Balkinization: The Day after Barnette v. Sibelius

Comments:

The best defense against this overreach of power by the national government is the Jefferson/Madison "Doctrine of 98". State governments needed to step up like New Hampshire already has and declare this non-sense unconstitutional and nullify the law.

Just because some racists used this legal argument in our history to violate minority rights does not mean this line of reasoning should not be applied where appropriate. The tenth amendment was written for a reason. Anyone that thinks that the founding father's would have supported the national government forcing people to pay for healthcare they do not want is crazy. Were they wrong? Why?

PS: Remember that the main catalyst for the move for independence was a king that kept violating their rights with burdensome taxes.

# posted by

King of Ireland : 2:32 PM

Packing the Court in response to an adverse ruling? I can think of nothing more likely to move the opposition from political to violent, unless it's maybe having the National Guard fire on a Tea Party demonstration.

# posted by

Brett : 2:48 PM

Wait a second. A few hours ago the Supreme Court’s decision in Reynold v. Sims, which invalidated the election law of numerous states based on a debatable interpretation of an open-ended provision of the Constitution, was somehow justification for abrogating the Constitution’s clear commands with regard to the makeup of the Senate. Now a hypothetical Supreme Court decision invalidating a part of health care reform would be a “de facto coup”?

I take it that whether the Court is the conscience of the nation, upholding fundamental constitutional values against the passions of the unprincipled political branches, or an undemocratic body (confirmed by almost as undemocratic Senate), choosing its own elite views over those of the representatives of the people, depends a lot on the results.

# posted by

mls : 2:51 PM

Mark: I've thought enough about the constitutional issues to be able to sketch out an argument, compatible with existing law, that the individual mandate (a) doesn't fall within Congress's power to regulate interstate commerce, (b) doesn't fall within Congress's power to tax and spend for the general welfare, and (c) is (in its penalty aspect) a direct tax prohibited by the Constitution.

Here is Barrett's analysis.

(a) is a perfectly reasonable proposition. Commerce is the activity of trading goods and services. Regulating commerce is limiting the activity of trade. The non-activity of declining to buy health insurance cannot in any way be considered commerce. How then can compelling a citizen to buy government approved goods and services be considered regulation of commerce?

(b) should be a slam dunk as it applies to the the individual mandate. How can the power of Congress to tax and spend be translated into the power to force citizens to buy government approved goods and services?

(c) The real issue is whether a fine posing as a tax for failing to purchase government approved insurance is constitutional. Barrett spends a fair amount of time on this issue in the above linked article. I have no background in this area of the law. Sandy, would you or any of the other Con Law profs care to comment on Barrett's analysis?

# posted by

Bart DePalma : 4:40 PM

Regarding (b) -- How can the power of Congress to tax and spend be translated into the power to force citizens to buy government approved goods and services? -- here is one way. The government could pay the premiums for everyone who does not do so himself, and give a tax credit in the amount of the premiums paid to everyone who does buy health insurance himself. Then, to pay for all this, it raises everyone's income taxes. There would be no constitutional problem with this, even though it amounts to the same thing as requiring the purchase of health insurance.

# posted by

Henry : 5:52 PM

I'm not a Con Law prof, but I think SONZINSKY v. UNITED STATES might be relevant to point C. The NFA imposed a $200 "transfer tax" on a list of items, some of which cost less than a dollar. This at a time when $200 was very serious money, easily comparable to the health insurance fine we're discussing.

The Court flatly refused to consider the claim that anything Congress called a tax was really a fine.

# posted by

Brett : 5:53 PM

Brett:

Thanks for the case. However, Sonzinski dealt with a business tax on all firearms dealers that was so high that the dealers argued that it was punitive. The dealers did not dispute that Congress had the power to levy a business tax and the court was unwilling to speculate as to Congress' ulterior motives.

Under the current legislation, you are expressly being taxed for failing to purchase a government approved service. Unlike the business tax in Sonzinski, this facially appears to be a fine.

# posted by

Bart DePalma : 6:06 PM

The non-activity of declining to buy health insurance cannot in any way be considered commerce. How then can compelling a citizen to buy government approved goods and services be considered regulation of commerce?

It isn't. But it is "Necessary and Proper" for the regulation of commerce whereby pre-existing conditions cannot be used when rating isurance policies - and therefore Constitutionally permissible.

# posted by

just_looking : 6:36 PM

You're bringing it back to A, Bart. Sonzinski is relevant to C, in that it highlights the Court's reluctance, if Congress claims something is a revenue measure, to admit it's something else.

# posted by

Brett : 8:17 PM

What Just Looking said. As long as it is constitutional to create a national market for healthcare (and it is), there's no doubt whatsoever that it is constitutional to mandate the purchase of insurance as a necessary and proper regulation to make the market function.

Not only is this obvious, but it is obvious even under Justice Thomas' narrow conception of the commerce clause. There is, indeed, no way this is unconstitutional. And I say this even though I think the individual mandate is a truly bad idea.

Conservatives have to remember something they have thrown at liberals so many times-- not everything you don't like is unconstitutional. This constitutional challenge will not receive a single vote on the Supreme Court, even if it gets there. More likely, it will be resolved 1-0 and 3-0 in the lower courts, and en banc and cert will be denied for lack of a serious question on the merits.

# posted by

Dilan : 10:46 PM

"Conservatives have to remember something they have thrown at liberals so many times-- not everything you don't like is unconstitutional."

Just as not everything you DO like is constitutional.

The problem here is that, while far weaker arguments have prevailed at the Supreme court, they've generally been far weaker arguments in favor of expanded federal power, not contracting it. The heavy thumb we've seen in favor of declaring federal actions constitutional makes getting this law struck down extremely unlikely.

OTOH, I don't see why, in a world where Democrats are willing to seriously argue that, for instance, REAL House seats can be given to non-states without a constitutional amendment, Republicans shouldn't also be entitled to pursue long shot arguments. The arguments that this law is unconstitutional are certainly no worse than some we've seen in favor of this or that favored liberal measure.

# posted by

Brett : 6:14 AM

Dilan doesn't like the individual mandate. So, we can push past the cliches and enter the real world here. As to the D.C. voting representative idea (probably unconstitutional), just to remind, Sen. Hatch (R) is a big promoter of that bill.

Prof. Barnett is not likely to succeed as much (not enough) as he did in his medicinal pot efforts. Sure his supporters can think up arguments, though imho they are very weak, but who is saying longshot bids should not be made?

Prof. Levinson is asking -- contra to the reapportionment cases which had support of the Kennedy Administration and furthered equal representation that at times was clearly found in state constitutions but ignored -- the courts would strike down popularly enacted legislation. Yes, Virginia, courts take that into consideration.

abrogating the Constitution’s clear commands with regard to the makeup of the Senate

Levinson wants to amend the Constitution to change this and/or voiced his displeasure of the institution. I'm unsure where he said we should "abrogate" it as currently written.

Anyways, the suggestion of the supporters of the bill to bring a suit doesn't sound likely to work. Is the D.C. locale to bring to suit something found in Medicare or the like laws? I guess the 4th or 5th Circuit might be the best shot.

And, Bush v. Gore references are a bit tedious. Has someone formed a corollary to Godwin's Law in respect to that?

BTW, did Bart read Prof. Balkin's analysis on this issue (below and elsewhere)? Perhaps, a reply would be useful.

# posted by

Joe : 8:45 AM

The problem here is that, while far weaker arguments have prevailed at the Supreme court, they've generally been far weaker arguments in favor of expanded federal power, not contracting it.

This does depend on what "far weaker" means and Brett does have a somewhat outlier view on that.

Just to keep things in some perspective, the Rehnquist Court was top on striking down federal legislation, often on "weak" grounds. The SC continues to restrain federal power in various respects, particularly in the criminal area.

Also, many (including Scalia) would argue that "expanded federal power" includes courts striking down popularly passed legislation.

The rub again is on the merits.

# posted by

Joe : 8:56 AM

Dilan said... What Just Looking said. As long as it is constitutional to create a national market for healthcare (and it is), there's no doubt whatsoever that it is constitutional to mandate the purchase of insurance as a necessary and proper regulation to make the market function.

Why? How does the fact that the government regulates or owns a business change the fact the declining to purchase the products of that business is by definition not commerce and cannot be regulated. The N&P Clause simply permits Congress to enact legislation to enable it to regulate commerce.

The theory that Congress can enact unconstitutional legislation to make constitutional legislation "work" is rather radical. Under this theory, the government can order people to buy goods and services to make a regulated private business or public business more profitable or even simply to collect taxes.

Lets take this a step further. Can a state government order you to vote for a proposition in order to make the proposition work? Can the government prohibit free speech so they can make the legislative process work smoother and without distractions?

Dilan, this is a damn insidious theory.

# posted by

Bart DePalma : 9:08 AM

Joe- your use of the term “popularly enacted legislation” is exactly the kind of thing that I was referring to. What is “popularly enacted legislation”? It is, I presume, legislation enacted by the representatives of the people. But all legislation (in our country) is so enacted. This includes all of the legislation you or anyone else may think is unconstitutional, including, but not limited to, the laws struck down in Reynolds v. Sims.
So referring to health care reform as “popularly enacted legislation” in this context is not adding anything to the analysis. The proper term is “legislation.”

Of course, perhaps you meant that health care reform in general, or the individual mandate in particular, is actually popular. If so, you expressed the thought rather inexactly. But assuming that you meant “popular legislation,” I would note that the evidence suggests these things are rather unpopular.

With regard to the Senate, SL maintained that the principle pronounced in Reynolds has become part of the “settled Constitution” and therefore supports his arguments in favor of abrogating the Senate. It is true that he did not say that Reynolds would justify the courts in abrogating the Senate, but, then again, I didn’t say that he said that.

# posted by

mls : 9:22 AM

The N&P Clause simply permits Congress to enact legislation to enable it to regulate commerce.

That's what the mandate does. It enables Congress to regulate how pre-exisiting conditions are used in rating insurance polciies.

# posted by

just_looking : 9:47 AM

In Barrett's analysis, provided by Bart, A would be a good argument in the Lochner era. Today, no. If A were true then Medicare is unconstitutional. Good luck with that. But we don't even need worry about the Commerce Clause if we use the tax argument. B and C lose on Henry's simple XVI Amendment construct, to which no naysayers have yet responded.

Congress has the power to lay and collect income taxes. That's a pretty broad power that the XVI Amendment gives to Congress with little textual limitation. So Congress can tax all incomes to provide for health insurance.

We also know Congress can provide to citizens income tax deductions, like for homeowner mortgage interest, and tax credits, like for buying a hybrid vehicle. Thus Congress could also enact a provision for a 100% tax credit for health insurance buyers.

This procedure is more complicated than a direct tax but it is Constitutional. It also requires Congress to use the dreaded T word.

# posted by

Len : 9:59 AM

"supports his arguments in favor of abrogating the Senate"

He did not say any one opinion supported his argument (the implication of your first claim), but that over time, it has become "settled law" as a result of a stream of cases over forty five years as well as the failure of attempts to override it.

His ultimate conclusion:

"So one has to come up with an explanation as to why the national Senate should be different, and the only plausible explanation is that we're stuck with it as a result of a compromise that Madison (among others) detested."

I'm unsure how much this translates to "abrogating the Senate" as such, but your challenge still is dubious, particularly your citation of one single ruling.

It is, I presume, legislation enacted by the representatives of the people. But all legislation (in our country) is so enacted.

One reason for judicial review is to help correct breakdowns of the process of representative government. That is, if the "enacted" part in some fashion broke down. As I suggested, this was the argument in the Reynolds series of cases.

The very process of choosing representatives, as in the case of racial discrimination in voting, was at issue. This included state legislatures not following state constitutional commands. This as well as support by the executive department (who has the role to faithfully execute the Constitution) puts into question the "coup" nature of the rulings.

It is quite possible for the SC to also strike down nationally passed legislation if it is unconstitutional, but as SL suggests, it seldom "dares" to do this is in a way this significant.

So, yes, it does depend on the results to some extent. But, my point was to suggest a difference between the two cases all the same. This alone does not make declaring the legislation unconstitutional illegitimate. I did not mean to say that.

# posted by

Joe : 10:20 AM

Brett:

I can think of nothing more likely to move the opposition from political to violent, unless it's maybe having the National Guard fire on a Tea Party demonstration.

Didn't do the trick with Ohio students. But then again, we're talking a different group here with the Teabaggers, aren't we?

Cheers,

# posted by

Arne Langsetmo : 12:03 PM

mls:

Wait a second. A few hours ago the Supreme Court’s decision in Reynold v. Sims, which invalidated the election law of numerous states based on a debatable interpretation of an open-ended provision of the Constitution, was somehow justification for abrogating the Constitution’s clear commands with regard to the makeup of the Senate.

Nope. Reynold v. Sims had nothing to do with U.S. Senate elections (which are done as "at-large" elections as per Constitutional mandate).

Cheers,

# posted by

Arne Langsetmo : 12:09 PM

Bart:

How can the power of Congress to tax and spend be translated into the power to force citizens to buy government approved goods and services?

They aren't. You don't have to fly. But if you do, you will pay federal tax on it. And that's "buy[ing] government approved goods and services".

Cheers,

# posted by

Arne Langsetmo : 12:12 PM

Why? How does the fact that the government regulates or owns a business change the fact the declining to purchase the products of that business is by definition not commerce and cannot be regulated.

I spelled it out, Bart. The regulations that are at issue here are (1) community rating and (2) no exclusions based on preexisting conditions. THOSE regulations are regulations of interstate commerce (because they are part of a comprehensive scheme to set up a national market for health insurance).

But once you do those things, you create a huge adverse selection problem unless you have a mandate. The mandate is thus constitutional under the necessary and proper clause.

The N&P Clause simply permits Congress to enact legislation to enable it to regulate commerce.

And that is what the mandate is. It's necessary in order to make the interstate regulatory scheme work.

Indeed, this is the classic plain meaning of the N&P clause. You don't even have to get into arguments about the gloss Marshall put on it in McCulloch. Here you have an interstate commercial regulatory scheme, and in order for it to work, you need to regulate some activity that some might characterize as non-commercial or non-interstate. But without that regulation, the entire scheme falls apart. If anything is necessary and proper, this is.

The theory that Congress can enact unconstitutional legislation to make constitutional legislation "work" is rather radical. Under this theory, the government can order people to buy goods and services to make a regulated private business or public business more profitable or even simply to collect taxes.

Well, that depends on what level of scrutiny one attaches to the N&P clause. Under McCulloch, yes, that's probably true, though I would suggest that the individual mandate would even survive strict scrutiny-- it is pretty strictly necessary in order to make community rating and no bans on preexisting conditions work, because it prevents adverse selection that unravels the insurance market.

So even if you were to overturn McCulloch and narrow the N&P clause, this would still be constitutional.

Lets take this a step further. Can a state government order you to vote for a proposition in order to make the proposition work? Can the government prohibit free speech so they can make the legislative process work smoother and without distractions?

No, but that's because civil liberties work differently than congressional power. Congress is specifically restricted from interfering with political expression, even if such restrictions otherwise fall within an enumerated power. Thus, even if the restriction is necessary and proper, it is still banned by the First Amendment.

But pure questions of congressional power don't work that way. The commerce clause and the necessary and proper clause are part of the same article of the Constitution and work together. An action is within the grant of power if it is EITHER a regulation of commerce among the states OR is not a regulation of commerce among the states but is necessary and proper to carrying such a regulation into effect.

In any event, I stand by this prediction. This is simply "the right wing hates health care reform, so it must be unconstitutional", and there isn't one vote for these theories in the US Supreme Court.

# posted by

Dilan : 1:22 PM

Dilan said... As long as it is constitutional to create a national market for healthcare (and it is), there's no doubt whatsoever that it is constitutional to mandate the purchase of insurance as a necessary and proper regulation to make the market function.

You go off track in your very first comment. The constitution grants the power to regulate interstate commerce, not to create interstate commerce that doesn't otherwise exist for the purpose of regulating it.

The market won't function because community rating and no restrictions on pre-existing conditions are really stupid ideas. Congress can pass really stupid ideas if it wants. (In fact, that appears to be its raison d'etre.) But the fact that it has passed a really stupid idea does not thereby grant it the power to control non-economic behavior (not buying insurance) in an attempt to make the really stupid idea somehow "work."

# posted by

David Nieporent : 2:18 PM

This comment has been removed by the author.

# posted by

Dilan : 2:36 PM

This comment has been removed by the author.

# posted by

Dilan : 2:38 PM

You go off track in your very first comment. The constitution grants the power to regulate interstate commerce, not to create interstate commerce that doesn't otherwise exist for the purpose of regulating it.

David:

This would mean that the tradable permits scheme for pollutants, which has been around for a number of years, is unconstitutional.

It would mean that the auctions of broadcast spectrum by the FCC are unconstitutional.

It would mean that sales of public land, which have occurred since the founding of this country, are unconstitutional.

It would mean that the Federal Reserve's Open Market Operations are unconstitutional.

It would mean that mortgage securitization (e.g., Fannie Mae) is unconstitutional. (Of course, maybe we'd be better off if it was. But you get my point.)

The government "creates" markets all the time. That's a very standard way of regulating commerce. Indeed, in your conception of the commerce clause, the government has no power to solve Tragedy of the Commons problems.

Congress can pass really stupid ideas if it wants. (In fact, that appears to be its raison d'etre.) But the fact that it has passed a really stupid idea does not thereby grant it the power to control non-economic behavior (not buying insurance) in an attempt to make the really stupid idea somehow "work."

Except that the Constitution says exactly that Congress CAN do that.

Look, again, this is nothing more than extremist right-wing judicial activism. You guys don't like something (which, by the way, I don't like either) and therefore it MUST be unconstitutional. It couldn't be that the Constitution actually grants Congress a lot of power to tinker around in the market, even though it clearly does.

You guys are stretching and searching for some way of distinguishing all the authorities that give the commerce and N&P clauses a very broad reach. And you've seized on this idea that a mandate is somehow different because it regulates NOT buying something rather than buying something, and the idea that creating an interstate market isn't a form of regulation. Unfortunately, there is not one scrap of authority that holds either of those things. It's simply conservatives making up their own law.

It's really easy to distinguish cases, to say "no, no, this one is different!". Every case is different from the last one. The question is whether any court has ever agreed with you about those distinctions. And there isn't any evidence of that.

# posted by

Dilan : 2:52 PM

But the fact that it has passed a really stupid idea does not thereby grant it the power to control non-economic behavior (not buying insurance) in an attempt to make the really stupid idea somehow "work."

That conclusion is directly contradicted by Lopez as noted in Raich.

From Raich, quoting from and distinguishing Lopez, "Section 922(q) 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"

Scalia's Raich concurrence, further analyzing this quote from Lopez, "Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121."

# posted by

just_looking : 5:13 PM

Len said...In Barrett's analysis, provided by Bart, A would be a good argument in the Lochner era. Today, no. If A were true then Medicare is unconstitutional. Good luck with that.

Medicare and the proposed public option are not regulations of commerce, but rather an affirmative benefit for the "general welfare."

# posted by

Bart DePalma : 5:31 PM

And if/when you lose the next election, will you ignore the results of that also? This is becoming quite problematic.

# posted by

michael a. livingston : 5:32 PM

BD: Why? How does the fact that the government regulates or owns a business change the fact the declining to purchase the products of that business is by definition not commerce and cannot be regulated.

Dilan said...I spelled it out, Bart. The regulations that are at issue here are (1) community rating and (2) no exclusions based on preexisting conditions. THOSE regulations are regulations of interstate commerce (because they are part of a comprehensive scheme to set up a national market for health insurance). But once you do those things, you create a huge adverse selection problem unless you have a mandate. The mandate is thus constitutional under the necessary and proper clause.

The fact that your proposed regulations make no economic sense and will increase premiums does not suddenly transform the inactivity of declining to purchase insurance into commerce which Article I grants Congress the power to regulate. Rather, it is a policy argument not to enact the proposed regulations.

Do you have any precedent which holds that Congress has the power to compel a citizen to purchase a good or service pursuant to the Commerce Clause in order to make other regulations of commerce cost less? Or under any other theory?

# posted by

Bart DePalma : 5:54 PM

Do you have any precedent which holds that Congress has the power to compel a citizen to purchase a good or service pursuant to the Commerce Clause in order to make other regulations of commerce cost less? Or under any other theory?

You keep ignoring my argument: "[the mandate] enables Congress to regulate how pre-exisiting conditions are used in rating insurance polciies."

# posted by

just_looking : 6:10 PM

BD: Do you have any precedent which holds that Congress has the power to compel a citizen to purchase a good or service pursuant to the Commerce Clause in order to make other regulations of commerce cost less? Or under any other theory?

just_looking said...You keep ignoring my argument: "[the mandate] enables Congress to regulate how pre-exisiting conditions are used in rating insurance polciies."

I do not understand how your argument applies to the issue for which I am requesting precedent.

# posted by

Bart DePalma : 6:24 PM

The fact that your proposed regulations make no economic sense and will increase premiums does not suddenly transform the inactivity of declining to purchase insurance into commerce which Article I grants Congress the power to regulate.

It doesn't need to. So long as the mandate is NECESSARY to carry the OTHER regulations into effect, it's constitutional.

Do you have any precedent which holds that Congress has the power to compel a citizen to purchase a good or service pursuant to the Commerce Clause in order to make other regulations of commerce cost less?

I don't need one. As Just Looking noted, the governing commerce clause precedents specifically say that if a law reaching non-interstate or non-commercial conduct is necessary to a broader regulatory scheme, it's constitutional.

You have the burden of proof here, Bart. You have to show us a precedent that says that it makes a difference that the regulation comes in the form of a mandate rather than a prohibition. No case has drawn that distinction, and no case will.

# posted by

Dilan : 6:28 PM

Bart:

Is 49 U.S.C. § 31139(f) (mandating that carriers operating in interstate commerce carry insurance) unconstitutional? Because it certainly has been on the books for a fair amount of time and nobody seems to have thought it was unconstitutional and challenged it.

# posted by

Dilan : 7:00 PM

"the governing commerce clause precedents" utterly undermine, as they are intended to, the constitutional scheme of enumerated powers. The Court has spoken on the commerce clause, but we are not obligated to pretend it hasn't spoken arrant nonsense.

# posted by

Brett : 7:05 PM

"the governing commerce clause precedents" utterly undermine, as they are intended to, the constitutional scheme of enumerated powers. The Court has spoken on the commerce clause, but we are not obligated to pretend it hasn't spoken arrant nonsense.

Well, part of the point of this discussion, Brett, is that even under Justice Thomas' interpretation of the Constitution (i.e., rolling everything back), the individual mandate is still constitutional. Indeed, setting up an interstate insurance market was constitutional in 1787, and mandating the purchase of insurance as part of the regulation was constitutional as of the time of McCulloch v. Maryland.

It happens to ALSO be true that under modern precedents, this is clearly constitutional, and I agree with you that at least some of those precedents go too far. But you don't need Wickard or Raich to reach this result-- as I said, this is a no-brainer anyway.

# posted by

Dilan : 7:13 PM

I do not understand how your argument applies to the issue for which I am requesting precedent.

Repeating my post of 5:13 PM, 1/4/09:

From Raich, quoting from and distinguishing Lopez, "Section 922(q) 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"

Scalia's Raich concurrence, further analyzing this quote from Lopez, "Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121."

Wouldn't you agree that the insurance mandate is a reasonablly adapted means to insure the legitimate end that the regulation barring insurance companies from using pre-exisiting conditions in rating insurance policies is not undercut.

# posted by

just_looking : 7:22 PM

Dilan:

You are making the claim that the N&P Clause in combination with the CC provides Congress with the power to compel a citizen to purchase a good or service in order to make other regulations of commerce cost less. I have no burden to disprove your proposition. The burden to prove your proposition lies entirely with you.

You have offered no specific precedent for your proposition as I requested.

You imply that there is general precedent for your proposition. I would enjoy reading it.

BTW, a mandate that a common carrier engaging in interstate commerce buy insurance is not the remotely same thing as mandating an individual not engaging in interstate commerce do so.

Just looking:

To start, Raich involves prohibiting an activity - possession of marijuana - and not an affirmative requirement that a citizen must purchase a good or service.

The point of strained distinction the Raich majority made from Lopez was:

While the statute provided for the periodic updating of the five schedules, Congress itself made the initial classifications. It identified 42 opiates, 22 opium derivatives, and 17 hallucinogenic substances as Schedule I drugs. 84 Stat. 1248. Marijuana was listed as the 10th item in the third subcategory. That classification, unlike the discrete prohibition established by the Gun-Free School Zones Act of 1990, was merely one of many “essential part[s] of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Lopez, 514 U.S., at 561.34 Our opinion in Lopez casts no doubt on the validity of such a program.

Declining to buy health insurance is not an intrastate activity. It is inactivity.

Raich is hardly Scalia's most shining moment and undermines his otherwise commendable attempts to partially restore the plain meaning of the CC. However, even his concurrence does not reach our question:

The power to regulate interstate commerce “extends not only to those regulations which aid, foster and protect the commerce, but embraces those which prohibit it.” Darby, 312 U.S., at 113. See also Hipolite Egg Co. v. United States, 220 U.S. 45, 58 (1911); Lottery Case, 188 U.S. 321, 354 (1903). To effectuate its objective, Congress has prohibited almost all intrastate activities related to Schedule I substances–both economic activities (manufacture, distribution, possession with the intent to distribute) and noneconomic activities (simple possession). See 21 U.S.C. § 841(a), 844(a). That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation.

Once again, declining to purchase insurance is inactivity and not intrastate activity, whether commercial or not.

# posted by

Bart DePalma : 8:12 PM

You are making the claim that the N&P Clause in combination with the CC provides Congress with the power to compel a citizen to purchase a good or service in order to make other regulations of commerce cost less.

No, not to "cost less", but to make the insurance market work. I'm not going to tutor you in the workings of adverse selection, Bart, but suffice to say, it can make an insurance market unravel.

(Having said that, even if the only purpose of the mandate was to make it "cost less", given that it is a permissible use of the commerce power to try to lower the price of goods and services in the national market, I don't see how that would make the mandate unconstitutional.)

You have offered no specific precedent for your proposition as I requested.

Bart, if a federal judge were here, he would sanction you for this. Seriously, not only are all congressional statutes presumed constitutional, but the governing law rejects your construction of the necessary and proper clause. So you have the burden of showing specific cases, not me.

In addition, I cited a statute that's been on the books for 14 years mandating that people carry insurance, and nobody has even challenged its constitutionality. That suggests that your argument is not only meritless, but frivolous.

BTW, a mandate that a common carrier engaging in interstate commerce buy insurance is not the remotely same thing as mandating an individual not engaging in interstate commerce do so.

This is an ipse dixit. You can SAY this, but since what Bart DePalma asserts doesn't automatically become law, it isn't worth the pixels it is displayed on.

I should add one more thing about your supposed distinction between "activity" and "inactivity". The commerce clause and necessary and proper clause say NOTHING about "activity". So long as the subject matter of the regulatory regime is commerce and the regulation of inactivity is necessary and proper to effectuate the regulatory regime, there's no textual basis for whining "but it's inactivity!!!!!!!"

In the end, you are just making up the law. Conservatives turn into unprincipled judicial activists really easily after the worm has turned.

# posted by

Dilan : 8:29 PM

Once again, declining to purchase insurance is inactivity and not intrastate activity, whether commercial or not

An activist Court could cobble together five votes that contradict the plain text of the Necessary and Proper clause (no distinction between activity and inactivity) without a shred of precedent to support the distinction.

The purpose of this series of posts was to debate how to mitigate against and deal with that possibility, including exposing supposedly respectable arguments such as yours.

# posted by

just_looking : 9:01 PM

Dilan:

I am sure an actual federal judge would be quite impressed with your inability to offer a textual, original meaning or precedential argument to support your position followed by a request to sanction me for failing to prove a negative.

Your statute requiring a business engaged in interstate commerce to purchase insurance is not the same as the proposed statute requiring an individual citizen not engaged in interstate commerce to purchase insurance because the latter is not involved in interstate commerce or even non-economic intrastate activity several degrees removed from interstate commerce. This is not an ipse dixit argument.

I should add one more thing about your supposed distinction between "activity" and "inactivity". The commerce clause and necessary and proper clause say NOTHING about "activity."

You have to be kidding. Are you seriously telling me that commerce is not an activity and that enacting statutes necessary and proper to regulate commerce has nothing to do with activity?

Take a deep breath and untwist yourself out of that pretzel you have tied yourself into.

The case law speaks to interstate and intrastate economic and non-economic activity. This is the reason you can offer no direct or general precedent to support your position.

# posted by

Bart DePalma : 9:18 PM

The case law speaks to interstate and intrastate economic and non-economic activity

The case law is silent, without prejudice, towards laws which require activity where there was none beforehand. The plain text of the Necessary and Proper clause has a clear prejudice, allowing such laws.

And from these facts, you conclude precedent supports your viewpoint?

# posted by

just_looking : 10:46 PM

You have to be kidding. Are you seriously telling me that commerce is not an activity and that enacting statutes necessary and proper to regulate commerce has nothing to do with activity?

What I am saying is that the Constitution says "commerce" and "necessary and proper", not "activity".

Here's an example. Suppose the government wants to promote physical fitness. The government could prohibit sitting on the couch all day. The government could also mandate exercise. Either one of those things could be argued to be necessary and proper to the goal of promoting physical fitness. There's nothing in the concept of "necessary and proper" that requires the thing being regulated to be activity rather than inactivity.

As for the remainder of your post, what Just Looking says. The text says "necessary and proper", not "activity", and there aren't any cases on your specific argument because it's too stupid to have ever been made before.

# posted by

Dilan : 2:54 AM

The government could prohibit sitting on the couch all day. The government could also mandate exercise. Either one of those things could be argued to be necessary and proper to the goal of promoting physical fitness. There's nothing in the concept of "necessary and proper" that requires the thing being regulated to be activity rather than inactivity.

Correct on the latter point, but let's not go overboard. The necessary and proper clause is limited to laws which have ends which are "within the scope of the Constitution" (McCulloch).

Which independent power authorizes promoting physical fitness (it can't be the Spending power, which is limited to spending in order to promote physical fitness).

# posted by

just_looking : 8:14 AM

BD: The case law speaks to interstate and intrastate economic and non-economic activity

just_looking said...The case law is silent, without prejudice, towards laws which require activity where there was none beforehand. The plain text of the Necessary and Proper clause has a clear prejudice, allowing such laws. And from these facts, you conclude precedent supports your viewpoint?

No. We are in novel territory here. To my knowledge, Congress has never attempted to exercise such powers before. That is what is so infuriating about the automatic assumptions by the imperial Congress faction here that Congress can do what it damn well pleases so long as it says the magic words of commerce, necessary and proper, even if the subject matter has nothing to do with the common meaning of those words.

# posted by

Bart DePalma : 9:12 AM

BD: You have to be kidding. Are you seriously telling me that commerce is not an activity and that enacting statutes necessary and proper to regulate commerce has nothing to do with activity?

Dilan said..What I am saying is that the Constitution says "commerce" and "necessary and proper", not "activity".

Here's an example. Suppose the government wants to promote physical fitness. The government could prohibit sitting on the couch all day. The government could also mandate exercise. Either one of those things could be argued to be necessary and proper to the goal of promoting physical fitness.

O M G. This is now officially getting scary.

In your opinion, is there anything the government cannot order you to do under the Constitution (apart perhaps from those things expressly prohibited under the Bill of Rights)?

More interestingly, is there anything the government could order you to do which you would refuse?

# posted by

Bart DePalma : 9:18 AM

The problem with outlandish hypotheticals is precisely that they ARE outlandish, i.e., it is impossible to imagine, in the foreseeable future, sufficient political support for the proposals to make them viable as actual legislation. If, on the other hand, there really were widespread support, then it would be relatively easy for smart lawyers to defend their constitutionality. Just think of all of the smart lawyers who are eager to defend torture.

John Hart Ely speaks to this reality at the end of his book, when he addresses the fact that his particular theory wouldn't stop Congress from requiring kidney donations from the healthy to the unhealthy. He correctly says that such legislation is inconceivable in the America has was living in, and that remains true even thirty years later.

# posted by

Sandy Levinson : 11:19 AM

If, on the other hand, there really were widespread support, then it would be relatively easy for smart lawyers to defend their constitutionality.

I can imagine a law requiring exercise being popular, yet I can't conceive of an argument that easily defends the law. To the contrary, it is easy to craft the argument that invalidates the law.

# posted by

just_looking : 11:35 AM

We are in novel territory here

Every new case has some novel aspect to it. So that unremarkable observation can't be determinative.

The novel aspect you put forth (activity versus inactivity) is only of consequence to a judicial activist given the plain text of the Necessary and Proper clause and the lack of precedent drawing any such distinction.

# posted by

just_looking : 11:42 AM

Dilan appears to me to be using the exercise example to discuss the meaning of "necessary and proper," not taking as a given that Congress has some power over exercise.

Not that they don't have the power to promote it in some ways, such as public information campaigns or funding research in the areas. Exercise would seem useful to promoting the military and militia too.

# posted by

Joe : 11:46 AM

Sandy:

One would hope that there would be smart lawyers on both sides of a case contesting such an expansion of congressional power.

Do you know of any precedent for the general proposition that inaction is commerce which can be regulated or for the specific proposition that individual citizens who do not buy a good or service can be compelled by the government to do so?

Also, what do you think of Barrett's discussion of whether the fine posing as a tax for failing to purchase government approved health insurance is constitutional. To me, this is the more interesting and relevant issue.

# posted by

Bart DePalma : 11:47 AM

Just Looking- it seems to me pretty easy to defend the hypothetical using the very same argument that you have been making with regard to the individual mandate. Requiring exercise will make people healthier and drive down health care costs, thereby allowing the national health insurance market to more effectively cover everyone.

You may argue that a law mandating physical exercise is less “necessary and proper” to assuring the effective functioning of a national health insurance market than a law mandating everyone carry insurance. But that is a matter of judgment. If the court is going to defer to the judgment of Congress with respect to one, why shouldn’t it defer with respect to both? Conversely, if it is going to question Congress’s judgment as to one, it could just as easily do so with respect to the other.

# posted by

mls : 11:50 AM

Sandy Levinson said...

The problem with outlandish hypotheticals is precisely that they ARE outlandish, i.e., it is impossible to imagine, in the foreseeable future, sufficient political support for the proposals to make them viable as actual legislation.

You may want to reconsider your scope of your imagination. The individual insurance mandate is very unpopular and the polling tanks completely when the tax penalty is added to the question. Yet, there is a small majority in the House and even more incredibly 60 votes in the Senate for such a dictate.

# posted by

Bart DePalma : 12:14 PM

Requiring exercise will make people healthier and drive down health care costs, thereby allowing the national health insurance market to more effectively cover everyone.

The law based on the Necessary and Proper clause needs to be tied to a regulation of commerce, not merely to an impact on commerce. The insurance mandate is tied to the regulations concerning pre-exisitng conditions. I don't see a similar tie to a regulation for an exercise mandate.

# posted by

just_looking : 12:53 PM

Do you know of any precedent for the general proposition that inaction is commerce

Why do you continue to repeat this strawman? The proposition is the activity mandate is necessary and proper to a regulation of commercial activity.

# posted by

just_looking : 12:58 PM

Dilan:

"Inactivity" just gives him a hook to hang his argumentative hat on. He'll never see what you're saying because then he has nothing left. When the facts and law aren't in your favour, you pound the table ... or nits ... or inanities. You go to court with the arguments you can manufacture, not the ones you wish you had.

Cheers,

# posted by

Arne Langsetmo : 1:35 PM

BD: Do you know of any precedent for the general proposition that inaction is commerce

just_looking said...Why do you continue to repeat this strawman? The proposition is the activity mandate is necessary and proper to a regulation of commercial activity.

What strawman? Your cited case law expressly made this distinction, extending commerce to intrastate economic and non-economic activity.

There is a fundamental and important distinction between the exercise of a negative regulatory power over commerce saying "X activity shall not not be permitted in commerce" and an affirmative direction of the lives of individual citizens that they shall purchase some approved good or service.

Congress is attempting to cross a very significant bright line here to abridge our individual liberties.

This exercise reminds me of the song Sunshine by Jonathan Edwards:

Sunshine, go away today
I don't feel much like dancin'
Some man's come, he's tried to run my life
Don't know what he's asking

He tells me I better get in line,
Can't hear what he's sayin'
When I grow up, I'm gonna make him mind
These ain't dues I've been payin'

How much does it cost? I'll buy it
The time is all we've lost, I'll try it
He can't even run his own life
I'll be damned if he'll run mine, Sunshine...

I wonder if some of the Profs here remember how they and their friends rebelled against authority back in the 60s and 70 as they now develop clever semantic arguments to defend that same authority?

# posted by

Bart DePalma : 1:39 PM

Just Looking- sure, there is a tie to regulation. Congress’s regulatory scheme is based on health insurance being affordable for everyone. This will advance that goal by bringing down the cost of health insurance. And maybe Congress wants to prohibit insurance companies from discriminating among customers based on their physical fitness, but needs this mandate to compensate for the resulting disincentive to exercise.

I am sure that lobbyists for the fitness industry will provide us with whatever factual record we need to sustain this very necessary and proper law.

# posted by

mls : 1:42 PM

What strawman?

You claimed the mandate-is-constitutional-side is arguing that "inaction is commerce". We are not making that argument.

Your cited case law expressly made this distinction, extending commerce to intrastate economic and non-economic activity.

The cited case law does not distinguish between action and inaction. It doesn't discuss inaction at all.

# posted by

just_looking : 2:00 PM

Congress’s regulatory scheme is based on health insurance being affordable for everyone. This will advance that goal by bringing down the cost of health insurance.

A goal is not a regulatory scheme.

And maybe Congress wants to prohibit insurance companies from discriminating among customers based on their physical fitness, but needs this mandate to compensate for the resulting disincentive to exercise.

The mandate is permissible only if it keeps the regulation from being undercut. It is not permissible to repair undesirable side effects of the regulation, unless those side effects undermine the regulation itself.

# posted by

just_looking : 2:11 PM

Dilan appears to me to be using the exercise example to discuss the meaning of "necessary and proper," not taking as a given that Congress has some power over exercise.

Joe was the only one who got the point of my hypo. It was to show that "necessary and proper" doesn't turn on whether what is being regulated is activity or inactivity.

Here's another example. The filing of tax returns surely falls within the necessary and proper clause, because requiring the filing of a return, even though it is a mandate and "regulates inactivity", bears a rational relationship to the collection of taxes.

# posted by

Dilan : 2:42 PM

The argument which consists of "but Congress might force us to exercise" strikes me as a particularly weak form of argument. ANY power might be abused. Congress might tomorrow declare war against the whole world and the President might launch every nuclear missle we have. All perfectly Constitutional.

No Constitution -- no law at all -- can withstand sheer, perverse stupidity. As Hamilton put it in Federalist 31:

"The moment we launch into conjectures about the usurpations of the federal government, we get into an unfathomable abyss, and fairly put ourselves out of the reach of all reasoning. Imagination may range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on which side to turn to extricate itself from the perplexities into which it has so rashly adventured. Whatever may be the limits or modifications of the powers of the Union, it is easy to imagine an endless train of possible dangers; and by indulging an excess of jealousy and timidity, we may bring ourselves to a state of absolute scepticism and irresolution. I repeat here what I have observed in substance in another place, that all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers."

In short, what protects us is that our fellow citizens are in the same boat.

# posted by

Mark Field : 7:18 PM

BD: cited case law expressly made this distinction, extending commerce to intrastate economic and non-economic activity.

just_looking said...The cited case law does not distinguish between action and inaction. It doesn't discuss inaction at all.

That is the point. The scope of the commerce clause precedent ends at activity.

Dilan said... Joe was the only one who got the point of my hypo. It was to show that "necessary and proper" doesn't turn on whether what is being regulated is activity or inactivity.

Here's another example. The filing of tax returns surely falls within the necessary and proper clause, because requiring the filing of a return, even though it is a mandate and "regulates inactivity", bears a rational relationship to the collection of taxes.

The taxing power is not analogous to the power to regulate commerce. Regulation is a negative power - Thou shall not do X; while taxation is an affirmative power - Thou shall pay me $X in taxes along with a tax return.

# posted by

Bart DePalma : 7:39 PM

Hamilton was still exaggerating a bit for effect. Certain things were not put in the written Constitution (and the BOR was added) because the words have consequences. As with other NY op-eds, he at times provided some exaggerated complaints to paper over some more credible ones.

But, still, as was noted in another post, the basic point is reasonableness. Name a power that you accept; it can be abused. Sure. OTOH, we aren't really in the same boat in various ways.

Health care realities underline that in practice all too well.

# posted by

Joe : 8:14 PM

just_looking said...The cited case law does not distinguish between action and inaction. It doesn't discuss inaction at all.

BD: That is the point. The scope of the commerce clause precedent ends at activity.

No, it means the Court has not dealt with the issue of inactivity, so precedent is a blank slate. But, the Necessary and Proper clause is not a blank slate. It's plain text does not distinguish between action and inaction.

# posted by

just_looking : 8:17 PM

The taxing power is not analogous to the power to regulate commerce. Regulation is a negative power - Thou shall not do X; while taxation is an affirmative power - Thou shall pay me $X in taxes along with a tax return.

This is a great example of how it's possible to purport to distinguish any case. The question is whether the distinctions are MATERIAL.

Yes, taxation is a different power than interstate commerce. But that doesn't explain how the necessary and proper clause could cover inactivity with respect to taxation but not with respect to commerce. To paraphrase Justice Stevens, there is only one necessary and proper clause.

# posted by

Dilan : 8:40 PM

Dilan:

The N&P Clause in not an independent source of power and has nothing to say on the subject of action and inaction. The N&P Clause simply allows Congress to enact necessary and proper legislation to employ the preceding enumerated powers. Thus, you compare and contrast the commerce and tax clauses for this analysis.

# posted by

Bart DePalma : 10:10 AM

The N&P Clause in not an independent source of power and has nothing to say on the subject of action and inaction. The N&P Clause simply allows Congress to enact necessary and proper legislation to employ the preceding enumerated powers. Thus, you compare and contrast the commerce and tax clauses for this analysis

Why would a law requiring action be necessary and proper as applied to the taxing power, but not be necessary and proper as applied to the commerce power?

# posted by

just_looking : 12:57 PM

BD: The N&P Clause in not an independent source of power and has nothing to say on the subject of action and inaction. The N&P Clause simply allows Congress to enact necessary and proper legislation to employ the preceding enumerated powers. Thus, you compare and contrast the commerce and tax clauses for this analysis

just_looking said...Why would a law requiring action be necessary and proper as applied to the taxing power, but not be necessary and proper as applied to the commerce power?

Look at my reply to Dilan yesterday.

# posted by

Bart DePalma : 1:06 PM

The N&P Clause in not an independent source of power and has nothing to say on the subject of action and inaction. The N&P Clause simply allows Congress to enact necessary and proper legislation to employ the preceding enumerated powers.

This is vague, depending on whether you are emphasizing "independent" or "source".

The N&P clause is not independent. It expands or clarifies the scope of powers granted under express clauses. But it is definitely a source of power-- even if the power claimed is not within the scope of the commerce, or taxation, power, it's within the N&P clause if it is necessary and proper to the exercise of an enumerated power.

Here, it's necessary and proper to mandate the filing of tax returns to facilitate the collection of taxes, even though the taxation power says nothing about mandating tax returns. By the same token, it's necessary and proper to mandate the purchase of insurance to make the national market work, even though the commerce power might be construed not to deal with inactivity.

Look, part of the problem here is the Constitution is a very flexible document, by design, and you guys wish it weren't.

# posted by

Dilan : 2:29 PM

just_looking said...Why would a law requiring action be necessary and proper as applied to the taxing power, but not be necessary and proper as applied to the commerce power?

BD: The taxing power is not analogous to the power to regulate commerce. Regulation is a negative power - Thou shall not do X; while taxation is an affirmative power - Thou shall pay me $X in taxes along with a tax return

It seems like you assumed that a mandate cannot be viewed as necessary and proper to make effective a negative power. What's the basis for this assumption?

# posted by

just_looking : 5:46 PM

just looking:

I don't understand your question. Can you expand?

# posted by

Bart DePalma : 9:45 PM

Bart,

You correctly noted that the taxing and commerce powers are different in that the former requires affirmative action, while the latter restricts action. Also, you correctly noted the tax filing mandate and the insurance mandate both require affirmative action.

As a result, you concluded the tax filing mandate is consistent with the taxing power (both deal with affirmative action), while the insurance mandate is inconsistent with the commerce power (the mandate requires affirmative action, while the power restricts action).

However, neither the tax filing nor insurance mandates derive their authority directly from the taxing power or commerce clause respectively. Instead, they are authorized by the Necessary and Proper clause in order to make effective other laws (raising tax money, prohibiting pre-exisiting conditions from being used in rating insurance policies) that derive directly from the taxing power and commerce clause respectivley.

Thus for your conclusion to hold, a law which requires action (e.g., the tax filing mandate) can be viewed as necessary and proper in order to make another law effective that also requires action (e.g., raising tax money). But, a law which requires action (e.g., the insurance mandate) cannot be viewed as necessary and proper in order to make another law effective which restricts action (e.g., prohibiting pre-exisiting conditions from being used in rating insurance policies).

My question is, what is the basis for the reasoning that the Necessary and Proper clause works in this manner.

# posted by

just_looking : 7:36 AM

just looking:

Very good summary of my argument. My theory is that the N&P Clause adds nothing to the scope of the foregoing enumerated powers, it simply permits the Congress to enact legislation to exercise those powers.

I would add one note to my argument concerning the power to regulate under the CC. A regulation is essentially negative - Thou shall not perform X act in commerce. However, Congress can also condition the negative with an affirmative act - Thou shall not be permitted to engage in commerce unless you do X act. However, in both cases, you start out with the negative command limiting commerce, requiring the prerequisite that the target of the law is actually involved in commerce.

What is your theory of how the N&P Clause expands the power of the CC from a negative grant to one that permits Congress to affirmatively order folks to purchase government approved goods and services.

# posted by

Bart DePalma : 9:20 AM

My theory is that the N&P Clause adds nothing to the scope of the foregoing enumerated powers, it simply permits the Congress to enact legislation to exercise those powers

That's my theory too if you change "exercise" to "make effective".

An insurance mandate simply makes effective the prohibition against using pre-exisiting conditions in rating insurance policies. The mandate does not expand the power of the commerce clause beyond a negative grant. It is merely a means to insure the legitimate end of the negative power.

There is nothing in our common theory which suggests that where the end is a negative power, the means must be also be restricted to a negative power.

# posted by

just_looking : 11:06 AM

Referring to regulation as a negative suggests something bad. The purpose of regulation is to address a situation that may have problems that can be improved. So regulation can be referred to as a positive, suggesting something good. Johnny Mercer's phrasing of accentuating the positive and eliminating the negative (and not messing with Mr. In-Between) makes sense lyrically but let's keep in mind that regulation can be a positive, in fact healthy. Why without proper regulation, we could end up with constitutional constipation.

# posted by

Shag from Brookline : 11:44 AM

just looking:

As with all constitutional analysis, it is necessary and proper to start with the text of the provision at issue:

The Congress shall have Power...To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

I do not read "carrying into execution the foregoing powers" as to "make effective."

"Carrying into execution" implies that Congress can enact legislation within the scope of the foregoing powers, while "make effective" could imply not only legislation within the scope of the foregoing powers, but in addition any additional measure outside of the scope of the foregoing powers necessary to make the power more effective.

Is this what you mean to imply?

# posted by

Bart DePalma : 11:55 AM

It might be helpful to avoid the issue, but the "negative grant" distinction isn't really true.

The commerce power can be "positive" such as expanding state power to negotiate with foreign powers to help regulate commerce. This need not be a condition of involvement in commerce either; it can simply be an incentive program which a state need not take part in if it doesn't wish to do so.

The "regulation" vs. "tax power" deal is silly in that there are tax "regulations" too. A "well regulated" militia included mandates such as annual drills or
mandatory ownership of weapons for members of the militia. Likewise, taxation includes restrictions ("thou shall not") like regulations involving not interfering with tax collection.

Taney played with "regulation" in Dred Scott, trying to make it a restrictive term, but as in the territorial context as here, that is in no way a mandated by the term itself. More has to be shown why commerce is so different from taxation.

Anyways, again Jack Balkin has discussed this overall issue fairly well. One important matter: much more than Mr. Filburn, even those without insurance take part in (and "significantly effect") the health industry (aka interstate commerce). As with the common carrier example, this involvement might "mandate" us to pay a tax if we wish to avoid insurance.

Insurance also is different in some ways than exercise, which is a physical activity with certain privacy aspects. Purchase of insurance -- which few don't want to do anyway if they had the means and this legislation includes subsidies, back in the real world -- is different in various ways.

# posted by

Joe : 12:06 PM

Joe said...

It might be helpful to avoid the issue, but the "negative grant" distinction isn't really true. The commerce power can be "positive" such as expanding state power to negotiate with foreign powers to help regulate commerce.

Do you have an example of this?

Article II grants the President the power to negotiate with foreign countries and this power does not have any express limit nor does it derive from the Commerce Clause.

Are you referring States in the union? Congress has no power pursuant to the Commerce Clause to expand what limited powers the States have to negotiate with foreign countries.

The "regulation" vs. "tax power" deal is silly in that there are tax "regulations" too.

The broader grant of the affirmative power to compel people to pay taxes includes the lesser power of regulation.

A "well regulated" militia included mandates such as annual drills or
mandatory ownership of weapons for members of the militia.

The original meaning of the term well-regulated when applied to a military simply means trained. In any case, this term is not used as part of a grant of power to the Congress in Article I.

The term "regulation of the land and naval forces" refers to rules for the good order and discipline of the military and is once again a negative power where Congress can enact legislation stating that a military member shall not perform X act.

As with the common carrier example, this involvement might "mandate" us to pay a tax if we wish to avoid insurance.

This is the real issue at hand and he one I wish the profs would address.

# posted by

Bart DePalma : 12:33 PM

"Carrying into execution" implies that Congress can enact legislation within the scope of the foregoing powers, while "make effective" could imply not only legislation within the scope of the foregoing powers, but in addition any additional measure outside of the scope of the foregoing powers necessary to make the power more effective.

Is this what you mean to imply?

Replace "more effective" with "effective", and you've got it. More precisly, "the regulatory scheme could be undercut unless" the additional measure was also legislated (Lopez).

# posted by

just_looking : 1:02 PM

My theory is that the N&P Clause adds nothing to the scope of the foregoing enumerated powers, it simply permits the Congress to enact legislation to exercise those powers.

The problem is that this is completely inconsistent with the text of the clause.

Simply put, if a mandate is necessary and proper to make an exercise of the commerce power work, in plain English, we are within the definition of "necessary and proper".

So what Bart is proposing is an extraconstitutional test where despite the fact that a mandate falls within the plain English meaning of the terms "necessary" and "proper", it should nonetheless be held unconstitutional because the underlying commerce clause power, in Bart's opinion, cannot extend to inactivity.

Of course, if Bart really believes that Congress' necessary and proper clause power should not extend to inactivity, he should push for a constitutional amendment to that effect. Because, unfortunately, that's not what the Constitution says now.

# posted by

Dilan : 1:46 PM

The original meaning of the term well-regulated when applied to a military simply means trained.

This is kind of off the point, but this isn't really right. It meant "disciplined", not simply "trained", and included such things as inventorying arms, requiring that citizens report for drills, assigning tasks, organizing the militia and putting it under a uniform command, etc.

In other words, "regulating" a militia doesn't necessarily mean every gun control measure under the sun is constitutional, but it certainly admitted of plenty of colonial and post-colonial era practices with respect to the makeup and responsibilities of the armed populace.

# posted by

Dilan : 1:50 PM

Dilan:

This is getting repetitive. I would only add that your certitude that the CC or the combination of the CC and the NPC regulates inactivity and thereby grants Congress the power to compel citizens to purchase government approved goods and services is belied by the fact that no federal court employing even the most deferential standard has ever come close agreeing with your position in hundreds of cases over the past two centuries. Every single Federal case interpreting the Commerce Clause has always limited Congress' power to regulating human activity.

# posted by

Bart DePalma : 3:28 PM

Bart:

No federal court has granted standing to an extraterrestrial either.

# posted by

Dilan : 5:23 PM

I've read and re-read this:

"Every single Federal case interpreting the Commerce Clause has always limited Congress' power to regulating human activity."

and wonder in awe whether this is what "We the People" is all about. Surely there are federal regulations under the Commerce Clause impacting human inactivity and non-human animal activity - unless we (the People) apply a "six degrees of separation" test to prove the point. Orwell's "Animal Farm" also comes to mind.

What if an ET colony lands in Colorado and raises sheep for wool to make into backpacks that will not leave that state's borders? And what if the sheep do cross that state's borders and contaminate sheep in an adjoining state raised for shish kebab throughout the U.S.?

# posted by

Shag from Brookline : 7:09 AM

Jack Balkin "addressed" the mandate and other issues in various posts. He didn't accept comments, but they can easily be accessed on this blog.

# posted by

Joe : 9:49 AM

Dilan/Shag:

One of the reasons it is difficult to have a rational conversation with you two is because you are unwilling to admit basic realities like a lack of precedent that would be rather important if this legislation passes and if a court reviews it. Approaching the subject with a fresh slate is far different than being bound by precedent that must be followed or distinguished. Indeed, this would be a golden opportunity for an original meaning jurist to restore some teeth to the limits of the Commerce Clause.

# posted by

Bart DePalma : 10:08 AM

"Congress has no power pursuant to the Commerce Clause to expand what limited powers the States have to negotiate with foreign countries."

This assumes a conclusion. Art. I, Sec. 10 says that states can only formulate agreements with foreign powers with Congress' permission. Why this permission cannot be in place when it furthers an enumerated power is unclear to me.

"The broader grant of the affirmative power to compel people to pay taxes includes the lesser power of regulation."

So taxation is apparently both positive AND negative. I would say so is the commerce power. It depends how it is used.

"The original meaning of the term well-regulated when applied to a military simply means trained."

Congress has express power over the militia, which is why the 2A was enacted in the first place. "Well trained" is as Dilan notes dubious, but whatever, it included mandates as does other "regulated" activities.

The term "regulation of the land and naval forces" refers to rules for the good order and discipline of the military and is once again a negative power where Congress can enact legislation stating that a military member shall not perform X act.

They also can enact legislation that a military member (and in certain cases non-military members) shall perform X act.

The rules for the government and regulation of such forces includes both positive and negative aspects, and in certain instances (the public is limited in speech on bases or whatever) affects not general populace too.

As to "human activity," as Prof. Balkin noted (easier to just ignore him, I know), there already is activity in this area. People are taking part in the health market and influencing it and the mandate (or tax) would be put in place as a response.

Various tax breaks (meaning inaction is penalized) are also in place in part because they are somehow commercially related, including for individuals. Again, Prof. Balkin made the point.

Unfortunate he didn't allow comments, since just looking and Dilan underlines debates can be done here with some degree of tact.

# posted by

Joe : 10:22 AM

My last comment is in response to why he cut off posts -- certain dissenting voices led to a back/forth that eventually led Prof. Balkin to find comments not worth the trouble.

Here, though B. put forth a p.o.v. many here find indefensible, there was a good debate, if one that might not be overly productive on some level.

Preaching off.

# posted by

Joe : 10:31 AM

you are unwilling to admit basic realities like a lack of precedent that would be rather important if this legislation passes and if a court reviews it

Although there is no precedent on activity versus inactivity, there is 190 years of unbroken precedent that you ignore on the meaning of "necessary and proper" that would have to be altered in order to conclude that legislation which is "necessary and proper" for the execution of a negative power excludes a mandate.

# posted by

just_looking : 11:34 AM

One of the reasons it is difficult to have a rational conversation with you two is because you are unwilling to admit basic realities like a lack of precedent that would be rather important if this legislation passes and if a court reviews it.

Bart, there are two reasons why this might lack precedent.

1. Because nobody ever thought that the necessary and proper clause could extend to inactivity.

2. Because nobody ever thought that there would be a distinction between activity and inactivity in interpreting the reach of the necessary and proper clause.

To determine whether it is 1 or 2, you look at the precedents that do exist interpreting the necessary and proper clause, and the practices that we assume to be allowed under it. And what you find is that courts have held that any regulatory measure (without regard to whether it is a mandate or not) which Congress rationally sees as necessary to a broader constitutional regulatory scheme is considered necessary and proper, and that many mandates (such as the mandate to file a tax return and the mandate of interstate carriers to carry insurance) are assumed to be constitutional.

So there's powerful evidence that the reason is (2). There's no evidence that the reason is (1).

That's why I joked about extraterrestrials asserting standing. The reason we don't have cases granting standing to extraterrestrials is not because there was an intention to bar it; it's simply because no extraterrestrial has come to court to assert it.

# posted by

Dilan : 12:57 PM

So, would an extraterrestrial have standing? Inquiring minds want to know.

# posted by

mls : 3:37 PM

As to mls' question, I think the answer would be "yes" if the extraterritorial is a "person." This could be determined by various types of construction that is not too germane to this discussion.

Since, as McCulloch v. Maryland notes, the Constitution is intended to apply to novel situations, the fact the question never was specifically dealt in actual case law in the past* would not preclude this.

OTOH, I think the "inaction" problem probably was at some point.

* Justice Douglas once argued that actual humans could step in to represent the interests of parts of nature, basically because humans have interests in its protection, not that a cow, let's say, could on his or her own sue.

Standing of primates is a question that was raised in Europe.

# posted by

Joe : 7:04 PM

Does this suggest:

"Approaching the subject with a fresh slate is far different than being bound by precedent that must be followed or distinguished."

at long last a Coloradan tabula rasa following discarding of his backpack of you-know-what?

# posted by

Shag from Brookline : 8:33 AM

Enjoyable but the tit-for-tat got repetitive.
As a meta-comment, perhaps at some level Bart and other conservatives really do grasp, better than liberals, the scale of the constitutional change Obama's health reform will work. It creates a national haelth care system. Yes, national. Since wre are talking about 16% of GDP, it's inevitably a further shift in power away from the states to Washington.
But the conservatives (including the Blue Dogs) had their chance to preserve a more federal, decentralised structure; it was called the public option, and they killed it.

# posted by

James Wimberley : 1:44 PM

As a meta-comment, perhaps at some level Bart and other conservatives really do grasp, better than liberals, the scale of the constitutional change Obama's health reform will work.

The change is a matter of what policy is desirable, not what policy is permissible under the Constitution. The Constitutional issue was settled long ago (see for example, Social Security and Medicare).

# posted by

just_looking : 8:58 PM

I was using "constitutional" in the commonsense or political science sense of "the basic structure of government". Any written constitution has to allow foe evolution of this structure. I don't think Bart has a case on the constitutional law either.

# posted by

James Wimberley : 5:22 AM

"Obama's health reform" is being written by Congress with the Senate leading the way at the moment.

Liberals realize the change of the scope of national power and encourage it; they support the acceptance of a national duty in respect to health reform.

I'm unsure who on this thread doesn't realize that as much as the other side. Some in fact are actively cheering in on.

As to the 16% figure, given Medicare/Medicaid, veterans health care, Native American care, and various other things (including expansion of children health care), plus how much the government ALREADY regulates health insurance, isn't the figure already high?

# posted by

Joe : 9:00 AM

so nice blog.
Please visit http://www.ebooktub.com/

# posted by

Unknown : 3:38 AM

I cannot believe a post by a crazy old man like Sandy Levinson has received so many comments. Seriously, do you guys actually read the content of his writings? Every post he makes is nothing but an insane rant that contains "possibilities" that have absolutely no chance of coming to pass. Don Quixote with a law degree.

# posted by

Unknown : 8:40 PM