Why ObamaCare's Individual Mandate is Unconstitutional (Jones v. United States, 529 U.S. 848)

3/27/2010 | Brices Crossroads

[eyedigress]

[ForGod'sSake]

;^)

[eyedigress]

The real one.......

[ForGod'sSake]

This one...

There ain't enough gold in Fort Knox to get me up there! Gotta hit the sack.

[eyedigress]

God Bless. Thanks for the pic. :^)

[raygun]

The definition of “commodity” notwithstanding, Congress had previously stipulated that the scope of any health insurance product is wholly intrastate. The present bill is an attempt by Congress to regulate something that doesn’t exist; all intrastate commerce must be uniform in an interstate manner.

How is that any different than Congress regulating State highway and private bridge tolls? Or that all cable vendors must offer specified programming and fees? Quite frankly, where, when and for what purpose you go from place A to B would also fall into said purvue.

[eyedigress]

[Waco]

Couldn’t a person like Buffet, or Gates or Limbaugh etc. be allowed to be ‘’self insured’’ and risk his wealth on not getting some very expensive disease that mite wipe him out financeualy? At one time you could post a bond and be self-insured as to car insurance, in some States.

[raygun]

Your well reasoned reply is much appreciated. The only thing that I can outright rebut with respect to your response pertains to what you said about "common sense". The only thing I know about common sense is that it is commonly "uncommon".

That being said, I've come to conclusions akin to yours after review of Frederick Bastiat's writings. I've alluded to this fact several times on this board. My lament is borne out by the arguments made on the Michigan forum against the health care bill on the basis of just HOW MUCH Medicare and / or Medicaide will be cut.

If you've ever read Bastiat's The Law, you'll realize just how far PASSED the point of no return this country is.

My advice to Freepers of ALL stripes, DO NOT READ BASTIAT. Do not read what is will make you sad, and dejected and instill a sense of despair and hopelessness. It is far better to read all the anti-McCainite and Palinite threads; you'll feel much MUCH better after reading those threads.

Quite frankly: I believe its hopeless; this country will NEVER get out of the clutch the Devil holds it in. Who knows, maybe I'm wrong and Free Republic won't spill a large amount of blood debating the suitability of John McCain as a candidate for Senator or Sarah Palin concerning anything whatsoever.

Its alright, Florida got what it deserved after refusing to acquiesce to a candidate of such numbskullery as Kathleen Harris. As nearest I can tell Florida is still there, and Sen. Nelson is doing well for them. In my sorry state, Michigan, there was an election for governor some time ago. The man who ran the "Dick DeVoss - go to my website to see what I'm all about" againt the incumbant Jenny the Grandstander - Two Penny Jenny - lost.

FWIW, even so I have a great deal of respect for your namesake, I got one word for you in that regard (nicely that is): George H. Thomas (Major General U.S.A.).

[PGalt]

“I would love to hear Bork’s take on it.”

I recall Mark Scott (RIP Detroit radio talker extraordinaire) commenting once (many years ago) that Bork “pooh poohed” the 10th amendment. I found this...

http://www.cato.org/pub_display.php?pub_id=9777

Thanks much for the ping, raygun. Replying to comments 2 & 3. (continuing on now).

OUTSTANDING post, Brices Crossroads! Historical/educational. Thanks.

[PGalt]

After watching the March of Folly in constitutional law for nearly half a century I confess that I have come to a place of cynicism and despair.

A bit unnerving, coming from one of the great posters on this forum. Nonetheless, thanks for another outstanding post, nathanbedford.

ping to a recent unnerving flashback from another respected FReeper...

After 45 years of working with that document I am now certain that the essence of the Constitution is under attack.

[PGalt]

courtesy ping

[ForGod'sSake]

Holy cow! I completely missed your reply from last night!!! Which distresses me to no end since I was keenly interested in your response. It ain't easy gettin old. ;^)

The short answer is yes. The transit of widgets from state to state can be regulated. Ditto the other hypos.

However, does the question still remain, that if in fact I'm engaging in interstate commerce, can I be regulated? Like maybe I'm restricted to purchasing no more than say, one widget per month? Might I be required to register my newly acquired widgets so as to facilitate compliance? Is this the basis for firearms registration???

Two things re the balance of your reply, particularly the perception(?) the interstate commerce clause is broad; I would contend overly broad:

1) It's patently obvious(to me), given the environment in which the Framers were operating, they NEVER intended such broad authority for the general government. Particularly in light of their almost unanimous concept the STATES would retain most of the policing powers. That questionable precedent, at least as far back as Wickard/Filburn, which BTW was made under extreme duress from FDR intimidation and manipulation, began laying the framework for expanded powers never intended by the Framers.

2) That the high court justices, presumably some of the best legal minds in the country can't seem to get a handle on this gives me a good deal of heartburn. That if they should err, high court justices with a modicum of integrity, should err on the side of the least intrusive interpretation. THAT to me WAS the intent of the Framers. In short, the purpose of the interstate commerce clause was to assure the States make nice with each other and not engage in what might be considered, trade wars.

No more, no less. Thoughts?

[ForGod'sSake]

Quite frankly, where, when and for what purpose you go from place A to B would also fall into said purvue.

Speaking of going, how're those new low-flow turlets working out for us? Now there's another regulation promulgated by the federales based at best on questionable science. Ostensibly to preserve a "renewable" resource done under the "authority" of interstate commerce. The list of course would run into the thousands millions of products but I'm preaching to the choir.

Fact is, the various clauses within, and without in some cases, the Constitution are having to be massaged to the point of becoming unrecognizable. To this layman, 0bamacare is unconstitutional on its face. Too bad I'm not sitting on the high court.

[Brices Crossroads]

Thanks for you characteristically incisive reply. I am indebted to you for that dose of cynicism, which actually amounts to realism in any discussion that touches on pettifoggery.

I continue to believe, however, based on its recent willingness to find some limits on the Commerce Clause, that the Court will find the Obamacare mandate a bridge too far. It requires a completely novel (re)definition of both the term commerce and regulate, which would sweep away any limitation at all on the Government’s power to tell its citizens what to do and when to do it. Every major commerce clause case in history has dealt with a challenge to the Congress’ PROHIBITION of conduct, based upon its authority under the Commerce clause. For the first time in history, the challenge involves the government’s MANDAMUS of conduct based upon its authority under the commerce clause.

Because such a mandamus, so to speak, runs headlong into the character of the action being mandated (commerce) and requires a redefinition of commercial activity to include commercial INactivity (as well as a redefinition of the term “regulate” to include “require”).

Because the Commerce Clause has, to my admittedly limited knowledge, always been limited to permitting commercial activity or prohibiting the same, I think it would be a quantum leap to allow it, for the first time, to mandate activity. This conundrum (for the statists) is exacerbated by the fact that, to arrogate such power to itself requires a complete transmogrification of the Commerce Clause: the complete redefinition of, not one but two words, in the six word commerce clause, “regulate” and “commerce”.

I think this is too much constitutional “craftsmanship” even for the most activist of Courts to undertake in a single case. (Even the Warren Court laid the foundation for the Roe decision with Griswold and its progeny discovering the “right to privacy”, before it was applied to strike down 45 state abortion prohibitions). I do not think that the Rehnquist/Roberts Court has shown itself to disposed to such naked power grabs and it has been willing to strike down high profile Congressional enactments (such a McCain Feingold and the Violence against Women Act)when they run afoul of the limits of the Constitution.

[Brices Crossroads]

“if in fact I’m engaging in interstate commerce, can I be regulated?”

Very good point. The Constitution permits Congress to regulate commerce between the several states. I think your interpretation is more faithful to the framers’ intent than is the current one. The current state of the law, which we must unfortunately confront, is that if you engage in an activity that substantially affect interstate commerce, you are within the reach of Congress’ regulatory power.

BUT, if you are not engaging in any activity whatsoever, then how can Congress justify a regulation of your behavior based upon the fiction that your inertia amounts to commerce? It cannot, unless it defines commerce and regulation in new and unprecedented ways.

If the statist concedes my point and admits that an individual who is inert (i.e.-declining to engage in commerce) is beyond the reach of the commerce power of Congress, what is their fallback approach? (They always have one) Would it be to argue that as soon as the inert individual seeks medical care, he has engaged in activity that substantially affects interstate commerce and is thus subject to the mandate at that point? But the mandate does not contain any such contingency trigger. The statute says what it says and Congress’ authority is cabined by its own statute (Remember Ginsburg in Jones).

Even if the Court were willing to read such a contingency into the statute, isn’t consulting with a Doctor the essence of a local as opposed to an interstate decision. And doesn’t the physician patient relationship (which is the subject of ancient privileges) the very essence of .....privacy! Are not the penumbra of the Ninth Amendment triggered by the state’s interference in such an intimate relationship? Are not Griswold, Roe and their progeny now the dagger aimed at the heart of Obamacare?

And I believe that the right to contract (another ancient right that the commerce clause does not permit Congress to abrogate)with an insurance company is part of the physician patient relationship and entitled not only to the protection based upon the limitations of Congress’ power in the Commerce Clause but based upon the Right to Privacy as well.

[nathanbedford]

I think your arguments are compelling. I especially like the idea that "mandating" something is a far cry from "regulating" something which did not previously exist before the mandate.

I suppose the statists will advance the argument that health care presently constitutes 1/6 of the American economy which means that one out of every six dollars which changes hands in America changes hands for healthcare. Surely, they will say, that is interstate commerce, nothing could be more in interstate commerce than such a sizable sector of the economy. The Constitution authorizes the regulation of that sector by all means which are "necessary and proper." The determination of that necessity is to be made by Congress so long as it is reasonable on its face.

To counter that I think we have to go to the philosophical level and say that if the feds cannot micromanage such a personal sphere, one that is so personal and so private that privacy "provisions" of the Constitution forbid even a state as well as the federal government from regulating early term abortions, then surely the feds cannot regulate every intimate procedure between doctor and patient. To grant the federal government such power means that there is virtually no activity in America immune from regulation by Congress. That certainly could not have been the intention of framers of the document granting only enumerated powers.

The federal government is prohibited from micromanaging our bodies not just because it is ultra virus article 1 section 8 but because it runs up against a more highly valued personal constitutional right-the right to have our bodies left free of intrusion from the state.

If the statists counter with the argument that the federal government already regulates the medicines we take and the procedures authorized under Medicare, for example, I think we ought to rebut by noting that no one is compelled to accept Medicare, everyone was free to negotiate his own healthcare with or without insurance until this law which takes that option away from the individual and substitutes a duty to accept an insurance company model approved by the federal government. In doing that, the government has effectively intruded into the private sphere of the patient's body and his relationship with his physician. That is repugnant to the higher value of privacy. Obviously, I am trying to set up a compelling positive value to compete with the formulaic approach which the government will advance relying heavily on the sheer momentum of the case law. If we could find such a value and related back to the language of regulation and mandating I think we have a compelling argument which will get to five justices on a moral level which is where big questions like this ultimately are won or lost.

[Brices Crossroads]

“The Constitution authorizes the regulation of that sector by all means which are “necessary and proper.””

In reading portions of Scalia’s concurrence in Gonzales v. Raich (the medical mairjuana case) upholding the law, he alluded to the necessary and proper clause:

“Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.””

The power to regulate “extend only to those measures necessary to make interstate regulation effective.” That tells me that he wold find the mandate to be an ultra vires act under the necessary and proper clause.

The last sentence of the quote (national versus local) is key as well. What is truly national and what is truly local (or, to take it even further) personal.

What we could see is a decision striking it down in which Scalia and the strict constructionists strike it on Commerce clause grounds (perhaps necessary and proper clause) while the libertarians (or activists) on the Court, if there are any, choose to strike it on Right to Privacy grounds. It could be a hodgepodge of concurrences, which would suit me fine as long as the statute is eviscerated.

There is much wrong with this act, from a constitutional standpoint, and if the GOP uses its best lawyers to scrutinize it, I think there may be too much wrong with it to sustain it. At least that is my hope.

[Oceander]

The Supreme Court would almost certainly not read any such letters for the simple reason that they have to do with matters that will almost certainly be in front of the Court sooner rather than later, and thus the letters, if read, would give rise to the appearance of a lack of impartiality, whether or not true. A much better use of one's time would be forming and/or supporting a like-minded organization that could prepare and file a so-called "amicus curiae" or "amicus" brief with the Court when these matters get to the Supreme Court.

[devere]

Supreme Court decisions are made by people.
Given the right set of people a majority will cheerfully rule that the sky is not blue and the sun doesn’t rise in the morning.