Saturday, October 15, 2011
Health care logic
One of the most fundamental problems with the constitutional case against the health care mandate is a persistent uncertainty about the coherence of the major premise. Jason Mazzone’s recent post, for example, seems to be predicated on the notion that the Constitution is violated whenever Congress does anything unprecedented. If this preposterous premise were accepted, it would follow that all of the actions of the First Congress were unconstitutional.
The problem with your argument, (Or one of them, anyway.) is that it's generally understood that the limit identified in Lopez was blown through with Raich, putting us back in "anything goes" territory.
It's not so much that anything unprecedented is by definition unconstitutional. But, after over 200 years, it can reasonably be argued that, if in 200 years Congress hasn't tried to exercise a power, there's certainly no presumption the power is constitutional.
There would be a contradiction if Lopez had been based on the activity/inactivy distinction. But if one holds that Lopez was rightly decided because possession of a handgun near schools is not an activity within interstate commerce, then the fact that it is an activity is entirely irrelevant.
The only way Raich would get us back to "anything goes" is if Lopez and Morrison were reversed (at least sub silentio). But the economic/non-economic distinction developed in Lopez, and affirmed in Morrison, survived Raich.
If it is irrelevant whether gun possession near a school is an activity, then why is 2 true? Doesn't the limit already exist without having to create the activity/inactivity distinction?
Mazzone argued a "precedent" cited actually is not one. I don't see him making the "preposterous premise" that unprecedented congressional actions are unconstitutional. He actually left that question open in a reply he made to a comment I let.
Now, maybe some people accept that "preposterous premise," but his post isn't reliant on it. I think his post is partially wrong, as I argued, but not on that ground.
the "activity" test is irrelevant because the court concluded that it is not within interstate commerce. You need both "an activity" and "within interstate commerce". If possessing handguns near schools is not within interstate commerce, then the "activity" test is unnecessary—it could be an activity (as it is) and still be beyond congressional power.
Conversely, the mandate—as a regulation of inactivity—could be held to be "within interstate commerce" and still fail the "activity" test, hence falling beyong congressional power as well.
zarevitz: the "activity" test is irrelevant because the court concluded that it is not within interstate commerce
OK, but you didn't address whether, as a result, Andrew is then correct that 2 is false.
If 3 is true, then 2 cannot be. Lopez did not turn on the activity/inactivity distinction. Possession of handguns near schools is an activity. Yet those who make claim 2 often cite claim 3 as supporting evidence. I have not yet encountered a single person who embraces 2 but denies 3.
Lopez in no way contradicts the activity/inactivity proposition. Lopez is cited not as precedent on the activity/inactivity issue itself, but instead as precedent that the court eviscerated CC still provides some limits on Congress' power. Indeed, one of the proponents' arguments is that Congress has never before arrogated the power to regulate inactivity, a concept which is itself a contradiction in terms.
In his post, Koppelman does not claim that 2 is false. He claims that 2 must be false IF 3 is true. He is arguing about logic, without getting to the substantive issues of 2 or 3.
However, as we have explained, 2 and 3 are based on different grounds: 3/Lopez was based on the "within interstate commerce" test, while 2/challenge to the mandate is based on the "activity" test.
Therefore, no logical inferrence about 2 can be drawn from 3's truth. In this regard, Koppelman rightly critizes "those who make claim 2 often cite claim 3 as supporting evidence".
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