Balkinization  

Wednesday, November 09, 2011

The DC Circuit Opinion on the Individual Mandate

Gerard N. Magliocca

Yesterday's panel opinion by Judge Silberman rejecting the constitutional challenge to the Affordable Care Act makes it far less likely that the Supreme Court will invalidate the Act (or any portion of the statute) next year. Sure there are differences between how the Justices approach an issue and how circuit judges do their work. The bottom line, though, is that I find it hard to believe that five Justices will reject the analysis of Judge Silberman and Judge Sutton. (Thus, I respectfully disagree with David Bernstein's discussion of this point over on Volokh.)

The best of the three opinions from the panel was Judge Kavanaugh's dissent on the jurisdictional issue. I have long felt that the proper disposition of these cases is to dismiss them as barred by the Anti-Tax Injunction Act. Until a few months ago, no court took this argument seriously. Now the Fourth Circuit and Judge Kavanaugh have endorsed this view. I hope that the Justices will do the same and resist their usual urge to "solve" problems immediately. Judicial restraint, at a minimum, means paying careful attention to the statutory limitations on federal jurisdiction.

Finally, the best passage of the majority opinion is on pages 33-34. Naturally, I say that it's the best because I said something very similar at a Symposium on the Affordable Care Act (my paper on "The Private Action Requirement" can be found here). Here is what the court said:

"Appellant's related argument is that upholding the mandate would turn the Commerce Clause into a federal police power, at the expense of state sovereignty. But the distinctions that separate national and local spheres have been understood as those between intrastate and interstate commerce, and between traditional, non-economic areas of state concern and those involving commerce. Appellants have not argued that health care and health insurance are uniquely state concerns, and decades of established federal legislation in these areas suggest the contrary. Nor do we think states' powers over health and general welfare make the health care industry a traditional state concern."

Comments:

I too think that the 4th Cir. and Judge Kavanaugh's approach would be the best to take.

I don't know what the Anti-Tax Injunction Act technically requires, but honestly, it looks like it is debatable. Tends to be. Given that, pragmatics can seep in, and on that ground, deciding this matter before the requirement kicks in, particularly since Congress might change it before it does (with or w/o a change of the guard in '12), seems to me foolish.

On the merits, I think this looks like a "tax" and that the commerce argument by the opponents is pretty weak. And, there is enough conservative support for at least one of those things that it being struck down seems a stretch.

The concurrence btw briefly noted that the law would not mean the Commerce Clause would be unlimited in scope, quoting Scalia to do so. It would have been nice if that was a bit longer, since it is quite true. The hyperbole about a "general federal police power" and skipping over various limits, including liberty based such as the 1A, warrants it.
 

"Appellant's related argument is that upholding the mandate would turn the Commerce Clause into a federal police power, at the expense of state sovereignty. But the distinctions that separate national and local spheres have been understood as those between intrastate and interstate commerce, and between traditional, non-economic areas of state concern and those involving commerce. Appellants have not argued that health care and health insurance are uniquely state concerns, and decades of established federal legislation in these areas suggest the contrary. Nor do we think states' powers over health and general welfare make the health care industry a traditional state concern."

I thought that the argument was that upholding the mandate would turn the Commerce Clause into a federal police power, at the expense of individual liberty. In any case, the court decision does indeed establish just such a federal police power.

This opinion essentially rewrites the CC from:

Congress shall have power "To regulate Commerce...among the several States..."

To:

Congress shall have the power to "to forge national solutions to national problems."

You know you are in trouble when the court analogizes your facts to Wickard, but this decision goes far beyond that outlaw ruling to judicially amend away any remaining Article I limitations of Congress to its enumerated powers.
 

Our yodeler may be suggesting a new CO license plate motto:

"GIVE ME LIBERTY OR GIVE ME BROCCOLI"

But that would be overcooking the latter.
 

I don't think the Court will be particularly tempted to "solve a problem" here, except for the problem of how to avoid getting itself in the middle of a political firestorm. I expect that Judge Kavanaugh's approach or some other jurisdictional ground of decision will look quite attractive.
 

mls:

All eyes are on Justice Kennedy.
 

Which is where he likes them...

Really, it's all about whether the Supreme court is ready to declare "Game over!" for limited government, or feels like putting it off for another occasion. I'm certainly not going to claim that I can predict which way it's going to go. Only that there will be screaming either way, and neither side will exactly cover itself with glory in the rigor of it's reasoning.
 

Brett, so are you saying that "limited government" rises and falls on penalizing people via the tax system if some of them don't take part in a health insurance plan?

No snark, but I thought trials, protecting the right even in D.C. to own a handgun, free speech (even for video games and bigots outside of funerals), the right to use contraceptives, the right to travel, the right to an attorney, equal protection, the right to vote, etc. "limited" government.

But, perhaps I'm wrong. The Rubicon rests on a $695 tax or penalty for some people in return for guaranteed health care for their kids under 27, if they have pre-existing conditions, etc.

Oh, of course, STATES can under the logic here require such things. It also can not do so and leave it to the feds to deal with the results, including bankruptcy, Medicaid (is that a problem too?) when people go broke, etc.

Limited government in action?
 

A tax lawyer's take on the Anti-Injunction Act question: there is a meaningful difference between an exaction being "assessed and collected in the same manner as an assessable penalty" and actually being an assessable penalty. If Congress intended the payment in question to be subject to the Anti-Injunction Act, all it had to do was make it an actual assessable penalty.
 

Joe:

The discussed opinion interprets the Commerce Clause and not the taxing power to empower Congress to compel you to engage in any activity the government deems might at some point in the future affect the economy.

To use your examples of negative rights, under this opinion, Congress could exercise this unwritten CC power to compel you to purchase firearms, engage in speech, buy contraceptives, engage in travel and cast a ballot.

This is the antithesis of limited government.
 

Joe, under this sort of reasoning, the federal government could pass a law requiring grocery stores, (Arguably engaged in interstate commerce.) to provide food to the poor below cost. Since this would have a negative economic consequence on said grocery stores, the government would thereby be empowered to compel you to buy your food at said grocery stores, at elevated prices, to preserve their viability. You'd rather have a garden and grow your own tomatoes? Tough.

Perhaps health insurance proves to be too awkward. Well, doctors and hospitals are engaged in interstate commerce. Simply require them to provide their services to the poor, gratis, and require the healthy to drop by once in a while for an outrageously expensive pro-formal "exam" to handle the cost.

This is a road map for a financially strapped federal government to compel the private sector to provide services, and then compel the public to buy them, in order to move the costs off the books. The idea that it's not going to lead to a vast expansion of government control over society if upheld is absurd.
 

Brett, your parade of horrors essentially describes what the government did in every war from the Revolution through Korea.
 

Mark:

The government only engaged in directing the economy once before - during WWII. The Germans called this "war socialism" or Zwangswirtshaft ("controlled economy') and employed it during WWI and WWII. Even during WWII, the government did not go so far as directing what Americans must buy. This is new and exceedingly fetid ground.
 

Brett, again, why does all those other limits on government not count respecting "limited government"?

The health law involves government regulation. Cheers. So does Medicare, Medicaid and Social Security. Bad too?

Rather deprive people of the ability to get health care they need, perhaps? The increase in bankruptcies, families in need of support, people who catch things from people who didn't get care, etc. will lead to lots of regulations too.

Can't win there, sorry.
 

Joe:

Medicare, medicaid and social security are social insurance programs provided by the government. They do not regulate the health care industry or pensions.

If the Dems imposed universal government health insurance, the plan would pass constitutional muster, if not that of the voters.
 

BP, I didn't say the majority relied on the tax power. The dissent dealt with taxes for jurisdictional reasons, while in another case, a judge did rest on the tax power. I was merely setting forth my view there. Jack Balkin et. al. covers the tax ground for those interested.

The government has no unlimited power here as to commerce. First, liberty protections kick in, so various regulations would be not "proper" though the feds did require purchase of guns under another clause back in the day.

The gov't can compel speech in certain cases under the CC, such as warning labels and other "speech" the government can require in various cases. Can require association (Heart of Atlanta) as well.

Not sure the scenario where forced contraception would be allowed. It involving a fundamental right, there would have to be a compelling interest. Not sure what "fundamental right" is involved here. No one is forced to consume health care here.

Second, the regulation has to be a reasonable fit. "Anything" it wants is not reasonable, but the findings in this law -- as quite a few conservatives by now has recognized -- makes this provision constitutionally reasonable.

Not seeing the threat to limited government yet.
 

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"They do not regulate the health care industry or pensions."

The feds do so regulate in any number of ways.

"imposed universal government health insurance" would be MORE government than in place here.

It's pretty curious that giving people (that is, putting aside the millions who don't have to worry, too poor or whatever) an option not to have insurance (and being required to pay a tax to deal with the negative effects) is unconstitutional while that is not.
 

Joe:

When a court like this one erases the limitations within the Commerce Clause, what precisely prevents the judiciary from later erasing the liberty limitations which you note?
 

The court did not remove "the limitations" -- as noted, there still are limitations.

The judges here also reasonably applied Supreme Court doctrine to decide the case. It is their duty as inferior judges to do so. Even if they disagree with it.

The opposition here seems too tied to empty (and often selective) cant; on the merits, they are dubious, but the overuse of hyperbolic cant is particularly tiresome.
 

Joe:

What limitations did this court leave in the Commerce Clause?

The court itself was "disturbed" that the government could not name any limitations that would remain if the individual mandate was found to be constitutional, yet went ahead and eviscerated the CC anyway.

This is not a matter of "hyperbolic cant," but rather the fundamental question of whether the courts have the power to amend anything they find inconvenient out of the constitution.
 

"Disturbed" or not, it held, as an inferior court is obligated to do, that it had to follow Supreme Court precedent. This is so even if it is "inconvenient."

The opinion does not say it sees no "limits" on the "commerce power" and the concurrence briefly notes those that remain. The reference is:

"We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any productor service in interstate commerce."

"Some" discomfort did not override "long-established constitutional power" as applied here. The issue here is limits on "mandates" and that is the point of case by case application -- formulating rules and guidelines, addressing new or somewhat new situations.

Limits on the commerce clause were suggested. There has to be a reasonable fit to the regulation of interstate commerce. The SC also put an "economic" limit, though the text itself doesn't so limit. This regulates an interstate economic market, however. It is a reasonable fit. The findings underline the point.

The CC can't invade liberty interests w/o proper care. If the law selectively required blacks to buy health care or forced people to have abortions, there would be problems. The "eat" broccoli [who cares about spending a dollar a week to buy the stuff?] or do exercise scenarios raise similar liberty concerns.

The CC can't invade certain structural limits, such as commandeering state actors ala Printz v. U.S. But, the feds are allowed to regulate non-state actors differently. It can even "commandeer" private parties to do certain things, like serve in the militia or jury service.

Here, however, they don't even have to do that. Some are taxed if they don't have insurance. In return, they get various benefits. And, w/o insurance, they would negatively burden interstate commerce in a way directly related to the regulation. Any CC regulation under the sun would not be as justified.

I along with others repeatedly note these things and in return hyperbolic cant is provided. To be blunt about it.
 

What limitations did this court leave in the Commerce Clause?

From the opinion:

"(1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible."
 

"And, per normal practice, Congress' stated findings as to whether these burdens have been met will be taken as dispositive." That's the unspoken clause everybody understands.

In the end, the interstate commerce clause, which extends federal regulation only to commerce which crosses state boundaries, is still being rewritten to extend to things neither commerce nor interstate, on the pretext that Congress must have the powers it was not delegated in order to exercise the few it was.
 

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BD: What limitations did this court leave in the Commerce Clause?

just_looking said...From the opinion:

"(1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible."


Declining to purchase a product in commerce is the epitome of non-economic behavior and nothing could be more attenuated with interstate commerce than a speculative future use and inability to pay for medical care.

Try again.
 

Joe:

"Disturbed" or not, it held, as an inferior court is obligated to do, that it had to follow Supreme Court precedent.

As the court admitted, the Congress has never before attempted to order Americans to buy a government approved product. Thus, they were not bound by any Supreme Court precedent on that issue. This court chose of its own will to use the Supreme Court's most radical rewrite of the CC - Wickard - as precedent to write any limitation at all out of the CC.
 

Brett, in the case at issue, "commerce" is being regulated that is "interstate" -- namely the national health insurance market.

Regulation that is necessary and proper to this end -- shades of McCulloch v. Maryland [written by a ratifier of the Constitution] -- is allowed as well.

And, yes, Congress' findings will be presumed accurate, since Art. I gives CONGRESS the power to regulate interstate commerce and it is deemed it, not judges, would be best able to make factual findings on the issue. Said presumption isn't absolute as various rulings showed.

Per Bart, "Americans" were required by federal law to purchase products approved by the government in various cases, including weapons under the 1792 Militia Act. There states were largely given the duty to fulfill the mandate. But, the mandate was set by the feds.

They need not here. SOME of them are merely penalized by taxes if they don't do something as is the case in many cases.

Your continual ignoring of the limitations cited is duly noted.

The fact the case is not on all fours on past cases is duly noted. In relevant part, the lower court followed superior court precedent.

Finally, the person who does not purchase insurance actively affects the national insurance market in various respects and makes other economic decisions regarding health options. The "speculation" of future use of health care is a very safe one.
 

Declining to purchase a product in commerce is the epitome of non-economic behavior

The Court reasoned that requiring someone to purchase a product is economic. Of course you disagree with that holding, but if you accept it for the sake of argument, can't you see how things like banning gun possession in a school zone or providing civil remedies for gender-motivated violence remain non economic?

Or do you really believe that this Court's ruling requires that Lopez and Morrison be reversed?
 

In the end, the interstate commerce clause, which extends federal regulation only to commerce which crosses state boundaries, is still being rewritten to extend to things neither commerce nor interstate

"activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather, as this Court has acknowledged since at least United States v. Coombs, 12 Pet. 72 (1838), Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause."

Raich (Scalia, A., concurrence)
 

Joe:

Article I expressly granted Congress the affirmative power to raise and equip the militia. That is the basis for requiring the people to arm themselves.

In contrast, the Commerce Clause grants a negative power to regulate (i.e discipline and limit) existing interstate commerce. It provides Congress no power to compel the people to purchase anything.
 

just looking:

I understand the various equivocations in Supreme Court CC opinions. I also recognize that these opinions are a contradictory hash that bear no relationship to the CC as it is written.

The CC is limited to only one element of the economy - commerce - the interstate trade of goods and services. The CC does not extend to any other economic activity.

The only power granted by the CC is regulation - the negative limitation or discipline of commerce. The CC does not grant Congress any sort of affirmative power and certainly not (as this court would have it) the power "to forge national solutions to national problems."

Article I expressly denied Congress a general police power over the nation and instead limited it to specific enumerated powers. The CC jurisdiction is the progressive attempt to have the judiciary rewrite Article I to provide that general police power, to have the CC swallow up the remained of Article I.
 

The best of the three opinions from the panel was Judge Kavanaugh's dissent on the jurisdictional issue. I have long felt that the proper disposition of these cases is to dismiss them as barred by the Anti-Tax Injunction Act. Until a few months ago, no court took this argument seriously. Now the Fourth Circuit and Judge Kavanaugh have endorsed this view. I hope that the Justices will do the same and resist their usual urge to "solve" problems immediately. Judicial restraint, at a minimum, means paying careful attention to the statutory limitations on federal jurisdiction.
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Isn't that sweet, being able to pass an unconstitutional law, and not have it reviewed in the courts because you previously passed a law barring the courts from reviewing it?

Why, almost as sweet as having your "finding" automatically considered true. If I had that power, I could speed all I like, because when the cops pulled me over, I'd always issue a "finding" that I was going less than the speed limit.

Congress lies in findings. Taking findings as dispositive is just a way for the courts to decline to do their job.

I think the bottom line here is that the written Constitution doesn't give the federal government this much power, but that the political class long since found the written constitution too restrictive to follow, and started making a point of staffing the bench with judges who wouldn't require them to comply with it.

Some find that congenial, as they agree that the Constitution as written is too restrictive. Others think it makes a joke of the idea that we really have constitutional government and the rule of law.
 

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Perhaps Brett's complaints are with standing and ripeness, each relating to "case or controversy" under Article III of the Constitution. Do these result from judicial activism - or the opposite? Are they new under the constitutional sun? The Constitution has gone well beyond the days of the abacus that Brett calculates with.
 

Bart,

Your reply is disappointingly non-responsive. Instead of addressing the question of whether this Court's ruling would leave any limitation on the Commerce Clause power - in particular whether Lopez or Morrison would remain good law - you embarked onto to a tangent about the Commerce Clause power more generally.

I am hopeful you will consider a responsive reply.
 

Brett,

The Anti-Injunction Act doesn't shield this law from being challenged. It merely requires that the law go into effect first. It could be challenged in 2014.
 

I, like Just Looking, was looking for a more responsive reply from Brett and Bart. Such weak replies lead certain people, including me, to get a bit snippy, but since I took the time to respond in detail, I assume (given the casualness of a blog and all) that is forgivable.

It was noted in a previous thread that the CC's actual text along with N/P (see also the opinion) does not provide the restriction vis-a-vis the militia that is suggested. Neither clause is specific about means. Ipse dixit doesn't change this. Meanwhile, as noted, there remains limits.

Brett continues with general statements, but again, addressing the actual law at stake, there are limits, as noted, the law will be reviewed (in fact, certain provisions are in place now, unlike the tax penalty, which is not) and the fact Congress "lies" is duly noted -- again, see cases like Boerne (Religious Freedom Restoration Act case) -- their mere say-so is not accepted.

As with the federal power that will be in place w/o this law (see my comments as to bankruptcy, Medicaid etc. which deal with the effects of it), giving unelected federal judges more power to second guess Congress to override popularly passed legislation would give the federal gov't power too, just in different hands.

You know, the same judges Brett thinks is ignoring the law. Unlike legislators, however, they are less easily removed. If he actually was responsive, some of this stuff can be clarified, but he chooses not to be. Such is his choice, of course.
 

"The Court reasoned that requiring someone to purchase a product is economic."

The ruling expands on the theme:

"constitutionality of the individual mandate, which certainly is focused on economic behavior–if only decisions whether or not to purchase health care insurance or to seek medical care–that does substantially affect interstate commerce"

These are economic choices with substantial affects on interstate commerce. Mere possession of a gun, non-economic (though it can be regulated in certain contexts, such as on airplanes). Purchase of a gun, economic. Use of health care might be different too.

But, choices to obtain for profit medical services, down to use of over the counter remedies as alternatives, is "economic." A layman would find this reasonable, I'd think too -- family budget decisions includes decisions like this.

The main reason it seems to avoid it is that some "limit" is deemed necessary. But, limits have been shown an alternative way.
 

just_looking said... Bart, Your reply is disappointingly non-responsive. Instead of addressing the question of whether this Court's ruling would leave any limitation on the Commerce Clause power...

In case I was not clear, this court's ruling removes all limitations within the Commerce Clause and judicially amends the provision into a general police power. See specifically my initial post and the 8:19 pm post above.
 

The only power granted by the CC is regulation - the negative limitation or discipline of commerce. The CC does not grant Congress any sort of affirmative power...

Tangent to the tangent, but "regulation" still isn't restricted in meaning to this idea of negative limitation. Regulation can simply bring order to whatever is being regulated; the method of obtaining order (restriction of preexisting conditions OR establishment of new conditions) is not inherent in the term itself.
 

Bart,

Just to make sure I understood you, you claim that upholding this mandate requires Lopez and Morrison to be reversed?
 

PMS:

Actually, regulation is rather well defined as a negative power and progressives have traditionally employed it in this manner.

Things only changed recently when socialists attempted to use regulation and taxation to affirmatively direct the economy and redistribute wealth. Obamacare is an example of this as are Obama's "clean energy economy" programs. I just submitted my book on that subject to the printers this week for publication in December.
 

Bart,

If progressives thought that the word "regulating" meant "turning objects into cheese," it doesn't mean that I would think the word meant that. Neither would it prevent me from accepting other definitions of the word. The Federal Reserve is known to regulate banking in the United States--does that mean it only has negative powers and can't compel the participants to act in certain ways? Obviously not.

You want the word to mean only what you want it to mean, but that's not how meaning works. The positive notion of regulation as the creation of conditions and requirements within a system was present in Nathaniel Webster's work. That is to say, that meaning predates both socialism and progressivism.
 

PMS:

The Federal Reserve generally employed negative regulatory powers over the banks until it got into the business of pressuring lenders to make Alt-A and subprime loans in the 90s and 00s.
 

Our yodeler creates forks in the road when his paths are blocked with logic and reason, this time with the Federal Reserve, which does not seem to have a voice on the individual mandate, an evasive strategy by a desperate person.
 

Shag:

I didn't raise the Fed as an issue, I was responding to the post above.
 

Yes, our yodeler correctly corrects my mis-reference to his raising the issue of the Fed, but in his response to a earlier commenter who raised the Fed our yodeler undertook paving the fork in the road with his example of the Fed:

"The Federal Reserve generally employed negative regulatory powers over the banks until it got into the business of pressuring lenders to make Alt-A and subprime loans in the 90s and 00s."

Of course, Randian Alan Greenspan was head of the Fed for most of this period and we all recall his "OOPS" mea culpa regarding bubbles. The reference to Alt-A and subprime loans is part of our yodeler's efforts to take away or soften the blame on Bush/Cheney for their 2008 Great Recession. This is usually followed by our yodeler's blame of Fannie Mae and Freddie Mac for the Great Recession. Our yodeler's efforts to take the heat off Bush/Cheney have been disproved too many times to mention. But, our yodeler, serving as Little Sir Echo for the failures of Bush/Cheney, continues with diversions that are unsupported by the facts. (See Paul Krugman et al.)

Perhaps more astute Fed followers can identify examples of "positive" - as opposed to "negative" - regulations other than that which our yodeler cited as a diversion.

For my mea culpa, I plan to take a dose of broccoli, properly cooked.
 

The American Constitution Society website has a good blog post on this decision, including a reference to a media article and two "issue briefs" by Simon Lazarus defending the law and noting the consequences of the arguments used against it.

As to "regulate," it reminds me of Justice Curtis' dissent in Dred Scott, citing the uses of the word, including the Commerce Clause:

It is unnecessary to describe the body of legislation which has been enacted under this grant of power; its variety and extent are well known. But it may be mentioned in passing that, under this power to regulate commerce, Congress has enacted a great system of municipal laws, and extended it over the vessels and crews of the United States on the high seas and in foreign ports, and even over citizens of the United States resident in China, and has established judicatures with power to inflict even capital punishment within that country.

He notes the limits on such "regulation" include "express prohibitions," which remains here. Since this Congress started with a (mostly complete) reading of the Constitution, including the 1A (read by Rep. Giffords), such prohibitions should be well known. The dissent also notes Congress should have discretion when the dispute is basically policy, even policy of the highest importance.

[The reference is on point, I think, since the opposition here is taking a Taney-esque stance on congressional power; I again recommend Mr. Magliocca's first book, which explains how McCulloch v. Maryland was rejected by Jacksonians, if never overruled for reasons discussed there, though we now take it as authoritative.]

We are seemingly talking past Mssrs Bart and Brett here but they are not the only ones at issue here. As with efforts to deny equal rights to those in states with same sex marriage, one political party is officially behind this misguided effort.

Anyways, the USSC is deciding whether to take an ACA case, the first conference on the matter just past. Tomorrow, 11/14, will be the first indication of their decision, though they can hold over the matter for further consideration.
 

Well, the USSC will decide, including the little discussed expansion of the Medicaid program (ACA Litigation Blog gave that a low chance of being heard). The Anti-Injunction Act will be covered too. SCOTUSBlog estimates the oral argument to be in March.

March Madness indeed. The word certification for this? "uncert"
 

The whole discussion, including the hypo, misread the importance of the idea of national emergency. Congress has in fact responded to this contingency. If there was a "dangerous epidemic" it would be a threat to national security, and it is *those* rules that would dominate the discussion. IOW, you raised a national security hypo, not a federalism hypo. In such a threat, the military could be enlisted to enforce ad hoc quarantine, isolation, forced vaccinations and other rules from the federal level, even though those things are otherwise within the purview of the states. I think in every case in which there is a federal emergency, then it is a national security problem and triggers the grant of power to the executive that comes with it. In such an emergency Congress has demonstrated it is servile to national security rhetoric. Without an emergency the practice of medicine, which is the area under which vaccines fall, is left to doctors, largely; and state powers to regulate the professions and education. Congress could pass laws funding private sector production of the vaccines, and educational programs by CDC, etc. It could change the labeling of broccoli such that it requires a royalty payment (GMO broccoli); or a doctor’s prescription (broccoli good for cancer). See tjchiang's post.

Having kind of delimited the problem a bit, it becomes clearer the insurance mandate violates the negative rights regime said to be established in the Constitution. Under this line of reasoning it could be argued to be contrary to our democratic values. On the other hand, to the extent our Constitution now embodies oligarchic values, or serves their ends, the Federal requirement that a citizen buy something makes sense. Corporate interests and state interests overlap, and the state uses the [so-called] capitalist system to achieve its ends. This is not a new use of very large corporations; the state has been using them for this purpose since the 16th century. If we argue then, that the mandate is good, we arguing for oligarchy, not democracy; we argue to erode our democratic values. In rights language, if we recognize a positive rights regime in the federal government, then it should look like Medicare. The assignment to the private sector of the weak positive right and the enforced consumerism cheapens our democracy, to the extent it can even be said to exist anymore. The mandate looks left but runs right.

The activity/inactivity dichotomy masks the positive/negative rights dichotomy; it is a political discussion carried on under the pretext of being a discussion about economics/consumerism. Since it is a really a political discussion, not an economic one, we should drop the mask and discuss the real issues. The oligarchic state has no motive to recognize positive rights, and at the same time it wants to deny negative rights (v GNM, 14th Amendment substantive due process rights, e.g., to bodily integrity, to contract). So it passes a tax (the mandate) for the benefit of the private sector.
 

The "negative rights" regime of the Constitution explains why there might not be some "right to education." It doesn't tell us why an enumerated power does not in certain instances provide the goverment the power to require things of this type.

The people elected members of Congress who voted in this law. How this law violates "democratic values" is unclear in that respect. Limiting the power of insurance companies (e.g., requiring more people to be allowed to purchase insurance) doesn't seem "oligarical" to me.

The requirement here furthers the interests of needy people who need insurance. Corporations provide the services here just as they provide electrical or gas services. There is a quid pro quo set up -- more covered, those not (who can afford it, don't have religious objections etc. -- reflecting equal protection and other values in the procss) required to pay a tax given not having insurance leads to various free rider and other problems.

The 'oligarchic state' has every reason to grant certain positive rights, if it satisfies its basic concerns. A right to "bread and circuses," e.g., is a cheap way to satisfy the masses.

Thus, I find John L's overall argument unconvincing.
 

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