Federal Judge Upholds Individual Mandate By Eviscerating The Constitution

Judge Gladys Kessler upheld the constitutionality of the Affordable Care Act's individual mandate, but she did so by essentially ruling that the Interstate Commerce Clause means whatever Congress wants it to mean.

As Alex Knapp noted yesterday, earlier this week Judge Gladys Kessler of the U.S. District Court for the District of Columbia became the latest judge to weigh in on the constitutionality of the Affordable Care Act, issuing an opinion upholding the Act and, in the process, essentially saying that there are no limits to Congressional power under the Interstate Commerce Clause:

A third federal judge upheld the constitutionality of the Obama health care law on Tuesday, reinforcing the divide in the lower courts as the case moves toward its first hearings on the appellate level.

Judge Gladys Kessler of Federal District Court for the District of Columbia became the third appointee of President Bill Clinton, a Democrat, to reject a constitutional challenge to the Affordable Care Act. Two other federal district judges, both appointed by Republican presidents, have struck down the law’s keystone provision, which requires most Americans to obtain health insurance starting in 2014.

One of those judges, in a case filed in Florida, ruled that the rest of the law could not be severed from that provision, and suggested that the entire act was therefore invalid. The Justice Department, which represents the Obama administration in the cases, has asked the judge for clarification of his ruling, which left states confused about whether to continue carrying out the law.

Although the issue will almost certainly be determined by the Supreme Court, each lower court ruling contributes to the balance of legal opinion that the justices will consider. More than 20 challenges to some aspect of the sprawling act have been filed around the country. Oral arguments in the first appellate reviews are scheduled for May and June.

The District of Columbia case was filed by five individuals represented by the American Center for Law and Justice, a conservative Christian legal group.

Judge Kessler adopted the government’s position on whether Congress’s authority to regulate interstate commerce is so broad that it can require people to buy a commercial product. Past Supreme Court decisions have established the standard that Congress can control “activities that substantially affect interstate commerce.”

The judge suggested in her 64-page opinion that not buying insurance was an active choice that had clear effects on the marketplace by burdening other payers with the cost of uncompensated medical care.

“Because of this cost-shifting effect,” she wrote, “the individual decision to forgo health insurance, when considered in the aggregate, leads to substantially higher insurance premiums for those other individuals who do obtain coverage.”

But it’s Kessler’s determination that inactivity and activity would both be regulated that is really the most troublesome:

As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making,there is little judicial guidance on whether the latter falls within Congress’s power. See Thomas More Law Ctr., 720 F.Supp.2d at893 (describing the “activity/inactivity distinction” as an issueof first impression). However, this Court finds the distinction,which Plaintiffs rely on heavily, to be of little significance. I tis pure semantics to argue that an individual who makes a choice toforgo health insurance is not “acting,” especially given theserious economic and health-related consequences to everyindividual of that choice. Making a choice is an affirmativeaction, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is toignore reality.

This is really quite shocking in the extent to which it expands Congressional power. Thoughts are now actions.  Under this logic, there’s nothing the Federal Government  cannot regulate, as long as they can point to even the most remote, hypothetical connection to the economy, even a connection that doesn’t exist in the present but may exist in the future. Staying home rather than getting in your car and driving to the mall would be something that Congress could regulate if Judge Kessler’s logic becomes the law of the land.

Ilya Somin notes:

This argument suffers from the same flaws as the very similar “economic decision” doctrine adopted in the two previous rulings. It would give Congress the power to impose any mandate of any kind. For example, choosing not to buy and eat broccoli surely qualifies as an economic decision under this approach. So too with choosing not to buy a car. And so on. Even choosing to sleep for an hour qualifies, since one could have used the same time to do work or go out and buy a product of some kind. Nothing in Supreme Court precedent gives Congress such unlimited power (a point Kessler seems to accept), and allowing it certainly makes a hash of the text of the Commerce Clause, which merely gives Congress the power to regulate “Commerce . . . among the several States.”

This strikes me as being far beyond the original intent behind the Interstate Commerce Clause.

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.

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.” 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.

While I remain skeptical of the chances that the Supreme Court will actually strike down the individual mandate, it strikes me that a Supreme Court decision that follows the logic that Judge Kessler did in her opinion would be incredibly dangerous. It would essentially mean that there are no longer any limits on the power of the Federal Government, and that there isn’t any part of an individual’s life that cannot be subjected to Federal regulation. If that happens, the Constitution would be nothing more than a worthless piece of paper.

Judge Kessler: Health Care Reform Is Constitutional

FILED UNDER: Congress, Health Care, Law and the Courts, US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Alex Knapp says:

    Judge Kessler, rightly, noted that the Commerce clause grants intrastate activity that substantially affects interstate commerce. That’s not something new. It’s the interpretation that the Marshall Court developed in Gibbons v. Ogden. It’s a point that Alexander Hamilton made when he defended the institution of the Bank of the United States in 1791. Both men made the point that the Commerce Clause was far-reaching, that it was intended to be so, and that the primary tool for restraining Congress on regulating economic activity is the legislature, not the judiciary.

    Judge Kessler, also, rightly notes that in order for intrastate activity to fall under the Commerce Clause, it has to not only be economic activity, but also a part of a broader scheme of economic regulation. Her reasoning is perfectly in keeping with that bright line that was established in Lopez, Morrison, and Raich. And that’s a good brightline! I agree with the holdings in all three cases. Lopez and Morrison weren’t about economic activity. Raich was. Far from granting limitless power to the Federal government, this is a nice, clear, brightline test.

    Kessler’s decision is perfectly in keeping with Supreme Court precedent, as well as the intent of the Clause in the first place. Interpreted strictly, Congress has the power to regulate Commerce among the several states. AMONG, not BETWEEN. It takes a special amount of contortion and ignoring the plain meaning of the sentence to arrive at the conclusion that Congress’ power is limited to only interstate trade, and not issues involving national economic activity.

    The idea that the Commerce clause was “limited” to trade disputes between the states was developed by the Anti-Federalists after they lost their fight against ratification of the Constitution. It didn’t become part of Supreme Court jurisprudence until the early 20th century, and it was rightly overturned in Darby.

  2. The idea that the Commerce Clause gives Congress the power to regulate my refusal to act is simply absurd and not inline with the text of the clause itself. The entire point of Article I, Section 8 is that the Federal Government is supposed to be a government of limited powers. The history of post-Wickard Commerce Clause law has thrown that idea out the window, and following Judge Kessler’s logic would essentially mean that the Federal Government can do whatever it wants, whenever it wants. That may be some person’s idea of an ideal government, but it isn’t what the Constitution created.

    The ideal situation would be for the Supreme Court to overturn the Wickard case law, but I sadly don’t think they’ll have the intellectual courage to do the right thing.

  3. Alex Knapp says:

    Doug,

    This isn’t about Wickard. This goes all the way back to Gibbons v. Ogden:

    If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations and among the several states is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States.

    And Marshall also concluded that while internal economic activity was still the domain of the states, the Federal government could even regulate that, if it had effects on other States:

    The genius and character of the whole government seem to be that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally, but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself.

    As the Court rightly noted in Darby and Wickard, as the economy became more national and international in character, fewer and fewer economic activities fall in the domain of purely internal, not because the Court has expanded Congress’ powers, but because the economy has, naturally, expanded to be more national in character.

    Indeed, this is something that is underscored by Johnson’s concurring opinion in Gibbons which, if anything, is an argument for even broader powers to the Federal government to regulate commerce than Marshall was willing to grant.

    It’s worth noting that the decision in Gibbons was unanimous.

    When it comes to the health insurance mandate, even the “purely internal” character doesn’t apply, because it’s pretty plain that the vast majority of the health care insurance business is national and interstate in character.

    Overturning Wickard would be a repudiation of the Marshall Court– which was comprised of a bunch of fellows who had a lot more intimate knowledge of the intent of the Framers than we do now.

  4. sam says:

    This is really quite shocking in the extent to which it expands Congressional power. Thoughts are now actions. Under this logic, there’s nothing the Federal Government cannot regulate, as long as they can point to even the most remote, hypothetical connection to the economy, even a connection that doesn’t exist in the present but may exist in the future. Staying home rather than getting in your car and driving to the mall would be something that Congress could regulate if Judge Kessler’s logic becomes the law of the land.

    This paragraph should illustrate how difficult it is to separate thought and action. NB: I did not say they were not separable, only that it’s oftentimes difficult to clearly draw a line, and by this I mean it is difficult to explicate a mental action without bringing into the discussion a physical action, and vice versa. Intention is a very good (almost the preeminent) example. ( See, Intention in the Stanford Encyclopedia of Philosophy). And intention is closely related to decision.

    Consider what you said:

    “Thoughts are now actions.” Well, yes they are actions — mental actions, something a person does. “What are you doing?” “I’m thinking about the play.” Surely you don’t want to say that when I think about the play, I’m not doing anything, I’m not acting. So, thoughts, broadly understood, are a specie of human action. True, in many cases, thoughts as mental actions need not be connected with a physical action. But equally true, thoughts — in this case decisions, the end result of the act of deciding–are inexplicable if separated from some physical action. I have decided to go to the play. That decision is inexplicable, literally un-understandable without the physical action that is its object. And note where you end up. You want to say that thoughts are distinct from (physical) actions, yet you go on to say: “Staying home rather than getting in your car and driving to the mall” … These cannot be examples of (purely) mental things, for surely, staying at home is something physical, and certainly getting in your car and driving is something physical. I think you wanted to say, the decision to stay at home, etc., but you quite naturally substituted the physical action that was the object of the decision, because the two are so inextricably linked. Nothing wrong with this. But it does show that some mental actions (decisions to do X) are quite closely connected, as a matter of logic, to their physical action object (X).

    But anyway, look, the government has no problem regulating “inactivity” — even those opposed to mandate admit this. Their argument, though, is that the government can regulate inactivity only within an established business nexus. For instance, if you purchase a house, and the house is on a flood plain, and the mortgage is federally-backed, the government can (and does) mandate that you purchase flood insurance.

    In the case of the ACA individual mandate, there is no business nexus, according to the opponents. My decision to not purchase health insurance is not like the house on the flood plain example. I have no connection to the health care industry. Well, the counter is, sooner or later everybody has a connection to the health care industry, one way or another. So, the mandate is legitimate. Whether this would fly with SCOTUS, I don’t know — after Raich, who does know?

    In any event, I think the thing will come down to the Necessary and Proper clause. This red herring “activity-inactivity” sideshow won’t bear at all. Nobody denies that the government can regulate the health care industry, is the individual mandate a necessary and proper instrument to accomplish that end? That will be the question.

  5. Alex,

    It is only through mental jujitsu that one can get from Gibbons to the travesty that is Wickard v. Filburn.

    Apparently, you are comfortable with the idea that, if Judge Kessler’s logic stands, we will be living in a country where there are no practical limits on Federal power. I’m not, and I think its rather obvious that the kind of government her ruling envisions is not the kind of government the Constitution was intended to create.

  6. anjin-san says:

    > the Federal Government can do whatever it wants, whenever it wants.

    For God’s sake, they might get the idea they can torture people! Oh, wait, been there, done that. When I complained about it, I remember a lot of Republicans asking me why I hated America.

  7. Dodd says:

    This is really quite shocking in the extent to which it expands Congressional power. Thoughts are now actions. Under this logic, there’s nothing the Federal Government cannot regulate, as long as they can point to even the most remote, hypothetical connection to the economy, even a connection that doesn’t exist in the present but may exist in the future.

    Choosing to abort a baby removes a potential worker from the economy down the road. Congress may therefore ban abortions under this reasoning.

  8. EddieInCA says:

    Doug –

    After Raich, and given how the court voted then, I’d be shocked to see them rule against ACA.

    But then again, I never expected a Supreme Court to ignore precedent and install a President, rather than letting the proper events play out as laid out in the Constitution.

  9. sam says:

    “Apparently, you are comfortable with the idea that, if Judge Kessler’s logic stands, we will be living in a country where there are no practical limits on Federal power.”

    But, even in the event, there would be “practical” limits on Federal power. As one of the commenters said over there, ruling that inactivity is reachable under the Commerce Clause (in the sense at issue), does not imply that every instance of inactivity is reachable. There would have to be some pronounced effect on commerce — the inactivity reached, and the mandate directed at it, would have to figure into, as he said, a comprehensive scheme of economic regulation. Broccoli haters are safe.

  10. michael reynolds says:

    It’s just like when the government said I couldn’t drive without a seatbelt and the next week decided they could force me to wear panties on my head. Remember that?

    It’s slippery slopes in every direction! And a rational compromise of individual liberty for the common good inevitably leads to jack-booted thugs rounding me up and putting me in a concentration camp for bald guys.

    The problem with slippery slope arguments is that they rest on the false premise that it is the letter of the law, and the precise wording of the constitution that are our sole protection. Just not true. We are protected by custom, by reason, by institutions, by the will of the majority, and yes, by the bill of rights and by its reasonable interpretation.

    If the constitution and its literal interpretation are the only defense against tyranny, can anyone explain what mystical force keeps Britons free without a constitution at all? And why the USSR, with a perfectly serviceable constitution had no trouble maintaining a true tyranny?

  11. anjin-san says:

    > rounding me up and putting me in a concentration camp for bald guy

    It’s past time we dealt with your kind once and for all…

  12. Alex Knapp says:

    Doug,

    It is only through mental jujitsu that one can get from Gibbons to the travesty that is Wickard v. Filburn.

    Gibbons says Congress doesn’t have the authority to regulate purely internal economic activity. How does it define internal? As not affecting commerce among the several states. Was Congress regualting commerce among the several states? Yes — it was limiting production to control national wheat prices. Does growing wheat affect commerce among the several states? Yes. Growing wheat increases supply, which reduces prices, which is what Congress was trying to avoid.

    It’s not jiu-jitsu. It’s a straightforward application.

    we will be living in a country where there are no practical limits on Federal power.

    First of all, Kessler’s logic is perfectly in keeping with the Supreme Court since we returned to the jurisprudential status quo in Wickard.

    Second, her reading of the Commerce clause still limits its scope — properly — to economic activity. But it doesn’t say, that the clause trumps, say, the First Amendment.

    To paraphrase Alexander Hamilton, the ends have to be within the enumerated powers, and the means can’t be prohibited by the Constitution.

    Dodd,

    Choosing to abort a baby removes a potential worker from the economy down the road. Congress may therefore ban abortions under this reasoning.

    If Roe is ever overturned, I would say that Congress could regulate abortions, though that argument would likely not be made in favor of the more obvious point that as a medical procedure, an abortion falls under the rubric of “medical activity.” As Marshall noted in Gibbons, the Federal government’s power over commerce is plenary.

  13. Alex Knapp says:

    Er, I mean economic activity.

  14. wr says:

    Anjin-san — I’m okay with camps for the bald guys, but what do we do with all those 2–something putzes who shave their heads to hide their oncoming MPB?

  15. Ej says:

    Alex, et all,

    One thing i like to ask people who say that the CC was intended to allow broad power, is what was the point of delinating the powers to run a post office, or to establish pattents, or to set weights and measures? Clearly all three of these things fit within the current rulings on the CC. Where the founders just trying to waste some inc that day?

  16. Ej says:

    “Second, her reading of the Commerce clause still limits its scope — properly — to economic activity. But it doesn’t say, that the clause trumps, say, the First Amendment.”

    And this is another key part… before the bill of rights, was there anything in your view that the federal government could not do?

  17. jd says:

    No one can opt out of getting sick or having accidents. You KNOW you’re going to need health care at some point in the future. By refusing insurance, you are deciding to obtain health care for free, saddling the rest of us with its cost.

  18. Dodd says:

    No one can opt out of getting sick or having accidents. You KNOW you’re going to need health care at some point in the future. By refusing insurance, you are deciding to obtain health care for free, saddling the rest of us with its cost.

    False. You’re choosing to pay for it by some other means than insurance. The fact that a minority of such people choose the mechanism of making others bear the burden is no excuse to destroy our Constitutional order.

    If this reasoning stands, there are no cognizable limits left on federal government power. And Ben Franklin’s fear we couldn’t keep the Republic will be completely realized.

  19. Hey, I’ve been saying this since before I predicted it would be overturned in toto.

    As John McClain once said, “Welcome to the party, pal.”

    I’m still waiting for Alex or any of the usual suspects on here to please point out for me what the government cannot do, or at least admit that the idea of limited government with enumerated powers is a dead letter.

  20. Alex Knapp says:

    Dodd,

    no excuse to destroy our Constitutional order.

    Oh please. Functionally speaking, the mandate is no different than tax credits. I’ve never owned a home, and I didn’t buy a house before April 2010, so I had to pay $8000 more in taxes than someone who did buy a house for the first time.

    Likewise, if I choose not to buy health insurance after the mandate, I’ll pay $600 more in taxes than my neighbor who does have health insurance.

    If the mandate is unconstitutional, then so’s the first time homebuyer’s credit.

    If this reasoning stands, there are no cognizable limits left on federal government power.

    Again, false. There are several brightlines that future regulation has to follow. There has to be economic activity. If it’s intrastate activity, than it has to affect interstate commerce AND be part of a greater, national regulatory scheme. It can’t violate other parts of the Constitution.

    Judge Kessler’s decision is right in line with Lopez, Morrison, and Raich.

    And Ben Franklin’s fear we couldn’t keep the Republic will be completely realized.

    (a) Franklin never said that. It’s pure apocrypha.

    (b) Even he did say it, that would be the same Ben Franklin who, before the Revolution, successfully lobbied the Pennsylvania legislature to found a free hospital to care for the impoverished in Philadelphia, right?

  21. Alex Knapp says:

    Charles,

    I’m still waiting for Alex or any of the usual suspects on here to please point out for me what the government cannot do, or at least admit that the idea of limited government with enumerated powers is a dead letter.

    The federal government cannot:

    1. Abridge freedom of speech, or of the press.
    2. Pass any law respecting the establishment of religion, or prevent the free exercise thereof.
    3. Abridge the right of the people to peaceably assemble, and to petition their government for a redress of grievances.
    4. Infringe on the right of the people to keep and bear arms in the context of maintaining a well-regulated militia.
    5. Pass a law requiring soldiers to be quartered in private homes without the consent of their owners.
    6. Search persons, houses, papers, and effects unreasonably, or issue warrants without probable cause.
    7. Deprive anyone of life, liberty or property without due process of law.
    8. Deprive a criminal suspect of the right to trial by jury.
    9. Take property for public use without just compensation.
    10. Deprive an accused person of a public and speedy trial.

    And there are many more limits besides! Need I go on?

  22. Raoul says:

    For me is rather simple- my non-purchase of health care affect commerce?-Yes. I it makes people feel better, we can always build a fictional regime where we tax people for healthcare but they get a refund if they buy insurance- is that what the constitution is? an exercise in semantics? I don’t think so.

  23. anjin-san says:

    > Franklin never said that. It’s pure apocrypha.

    Yea, but Beck probably did, so it might as well have come from a burning bush…

  24. Steve says:

    EJ:

    And this is another key part… before the bill of rights, was there anything in your view that the federal government could not do?

    Alex Knapp:

    The federal government cannot:

    1. Abridge freedom of speech, or of the press…

    Looks like the answer is no.

  25. Moosebreath says:

    Steve,

    It looks like Alex was answering Charles, not EJ, as may be determined by noting the first word of his comment. Reading really is fundamental.

  26. Alex Knapp says:

    EJ,

    And this is another key part… before the bill of rights, was there anything in your view that the federal government could not do?

    Yes. No bills of attainder. No denial of habeus corpus. To list two explicit examples. Also, again, the commerce clause can’t be applied to areas that don’t involve economic activity. So, for example, the federal government can’t pass a law prohibiting individuals from carrying firearms within a certain distance from a school (US v. Lopez) or create a federal cause of civil action for victims of domestic violence (US v. Morrison).

    One thing i like to ask people who say that the CC was intended to allow broad power, is what was the point of delinating the powers to run a post office, or to establish pattents, or to set weights and measures? Clearly all three of these things fit within the current rulings on the CC.

    I disagree. The granting of certain kinds of legal monopolies is generally considered to be beyond the scope of the Commerce Clause. For example, it’s generally understood that the federal government cannot, for example, charter corporations. In this light, the grant of copyrights and patents and the ability to commission a post office needs to be explicit, or else it would probably be excluded from the scope of the CC. (Furthermore, Congress’ power to build interstate highways is derived from its ability to construct post roads. Absent such explicit grant, creating highways is probalby too attenuated to be considered within the scope of the CC.)

    Under the scope of the commerce clause, it might be possible for the federal government to set up a system of weights and measures, but such a system might be more limited in scope because of its limitation to being involved in economic applications rather than being a more universal standard.

  27. Dodd says:

    Oh please. Functionally speaking, the mandate is no different than tax credits. I’ve never owned a home, and I didn’t buy a house before April 2010, so I had to pay $8000 more in taxes than someone who did buy a house for the first time.

    Likewise, if I choose not to buy health insurance after the mandate, I’ll pay $600 more in taxes than my neighbor who does have health insurance.

    This is a false equivalence. There’s no law in the US Code requiring you to buy a house. Or install solar panels. Or buy a Prius. If you chose to do those things, the federal government chose to reward you with a tax incentive.

    The mandate is the exact opposite — I am ordered to enter into a commercial transaction and punished if I do not. And under Kessler’s logic, making a mental decision affects interstate commerce that can give rise to such punishment.

    This isn’t a ‘functional‘ argument and treating it as such is sophistry. It’s an argument about the real limits of federal power. Wickard was a disgrace, but if we tear down even the small limit it sets forth that actual positive activity by the citizen is required to bring that citizen’s choices within the ambit of federal regulation, then the system of ordered liberty we were given by the Founders is dead. Congress can set up any regulatory scheme it can think up and then order me to chose as it demands. The broccoli example keeps arising in large part because it’s so easy to imagine Congress deciding to make us eat better and enacting a broad scheme to do so. But as soon as it crosses the line from incentivizing behaviour it deems desirable to forcing it, we have ceased to be a Constitutional Republic.

    And, of course, the post hoc “it’s a tax” argument has been roundly rejected by every court that’s considered it, including Kessler.

    Franklin never said that. It’s pure apocrypha.

    (b) Even he did say it, that would be the same Ben Franklin who, before the Revolution, successfully lobbied the Pennsylvania legislature to found a free hospital to care for the impoverished in Philadelphia, right?

    Bartleby notes it is attributed to him based on a contemporaneous account by someone who would have been present. So “pure apocrypha” is an extreme overstatement.

    As for the other, I fail to see the connection between his desire for a State to found a hospital for the indigent (prior to the drafting of the Constitution, no less) and the federal government now being able to reach into my thoughts and punish me based on the choices I make, whether I then act or not.

  28. Alex Knapp says:

    Dodd,

    This is a false equivalence. There’s no law in the US Code requiring you to buy a house. Or install solar panels. Or buy a Prius. If you chose to do those things, the federal government chose to reward you with a tax incentive.

    The mandate is the exact opposite — I am ordered to enter into a commercial transaction and punished if I do not.

    The end result is identical. Hence, “there is no functional difference.” If I fail to buy a Prius, I pay more taxes than someone who does. If I fail to buy health insurance, I pay more taxes than someone who does. If the Democrats had been bright enough to structure the mandate as a 1% income tax, with a fully refundable 1% credit for those with health insurance, we wouldn’t be having this conversation. And yet…. the end result would still be identicial.

    Wickard was a disgrace, but if we tear down even the small limit it sets forth that actual positive activity by the citizen is required to bring that citizen’s choices within the ambit of federal regulation, then the system of ordered liberty we were given by the Founders is dead.

    Please. There is a still the brightline that there has to be economic activity that substantially affects interstate commerce. Kessler’s decision is, again, right in line with Lopez, Morrison and Raich. All of which were, in my mind, rightly decided. I think that’s a strong delineation.

    The broccoli example keeps arising in large part because it’s so easy to imagine Congress deciding to make us eat better and enacting a broad scheme to do so.

    That’s actually something that John Marshall mentioned in Gibbons v. Ogden. He noted that the strongest limitation on the authority of Congress to regulate commerce was not the Constitution, which granted a plenary power, but rather the political and legislative processes.

    I think that Congress might have the power to force everyone to buy broccoli — but only in the context of a broad scheme of brocolli price supports. But even then I can see an attenuation argument.

    But as soon as it crosses the line from incentivizing behaviour it deems desirable to forcing it, we have ceased to be a Constitutional Republic.

    This is crap. Everyone and their sister agrees that Congress has the power to raise everyone’s income taxes in order to buy brocolli and distribute it to every person in America under its authority to tax and spend for the general welfare. This has the exact same functional result as a broccoli mandate. Likewise, in the context of health care, nobody disputes that Congress could have raised taxes then provided a credit for those who purchased health care. or that Congress could have raised taxes and bought private insurance for everyone in the United State. Both of these things involve a means that nobody questions the Constitutionality of, yet have the exact same functional result as the individual mandate that Congress structured.

    And, of course, the post hoc “it’s a tax” argument has been roundly rejected by every court that’s considered it, including Kessler.

    It has, but I disagree with Kessler et al’s reasoning. It’s part of the internal revenue code. It’s calculated as a percentage of income. It’s paid on your income tax return. If it looks, walks, and quacks like a tax, it’s a tax.

  29. Steve Verdon says:

    But as soon as it crosses the line from incentivizing behaviour it deems desirable to forcing it, we have ceased to be a Constitutional Republic.

    This is why you are wrong Alex. Noting that the government is providing incentives is very different from using force. Keep trying to pretend this isn’t a major reduction in liberty, but it really is.

    The end result is identical.

    So what? I could point out all the good reasons why you should eat a more healthy selection of foods and provide a monetary incentive as well, or I could threaten to beat the crap out of you if you don’t. The end results might be the same, but how we got there is quite different. Both offer similar outcomes, but I prefer the former.

    I think that Congress might have the power to force everyone to buy broccoli — but only in the context of a broad scheme of brocolli price supports. But even then I can see an attenuation argument.

    Right, the only way is via price supports…sure the government has never used force when it comes to people ingesting things. Never ever…cough, cough War on Drugs cough, cough.

    This is crap. Everyone and their sister agrees that Congress has the power to raise everyone’s income taxes in order to buy brocolli and distribute it to every person in America under its authority to tax and spend for the general welfare.

    If the Congress already has this power why doesn’t government just raise everyone’s taxes, and then buy insurance for everyone? No issue with the Constitution at all then, right? Of course this isn’t being pursued because it wouldn’t be at all politically feasible. So instead the solution is to broaden the government’s powers and simply force people to buy the insurance.

    Michael,

    It’s slippery slopes in every direction! And a rational compromise of individual liberty for the common good inevitably leads to jack-booted thugs rounding me up and putting me in a concentration camp for bald guys.

    Oh my God, this is sooo witty! I mean it isn’t a complete strawman or anything like it at all!

    And I see you still have yet to read Volume II, Section 4, Chapter Six of Democracy in America.

    I think, then, that the species of oppression by which democratic nations are menaced is unlike anything that ever before existed in the world; our contemporaries will find no prototype of it in their memories. I seek in vain for an expression that will accurately convey the whole of the idea I have formed of it; the old words despotism and tyranny are inappropriate: the thing itself is new, and since I cannot name, I must attempt to define it.

    […]

    Above this race of men stands an immense and tutelary power, which takes upon itself alone to secure their gratifications and to watch over their fate. That power is absolute, minute, regular, provident, and mild. It would be like the authority of a parent if, like that authority, its object was to prepare men for manhood; but it seeks, on the contrary, to keep them in perpetual childhood: it is well content that the people should rejoice, provided they think of nothing but rejoicing. For their happiness such a government willingly labors, but it chooses to be the sole agent and the only arbiter of that happiness; it provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns, directs their industry, regulates the descent of property, and subdivides their inheritances: what remains, but to spare them all the care of thinking and all the trouble of living?

    Thus it every day renders the exercise of the free agency of man less useful and less frequent; it circumscribes the will within a narrower range and gradually robs a man of all the uses of himself. The principle of equality has prepared men for these things;it has predisposed men to endure them and often to look on them as benefits.

    After having thus successively taken each member of the community in its powerful grasp and fashioned him at will, the supreme power then extends its arm over the whole community. It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.

  30. R_Dave says:

    Alex Knapp wrote: I disagree. The granting of certain kinds of legal monopolies is generally considered to be beyond the scope of the Commerce Clause. For example, it’s generally understood that the federal government cannot, for example, charter corporations. In this light, the grant of copyrights and patents and the ability to commission a post office needs to be explicit, or else it would probably be excluded from the scope of the CC. (Furthermore, Congress’ power to build interstate highways is derived from its ability to construct post roads. Absent such explicit grant, creating highways is probalby too attenuated to be considered within the scope of the CC.)

    Wait, you think the connection between interstate commerce and growing wheat for personal consumption or deciding not to buy health insurance is strong enough for those things to fall easily within the scope of the Commerce Clause, but the connection between interstate commerce and the interstate highway system, intellectual property law, and laws governing the charter of corporations is “too attenuated” for those things to be covered?

    Heh. Due respect, Alex, but that’s a really bad argument.

  31. Alex, thanks for reposting the Bill of Rights, but it seems to me that even as poorly informed and stupid a laymen as I am it’s not to heard to knock half of those off the list now as they have been rendered effectively meaningless for us simple people by things like McCain-Fiengold, Wickard, Kelo, the Drug War, the Patriot Act, etc.

  32. “The end result is identical” sure seems like a variant of the ends justify the means to me.

  33. […] through the courts, the debate continues (and will continue) until SCOTUS weighs in and rules.  Doug Mataconis’ post yesterday inspired two different thoughts that require two posts to address.  This is the […]

  34. michael reynolds says:

    Verdon:

    the problem with the libertarian hysteria you and Doug evidently share is that we’ve been hearing warnings of the wolf, and the wolf never seems to materialize.

    I am more free today — by far — than I was when I was born. Individual liberty is a growth industry in this country.

    Wait until you spot a wolf before crying wolf. And if the wolf looks like health insurance for people who can’t afford it, that’s really not much of a wolf, that’s more of a Chihuahua.

  35. No Mr. Reynolds, you are more comfortable today, and perhaps more smug, but you are not more free.

  36. Libertarian hysteria. Do you mind if I use that to retitle my blog?

  37. mantis says:

    No Mr. Reynolds, you are more comfortable today, and perhaps more smug, but you are not more free.

    Elaborate.

  38. Dodd says:

    Everyone and their sister agrees that Congress has the power to raise everyone’s income taxes in order to buy brocolli and distribute it to every person in America under its authority to tax and spend for the general welfare. This has the exact same functional result as a broccoli mandate. Likewise, in the context of health care, nobody disputes that Congress could have raised taxes then provided a credit for those who purchased health care. or that Congress could have raised taxes and bought private insurance for everyone in the United State

    Simply asserting that the Constitution grants Congress these powers and that no-one disputes them doesn’t make it so. In point of fact, the Congress has none of these powers. The General Welfare Clause is not a carte blanche empowerment for Congress to do anything it deems advisable. It’s more accurate to call it a limiting clause — Congress’ exercise of its powers must promote the interests of the citizens of each and every state, not narrow interests (cf. South Dakota v. Dole, 483 U.S. 203 (1987)). Your implicit construction would render whole swathes of the rest of the document — the parts where Congress’ few, enumerated powers are set forth — a dead letter.

    Obviously, I believe Wickard, et al were wrongly decided. That line of cases overturned a century and a half of precedent and opened the floodgates for the expansion of federal power well past the Founders’ intentions. Equally obviously, the SupCt has found precedent of longer standing than Wickard to have been wrong and overturned it. So the mere fact that Wickard is still valid precedent doesn’t mean that any of the powers flowing from it is actually constitutional. But even if Wickard, being good law, can be argued to mean that the federal government can buy broccoli for us, that doesn’t mean it can force us to buy it. This is not a subtle distinction, even assuming, arguendo, that your insistence that Congress could have constitutionally achieved the same functional results in another manner were accurate.

    Under the Xth Amendment, the States might have these some or all of these powers (provided their own Constitutions don’t say otherwise), but it is not the proper role of the federal government to give us brocolli or health care. Its power to spend is plenary but only within the ambit of the powers granted to it.

    Incidentally, sister does agree with you; she’s well to my left. But that doesn’t mean everyone does.