Sorry, folks, but this tee'd me off so much, I interrupted my work on Absolved long enough to read and respond to it. And yes, the typo "consitutional" was in the original. I ignored it.
November 25, 2009
Health Care Mandate is Consitutional
By Ruth Marcus
WASHINGTON -- Is Congress going through the ordeal of trying to enact health care reform only to have one of the main pillars -- requiring individuals to obtain insurance -- declared unconstitutional? An interesting debate for a constitutional law seminar. In the real world, not a big worry.
"This issue is not serious," says Walter Dellinger, acting solicitor general during the Clinton administration.
But it's being taken seriously in some quarters, so it's worth explaining where the Constitution grants Congress the authority to impose an individual mandate. There are two short answers: the power to regulate interstate commerce and the power to tax.
First, the Commerce Clause. Spending on health care consumes 16 percent --and growing -- of the gross national product. There is hardly an individual activity with greater effect on commerce than the consumption of health care.
If you arrive uninsured at an emergency room, that has ripple effects through the national economy -- driving up costs and premiums for everyone. If you choose to go without insurance, that limits the size of the pool of insured individuals and -- assuming you are young and healthy -- drives up premium costs.
The clause empowers Congress "to regulate commerce ... among the several states," which may not sound terribly sweeping. But since the New Deal, the Supreme Court has interpreted this authority to cover local activities with national implications.
In the 1942 case of Wickard v. Filburn, the justices ruled that even though an activity may "be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce."
Thus, the court said, Congress was entitled to tell Roscoe Filburn how much wheat he could grow to feed his own chickens. Surely, then, Congress could require Filburn's grandson to buy health insurance.
The court has narrowed the reach of the Commerce Clause in recent years -- but also reaffirmed Wickard. The times it has found that Congress overstepped involved situations where the connection to interstate commerce was strained: carrying guns near schools or engaging in gender-based violence.
In United States v. Lopez, the court found that the Gun-Free School Zones Act "is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated."
The individual mandate is "the mirror image of Lopez as a Commerce Clause case," says Harvard Law School professor Laurence Tribe.
Granted, there is a difference between regulating an activity that an individual chooses to engage in and requiring an individual to purchase a good or service. Granted, too, there is a difference between making automobile insurance compulsory, as a condition of the privilege to drive a car, and making health insurance compulsory, whether an individual wants it or not.
But the individual mandate is central to the larger effort to reform the insurance market. Congress may not be empowered to order everyone to go shopping to boost the economy. Yet health insurance is so central to health care, and the individual mandate so entwined with the effort to reform the system, that this seems like a different, perhaps unique, case.
Congress clearly has authority to, in effect, require employees to purchase health insurance for their old age by imposing a payroll tax to fund Medicare. It's odd for the same conservatives bemoaning a government takeover of health care to complain about requiring that people turn to the private marketplace.
Which brings us to the alternative source of congressional authority, the "Power to lay and collect Taxes, Duties, Imposts and Excises."
The individual mandate is to be administered through the tax code: On their forms, taxpayers will have to submit evidence of adequate insurance or, unless they qualify for a hardship exemption, pay a penalty.
Yale Law School professor Jack Balkin likens this to Congress raising money for environmental programs by taxing polluters. "Congress is entitled to raise revenues from persons whose actions specifically contribute to a social problem that Congress seeks to remedy through new government programs," he concludes.
Balkin cites a 1950 Supreme Court case upholding a tax on marijuana distributors. "It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed," the court said. "The principle applies even though the revenue obtained is obviously negligible, or the revenue purpose of the tax may be secondary."
Sounds like the individual mandate to me.
My email to Ms. Marcus:
My dear Ms. Marcus,
re: Your column on "Health Care" constitutionality is itself a felonious violation of the Law of Unintended Consequences.
Legal opinions from old Clintonista law hacks notwithstanding, the versions of the "health care" bill I have seen are moving into uncharted territory and will, I am certain, prove to be a usurpation too far.
You must remember that by their interpretation, the mass murder of the Davidians at Waco was constitutional. Pardon us if we aren't over-awed by their judicial gravitas.
Even if you get a Supreme Court to rule in your favor, the attempt to force Americans to toe the administration's line will be that velvet gloved tyranny's undoing.
You seem to think that just because some black-robed idiots order a thing to happen, that it will happen. You are extrapolating from your own cowardice. Just because you would never risk resisting a government order given at the point of a federal gun does not mean that others won't. I assure you, they will.
You should understand that we are rapidly coming to a point in this country when half of the people are going to become convinced of the illegitimacy of this administration and its designs upon our liberty. Need I remind you that this side is the one with most of the firearms?
If my friend Billy Beck is correct in his observation that all politics in this country is now dress rehearsal for civil war, then you should study Bill Clinton's rules of engagement as applied to the Serbs in 1999. He sent precision guided munitions into Serbian television studios in the middle of the night, killing janitors and makeup artists, on his theory that the political and media leadership of his enemy was a legitimate target of war. Now THAT is the one thing that we believed Clinton about. Government, as applied by his administration and this administration, amounts to Waco rules.
Ms. Marcus, I beg you, do not attempt to go down this road, for the Law of Unintended Consequences as applied to tyrannical traffic dictates that there is a bridge out just around the corner. I'm the guy at the side of the road, frantically waving his arms, trying to save you.
Your "reasonable regulation" is our "intolerable usurpation." Do you really want to see what happens when we become convinced that it is time to resist or be enslaved?
I assure you, you don't. And neither do I.
"Constitutional" or not, this law will be resisted, even at the point of a gun. And that's an "individual mandate" you can believe in. Indeed, it is a "mandate" that even the Founders would understand.
If you got out of the hot-house of east coast collectivism more, you would know that, and would be less eager to write blithe apologias for predatory tyranny.
Have a nice day.
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Pinson, AL 35126