The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact....
August 22, 2009
The argument that Congress doesn't have the power to force citizens to buy health insurance.
First, I wonder how many of the uninsured realize that the health care plan is going to require them to buy insurance. Anyway, the issue here is about the scope of Congress's commerce power. Lawyers David B. Rivkin Jr. and Lee A. Casey point out that the uninsured are not currently doing anything in the commercial/economic sphere. They are basically doing nothing — failing to provide for themselves. How can Congress regulate this nonaction?
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The Constitution only figures in when the court is conservative.
That's right. The constitution is an irritant and an obstacle to the progressive's agenda.
I see two end-arounds this.
1.) Impose a uniform federal tax and make health insurance premiums individually deductible, whereby those without insurance pay a penalty by forfeiting the deduction. Paying a penalty is what is proposed, not "specific performance."
2.) Can't the federal government put the burden on states and use the power of the purse to punish states that don't mandate coverage?
Liberals have always hated huge parts of the Constitution and willfully ignore it. For them the 2nd and 10th amendments simply don't exist.
Social Security? Medicare? How is this different?
For that matter, car insurance? of course that's state law, not federal.
John Lynch, you can opt out of buying car insurance if you opt out of owning a car and driving it on public streets.
the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities
From an earlier Althouse post: "Do you know what's annoying about the health care issue? The subject is insurance."
How is insurance "noneconomic"?
EDH, they could just call your health insurance premium a tax, because if you are forced to pay it, that's what it is.
This whole health care bill has just been about raising taxes as far as I'm concerned.
So at worst they make it a tax, with an exemption if you buy your own insurance. There.
Hah
1. People without insurance do wind up going to emergency rooms every year. In many of those cases, the problem could have been averted by preventive treatment. In all of them, there is a significant economic cost involved, which many times gets passed onto the taxpayer. There's your commerce clause trigger.
2. Citing a Lochner-court decision telling the government to butt out of child labor would get you laughed out of most courts.
A related question:
Why have uninsured individuals not bought an individual health insurance plan?
The prime reason is probably that these uninsured individuals are rational consumers, and they recognize that the benefits they would get, all things considered, are not worth the cost, both in terms of money and hassle. It's an informed decision. (Do you really think young people without health insurance don't want to have it?)
But the elite political class knows better, doesn't it?
On the one hand, the elite political class says that decision is not the right one for the individual to make, just considering what is in his or her own interest. They know better. What hubris!
And on the other hand, the elite political class says that decision is not the right one for society as a whole. The young and healthy must purchase health insurance, in part, to get in the big pool and help subsidize the old. It's essentially a tax on the young and the healthy; conveniently, it's a tax without it being labelled as such.
Young people without insurance are not reckless and irresponsible. They are simply doing what makes sense to them, all things considered, and there's no reason to assume they are not making the most rational and sensible choice in light of the options that are available to them.
John Althouse Cohen: How is insurance "noneconomic"?
It is noneconomic if you don't purchase it.
chunc oh K
geekesque said...
1. People without insurance do wind up going to emergency rooms every year. In many of those cases, the problem could have been averted by preventive treatment. In all of them, there is a significant economic cost involved, which many times gets passed onto the taxpayer. There's your commerce clause trigger.
When Tennessee launched TennCare, recipients were supposed to find a primary care doctor and then, after a few months' grace period, go to that doctor instead of the ER. Years after, a reporter with the Commercial Appeal in Memphis went around to some ERs during a weekday to ask people if they minded telling him why they were there. It was the usual kid with the earache and so forth. They were waiting hours to see the ER doc instead of going to their primary care doc, why? Because they didn't like making appointments ... the receptionist was rude ... the ER was what they were used to. And so on.
The point is, people will not necessarily stop going to the ER for non-emergencies if only they have insurance. Of course there are many good reasons why people should, but that doesn't mean they will. Lack of insurance may be A problem but it isn't THE problem.
Dr. Obama: "Constitution? We ain't got no Constitution. We don't need no Constitution! I don't have to show you any stinkin' Constitution."
Professor:
One obstacle to the homeless problem is the constitution right? You can't force people to take a room in a shelter, etc.
Would this "right" or freedom apply to health care?
IOW, where does this end?... you must not live on street, must not get fat, must buy health insurance, must eat your veggies...
Whether a program will successfully address an economic issue is besides the point, in terms of constitutional analysis.
So, SCOTUS blocks POTUS on universal health care.
This would be fun because POTUS spent all his energy on Universal Health Care, and he would get frustrated, and start to cry racism, and say that the Court was acting stupidly. It would be especially delicious if Sotomayor agreed with SCOTUS against POTUS.
There are so many fun outcomes possible. I love life!
IOW, where does this end?... you must not live on street, must not get fat, must buy health insurance, must eat your veggies....
It end when it ends......when we SAY it ends......when we say it is your DUTY to end.....and then when WE end it........THAT's when it ends....
Ok Blutarski :)
I guess the canard is that the general welfare clause means "We can do anything we want if we have good intentions."
When is some conservative group going to file suit? I want the SCOTUS to look at these issues.
Can't the federal government put the burden on states and use the power of the purse to punish states that don't mandate coverage?
I wondered the same thing. States definitely have the power to force citizens to buy things (e.g. car insurance), and Congress has plenty of ways to coerce states into passing laws.
Car insurance is mandatory as to the liability of your car damaging another person or their property.
In PA, you can ride a motorcyle without a helmet which could lead to taxpeyers covering the cost of your coma in a nursing home. So they can argue one must have health insurance to avoid your becoming a financial burden on society but the motorcyle example says "this financial burden is not a sufficient argument".
wv = jeestice = justice from Jesus
Arguments that the Sacred Parchment blocks what all other advanced nations have, and for that matter, we should pay zero SS and Medicare taxes since we are all Right-Wing "Freedom Lovers!!" will go nowhere.
The same can be said of libertarians saying that the young and illegal and simply those consumers who prefer ATVs, dining out every other night, great new ChinaMart electronics to insurance - are really wise and rational people. They presume that of course the ERs must take these people in because the Law sez so, and it would be monstrous to allow a car accident victim to bleed out, denied ambulance.
Or a well-off family that prefers several trips abroad to insurance denied treatment when young Sally or Lakisha develops leukemia..
Since others are paying for the uninsured in the present status quo, or paying for the 50-60 million with inadequate low-cost insurance, and for businesses who dump the cost of "part-time employees" medical care on taxpayers --it becomes a collective thing.
people will not necessarily stop going to the ER for non-emergencies if only they have insurance.
And the insurance will refuse to pay for a non--emergency visit to the ER, so the hospital will still probably be on the hook for the expense because the patient won't pay. (Honestly, I don't know why an ER cannot refuse to treat an earache or a diaper rash or anything else that could be taken care of the next day in a pedi or FP's office.)
The state is only obligated to pay for your injuries if the state decides it wants to. That puts no obligation on you either way.
John Althouse Cohen said... "How is insurance "noneconomic"?"
But it's regulation of the people who ARE NOT buying it -- regulation of the failure to engage in commerce. It's a step beyond Raich, where the person was growing her own marijuana, where marijuana is a product for which there is a market. She's not going into the market, similar to Filburn, who was holding onto his homegrown wheat. But both Raich and Filburn were growing a product for which there is a national market and Congress chose to regulate that market and needed to reach the whole thing. It's harder to apply that reasoning to someone who isn't affirmatively doing anything, who is just being a person in the world. In Raich and Wickard v. Filburn, Congress wanted to control the commercial market in a product. In the present case, Congress wants to force everyone to participate in the market for a product (insurance).
AJ Lynch said..."Car insurance is mandatory as to the liability of your car damaging another person or their property."
But only because you choose to own and operate a car, which the state forbids without a license.
You don't need a license or the govt's permission to be a person in the world...
... not yet anyway.
You can own a car but not have a license no?
I don't believe operator privileges are linked to insuring a vehicle.
. (Honestly, I don't know why an ER cannot refuse to treat an earache or a diaper rash or anything else that could be taken care of the next day in a pedi or FP's office.)
Lawsuit.
How far away can this argument be: "well, you choose to remain in the US, much like someone chooses to buy a car, therefore, your choice to be HERE, plus the fact that there is an insurance market HERE, makes it exactly like Wickard." It sounds ridiculous to me, but to be honest, so does the logic in Wickard.
You can own a car but not have a license no?
I don't believe operator privileges are linked to insuring a vehicle.
Yep. Non-op. You just register the car as non operational, meaning you are not going to drive the vehicle for some time. You don't have to pay the annual registration fee or have insurance. We have several vehicles in that status.
Maybe people who opt out of health insurance can file for personal non-op status. joking.
Ann, what is your opinion of the Filburn case? It seems like a massive over-reach to me.
DBQ answered this question:
(Honestly, I don't know why an ER cannot refuse to treat an earache or a diaper rash or anything else that could be taken care of the next day in a pedi or FP's office.)
"Lawsuit."
I would add fear of being assaulted, murdered, called a bigot or racist, etc.
There is no federal law mandating car insurance. The Federal Government has only enumerated powers; all other powers remain with the states.
Car insurance is really inapplicable here as precedent. It is the states that mandate it, not the feds (and if the feds had, they would have done so through their spending power, by making receipt of federal monies contingent upon such).
I assume this has changed since then, but years ago, I was living in VA and working in MD, with, of course, D.C. somewhat in between. MD and VA had mandatory insurance laws, and my brand new car was covered by such. But within two weeks of having bought my first new car of my lifetime, I had been hit twice, neither my fault, by uninsured D.C. residents. It turns out that while they didn't need to buy insurance, there was nothing keeping them from driving out of the district and hitting cars while out there, sticking the victims with the bills.
Why have uninsured individuals not bought an individual health insurance plan?
Between the time they got laid off and the time they got on Medicare, my neighbors simply couldn't afford it. They kept their heads above water because the wife worked retail and they took in a boarder.
There is also the federal Emergency Medical Treatment and Labor Act, which requires hospitals that participate in Medicare and have emergency rooms to provide medical screenings to anyone who shows up in the ER asking for treatment and in emergencies, either treat or transfer the patient. So -- they must, in all cases, screen, and then in emergencies they must treat. I imagine they figure that once they've screened, they might as well go ahead and treat, even in non-emergencies, because of the liability if they didn't.
I just got a popup from a German site that's selling private health insurance. This must be supplementary to the basic government plan:
It covers tooth filling and inlays, along with annual exams and cleaning. If you're hospitalized, it will upgrade you to a private room. It covers what we would call alternative practitioners as well. There are discounts for non-smokers and for those whose BMI is in the normal range.
The nexus between interstate commerce and having a gun within 1000 feet of a school seems more tenuous than the cost of uninsured patients. No one knows when he's going to get cancer -- it affects people of every age.
I imagine they figure that once they've screened, they might as well go ahead and treat, even in non-emergencies, because of the liability if they didn't.
That's my point -- why not release the ER from that kind of liability? Throw it in a tort reform act. Don't require an ER by law to treat everyone who sits his butt in the waiting room for 12 hours.
And while we're at it, if you are not a legal resident of this country, don't expect to be treated at the taxpayers' expense.
if you are not a legal resident of this country, don't expect to be treated at the taxpayers' expense.
Great idea. Who wouldn't want the illegal dishwasher hacking up TB germs into the wash water? And if the dad next door gets gonorrhea from the illegal Honduran prostitute, that's just too bad for him.
Last time I checked, we had freedom of religion in this country and that the US Constitution guarantees it.
Thus, you cannot force everyone to purchase insurance. Many religions frown on gambling.
The result of compulsory insurance laws puts an unfair burden on Jews. They are anti-Semetic laws, and are un-Constitutional.
Great idea. Who wouldn't want the illegal dishwasher hacking up TB germs into the wash water? And if the dad next door gets gonorrhea from the illegal Honduran prostitute, that's just too bad for him.
Better idea. If they are here illegally send them back.
Why don't the uninsured have insurance....some one asked. Lots of reasons and Obamacare's one size fits all doesn't work.
1. They can't afford the premiums. Which means that when Obama makes it mandatory.....they STILL can't afford the premiums.
1a) they can't afford it but are not poor enough to go onto welfare/medicaid. They work and make too much money to be poor and not enough to be rich. These are the rock and a hard place people.
2. They don't WANT to spend the money even though they have the ability.
2a) because they are young and don't think they need to have medical insurance. The invincibles.
2b) they would rather spend the money on something else right now.
3. They have a pre existing condition and they are uninsurable at any price
3a)generally they are those who self employ or work for a company that doesn't provide group insurance.
3b)and are not able to qualify for welfare Medicaid where pre existing conditions don't matter. Rock and hard place again.
4. They are uninsured because they don't exist in the above ground of society. Illegal aliens who don't deserve to have public assistance....ILLEGAL, drug addicts, the mobile homeless. Some don't even know that they COULD be insured through some government. Plan. These are the falling through the cracks people.
" geekesque said...
1. People without insurance do wind up going to emergency rooms every year. In many of those cases, the problem could have been averted by preventive treatment. In all of them, there is a significant economic cost involved, which many times gets passed onto the taxpayer. There's your commerce clause trigger.
2. Citing a Lochner-court decision telling the government to butt out of child labor would get you laughed out of most courts.
8/22/09 12:19 PM"
The ER situation is entirely an artificial created by the government. They are obligated to absorb these costs as a public good but unlike eminent domain they receive no compensation. This would not be a problem if the hospital were able to bill the government for care rendered under this law. Instead hospitals overcharge insurance patients to compensate them for the forced losses imposed on them. But then again Congress would then have to appropriate the funds for this and actually be held accountable for the consequences of their actions. What a concept! Also what is wrong for demanding payment for service? Render the service and work out a pay plan.
The real question is one of liberty; you have a right to be foolish and you have the obligation to suffer the consequences of your foolishness. You do not have the right to compel someone to insure you from the consequences of your foolishness.
To follow you circular logic welfare should be banned since by definition everyone on it is a public charge and your position is that no mentally and physically competent adult should be a public charge.
Here in PA, a single Mom who makes $10 per hour from a job, also gets $336 per month for food stamps, an earned income tax credit of $3,000 or so from the IRS and the state pays for her day care expenses.
If you add all that stuff up, what is her "effective" annual income? Now Obama wants me to pay her health insurance too?
And lastly, that single Mom feels like she deserves all these handouts and wants even more from the govt.
I like the argument, and I think it would be sublime if the great constitutional scholar/non-tenure track part-time teacher at a law school were to get his signature legislation (whatever it is) thrown out on constitutional grounds. Luckily, we don't ever have to get to that point.
All of this said, I don't believe that a single-payer free health care model would be unconstitutional. Sadly, the Commerce Clause allows the federal government to take over the means of health care production. This model will lead to immense shortages, higher and higher taxes, and deeper and deeper debt. Constitutional does not mean workable.
Finally, a lot of you people left and right need to get it through your thick skulls that the federal Constitution usually does not prevent any state from enacting whatever laws it wants. State law is different from federal law. It's an easy concept.
Illegals do get medical treatment, and still diseases like TB and chagas are spreading.
Do we know that "the health care plan" will require citizens to buy insurance? I know this is what Obama advocated on the campaign trail, and it seemed to me then and now a wretched idea. However, do we have a final plan that is the plan? Has this bad idea of Obama's idea been incorporated into whatever plans are likely to be the final bill? I don't ask this rhetorically, I really don't know.
Mitt Romney boasts of his having passed such a plan in Massachusetts, but it has not been a success:
http://www.cato.org/pubs/policy_report/v30n1/cpr30n1-1.html
http://online.wsj.com/article/SB121728669884991317.html
We simply need to remove health insurance, and the companies that purport to provide it at dear cost, from the health delivery process altogether.
We need a single-payer National Health Service, on the order of the UK, Canada, France, etc.
Nothing else will do.
Robert Cook -- Perhaps you will tell us how, like the Iraq War, our system of delivering health care is illegal under some international convention.
Anyway, no thanks. We prefer cutting edge technology and avoiding the massive shortages that currently plague Canada and Great Britain.
Perhaps, since you are so unhappy with the United States, you should move to one of those countries. You could claim political asylum, as a truth-telling dissident who kept getting mocked.
People with guns can make you do just about anything.
When I took the U.S. Bar Exam they taught us "Enumerated Powers is always the wrong answer."
Mocking can be a form of torture when done correctly:)
Seven Machos:
"Robert Cook -- Perhaps you will tell us how, like the Iraq War, our system of delivering health care is illegal under some international convention."
Please read more carefully...I have never claimed our health delivery system is illegal. It is rapacious and inhumane, however, not to mention exorbitantly expensive and wasteful.
How can anyone claim with a straight face that our health care system is inhumane. Robert Cook, you are the biggest joke to fill these pages. Arguing with you is like kicking a yapping chihuahua that is on a leash. Fun, but not fair to the dog.
"How can anyone claim with a straight face that our health care system is inhumane."
And so you show you're as little informed on this topic as on the topic of our illegal war of aggression in Iraq.
Great idea. Who wouldn't want the illegal dishwasher hacking up TB germs into the wash water?
Your attempt to substitute fearmongering for reasoned argument might have worked twenty or thirty years ago. But we've been hosting millions of illegal immigrants -- without providing them with government-issued health coverage -- for decades. The dreaded Dishwasher TB Plague has completely failed to manifest.
So I'm afraid you'll have to either present a good argument, or find something to scare us with that we DON'T already know isn't a problem. :)
@John Lynch 12:08
The difference is the text of the 16th Amendment: "The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration."
Imposing a penalty or tax on people who do NOT get insurance but not on those who do strikes me as being incompatible with the 16th amendment. The penalty or tax must be levied based on a person's income rather than his insurance status, the color of his hair, or his height.
VA had mandatory insurance laws
Not in the early 80's, when I started buying insurance. You could pay the Commonwealth $150/yr and not have liability insurance. My ins co (USAA) started selling coverage for under/un-insured motorists as a separate item about that time.
In NC, if your insurance lapses, they're supposed to revoke your car license. A woman who hit me had a company car with false insurance--the insurance company had never heard of the car owner.
Why did it take so long to get around to this debate? I've been screaming about it since before the election, even here on this blog. Of course, the same press that questioned the constitutionality of what Reagan and Bush did and even Clinton's impeachment (which they were right to do!) are mostly silent on the subject.
If people going to emergency rooms are a problem, how about revising how ERs work? In my town, we have Urgent Care centers which are essentially doctor's office with more machines that go "bing!" and longer hours.
(Interestingly, the best local insurance is from a company that owns several hospitals and doctor's offices. They have several urgent care centers, but haven't drastically changing how ERs work. Wouldn't this be evidence that the entire ER thing is overblown or beyond their [legal] control?)
Do we know that "the health care plan" will require citizens to buy insurance? I know this is what Obama advocated on the campaign trail, and it seemed to me then and now a wretched idea.
No, Hillary would have required everyone to buy insurance. Obama did not want to force people to.
Under our Constitutional separation of powers, Congress drafts legislation. If passed, Obama will sign, not sign, or veto it.
But we've been hosting millions of illegal immigrants -- without providing them with government-issued health coverage -- for decades
Really? Who do you think provides illegal immigrants health care? Are you unfamiliar with the conservative article of faith that pregnant illegals come to the US to have "anchor babies" at taxpayer expense?
Are you unfamiliar with the conservative article of faith that pregnant illegals come to the US to have "anchor babies" at taxpayer expense?
I'm not only familiar with it, I've seen it first hand. On top of that, I've sat in the NICU at Children's Hospital in Los Anegles with a Mexican woman who smuggled her young child into America after Mexican doctors had failed to treat his meningitis in time to prevent brain injury.
It happens. (I have no particular rancor toward them as I imagine I would do the same thing.) I see people every day who came here illegally.
Others have said that you can have open borders and you can have socialism, but you can't have both.
I tend to agree. That'd be like having a perpetual program that gave people more money for used cars than they were worth, and then allowing people to bring used cars in over the border.
Are you unfamiliar with the conservative article of faith that pregnant illegals come to the US to have "anchor babies" at taxpayer expense?
That was very odd. You are at the same time trying to insult conservatives by bringing up an issue important to them and doing so in a snide way that implies it's ridiculous, while at the same time using that same point to bolster your argument.
Very odd.
Aside from your debate skills, I can assure your that "anchor babies" is a very real and, to this humble writer, a real head-scratcher.
My maternal grandfather retired almost two decades ago and is still chugging right along. He picked up some Spanish along the way and decided to take a job in Peru teaching English as a second language to college students that wanted to apply for US visas. He was confronted constantly with students who had relatives that were pregnant or planned to become pregnant and immigrate illegally to the US for this specific reason.
Seems to be a simple fix, at least for this very specific issue, but the political will has been lacking.
For my own part, any time an illegal enters any sort of system the government has anything to do with, in which names/ss#'s etc are needed, and said illegal is flagged, they should be gone. Doubly so if there's even a hint of criminal past.
Really? Who do you think provides illegal immigrants health care?
Emergency care is typically provided via hospitals at hospital expense. Normal and preventative care is generally done without or paid in cash.
Are you unfamiliar with the conservative article of faith that pregnant illegals come to the US to have "anchor babies" at taxpayer expense?
So are you saying that the conservatives were right all along and the Democrats who denied it were two-faced liars selling out their country's interests for the benefit of foreigners?
The "illegal aliens" question keeps re-appearing. According to an article on FactCheck, a large amount of undocumented individuals actually have private insurance already. Taken together with the fact that the legislation exempts them from coverage, this issue strikes me as irrelevant.
Second, Rivkin and Caseu are simply wrong: Is Healthcare Reform "Unconstitutional"? No -- Why Rivkin and Casey Are Wrong
I find it increasingly difficult to take anyone seriously who calls this "health care reform" and couches all arguments in terms of "reform" versus "anti-reformers".
The topic, as Althouse phrased it is "can they force you to buy something you don't want". Leave "reform" out of it.
I heard the bill excludes illegals from coverage BUT it does not have a way for providers to check if a patient is legal.
Ergo, illegals are covered.
BTW the first thing one does when writing an insurance contract is to define "who is eligible"! I think this bill skirts that issue. Not surprising to me.
FLS:
I got a letter yesterday from Rep. Sestak.
Here is a quote from his letter ......."the bill mandates individuals purchase insurance with limited exceptions".
Seven,
"Sadly, the Commerce Clause allows the federal government to take over the means of health care production."
Wow, you give up way too easily. The Commerce Clause allows no such thing; it's only the modern conceipt, completely without the slightest shred of intellectual integrity, that sees the additional phrases "or affects interstate commerce in some way, or that a drunken Ted Kennedy can somehow construe as perhaps someday affecting interestate commerce in some way" following the actual, textual Commerce Clause.
Emergency care is typically provided via hospitals at hospital expense.
Unless hospitals have printing presses in their basements, that means you and I are already paying for illegal immigrants' health care. I can hardly imagine universal health care being any worse for the taxpayer than the current situation where hospitals are obliged to deliver the babies of any woman in labor who shows up at their doors.
I can hardly imagine universal health care being any worse for the taxpayer
I can. How many more times do you think an insured mother-to-be and new mother goes to the doctor than an uninsured one? 5? 10?
that means you and I are already paying for illegal immigrants' health care
And this will radically change once the government takes over the means of production in health care. Then, someone else will be paying for them and for all the poor people who can't afford health insurance, and for everyone else, too.
" I can hardly imagine universal health care being any worse for the taxpayer than the current situation "
A failure of your imagination is hardly surprising.
Unless hospitals have printing presses in their basements, that means you and I are already paying for illegal immigrants' health care.
People who patronize a hospital that treats illegal immigrants who are unable to pay their own bills wind up bearing part of that cost, yes. But your claim was that the government was picking up the tab, and that claim is false.
It is obviously a problem that we have to pay for illegals. But your proposed solution, "write a law mandating that we pay for them with our tax money", is clearly idiotic.
I'm not going to buy it. Prosecute me O!
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