The post I will be refuting is a New York Times article that can be found here (Broccoli Mandates and the Commerce Clause, 3/30/12), and I will be referencing many of the things that the other Stephen brought up. First, Obamacare will most definitely come down to the individual mandate, as this is by far the most important issue in the law. Other provisions, such as the one allowing for those under the age of 26 to remain on their parents' insurance, will not be refuted here because I, at least, do not find much fault with them. However, the individual mandate scares the sh%t out of me. Let's first step back from whether or not the US should even have universal healthcare (Matt, are you ready for that debate? I am), and instead look just at this law.Let's look at what James Stewart, the author of the NYT piece, has to say:
"Thus did this week's Supreme Court arguments over the Obama administration's health care law emerge as historic test of federal power versus individual liberty."
First, I'd like to note that even proponents of this law seem to think that it comes down to federal power vs. the individual. I'm not sure when the liberal leaning wing of the government decided they preferred the government over the individual, but I'd like to note it -- just for the next time they blast the conservative wing for only caring about <
Back to Mr. Stewart:
"As the nation's economy evolved from largely local markets to regional, national and increasingly global ones, the Supreme Court has taken a progressively broader view of Congressional power under the commerce clause, even when individual freedom had to be sacrificed."Stewart then goes on to list several cases when the Supreme Court ruled in favor of commerce vs. the individual. While we might debate whether or not these were good rulings, we can certainly discuss here whether they are the same. A farmer planting wheat and not selling it is certainly different from myself not purchasing healthcare. In one case, a person is engaging in an activity that will effect the market in the present -- by growing his own wheat, he will not purchase wheat. However, in the healthcare debate, one is choosing not to purchase healthcare (i.e. choosing not to enter the market). This would be the same as if during the Great Depression, the law that prohibited the farmer from consuming his own wheat also mandated that EVERYONE also grow their own wheat to bring to market. This, of course, would be absurd -- but not so absurd if the current law is ruled constitutional. If upheld, Congress' ability to regulate anything would be allowed. All they would have to do is mandate the creation of the market - which theoretically we all will enter at some point no matter what the good - and then the commerce clause now applies. Thus, upholding this law would allow the federal government to tread into dangerous territory -- the exact territory the framers of the constitution hoped we'd never reach. A realm where Congress is permitted to mandate that the individual must do as it wishes, and not the other way around.
This gives rise to the Broccoli analogy -- a world where Congress decides everyone must at some point consume food therefore everyone is in the market and Congress can mandate that they must buy broccoli. Or how about a world where Congress decides everyone will at some point buy a home (a statistic that is incredibly reasonable), therefore mandates that everyone who doesn't own a home must go buy one (if they can afford it -- an arbitrary level set by Congress) and this props up the value of existing homes. To this, proponents of the healthcare law can only reply as Mr. Stewart does, "Congress has the constitutional power to pass many bills that would strike most people as idiotic, but as a popularly elected assembly, it doesn't." This isn't the world our founders wanted to live in, nor should it be the world we live in.
But let's take this debate to a place that my opponents can not just try to say is to far removed (though I challenge them to tell me a principle by which mandating broccoli or a home cannot be done -- a task I do not think they can accomplish, though I do suspect they will just try to make it seem ridiculous that Congress would do such a thing, which I note is vastly different from proving it can't). Let us say Congress may rule that everyone enter the healthcare insurance market because at some point they will consume healthcare services, what is to say then that they will not also be forced by a doctor to buy a membership to a gym, or eat healthy choices. Thus, because eating carrots or going to the gym will lead to healthier lifestyles and thus lessen the impact of healthcare costs (which are now interstate commerce), can Congress mandate that we all buy gym memberships? Matt, I ask here that you not just try to paint these as ridiculous but instead come up with a principle that would show why Congress does not have the authority to do so. Saying it would not pass a law is a much different thing than what our founders wanted, they (instead) wanted a world where Congress was truly limited from passing such a law.
Steve,
ReplyDeleteI really like the push back on the guest article because I do believe that, regardless of what one thinks on the issue, it is a very difficult question.
After discussing the issue further with classmates here, I came up with an innovative limiting principle that would even allow the Conservative justices to, theoretically, get aboard (though I do not think it will get adopted by the Court).
Per Lopez, Congress can regulate activities that are intrastate but have a substantial effect on interstate commerce are regulable. The thought that I had for looking at this problem was: rather than look at this as an expansion of what Congress can regulate under interstate commerce that needs a limiting principle, the standard itself could be the limiting principle itself if what constitutes "substantial effect" is heightened significantly.
Along those lines, it is theoretically consistent for the Court to issue an opinion that upholds the mandate as constitutional, but on the grounds that health care has such a substantial effect on interstate commerce it would be weird for Congress to not regulate it. At the same time, they could announce that, as a requirement for intrastate activities to have a "substantial effect" on interstate commerce, the thing regulated would have to come very close to health care, (which, rightfully, is very very few things).
Again, I reiterate that I am not sure this will get a lot of play. This is just the musings I have in between classes.
I agree that we need to differentiate between what Congress WOULD do, in theory, and what it CAN do, under the law. The Framers intended for the Constitution to be insulated from the whims of public opinion - indeed, the current crop of Tea Party Republicans is as good an indication as any that you can't really ever count on a popularly-elected legislative body to not shatter your expectations in the realm of stupidity or outrageousness.
ReplyDeleteSorry, I couldn't resist going there.
But without debating the political or moral issues behind health care, let's just focus on the hypothetical scenario of whether the SCOTUS can uphold the individual mandate without empowering crazy, future Congresses to force people to buy gym memberships (which neither I nor most people on either side of the political divide would support).
To me, what differentiates health care from gym memberships, or food, or buying a home, is that the government cannot stand over your shoulder and force you to actually use that gym membership, or eat. That would be mandating a certain behavior, which I think is much different from mandating that somebody have insurance to hold down the cost of a service that everyone uses at some point or another. Healthy lifestyles reflect individual choices - but you don't choose whether or not to require an emergency room visit (even if you argue that unhealthy people are more likely to get sick, everyone who walks out their door in the morning has arguably the same chance of being hurt in a freak accident). Since the admittedly remote but nonetheless very real possibility of needing health care services hovers over everything we do on a daily basis, I don't think it's a stretch for this court or any other to argue that mandating people enter the market for health care is fundamentally different from forcing people to make healthy choices.
In other words, while healthy choices might affect the market for health care, the health care market itself is far more all-encompassing. Health insurance serves as an umbrella protection for consumers and, to an extent, society (the more people who have insurance, the lower costs are for everyone else). Regulating the umbrella, then, is much different than regulating the individual pieces underneath it.
If that sounds like a tenuous argument, it's because I agree that justifying the individual mandate requires a fair bit of legal reasoning and maneuvering. Still, that doesn't mean it's not possible, and to an extent I think all modern judicial decisions require some form of intricate reasoning. So future courts could turn to similar arguments to justify mandating the purchase of something in one instance but not another.
But let's not lose sight of the fact that it's not like the individual mandate is some newfangled liberal idea to get the government to take over your life. It is a fundamentally conservative, market-driven solution to expanding insurance access, and was endorsed by Newt Gingrich in the 90s and then enacted by Mitt Romney in Massachusetts. If we just had single payer this would be much easier, but we're afraid of all things government-related, so the politics required that we make everything both legislatively and constitutionally more complicated.
Steve, I think you are correct here. If the court does uphold this law, it would have to be because it can articulate a clear guiding principle on why healthcare is different from other types of interstate commerce (is healthcare like porn? I'll know it when I see it?). If the court does uphold the law, I feel extremely confident Chief Justice Roberts will want to write the opinion - first because it likely will be the most important case he hears and second because I think the court will want to make it as narrow as possible in order to avoid the fears I outlined above. Matt, first, one of the pieces of the Constitution that works the best is that portion that protects us from the sudden whims of the Tea Party, their predecessors and their descendants (on both the right and left).
ReplyDeleteI think there is something as well to the point that while healthy choices affect healthcare, they do not drive down the cost of gym membership. But the fear I have is that we create an opinion that allows Congress the wiggle room to regulate the other pieces that affect healthcare - healthy food, gym membership etc. Since everything can, with a little wiggling, be linked to our health or tragic accidents, I worry mostly of a broad ruling. I already have covered healthcare that I'm compelled to purchase through my company.