John Marshall and the Commerce Clause (and the Ongoing PPACA Argument)
Yet again: to the Commerce Clause!
As the PPACA makes it way 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 first, which really attempts to address, again, the Commerce Clause and the activity/inactivity issue. The second will address the slippery slope arguments that keep emerging (often, oddly enough, having to do with broccoli).
My own position on these issues has solidified over time as I have given it quite a bit of thought. I cannot see how the general policy arena in question does not fit under the Commerce Clause nor do I see how the choice not to buy insurance is inaction given that, well, an active choice has been made.
As such, here, again, is the The Commerce Clause of the United States Constitution (Article 1, Section 8), which states:
The Congress shall have Power…
The key questions for right now are: does “Commerce” encompass health care and does that category of commerce exist amongst the states?
Writing for a 6-0 majority in Gibbons v. Ogden (1824), John Marshall wrote the following about the Commerce Clause of the United States Constitution:
What is this power?
It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.
Here’s the deal (as I have written at least twice before): I can see no argument for stating that health care, including how it is is paid for (which includes insurance) is not “Commerce…among the several States.” As such, I can see no argument that the Congress does not have the power to, using Marshall’s words, “prescribe the rule by which commerce is the be governed” in this situation. This is the same basic reasoning that lead former Reagan Solicitor General Charles Fired to likewise conclude the constitutionality of the individual mandate.
Marshall, by the way, rightly falls in the “Founders” category. That fact does not make him correct, but it does blunt the notion that an expansive interpretation of the Commerce Clause is a some newfangled thing invented by modern liberals.
This leaves only the activity/inactivity issue that I recently wrote about here and the Doug was concerned about his post about the most recent court ruling on the matter. Now, I obviously disagree with Doug, as he sees the individual mandate as “eviscerating ” the Constitution (but again, see above) and he find it “quite shocking” that Judge Kessler, in upholding the mandate, and sees the choice to not buy health insurance as redefining thoughts as actions. However, not only do I not read the excerpt provided in his post in that fashion, I concur with Judge Kessler that the choice not to buy health insurance is an action insofar as that choice has broader implications that go beyond the individual making that choice. As I have stated before: choosing not to buy insurance is not a null act devoid of consequences (or of costs to fellow citizens). Further, a person cannot, in reality, opt out of the health care system, given the risk of illness and injury that is inherent to living.
I have yet to see a compelling argument as to why a) this area of policy does not fall under the Commerce Clause (Doug asserts that “Strictly construed the Commerce Clause would not seem to be that broad of a grant of power” but, to me, strictly construed, it is a very broad granting of power because “commerce” is a vast category) nor have I see a compelling argument that b) choosing not to buy insurance is not an action (which makes the whole activity/inactivity argument specious).
Now, that is not to say that the logic should require a person to like the policy. One can prefer that the policy not go into effect for any number of reasons (cost, efficacy, etc.). I just don’t see the Commerce Clause argument as actually being logically sound. Rather, I see people who don’t want the policy to go forward being forced to make the Commerce Clause argument, because that is the only tool left in the political arsenal since the legislation has already been passed.
There is a grand irony in this debate that is worth noting: the people most vehemently opposed to the individual mandate almost certainly have insurance already and therefore are not going to be forced to do anything. Instead, the opponents are opposed to the individual mandate most likely due to either a philosophical objection to the government being further involved in health care and/or they fear that they will be asked to foot the bill for the PPACA and whatever may come next by having their taxes raised.
To conclude I return to two basic questions:
1) How is health care not commerce among the states?
2) How is not buying insurance a null act (i.e., not an action with actual consequences beyond yourself)?