28 June 2012

From Eyewitnesses at the Scene of the Crime

"The case is easy and straightforward, however, in another respect. What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.

That clear principle carries the day here. The striking case of Wickard v. Filburn, 317 U. S. 111 (1942), which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity."



Anonymous said...

So are they saying someone needs to challenge the commerce clause again? Maybe congress should revise the commerce clause? Or maybe we should tax breathing and not breathing?


thetimman said...

They're saying that the majority's opinion, taken to its logical conclusion, means no law ever exceeds the power of Congress to enact.

That we are not a nation of the rule of law.

Jane Chantal said...

Well, this whole thing gives me a headache...and let me start by saying that what most concerns me, in all this, is that we not lose sight of the importance of opposing the attack on religious freedom embedded in the mandatory contraception, abortion and abortifacient coverage aspect. I am no fan of the Obama administration.

However: I have been struggling for years to understand why it supposedly was ok that HMOs appeared seemingly overnight in the 1980s, after which Americans suddenly found themselves in an adversarial relationship with their insurance companies, and found that their doctors were suddenly in an adversarial relationship with them too. I remember wondering how HMOs were legal, when they were quite obviously based on a conflict of interest.

Perhaps I was asleep at the wheel for the first 30 or so years of my life, but I don't recall health care ever being on anyone's radar as a matter of concern, prior to that.

Was the lack of general outcry due to the fact that most people,in those long-ago days, still worked for companies that provided good insurance packages to their employees?

People who drive cars are required, in some states, to own automobile insurance so that other people won't have to foot the bill for their accidents. I'm not clear on why, in theory, it is heinous -- from the pov of people who understandably do not want to foot the bill for other people's health care -- for the government to require everyone to own health insurance.

I also have to wonder how many others are, like me, in a situation where a loved one only has health insurance because our state offers a high-risk pool insurance program for residents whose pre-existing conditions have made them untouchable from the pov of most insurance companies.

I need to have this explained to me. Is the objection that it is the federal government that is requiring this, rather than its being left to the discretion of individual states?

Thank you! I'm a social conservative and generally a fiscal one too, but am not a libertarian and while I know that the phrase "promote the general welfare" in the preamble to our Constitution is elastic, it seems reasonable to me that access to medical treatment falls under its parameters.

Anonymous said...


I appreciate your thoughts on this. I think states have authority to do a mandate, but the feds didn't. There is no interstate market for insurance still as well. State regulation of insurance has been awful; fed regulation will be at least as bad. This law and its economics will cause insurers to go out of business, leaving the feds as the only choice; feds will determine who gets what care. Also, since truly no man is an island, at what point does the "general welfare" provision ever end? Can the feds to anything? I dont' see what affair it is of the govt HOW we pay for our med services. If we don't want insurance and can afford to pay the bills, that's our business. The shared cost arguments are limited in my view.

Polytropos said...


The real difference between automobile insurance requirements and this health insurance requirement is that nobody is being forced to buy auto insurance by the government. It is only required of those who decide to drive. You can opt out, if you wish, by not driving.

With this health care law you have no choice. Everyone, by virtue of their being alive in the US, is required to purchase something. There is no opting out. What's more, it requires many things of the insurance companies that drive costs for perfectly healthy people (that may never use the insurance policy they are forced to purchase) through the roof.

In sum, there is a big difference between the two.

Jane Chantal said...

Thanks, Pete. It is completely believable to me that the current administration would like to make each and every citizen dependent on the federal government for health care. And I can see where it would be preferable for the states to provide their high-risk citizens with an alternative to a federal insurance program. It just seems to me that there is a clear need for some way for people who are turned down by insurance companies because of pre-existing conditions to obtain good medical care.

I understand the objections to forcing insurance companies to accept everyone; that not only is an infringement on freedom, but also obviously would result in higher premiums as many people are pointing out. That said, if insurance companies remain free to reject whom they wish, there needs to be an alternative for the luckless rejectees. I am told that there already is such an alternative: we who have insurance are paying for the care received by the uninsured. (I don't know if that means everything from ER visits to the most expensive surgeries and therapies available. Does anyone know? Is it up to the discretion of individual medical facilities?)

If the insured do end up paying for the uninsured, surely it is worthwhile to try to figure out which would be more cost-effective: transferring the medical costs of the uninsured to the insured, or state or federal insurance for those who either can't obtain or can't afford private insurance.

I know there is a great deal of alarm, and many predictions that the individual mandate will lead to a totalitarian state. I guess I'm not connecting the dots correctly, but I don't see that as the inevitable outcome. Still have that headache, though :-)

Thanks for dialogueing with me on this, Pete.

Jane Chantal said...

Polytropos, I agree that the automobile insurance analogy isn't a perfect one; it is true that those who don't drive need not purchase car insurance. Do you envision a situation in which people who wish to opt out of eligibility for the individual mandate would be willing to promise never to seek medical care for themselves or for their dependents?

Would it be preferable for them to hold off on attempting to purchase insurance until they or a dependent becomes ill? If, at that point, they are rejected by private insurance companies, would it be better for their medical costs to be passed along to those who are insured, than for them to opt into a gov't insurance plan (wich may amount to the same thing, but at greater or lesser cost to the privately insured)?

I know I'm probably failing to take something into account, but these are questions I struggle with.

Anonymous said...


I am happy to explain, at least my views, to you. I am glad it was helpful. Conservatives do not oppose the idea that pre-existing conditions should prevent insurance coverage. I think that could have been done bi-partisan really easily, but Dems went for the golden ring and lost all GOP support. I personally don't like the idea of insuring "children" until 26; kids need to grow up. I don't want to fund my kids that long.

Polytropos makes good points too. I have worked in state and fed economic policy, but I'm not a lawyer. I consider this "need" for a federal law to be a failure of state regulation of insurance.

BTW, the law has many new taxes on medical devices and affirmative action for med school. It has ways for the feds to get into our bank accounts to obtain the penalty, er, tax. It has a new tax on home sale gains above a certain amount. There is a lot of garbage in this law we have no idea about.

Fenian said...

Now that we know that the law stands (at least for now), I hope and pray that there is a positive outcome for the HHS contraception mandate. I can see both sides of many policy debates, but the contraception mandate is so obviously wrong.

Anonymous said...

My comment at 18:11 pm. I think I eliminated too many negatives in a sentence. Let's try this:

The GOP would be happy to ensure that people with pre-existing conditions are insured. The Congress could have had a bi-partisan solution on that.

Sorry about my error.