that the Constitution is utterly clear on these matters or that there is a Perfect Interpretation of the Commerce Clause (or whatever portion is under debate at the moment), but the fact of the matter is pretty plain: there is not such Perfect Interpretation. Even the portions of the document that seem as clear as they can be (e.g., “Congress shall make not law…abridging the freedom of speech”) end up being open to interpretation (see, for example, commercial speech, obscenity, fighting words, etc.). As has been noted, the Constitution is an invitation to struggle.

  71. Rick Almeida says:

    MichaelW,

    The Commerce Clause authority has been used to prohibit federal workers from striking (5 USC 7311. I believe a strike is inactivity – the choice not to work. Similarly, the Supreme Court prohibited Massachusetts from boycotting companies doing business with Burma in Crosby v. National Foreign Trade Council 530 US 363, 2000. That case also arguably makes the action-inaction distinction irrelevant.

  72. MichaelW says:

    @Steven:

    I think I understand your argument to go like this:

    1. The Constitution is one of limited, enumerated powers.
    2. The IM represents an interpretation of the CC that grants unlimited scope to the powers of Congress
    3. Therefore, the IM has to be unconstitutional because it would mean that #1 is no longer true.

    Is that correct? (I will avoid further comment until I am sure, as why waste the electrons if I have got it wrong).

    Yes, that is the basic logical structure of the argument. The legal arguments are obviously more complicated, and I may be oversimplifying, but you do understand the logic of the argument.

    And, btw, I do think that in many ways all of these types of fights are over policy preferences, which is why they tend to be settled via political means.

    I can appreciate that. I’m lawyer so I look at it differently. A carpenter would see a nail I suppose …

    One of the problems I have with this general debate is that the assertion that the Constitution is utterly clear on these matters or that there is a Perfect Interpretation of the Commerce Clause (or whatever portion is under debate at the moment), but the fact of the matter is pretty plain: there is not such Perfect Interpretation. Even the portions of the document that seem as clear as they can be (e.g., “Congress shall make not law…abridging the freedom of speech”) end up being open to interpretation (see, for example, commercial speech, obscenity, fighting words, etc.). As has been noted, the Constitution is an invitation to struggle.

    I can definitely appreciate that lament as well.

  73. MichaelW says:

    @Rick:

    Well, I have to give you mega points for a creative argument. But I don’t think going on strike or participating in a boycott can fairly be considered inactivity. The SCOTUS certainly has not thought so thus far. Even the courts which upheld the IM found that whether Congress would regulate inactivity under the CC was a novel issue and one that had not been addressed before.

  74. sam says:

    “Because it’s not a proper exercise of a legitimate power. Vinson discusses this in depth, but see especially p. 62 where he quotes Printz and Comstock (Kennedy’s concurring opinion).”

    Vinson writes at 62:

    The Necessary and Proper Clause cannot be utilized to “pass laws for the
    accomplishment of objects” that are not within Congress’ enumerated powers.

    But he acknowledges that the object, regulation of the medical insurance industry, is within the enumerated powers (the power to regulate commerce). He then quotes Printz:

    When a “Law . . . for carrying into Execution” the Commerce Clause [violates other Constitutional principles], it is not a “Law . . . proper for carrying into Execution the Commerce Clause,” and is thus, in the words of the Federalist, “merely an act of usurpation” which “deserves to be treated as such.”

    What are the “other Constitutional principles”? He quotes Justice Kennedy in Comstock:

    It is of fundamental importance to consider whether essential attributes [of federalism embodied in the Constitution] are compromised by the assertion of federal power under the Necessary and Proper Clause; if so, that is a factor suggesting that the power is not one properly within the reach of federal power.

    He concludes:

    If Congress is allowed to define the scope of its power merely by arguing that a provision is “necessary” to avoid the negative consequences that will potentially flow from its own statutory
    enactments, the Necessary and Proper Clause runs the risk of ceasing to be the
    “perfectly harmless” part of the Constitution that Hamilton assured us it was, and
    moves that much closer to becoming the “hideous monster [with] devouring jaws”
    that he assured us it was not.

    The defendants have asserted again and again that the individual mandate is
    absolutely “necessary” and “essential” for the Act to operate as it was intended by
    Congress. I accept that it is. Nevertheless, the individual mandate falls outside the
    boundary of Congress’ Commerce Clause authority and cannot be reconciled with a
    limited government of enumerated powers. By definition, it cannot be “proper.”

    In other words, the mandate, though necessary, cannot be proper because it would result in an government of unlimited powers rather than one of limited powers..

    Now isn’t it true, as he admits, that the Commerce Clause has, for better or worse, been expanded beyond what the Framers may have intended? This expansion has taken place via congressional action and Supreme Court rulings. And it is those Supreme Court rulings that he, as a Circuit Court judge, is bound to follow. But he does not ground his conclusion on precedent–he does not say, as far as I can see, “Under the Supreme Court’s holding in___, the individual mandate is unconstitutional”– he grounds his conclusion on what he thinks ought to be the proper scope of the Necessary and Proper Clause in relation to the Commerce Clause. But isn’t this political philosophy, rather than judging? Isn’t this kind of thing more appropriate to a Supreme Court opinion than to a Circuit Court opinion?

  75. sam says:

    sorry for the bad spacing.

  76. @Michael:

    Yes, that is the basic logical structure of the argument. The legal arguments are obviously more complicated, and I may be oversimplifying, but you do understand the logic of the argument.

    Ok, so here’s my fundamental objection: what makes the IM the straw that finally breaks the Commerce Clause’s back? Or, to mix metaphor, how is this the line in the sand beyond which we cannot pass lest we end up with the aforementioned broccoli laws?

    Indeed, it seems to me that the argument isn’t as much about the IM itself as what the IM allegedly would unleash.

    See, what I want is an argument about why the IM itself is unconstitutional all by its lonesome (i.e., how it can be the case that the Commerce Clause powers do not extend to health care and health insurance).

  77. MichaelW says:

    @Steven:

    Ok, so here’s my fundamental objection: what makes the IM the straw that finally breaks the Commerce Clause’s back? Or, to mix metaphor, how is this the line in the sand beyond which we cannot pass lest we end up with the aforementioned broccoli laws?

    Because in order for the IM to be Constitutional, Congress must be able to regulate inactivity via the CC. If Congress can regulate even inactivity (simply because, in the aggregate, such activity has a substantial affect on commerce), then there is nothing it cannot regulate. The CC power has already been expanded beyond all original notions of commerce, now includes even non-commercial activity, and isn’t actually restricted to activities that are interstate in nature.

    IOW, the clause which granted Congress the power “[t]o regulate Commerce … among the several States …” has been expanded so far that virtually any activity may be regulated thereunder. If non-activities can also be regulated, then the CC power would be without any bounds left. For example, Congress would be able, with full Constitutional power, to force American citizens to buy GM cars, or to buy meals from restaurants three times per week.

    The IM belongs in this class of unlimited, plenary police powers that Congress has not been granted. Accordingly, the IM is unconstitutional.

    Indeed, it seems to me that the argument isn’t as much about the IM itself as what the IM allegedly would unleash.

    It’s not that the IM “unleashes” anything. It’s that if the IM is a valid exercise of CC power, then all of these other things (forcing people to buy cars or broccoli or whatever) must also be valid exercises of that power. It’s just much easier to see that the government forcing people to buy cars or whatever is beyond the scope of its power.

    See, what I want is an argument about why the IM itself is unconstitutional all by its lonesome (i.e., how it can be the case that the Commerce Clause powers do not extend to health care and health insurance).

    The IM is unconstitutional because it can only be exercised by a governmental body with plenary police powers, which Congress does not possess. No one is arguing that the CC powers don’t reach health care and health insurance (although, see what I wrote above).

  78. sam says:

    “The IM is unconstitutional because it can only be exercised by a governmental body with plenary police powers, which Congress does not possess. ”

    Would you please explain that? On its face, it makes no sense. The IM is to be administered via the income tax code (I leave aside the “tax or penalty” dustup). The government’s pretty successful in collecting taxes.

  79. MichaelW says:

    @sam:

    Would you please explain that? On its face, it makes no sense. The IM is to be administered via the income tax code (I leave aside the “tax or penalty” dustup). The government’s pretty successful in collecting taxes.

    The government exercises that power through the taxation clause and the 16th Amendment. Every court that has considered the question so far has rejected the taxation argument. In fact, the legislation itself refers to a “penalty” for those who don’t purchase a qualified insurance plan, so the whole tax argument is out the window.

    Therefore, the provision being analyzed must fall within Congress’ CC power. As I’ve explained already, it does not.

  80. @Michael:

    Ok, I do understand your position (and indeed, now that it is made clear, I have pretty much understood it from the beginning).

    I remain unconvinced, but no doubt this is the “agree to disagree” phase, as I am unlikely to persuade you either.

  81. sam says:

    Ah, nevermind, I see. My bad.

  82. sam says:

    @ Steve

    “I remain unconvinced, but no doubt this is the “agree to disagree” phase, as I am unlikely to persuade you either.”

    Moi aussi, Michael. We’ll just have to wait and see what the Appeals Court(s) have to say.

  83. Steven Plunk says:

    tom p, Personal insults show a lack of substance in your arguments. Please do better.

    Herb, The reason I’m siding with the judge is very basic. Either there are or are not enumerated powers and I think most would say there are. If there is a limit on those powers someone must establish that limit and so far it hasn’t been done clearly enough. The judge is now saying the commerce clause cannot be stretch as far as inactivity as well as activity. If we were to stretch it that far then there would be no limits and we have already established there are. Somebody has to draw that line and the perfect place is to say inactivity is not interstate commerce and therefore the law is not constitutional.

  84. tom p says:

    MichaelW: I am not a lawyer. You are. (are you an expert in constitutional law?)

    I now direct my question at you since neither Fred nor Steve Plunk seem capable of answering:

    “Please tell me why I should accept Vinsons ruling (and reasoning) and not the rulings of the 2 federal judges who found that it DID pass constitutional muster? Or the 12 judges who dismissed the law suits out of hand? Or even the other conservative judge who while he found the mandate unconstitutional found it severable from the rest of the law?”

    and for the record, I have not read any of the opinions… I am not a lawyer. Like it or not I have to listen to other lawyers opine on the subject and try to sort thru it.

  85. tom p says:

    Steve P, that was not an insult, just a simple statement of fact… and considering that you do not answer my question….

  86. tom p says:

    And for the record Steve P, I did not start with the insults, you did… and seeing as you are still unable to put any substance into an answer to a question I asked, I suggest you start trying to.

    I suspect Michael W is trying to at this point, that he hadn’t really read the other opinions, but now is… Maybe I am wrong. Maybe he DID read them. Maybe he just does not give a rat’s ass what they say. Time will tell. I will let him.

  87. anjin-san says:

    > Herb, The reason I’m siding with the judge is very basic.

    Yep. He agrees with your position. When judges don’t, then you can bitch about activist judges legislating from the bench.

    Telling society they have to cover your costs if you don’t feel like paying for insurance actually is an activity. It’s called passing the buck. Before HCR came along, a guy like Plunk would complain endlessly about people who exercised their freedom not to have health insurance, thereby passing part of the cost of their care along to him.

  88. jim c. says:

    I am covered by medicare and social security and am actively collecting payments from both of these “insurance policies”. I might have preferred to bypass paying the premiums through the years; in other words I might have preferred to be “inactive” vis a vis providing my own care and feeding in my old age. I was neither old nor unhealthy at the time I started paying. I might have just thrown myself upon the public burden. As might have, many millions of others. I understand that others participating in these plans (those now young and healthy) are necessary to make these plans work. I understand that my health insurance and security payments are being subsidized as I previously subsidized those older than me. I also understand that “Obamacare” (subsidies offered to those unable to afford) is just an extension of this same type of system. I can’t help wondering, in view of the arguments advanced here, what might prevail today if I and others had had the right to be “Inactive”. Pragmatically, wasn’t it better to have had my (forced) payments into the system better than had I not paid a penny. I would still be old and still be infirm and society would still be forced to deal with me.

    By requiring everyone to provide their own insurance (subsidized or not) , we will convert a $1000 ER visit into a $100 office call at a private physician and the patient will have, in some measure, helped pay his own way. I believe that doing this will decrease the burden on everyone and might even provide better medical care/delivery.

  89. […] regards to the activity/inactivity issue, as I noted the other day, it seems to me that the decision to forgo the acquisition of health insurance is not a null act […]

  90. Eddie says:

    Accepting the premise that inactivity is a form of activity one must understand if this is found to be constitutional there are literally no limits to the power of the federal government.

    The cost of EVERY known commercially available goods our service is affected by those who don’t buy it.

    The insurance industry is not a government entity, but rather a PRIVATE FOR-PROFIT business. Government forcing it’s citizens do business with private companies is blatantly unconstitutional. There are state and federal contract laws against forcing anyone to enter into a contract with a private party against their will. What next for the good of everyone.. A mandate to buy life insurance? a house, car? Would it be constitutional for government to mandate we all install cameras in our homes in order to protect against spousal abuse? Surely this would deter people from taking such action and benefit us all as a society and help save the country money. Both The Urban Institute and The Kaiser commission on medicare and the uninsured found that the total cost of uncompensated care to the health care system in America amounts to 2.6% and 2.8% respectively. Furthermore The Urban Institute study found 25% of the uninsured pay 100% of their medical care out of pocket. That’s approximately 7.5 millions of Americas without insurance who are not contributing one dime to your or my health care costs of insurance premiums.