Posted on 03/27/2010 1:26:04 PM PDT by Brices Crossroads
I. BACKGROUND--COMMERCE CLAUSE JURISPRUDENCE
There seems to be a wide diversity of opinions as to whether the individual Mandate in the recently enacted health care legislation is constitutional or not. I have seen the usual Commerce Clause precedents principally the 1995 Lopez case(which invalidated a portion of the Gun Free Schools Zone Act) and Morrison, in 2000 (which struck down portions of the Violence Against Women Act) cited for the proposition that it is not constitutional. On the other hand, I have seen Commerce clause precedents such as the 2005 case of Gonzales v. Raich (which held that the global, nationwide ban on marijuana was constitutional even as to marijuana grown for personal, medical use) and the 1942 case of Wickard v. Filburn (which sustained on Commerce Clause grounds a New Deal statute limiting the amount of wheat a farmer could grow even for his own personal use).
The Commerce Clause is very short. It grants Congress the power:
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"
II. MY VIEW OF THE COMMERCE CLAUSE AND THE RELEVANT CASES
Let me start with my own view, which is that the Commerce Clause has never been, and can never licitly be, construed to permit Congress to REQUIRE activity, economic or otherwise. It may regulate Interstate commerce which is already underway. That is plain from the text of the the interstate commerce clause. The jurisprudence cited above has not, however, been a model of clarity, and none of the cases cited above is closely analogous to the individual mandate in ObamaCare. Morrison and Lopez, which struck down (portions of) the Violence Against Women Act and the Gun Free School Zone Act are qualitatively different factually than the health care mandate. Gonzales and Wickard involved the ACTIVE cultivation of fungible crops (which, despite the plaintiff's protests that they were for personal consumption) could easily have been introduced into interstate commerce, and virtually everyone would concede that interstate agricultural commerce is within the reach of Congress' Commerce power. Again, however, although Gonzales and Wickard appear more analogous at first blush, unlike the Health care mandate, Congress was regulating ACTIVITY in an area (AGRICULTURE) that has traditionally been treated since the time of the framers as subject to Congressional regulation, it being impossible in these two contexts to distinguish between private and public crops.
III. JONES v. UNITED STATES--REGULATION OF COMMERCIAL ENTITIES VERSUS PURELY PRIVATE ONES
This brings me to a much more analogous, and at least from a factual standpoint, persuasive case, which has not(to my knowledge) been cited and which supports the unconstitutionality of the individual mandate here. Moreover, unlike the recent decisions (Lopez, Morrison and Gonzales), which were all 5-4 decisions, this case was a 9-0 decision, authored by Justice Ginsburg in 2000. It is Jones v. United States, 529 U.S. 848 (2000), linked in the first comment below this post.
[Let me begin with one important qualifier. The Court in Jones found that the statute as written did not invoke the full scope of Congress' commerce clause power, which Obamamcare clearly attempts to do, so it was decided on statutory rather than constitutional grounds. I think an analysis of the facts makes this distinction much less significant.]
The facts and summary of the case are as follows:
Facts of the Case:
In 1998, Dewey Jones, of Detroit, tossed a Molotov cocktail into the home of his cousin, James Walker, Jr., in Fort Wayne, Indiana. Walker's home was severely damaged. Subsequently, Jones was convicted in U.S. District Court of violating 18 U.S.C. section 844(i), which makes it a federal crime to "maliciously damage or destroy, ...by means of fire or an explosive, any building... used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." The Court of Appeals affirmed Jones's conviction. Before both courts, Jones unsuccessfully argued that section 844(i), when applied to the arson of a private residence, exceeds the authority vested in Congress under the Commerce Clause of the Constitution.
Question:
Does the federal arson statute apply to the arson of a private residence?
Conclusion:
No. In a unanimous opinion, delivered by Justice Ruth Bader Ginsburg, the Court held that an owner-occupied residence not used for any commercial purpose does not qualify as property "used in" commerce or commerce-affecting activity, such that arson of such a dwelling is not subject to federal prosecution under section 844(i). Justice Ruth Bader Ginsburg wrote for the Court that "[w]ere we to adopt the Government's expansive interpretation of section 844(i), hardly a building in the land would fall outside the federal statute's domain."
The Court reversed the conviction, focusing on the phrase in 844(i) "used in", and did not squarely reach the issue whether, had Congress not used the qualifying phrase "used in" but had merely criminalized the destruction of "any building...affecting interstate commerce" words that, when unqualified, signal Congress’ intent to invoke its full authority under the Commerce Clause, the same result would have obtained.
The interesting part of the opinion from the standpoint of the individual mandate is twofold: a) the parts of the opinion that focuses repeatedly on "activity"(as opposed to inactivity) affecting interstate commerce; and b)the broad sweep that such a mandate would have if it applied to every person (as the Government in Jones sought to apply it to every private residence) in the United States. The Court observed:
"Were we to adopt the Government’s expansive interpretation of §844(i), hardly a building in the land would fall outside the federal statute’s domain. Practically every building in our cities, towns, and rural areas is constructed with supplies that have moved in interstate commerce, served by utilities that have an interstate connection, financed or insured by enterprises that do business across state lines, or bears some other trace of interstate commerce."
The Court continued to use the term "used in" throughout the opinion to avoid, as it said, a full blown Lopez-style constitutional analysis. But it is very difficult to see how the absence of the phrase "used in" would have altered the result in Jones. Its presence merely enabled the Court to decide the case on statutory, rather than constitutional, grounds.
IV. OBAMACARE'S MANDATE--REDEFINING COMMERCE AND ACTIVITY
Congress in the PPACA(ObamaCare) makes the following findings, with regard to the individual mandate:
The individual responsibility requirement provided for in this section (in this subsection referred to as the ‘‘requirement’’) is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph
(2) EFFECTS ON THE NATIONAL ECONOMY AND INTERSTATE COMMERCE.—The effects described in this paragraph are the following: (A) The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.
The Mandate itself provides:
"An applicable individual shall for each month beginning after 2013 ensure that the individual,
and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month."
Congress is authorized to regulate commerce. Commerce is an activity, defined as "the buying and selling of goods, especially on a large scale, as between cities or nations." In ObamaCare, Congress makes a finding that the mandate to purchase private insurance "regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased." In other words, Congress redefines commerce and activity in such a way that the behavior regulated (or rather required) is neither commerce nor activity. It is difficult to see how the Court can credibly permit Congress to engage in such a stark redefinition of terms which are universally understood to mean something entirely different. It is even more difficult to believe that they would permit such a redefinition of terms in the Constitution as a vehicle for Congress to do what it has never done before, that is: to require individuals to engage in private commercial transactions, of Congress' choosing, with other individuals.
V. THE PRIVATE/COMMERCIAL DICHOTOMY AND THE MANDATE
The important lesson in Jones is the distinction that the Court drew between commercial buildings and private residences. Private residences simply lack the connection to interstate commerce that would trigger Congress' power to regulate activity with regard to them, and this is clear from the Court's ruling, even though the holding is on narrower grounds.
Finally, it is impossible to escape the analogy between a private residence and a private individual. Like private residences, private individuals per se lack the connection to interstate commerce that would trigger Congress' power to regulate them. If the Court was so troubled by the extension of Congress' Commerce Clause reach to ACTIVITY as egregious as a bombing involving a private residence, it should be a fortiori even more troubled by the extension of that same regulatory authority to the INACTIVITY (i.e.-the desire to be left alone) of private individuals. Unlike private residences, with regard to which the court labored so hard in Jones, private individuals (and the states) are clothed with all rights under the Ninth Amendment (and Tenth) Amendments not specifically granted to the federal government. Only a complete redefinition of the terms "commerce" and "activity", a redefinition to which the unanimous court in Jones would seem hostile, would save the individual mandate from the ash heap of constitutional history.
{The link to the full Jones opinion is in the first comment below}
http://www.law.cornell.edu/supct/html/99-5739.ZO.html
Link to Patient Protection Affordable Care Act(PPACA):
http://democrats.senate.gov/reform/patient-protection-affordable-care-act.pdf
Congressional Findings are at pages 320-24. The Mandate itself is at pages 324-5.
It would be interesting to hear what Robert Bork has to say on this issue. Has he made any statements?
How long will this take to get to the Supreme Court?
I would love to hear Bork’s take on it.
Would a VERY peaceful, silent prayer vigil around the S.P. while they are hearing our case help? VERY SILENT AND VERY PEACEFUL, with candles maybe. Not one person speak or utter one word, no signs,no buttons or clothing that spoke to a cause or organization. Complete silence.
Do not even talk with the MEDIA, no matter what source they are. Silence and prayer.
Now if Billy Graham wants to come and speak to us and hold this prayer vigil, he may speak and talk with the media if he wishes. fine with me.
bookmark
I believe that the commerce clause cannot be invoked here to justify 0bamacare. All the commerce clause cases involved a commodity and a health insurance policy is not a commodity it is a contract that only has value between the parties to the agreement.
Bur what about the tax argument? The mandate is not an income tax but, I have seen it described as a capitation tax-a tax on the whole person. Apparently, a capitation tax is to be apportioned among the states on the basis of census population.
I wonder if anyone has any further specific knowledge on this subject.
The Constitution (ARTICLE I) forbids a capitation inless it applies equally to everyone in the Census. Obamacare’s mandate is a penalty, which only applies to those who do not comply with the mandate and even exempts some of those who are incarcerated or who cannot afford it. It is not a constitutionally permissible capitation. See below:
“No Capitation, [or other direct,] Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”
COMMENTARY:
A capitation is a tax collected equally from everyone. It is also called a head tax or poll tax. The Supreme Court held that this section prohibits an income tax, but the 16th Amendment set aside the effect of the court’s decision.
The Amish and Muslims are exempted from the mandates. Is that a violation of separation of church and state. The state is picking two religions over the beliefs of the others. It looks like to me an establishment of a religion. Their conscious clause is intake but not for pro-life believers.
I would think that the 14 amendment would allow all Americans equal standing in claiming a religious exemption. Next week, I’m going to request that my congressman (Sensenbrenner-R) provide me with information specifically on obtaining an exemption and the most effective strategies to follow. Perhaps several conservatives sitting in congress can pool resources and make this information available to the public. At least a flood of requests would slow down the IRS or government agency charged in processing these requests.
Huh?? What happened to equal treatment under the law? I thought that was the foundational principle of this country.
It’s real simple. This bill asserts federal government OWNERSHIP over the individual citizen.
On what basis did slave owners assert the power to force slaves to work, against their will? Answer: OWNERSHIP. They had to assert legal ownership over the slave, in order to compel them.
Likewise, as a free man, no one can compel me to purchase a product or participate in any particular commerce, absent a claim of some form of ownership over me. Otherwise, I am free to sit in the park and do nothing.
The government says, you must purchase health care. I say, no I don’t, because I am a free citizen in a free country. They say, but you have to, we passed a law. I say, no, I am free, have committed no crime, and nobody can force me to do things against my will. Eventually, they have to say, well, no, you are not free. We have taken that freedom and you must comply. At that point, how am I not in a position of involuntary servitude?
It’s real simple. This bill asserts federal government OWNERSHIP over the individual citizen.
On what basis did slave owners assert the power to force slaves to work, against their will? Answer: OWNERSHIP. They had to assert legal ownership over the slave, in order to compel them.
Likewise, as a free man, no one can compel me to purchase a product or participate in any particular commerce, absent a claim of some form of ownership over me. Otherwise, I am free to sit in the park and do nothing.
The government says, you must purchase health care. I say, no I don’t, because I am a free citizen in a free country. They say, but you have to, we passed a law. I say, no, I am free, have committed no crime, and nobody can force me to do things against my will. Eventually, they have to say, well, no, you are not free. We have taken that freedom and you must comply. At that point, how am I not in a position of involuntary servitude?
ping
ping...
“Moreover, unlike the recent decisions (Lopez, Morrison and Gonzales), which were all 5-4 decisions, this case was a 9-0 decision, authored by Justice Ginsburg in 2000. It is Jones v. United States, 529 U.S. 848 (2000), linked in the first comment below this post.”
Bookmark ping.
Here’s my take: These suits put the Democrats at a big political disadvantage because they are left with two choices as their response to them. They can either watch as these suits make their way through the courts and make drive the news cycle ( whether or not the Democrat controlled media likes it) and in doing so serve as daily reminders of what a threat to liberty the bill is OR they can roll the dice and try to push this straight up to the Supreme Court and risk losing everything just before Election Day.
Either way we win. This will NOT be easy but we have fine minds on our side and a faith in God’s favorable view of a free America.
“they can roll the dice and try to push this straight up to the Supreme Court and risk losing everything just before Election Day.”
I really think there are five solid votes on the Court to invalidate this (Kennedy and the four conservatives). Stevens is pretty reliable on Commerce Clause cases, so he would be the sixth if he is still there. I had thought Breyer might be solid on this, but I just saw him in a debate with Scalia and he kept talking about the Judge’s role in determining the purpose of the constitution, based on the values of the time, which made me less sanguine about him. I also remembered he was a staffer for Teddy Kennedy on the Senate Judiciary Committee prior to going on the Appeals court. And Kennedy’s pet issue was nationalized health care. This case will be a real test of Breyer’s intellectual integrity. Ginsburg and Sotomayor are wild cards, but I would tend to see it as 6-3 or 5-3. And if they are intellectually honest, it could be 9-0.
Finally, we are going to be hearing from the MSM that to strike the mandate down would be a stunning example of judicial activism. Not true. Striking it down would be protecting the rights of the people from an abuse of power by Congress through their attempted transmogrification of the Commerce Clause. Striking it down would vindicate the 9th Amendment of the Bill of Rights as well.
Failing to strike it down would be the STUNNING ACT OF JUDICIAL INACTIVISM, a dereliction of the Court’s duty to protect the people from a Congress which exceeds the powers granted it by the Constitution. It would represent judicial activism by inaction.
Since the Court was willing to strike down the lion’s share of McCain Feingold, which only LIMITED (but by no means eliminated) political speech in violation of the First Amendment, I believe the Court would be inclined to strike down the Mandate in ObamaCare, which not only limits but ELIMINATES the freedom not only to engage in commerce (which has existed since the founding of the Republic and before) but NOT TO ENGAGE IN COMMERCE. Congress does so by misconstruing its authority under the commerce clause, believing that the power to “regulate”, which always presupposes an activity to regulate, extends to inactivity and that one who is doing nothing is nevertheless engaging in commerce. I do not believe that the Court can possibly be intellectually dishonest enough to do otherwise. In fact, I think the Justices who, on policy grounds, favor National Health Care will have to admit that it should have been enacted via a public option and financed via the income tax. And people should always have been free to opt our of it.
Had they done it this way, it would have been constitutional, and the Government could have made the public option so attractive that they would have eventually driven the private insurance companies out of the field, achieving their goal of a single payer system. Instead, they were forced to choose this bastardized version, an unprecedented individual government mandate married to private insurance, which is going to run afoul of the Commerce Clause.
This is pretty arcane stuff, but I thought I would ping you in case you know anyone who is interested in some of the Constitutional issues surrounding Obamacare. Post 18 is a little easier to get through than the main article.
Very nicely summarized. As it is Obmacare is an economic time bomb. Even worse with the individual mandate stricken. Will the remedy be the whole bill tossed?
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.