The mandate is constitutional, this is a distraction.

Saturday, December 18th, 2010 @ 2:33 pm | Clueless Conservatives, Constitution

Gee, a Republican judge not actually heeding the Constitution, I didn’t think that was possible.

As Orin Kerr pointed out, Judge Hudson made a significant error in his reading of the Commerce Clause when he wrote “if a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.” As Kerr notes, “the point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I” (or as Justice Marshall famously put it “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”)

The Commerce clause is not what the government is claiming as authority for a mandate. The Necessary and Proper Clause is. And there is a long history and fairly well developed tests for determining what is necessary and proper. If critics want to bemoan this perceived expansion of federal power, they need to consider the necessary and proper clause and its associated tests (rational relationship basis) used to assess the constitutionality of any federal action claiming it as a source of authority.

Look, all this business with Republicans and the Constitution is, much like everything else, a bumper-sticker not an actual position. These are the same people who have been attacking liberties for years treating the Constitution as a complete list of our rights when the Ninth Amendment specifically forbids reading the Constitution this way. If they don’t like something they call it unconstitutional, and being a judge doesn’t make any difference.

-hw

50 Responses to “The mandate is constitutional, this is a distraction.”

  1. AJKamper Says:

    If you read Prof. Kerr’s posts on the Volokh Conspiracy, you’ll see that he is starting to reverse field on this issue: a co-blogger suggested an interpretation of the Commerce Clause and the N&P Clause that he finds makes a lot of sense much more in keeping with his ideals of federalism and limited government power.

    The judge’s opinion did a poor job of arguing it, but there’s a lot more to the debate than those couple paragraphs from Kerr, and some very reasonable ways to understand the Constitution that don’t give the federal government nearly unlimited power (which was, after all, not the purpose of the Constitution from the get-go).

    I’m sort of agnostic on the issue… I think the N&P argument is by far the best one (better than the freaking Tax Clause argument), but for a progressive I’m pretty strongly in favor of limited federal government, and ways of limiting the Commerce Clause power don’t really bother me.

  2. Henry Whistler Says:

    Yeah, but what is the power in question? A tax on those who irresponsibly drive up health care costs for everyone by pretending they’re immortal.

    Pretty small fry stuff by my calculations.

  3. AJKamper Says:

    So it’s okay to violate the Constitution if it’s for a good cause?

    Please. You can do better.

  4. Henry Whistler Says:

    Whoa, you have hardly demonstrated it to be a violation. You described it as a power that should have some limitations, and I pointed out that this was a pretty mild use of that power.

  5. AJKamper Says:

    Oh, I see. Sorry, that was pretty harsh.

    I started to write a longer response and then deleted it, because I have a paper staring at me. Patience, and you shall be rewarded.

  6. Dana Says:

    It doesn’t matter whether you think it’s constitutional; the real question is whether the Supreme Court thinks it’s constitutional.

    The Obama Administration is guessing that they won’t approve it: rather than asking the Supreme Court for an accelerated review, they’re going to let this go through the (fairly conservative) Fourth Circuit Court of Appeals, before it goes to the Supremes. They’re as likely as not to lose in the Fourth Circuit, which means that ObaminableCare will be delayed, at the very least, because the next step is SCOTUS, and all of that takes time.

    I think that they’re hoping that one of the smarter Justices croaks, so he can be replaced with another liberal Democratic hack. With any luck, the next Justice will be appointed by someone like Sarah Palin. 🙂

  7. Henry Whistler Says:

    Good Lord! Thanks for the reminder of how bad your judgement is, Dana! Too often you ply us with attempts to sound reasonable!

  8. ladk Says:

    If you can’t pass through legitimate means, always fall back on the Necessary and Proper Clause.

  9. AJKamper Says:

    Because, you know, the N&P isn’t part of the Constitution, and an expansive reading of it wasn’t used by any of the Founders.

    OH WAIT… That’s right, our very first President used the expansive reading of it suggested by Hamilton.

    The problem with being a progressive federalist is that I rub elbows with some unsavory folk.

    At any rate, MY concern with using the N&P power for this specific case–mandating private investment–is that it’s essentially boundless. Once you can mandate people to spend money on government-regulated and government-approved insurance in order to meet some broad regulatory goal, you can do almost anything at all. I’d like to see a suggestion of something the government does NOT have the power to do if this mandate is considered okay. (Leaving the question of rights aside for a moment; obviously, the feds can’t violate those.)

  10. ladk Says:

    . Once you can mandate people to spend money on government-regulated and government-approved insurance in order to meet some broad regulatory goal, you can do almost anything at all. I’d like to see a suggestion of something the government does NOT have the power to do if this mandate is considered okay.

    And that’s the entire problem with the N&P Clause. The government can use it to do anything it wants with that power.

    If this passes as Constitutional then that literally gives the government Carte Blanche to do whatever they want as long as they deem it “Necessary and Proper”. Which, I’m going to be so bold as to say, would give them the power to violate the enumerated rights given to the people and states.

    That’s right, our very first President used the expansive reading of it suggested by Hamilton

    And that’s one of the many reasons that Hamilton was one of the more detrimental Founding Fathers.

  11. AJKamper Says:

    And Marshall was just plain wrong in McCulloch v. Maryland? And Washington was wrong to use it in the first place?

    I mean, what’s your endgame here? What’s the clause there for? What’s your alternate reading?

  12. mike g Says:

    If you can’t pass through legitimate means, always fall back on the Necessary and Proper Clause.

    The individual mandate passed both houses of Congress so I fail to see where the illegitimacy lies. Your comment should have read: “If you can’t block legislation through legitimate means, always fall back on claiming the bill was unconstitutional to begin with and if the courts fail to agree with your agenda then claim the judges are activists.”

  13. Henry Whistler Says:

    Look, a punitive tax is certainly within the government’s powers and doesn’t violate anybody’s rights. Nobody is going to jail over not having health care, so let’s get that straight.

    That said, I’ve always favored an opt-out for those who swear to pay all health care costs out of pocket the rest of their lives. That shuts the whiners up quick, because nobody wants that much freedom. They just want a partisan victory, plain and simple. They don’t think their health care is going to take a hit, they fear HCR will be successful and President Obama is going to go down in the history books as one of the great presidents.

    What can’t the government do? Force you to sleep with Megan McCardle, for one.

    AJ, you said, “Leaving the question of rights aside for a moment…” but why on earth would we want to do that? You asked what limits the power has, yet our rights answer that question quite precisely. You can’t say that there won’t be any limits as long as we don’t bring up the subject of limits.

    BTW, the key part of the N&P is that the ends must be constitutional, which is also a limit.

    I think it’s easy to succumb to hyperbole here, but if I ask myself, is it necessary and proper to require everybody to get health insurance in order to reduce costs and maintain quality care for everybody? The answer is an easy yes, and the alternative is a goddamned disaster. If there isn’t a mandate, people will be able to commit insurance fraud with near impunity, and it will break the system.

  14. AJKamper Says:

    Henry:

    You said: “AJ, you said, “Leaving the question of rights aside for a moment…” but why on earth would we want to do that? You asked what limits the power has, yet our rights answer that question quite precisely. You can’t say that there won’t be any limits as long as we don’t bring up the subject of limit.”

    I’m sorry, but this flies against the actual, intended purpose of the Constitution. The federal government’s powers are limited by more than the rights of the individuals: there are certain things the feds do not have the granted power to do. State police power is plenary; the federal government’s power is not. So any reasonable definition of the N&P Clause has to have some way of making sure that the government can’t do as it pleases. Preventing the government from penalizing people for NOT engaging in commerce–that is, effectively forcing them to spend thousands of dollars on a private service or face a tax (which can be pretty high depending on your income) is one fairly reasonable limit.

    (This actually makes a better argument on due process rights grounds–violation of right to property–but we’ll still with the N&P for now.)

    Agreed that health reform as it stands without the mandate is nonsensical. Here’s also a thought: the mandate might be saved (using this argument) if there were a public option, so that parties weren’t being forced to use private sources and were paying for a government service. Just thinking out loud.

  15. Henry Whistler Says:

    Well, you’ll get no objection from me on that one!

    Unfortunately, the mandate, originally a Republican idea, is the best tool we have right now to ward off GOP inclinations to do whatever they can to dismantle universal health care. We are unlikely to get a public option without some kind of reversal of the 2010 elections.

    Still, I just can’t grasp your continued use of this “doing whatever it wants” language just because you feel deep down the government shouldn’t compel people to be responsible about health insurance, even if it offers assistance for economic hardship and the government is instrumental in providing health care.

  16. AJKamper Says:

    Still, I just can’t grasp your continued use of this “doing whatever it wants” language just because you feel deep down the government shouldn’t compel people to be responsible about health insurance, even if it offers assistance for economic hardship and the government is instrumental in providing health care.

    It’s a slippery-slope argument at heart. If federalism is going to mean anything at all, then at some point we need to recognize Constitutional checks on the federal government’s power. Mandating economic activity–making sure that everyone buy something because it would help a plan of the government’s–is arguably a step too far. (And like I said, for people of higher incomes who wouldn’t get assistance, it’s a penalty of a couple thousand dollars for a household of $80K/year.) So I’d ask again: Can you think of things the government could mandate that would _not_ fall under the Commerce Clause + N&P power? Or is the power of the federal government effectively limitless to order us to do things at cost of penalty, provided there is a rational connection to an economic regulation?

  17. Henry Whistler Says:

    Look, you can’t keep using the word “limitless” while adding qualification after qualification. Look at what limits you’ve already conceded:

    1. Can’t violate our rights.
    2. Must provide a rational connection to an economic regulation.

    I say health care exceeds rationality because everybody has a stake in it. As I’ve said now and in the past, I’m in favor of a lifetime opt-out system, but nobody wants that much freedom. Hell, make it ten years at a time, that’ll do well enough. If you eventually want health care but think you can get by through your twenties without it, you’re a) an irrational fool and b) making a decision to participate in an economic activity at a later time to save money now, thereby hurting others who are behaving rationally and responsibly. They’re not truly declining it.

    Health care provides for the general welfare and is a universal need. You can just keep saying that if the government can use its constitutional powers to regulate interstate commerce and tax to make the system run, then it can do anything! But the case for health care mandates is exceedingly rational and is nothing more than the little dose of medicine that makes all the sugar the voters want go down.

    Feel free to explain an equally rational case for why the government can mandate everybody buy a motor boat.

  18. Henry Whistler Says:

    And let me be clear here: I’m a socialist libertarian who believes any government power must be thoroughly justified. I’m a libertarian, that is, who actually thinks there’s more to the world than economic freedom, and that unrestrained economic freedom tends to limit other real freedoms.

    In a country that actually does have universal coverage, I don’t have to live in fear that a car accident for example will condemn me to a life of debt.

    In our society, health care has become a kind of reward for productivity. Yet it makes job transitions dangerous. It threatens to deny treatments or drop coverage, or refuse to provide it if you have had a previous condition.

    The Affordable Care Act does utilize private care, but the model for true insurance doesn’t really work unless everybody who will one day exact costs participates all the time.

    Sometimes private solutions don’t work. With a nudge from the government, it seems they may be able to mostly ameliorate this issue. I, naturally, think the government should do a lot more to provide care and spread the costs via general taxes. But that’s what a compromise is, I guess.

  19. AJKamper Says:

    Not on for long, but I wanted to reply to this quickly:

    You said:

    “Feel free to explain an equally rational case for why the government can mandate everybody buy a motor boat.”

    “Equally rational?” Clearly you don’t realize how weak the “rational basis” test is. Maybe that’s the question here. NOTHING gets overturned for being irrational. Something can be far less rational than the mandate and still be allowed.

    So then you try to decide, either a) does the rational basis test need to be tightened up (in which case the mandate might make it, but other stuff wouldn’t), or else there needs to be a requirement to restrict the power in other ways–say, to not allow mandates to engage in economic activity, which is a power that can be used in really, REALLY ugly ways. Make sense?

    I’ll respond to more later.

  20. Henry Whistler Says:

    Maybe, but your whole case seems to be that this is basically within the powers granted by the Constitution as it is spelled out, but you really hate the way it’s implemented, which is perhaps enabled by the loose language of the Constitution. Yet you might concede that the mandate isn’t necessarily a bad use of that power, while suggesting the power is still so unwieldy it must be further contained.

    Yet you seem to immediately fold on trying to build a case that the government can force us all to buy motor boats, even if you say it’s because the power is so loosely defined that you really could slap together any mixture of sentences and achieve what I asked.

    I just want to be clear here, AJ, that I respect you and the level of thought you’ve tried to bring to IL. Would that I had ten such commenters. I’ve even considered suggesting you co-blog, but we kind of stick to people we know in real life and you’re not really crazy enough.

    Yet you’ve failed to convince me that the mandate is an abuse or malpractice of any power, that the power is too far-reaching, and of any responsibility of the former in demonstrating the latter.

    It’s important to remember that we’re essentially talking about a tax that goes towards providing health care, one that you can get out of by signing up for health insurance. The government does this all the time, and to rule such a thing unconstitutional, besides being nonsensical, threatens much more than the Affordable Care Act.

  21. AJKamper Says:

    HW:

    First, thanks for the kind words. I’d probably turn down a blogging role, because I do better in response than in content generation, but I appreciate that it crossed your mind anyway.

    Second, in order to explain fully (which maybe I should have done from the get-go), I need to do a fairly long detour into my general political philosophy. Brace yourself.

    The mandate: I don’t really think it’s a bad idea from a policy perspective. If I were Supreme Dictator, we’d have a base-level public option and allow insurers to offer better services with all the pre-existing condition that they want (the John Kitzhaber plan, in essence)… but since we don’t have that, the mandate makes sense.

    If that were the only question I had to answer, then this would be over. But that’s not what the United States is about. We created a government with limited federal government, meaning there are more checks on the government’s power than just, “Is it a good idea?” The question as to whether we the people gave the federal government the power to penalize people for not engaging in private commerce is an important one, and goes a bit beyond what the government ought to do.

    Even then, you can craft a pretty strong argument, as Prof. Kerr did, that this falls under the NEcessary and Proper Clause. I mean, you really do need the mandate for a quarter of PPACA to make any sense at all, and the bill is basically a regulation of commerce as it’s been defined over the last 80 years or so.

    But. The Commerce Clause has, by any reasonable definition, been stretched well beyond its original intent. I’m no originalist, but it doesn’t take one to recognize that the power of the federal government has grown exponentially. Many people think that’s a dangerous thing, and frankly, I’m one of them. And I’m frustrated that more progressives don’t feel the same way. A federal government with a great deal of power has too much power to use that for evil instead of good–and that’s a level of oppression that should scare progressives as much as it does conservatives. Rooting more power in the states (while still giving the feds the power to protect rights; I’m no Rand Paul) means that there’s less possibility of a huge government just mauling people, and it enables people to “vote with their feet” and go to states where they will be treated better. I don’t think this is a panacea, unlike some libertarians, but it doesn’t suck.

    So I’m very sympathetic to arguments that certain acts unacceptably increase the government’s power. And the mandate is a problem, not because of the actual increase, but because of what it represents. I haven’t seen a case where the feds in the past has mandated contracting with a private party and threatening to charge you a tax if you don’t… and this isn’t for doing something (like buying a car), but simply for existing. Given the nature of common-law precedent, this sets up an uncomfortable rule: the government can generally mandate that people buy things if they have a regulatory rationale for that. And when the rule is phrased that way, it’s a pretty short step to the motorboat hypothesis.

    It’s because the motorboat possibility is so horrendous that people are finding other, not unreasonable, ways of interpreting the N&P Clause. After all, a Constitution premised on a limited federal government simply could not have been intended to give the feds the power to mandate boats.

    So one route is that it may simply be “improper” to mandate economic activity–in essence, to require commerce so that it can be regulated. The goal is to prevent the government, having been given another inch, from taking yet another mile. And I think that’s understandable, and maybe even a good idea.

    In order to refute this argument, you can’t really fall back on the “It’s a good idea” rule, because that’s not really a rule at all, merely a political perspective. Almost anything can be justified as a “good idea,” and it’s not the court’s job to distinguish the good ideas from the bad ones. So supporters of the mandate have to come up with another reading of the Constitution that allows mandates and prevents motor boats. In fact, this is CRUCIALLY important, because otherwise you might not get five votes on the Supreme Court the way it’s currently constituted.

    I can think of a few, but they would require a significant change in Commerce Clause/N&P jurisprudence. My favorite would be a form of what’s called “strict scrutiny” analysis: Where the Commerce Clause is used to mandate actions fairly distant from commerce, there needs to be a compelling government interest and the means needs to be narrowly tailored to meet that interest. The mandate might well survive in a way that motorboats would not.

    But personally, I wouldn’t be upset if the government is not found to have that power. An ability used can be misused.

    Sorry for the length!

  22. Dana Says:

    Mr Whistler has me rolling on the floor laughing:

    I’m a socialist libertarian

    Please, tell me that somehow my screen got that wrong, and that you really didn’t type that. Those two terms are mutually exclusive, Mr Whistler. Socialism requires ever increasing government ownership or control of the means of production and distribution of rewards; libertarianism is a philosophy which holds that people are as free as possible to do as they please, and that government should interfere as little as possible in our lives and our economy.

  23. Henry Whistler Says:

    Ah, I love blowing minds with that one.

    Too often the libertarian is described in purely economic terms. Ultimately a system of lords and serfs becomes the purest form of freedom.

    That’s the way it’s used, that’s the way you’ve got it burned in your head. Those of us who protest both government and private tyranny must add qualifications to the term.

    It will be noted that your definition of socialism inserts your own biases as well. It requires no “ever increasing government ownership.” So pardon me for contradicting rightwing theology in my self-labeling.

  24. AJKamper Says:

    I think one major reason I don’t self-identify as a libertarian is that most libertarians these days are ten times more interested in free-market rights than civil rights, which become too frequently an afterthought. I have a healthy respect for the market, but property rights are just one of many, and in no sense a “natural” right (though an important one).

    I’m certainly a civil libertarian, and that term is sufficiently common that in and of itself a “socialist libertarian” isn’t a contradiction like an “authoritarian libertarian” would be. I’m intrigued by HW’s stance that there needs to be a bulwark against private tyranny, though I question that a wealth-redistributive model is necessary to prevent that. It’s still an appealing repurposing of the word.

  25. cbmc Says:

    Dana, quick one-question quiz for you. Which prominent political thinker of the 19th century ended one of his books with the prediction – a hopeful one; one which was both his prediction & his hope – that the state would “wither away”?

  26. Dana Says:

    Well, cbmc, whatever Herr Marx thought would be the result of socialism, that’s sure not how it worked out.

    Nor could it: socialism requires a very high level of cooperation, far more than mankind has ever come close to doing willingly. It only takes one man who says, no, I’m keeping what I made, to upset the balance.

    Herr Marx was a very limited thinker when it came to psychology: because he thought that something was just so obviously good for everybody, it really never occurred to him that not everybody would agree, that not even all of the proletarians would agree. He based his predictions on a single-mindedness of group-thinking that simply does not exist, and has never existed. Even the share-all socialists of the kibbutzim weren’t able to achieve that, and that was on a very small scale.

  27. ladk Says:

    Ultimately a system of lords and serfs becomes the purest form of freedom.

    That’s just laughable. A system of lords and serfs becoming the purest form of freedom? You’re kidding right?

    And Marshall was just plain wrong in McCulloch v. Maryland? And Washington was wrong to use it in the first place?

    AJ, I think Marshall was mostly wrong in his reasoning in McCulloch v. Maryland.

    Being a more or less strict constitutionalist I disagree with the premise of the case. Congress doesn’t have the authority to set up a bank outside of the government that handles the value of the national currency. That being the duty of congress that they cannot legislate away.

    That being said, when I say mostly wrong, I almost totally disagree disagree with his proposition that federal law gains supremacy over state laws in every way. Except in matters of national defense in declared wars because that is the most practical solution and way to fight a war.

    Sorry to get back so late on that. Been a long week.

  28. Henry Whistler Says:

    AJ: lengthy responses are only admired here, but I’m getting crushed under the Christmas juggernaut. Will go over things in detail soon, you and everybody else.

  29. AJKamper Says:

    Ladk:

    Now, here’s the question: Some of the Founders thought the NEcessary and Proper Clause meant “strictly necessary,” others thought “reasonably necessary.”

    How does a “strict constitutionalist” determine which of them was right? They both had good arguments, or rather good reasons why the other side was a bad idea: the former would make governance impossible, the latter would render it too powerful by way of the slippery slope.

    Honestly, both Hamilton and Jefferson were right in why the other interpretation was dangerous–but what in the Constitution suggests you should pick one over the other? I think “strict constitutionalism” just falls apart here. It was written vaguely on purpose in order to enable society to figure out its best answers.

  30. cbmc Says:

    NEcessary

    sidenote here, in Iowa this spelling is a portmanteau word meaning “necessary if you happen to be explaining something to a Nebraskan”

  31. Henry Whistler Says:

    The Commerce Clause has, by any reasonable definition, been stretched well beyond its original intent. I’m no originalist, but it doesn’t take one to recognize that the power of the federal government has grown exponentially. Many people think that’s a dangerous thing, and frankly, I’m one of them.

    Me too. Except the Commerce Clause doesn’t keep me awake at night much. Things like the Wars on Drugs and Terror have done more to peel away our rights than somebody using the Commerce Clause to tax health insurance fraud.

    My problem is that most people who caution that large government is a “dangerous” thing are usually over on Dana’s blog drooling onto their keyboards while furiously jamming away, “THE COMMIENAZIS HAVE ARRIVED!!!” If you’re not thinking of the Soviets or Hugo Chavez, then who? Sweden? Japan? Belgium? Which reign of terror exactly are we thinking of here?

    My position is that “big” government is useful for things big government is useful for, and that it’s up to us as a nation, a democratic nation, to choose and select wisely how to implement it. Obviously if you’ve got a war to fight, a real one, big government is a great tool. Well, health care is a big deal too. Of course it’s going to involve a large government, because we’re a large country and health care is a universal issue. That doesn’t mean I’m in favor of an overburdening, intrusive or harsh government, and there are lots of things I’d like to keep the government’s nose out of. Health just isn’t one of them.

    At the same time, the ACA is remarkably unintrusive into health care itself, and the mandate is a feature of it relying on private health providers to handle our needs. It’s just a better way to regulate health care so that it reflects our actual needs, which are universal. So the mandate is actually a trade in freedom, in which we all agree to sign up and the insurance companies actually agree to cover everybody.

    Not to mention that perpetuating our current system is as good as signing a death warrant on millions of Americans present and future. 50 million are now uninsured, the numbers say? I’m sure we’ll hear it’s “only” 40, or 30, or 20 million. You see, AJ, killing me because I don’t have health care (went ten years without it, actually) is the kind of infringement of my freedom I worry about. A lot worse than, “Oh, darn, gotta go get health insurance!”

    That’s the kind of big picture thinking that I don’t see going on in most discussion of the individual mandate and personal freedom.

    I would concede that the Commerce Clause has been abused in the past, and that courts should start being more sensible about how they use it instead of relying on it to make whatever they want happen. But the mandate really doesn’t exist in that territory. It’s actually a very good invocation of it. I agree with your desire that we need,

    a significant change in Commerce Clause/N&P jurisprudence. My favorite would be a form of what’s called “strict scrutiny” analysis: Where the Commerce Clause is used to mandate actions fairly distant from commerce, there needs to be a compelling government interest and the means needs to be narrowly tailored to meet that interest. The mandate might well survive in a way that motorboats would not.

    Which illustrates you coming around full circle to my position, that even via the strict scrutiny you would desire, the mandate still passes the test. So your final position is that it wouldn’t break your heart to see the mandate fall. Okay.

    I mean, if you can tune out the damage it could do to millions of lives, I can understand you being passive on strictly legal grounds.

  32. Henry Whistler Says:

    Dana: “…socialism requires a very high level of cooperation, far more than mankind has ever come close to doing willingly. It only takes one man who says, no, I’m keeping what I made, to upset the balance.”

    Um, sure, except that the government builds a school or hands out an unemployment check and you guys are muttering about socialism.

    The more people on the right refuse to understand the distinction between West Germany and East Germany, the less I will take the seriously, period. It’s a constant game of equivocation, repeatedly invoking Stalin, Mao and Castro to argue against the policies of France, Canada, and Switzerland.

    You’re a smart man, Dana. You can learn to make that distinction without welcoming the Red Army.

  33. Henry Whistler Says:

    ladk: “You’re kidding right?”

    No.

    “I almost totally disagree disagree with his proposition that federal law gains supremacy over state laws in every way. Except in matters of national defense in declared wars because that is the most practical solution and way to fight a war.”

    Oh, well, I guess if it’s practical it’s all okay then.

  34. ladk Says:

    Not to mention that perpetuating our current system is as good as signing a death warrant on millions of Americans present and future. 50 million are now uninsured, the numbers say? I’m sure we’ll hear it’s “only” 40, or 30, or 20 million.

    You know how 375,000 people who were kept out because of pre-existing conditions were supposed to sign up with Medicare plans in the first couple of months?

    That number has only amounted to a little over 8,000 in the first couple of months according to HHS.

    So where’s the MASSIVE demand that we must act now or these people will die?

    ladk: “You’re kidding right?”

    No.

    So you’re going to stick with the position that ultimate freedom ends in chains and oppression?

    Oh, well, I guess if it’s practical it’s all okay then.
    Seriously? Do you just turn on the snark when you blog or are you like this all the time?

    The whole reason the articles of confederation fell apart was because of the national defense issue and state sovereignty being supreme in the defense arena. By having one commanding force that can act and react to a war time scenario it makes everything that much more efficient. But no, let’s be snarky for snark’s sake.

  35. AJKamper Says:

    Me too. Except the Commerce Clause doesn’t keep me awake at night much. Things like the Wars on Drugs and Terror have done more to peel away our rights than somebody using the Commerce Clause to tax health insurance fraud.

    IIRC, this proves my point quite nicely, because the power to wage the War on Drugs comes from… wait for it… the Commerce Clause!

    Now, you might ask, that doesn’t look much like commerce, does it? Well, no. But back around the turn of the century the Court decided that the “regulation” of commerce includes the ability to completely prohibit interstate lottery ticket sales. Not such a horrible threat to the nation. And yet the War on Drugs that you decry comes from that decision.
    This is the power of precedent: small decisions almost inevitably lend themselves to large abuses.

    So I’m in general reluctant to increase federal government power, even under a strict scrutiny analysis. I’m much more comfortable requiring Constitutional amendments for expansions of government power (as compared to individual rights, which are well protected by the courts).

    I recognize that this sticks me in a little bit of a hole. I really do think that the federal government is best suited to provide or at least fund health care (one of the few cases where I think a large-scale solution is best), but I really don’t have a politically realistic way to get there. Do I abandon my principles of limited government in order to pick the political solution I think best, or do I risk health care bankrupting the country out of some abstract fear of expanding power?

    I tend to stand on principle, but not firmly. I suspect we can find solutions that don’t require unconstitutional excesses, and we’ve seen that precedent can lead to real danger. It’d be nice if we could count on our governance to not abuse power, but, c’mon, how likely is that?

  36. ladk Says:

    Me too. Except the Commerce Clause doesn’t keep me awake at night much. Things like the Wars on Drugs and Terror have done more to peel away our rights than somebody using the Commerce Clause to tax health insurance fraud.

    The War on Drugs wouldn’t be a problem if Federal Supremacy didn’t exist on the civil law level.

  37. AJKamper Says:

    The War on Drugs wouldn’t be a problem if Federal Supremacy didn’t exist on the civil law level.

    How does a “strict constitutionalist” get around the plain meaning of the Supremacy Clause?

  38. Henry Whistler Says:

    ladk: Did you know 98 percent of people in Massachusetts are now signed up for health insurance under Mitt Romney’s individual mandate?

    I’m really not going to be fazed by reports that ACA hasn’t yet fully swung into effect.

    “So you’re going to stick with the position that ultimate freedom ends in chains and oppression?”

    Sure. After all, if I attain ultimate freedom, then I have full freedom to ride over the freedoms of other citizens. If I can create an immortal entity which then acquires ownership of all services and predicates any dispersal of those services on your full submission to anything I choose to throw into a lifetime-binding contract, which I then bribe a number of politicians to make it a crime for you to violate said contract, then there are your chains and oppression.
    Money can buy all the carrots and the stick too.

    See, one part of growing up involves the realization that your actions impact others, and that your freedoms must coexist with the freedom of your fellow citizens.

    The whole reason the articles of confederation fell apart was because of the national defense issue and state sovereignty being supreme in the defense arena. By having one commanding force that can act and react to a war time scenario it makes everything that much more efficient.

    That’s great. You’re right. This was kind of my point about health care. The need is universal. A response to that need will be definition be big, so any government solution will by definition be big government. That doesn’t mean that it isn’t both a good and necessary thing to do. It can even mean efficiencies of scale that drastically reduce costs.

  39. ladk Says:

    Did you know 98 percent of people in Massachusetts are now signed up for health insurance under Mitt Romney’s individual mandate?

    Yeah, and you leave out the fact that prise rose at such a drastic rate that price controls had to be instituted on the state insurance company. Because of these price controls Massachusetts Insurers have now started refusing to sell new plans because of abuses in the system.

    So if using that as an example we can expect to see Insurance Rates rise drastically in the future as more and more people purchase more insurance. Then probably Price Controls on a national scale.

    After all, if I attain ultimate freedom, then I have full freedom to ride over the freedoms of other citizens. If I can create an immortal entity which then acquires ownership of all services and predicates any dispersal of those services on your full submission to anything I choose to throw into a lifetime-binding contract, which I then bribe a number of politicians to make it a crime for you to violate said contract, then there are your chains and oppression.
    Money can buy all the carrots and the stick too.

    Well, I’m glad we got that out of the way. You have to resort to a fallacy to back up your position. Thought you guys were all about sticking to the realities around here?

    The need is universal. A response to that need will be definition be big, so any government solution will by definition be big government. That doesn’t mean that it isn’t both a good and necessary thing to do. It can even mean efficiencies of scale that drastically reduce costs.

    Or you know it could be that more intervention into a system that was already highly regulated would just make it worse? Nah, that’s not the answer. Clearly more of the same will work perfectly.

    How does a “strict constitutionalist” get around the plain meaning of the Supremacy Clause?

    I somehow get the impression that by “strict constitutionalist” you imply that I love everything single little thing about the document. Not true. I can say I prefer a strict reading and still not like that clause.

  40. AJKamper Says:

    I somehow get the impression that by “strict constitutionalist” you imply that I love everything single little thing about the document. Not true. I can say I prefer a strict reading and still not like that clause.

    Well, if you’re going to pick and choose what to read strictly and what to read leniently, then there’s nothing “strict” about it at all. I mean, I think it’s fair not to like it; I could probably think of a dozen changes I’d make to the Constitution myself. But I don’t see how one can claim any sort of constructionism while suggesting that the courts shouldn’t strictly construe the parts of the Constitution you don’t approve of.

  41. ladk Says:

    But I don’t see how one can claim any sort of constructionism while suggesting that the courts shouldn’t strictly construe the parts of the Constitution you don’t approve of.

    Agreed. Good thing I’ve never said that in this discussion.

  42. AJKamper Says:

    Ladk:

    C’mon, complete responses. You said you disagree with the proposition in M’Culloch that federal laws trump state laws. Yet you apparently concede that the Supremacy Clause states precisely that. Since you want the judges to construe the text of the Constitution strictly, what the hell else would you have had Justice Marshall do?

    Or is it simply that you wish the Constitution wasn’t drafted the way it was? Which doesn’t fix your problem with the Supremacy Clause OR the N&P clause, but I suppose it allows you to rail against the fates a bit.

  43. Henry Whistler Says:

    “You have to resort to a fallacy to back up your position.”

    I’m not sure you know what the meaning of the word “fallacy” is. You know, you actually have to let me know what that fallacy is. What error of reasoning did I commit?

    “…you leave out the fact that prices rose at such a drastic rate …”

    They rose everywhere across America, reform or no, while coverage was reduced. Of course, while rates exploded for everybody the past several decades (eight times 1980 rates), none of that is attributed to capitalism. The big difference is that if the government offers reform, every penny of increase is attributed to “socialism.”

    Of course, some of the problems with RomneyCare are that the mandate is weak enough to still be abused, and that there are no cost controls. The ACA has at least seed programs for almost every kind of cost control that has been envisioned, especially ending fee-for-service charging (vs. fee-for-results).

    It’s important to remember too that for all the huge price increases we’ve gotten the past several decades, insurance companies still get by via arbitrarily denying coverage, and that many people only get affordable coverage because government regulations cover employer-provided insurance already.

    But I’m glad you’re shifting to what’s practical, what works and what doesn’t. That’s the road by which we improve the system and eventually get everybody covered while containing costs.

  44. Henry Whistler Says:

    AJ:

    IIRC, this proves my point quite nicely, because the power to wage the War on Drugs comes from… wait for it… the Commerce Clause!

    Yes, I know, but that abuse of the Commerce Clause doesn’t mean that the mandate is also an abuse of the Commerce or N&P clauses. They’re two separate issues.

    Since I don’t see the unconstitutional excess here, I can agree with you in principle, just not in example.

  45. Henry Whistler Says:

    Eh, “strict constitutionalist” is just rightwinger buzz-speak. There’s no need to actually behave that way.

  46. AJKamper Says:

    HW:

    Yes, I know, but that abuse of the Commerce Clause doesn’t mean that the mandate is also an abuse of the Commerce or N&P clauses. They’re two separate issues.

    Of course, but there were two halves to that argument. Using the Commerce Clause to enable a small and reasonably prudent regulation (banning interstate commerce in lottery tickets) created the constitutional foundation to enable what we consider abuses. It’s the nature of precedent.

    Similarly, the mandate isn’t in and of itself abusive, but creates a precedent that can be used for further abuses. Something like strict scrutiny might lessen that (though on what grounds that would be justified is tough to say), but it might be better not to have the precedent at all.

    Eh, “strict constitutionalist” is just rightwinger buzz-speak. There’s no need to actually behave that way.

    Oh, I wish. No, it’s a real phrase (or at least close to one, though I more often hear “constructionist” or “originalist,” but it’s intellectually muddled beyond repair. Meaning does not reside solely in the text and legislative intent is too frequently divided.

  47. Henry Whistler Says:

    Like I said, it’s whatever they want it to be. They’re strict originalists until they aren’t. I consider myself to hold to the Constitution far more rigorously than just about anybody I hear saying they’re a textualist/constructionist/originalist. I believe in the Second Amendment too, which usually defuses any retorts from them.

    Look, the Commerce Clause exists, and you have to accept that it is often used legitimately. I think the mandate uses it legitimately.

    If the privatized system fails much more, the government will and should step in more. The mandate is something that keeps the government somewhat at bay and allows private insurers to provide real care while profiting. The weaker the mandate, the worse it is for private business.

    And again, the mandate is in the form of a tax, which is pretty weak and attempts to recoup the damage done by people gaming the insurance system. Those are real costs that will be borne by taxpayers anyway, so the argument that you shouldn’t be subject to any taxes for health care is preciously thin and, importantly, yet to really be made.

    There isn’t really a Constitutional right to inactivity, but I respect the notion. That’s why I never fail to mention my opt-out idea, in order for it to catch fire among libertarians as a way to tunnel out from underneath the government’s oppressive terrible mandate.

    I’m still waiting. Like I said, nobody wants that much freedom. The intellectual muddling you detest extends to this issue as well.

  48. AJKamper Says:

    HW, I respect the hell out of you, but your idea of what is and is not constitutional with respect to government powers, well, makes it impossible to have a rational jurisprudence.

    Here is how I see your argument:

    1) The Constitution gives the government the power to regulate commerce.
    2) PPACA regulates commerce.
    3) The mandate is necessary to make this regulation work, so it potentially falls under the Necessary & Proper Clause.
    4) The mandate is not an abuse of that power because it’s just not that far-reaching.
    5) Therefore, the mandate is constitutional.

    The problem is, that’s not how constitutional interpretation works. If we based what we have and have not permitted the federal government to do based on a general intuition as to how powerful it was, not only does it make line-drawing impossible, but it ends up being severely variable–a conservative court would consider different things abusive, and there would be no good criteria to tell good from bad.

    Here’s my argument:
    1) The Constitution gives the government the power to regulate commerce.
    2) PPACA regulates commerce.
    3) The mandate is necessary to make this regulation work, so it potentially falls under the Necessary & Proper Clause. (So far, we agree; some don’t, but I think those people can be ignored.)
    4) The mandate, however, represents an entirely new way of exercising government power: allowing Congress to require commercial activity.
    5) THough the mandate may not be a gross abuse of that power, the precedent it sets enables abuses of that power.
    6) Historically, once a precedent has been set, courts have allowed Congress to abuse that precedent. (see, e.g., the War on Drugs).
    7) The potential for abuse of the mandate power is extremely high.
    8) Therefore,the courts should not allow this expansion of governmental power; it may be necessary, but it is not proper.

    Obviously, there’s wiggle room here too, with the “potential for abuse” standard. But it’s more in line with how constitutional line-drawing works, picking out specific powers and subjecting them to analysis rather than a gestalt, “Is this a good idea or not” without recognizing the power of precedent.

    Also, I’d say that the right to inactivity stems from the right of privacy found in Griswold and Roe. But it’s dinner, so my discourse can wait. 🙂

  49. AJKamper Says:

    Late-night addendum (woke up from a nasty dream):

    I’m probably arguing this more intensely than I actually feel. Let’s be honest: my communitarian dream where government action comes mostly from the states has pretty much been shot in the head, and what I really need to do is make the best of what we got. In that sense, I hope the mandate is found constitutional. At the same time, I’m pretty grumpy that any real Commerce Clause jurisprudence has been replaced by, “We should do it if it’s a good idea,” a rule that places no real limits on government at all, because it’s rarely the court’s job to determine what is or isn’t a good idea. So I’m having my own little tantrum over here.

    I hope I’ve shown, though, that there are good-faith reasons why one would think the mandate unconstitutional. It really does represent a new precedent that can be turned to major abuses, and while a lot of Republicans argue this not because they’re against the mandate but because they’re against any Democratic reform of health care, I’d be wary of painting with too broad a brush, especially against the judge.

  50. Henry Whistler Says:

    Well, I think that’s why the debate began with, “If the government can force you to buy health care, what can’t it force you to do?” So we ran that question down and got into the actual Constitutionality of the mandate.

    And on that issue, I think you have a problem, and that is the Commerce Clause and N&P as they were written. There aren’t hard lines. They’re quite broad, broad enough to drive a number of social aid programs through. Now in the case of the War on Drugs, I’ve seen it argued by judges that a person growing a marijuana plant in his back yard is subject to penalty because he’s affecting Commerce. Well, a butterfly flutters in China too…

    That’s the kind of ruling that just screams to people how raped the Commerce Clause became at times. The language of the Constitution is fairly broad, but interpretations were being applied to it that were inflated beyond what people think of as sensible. And certainly necessary or proper.

    But what line? The Commerce Clause and other vague generalities in the Constitution reflect and demand contentiousness, as you illustrated to ladk. So we’re left drawing lines in courts.

    You say then, what line might I draw around the mandate that prevents government edicts that all citizens must purchase motor boats. We already agree that violating rights creates a boundary. And I submitted that the nature of health care and insurance created a overriding federal interest, with health care itself being such a universal and encapsulating issue that the government’s role in facilitating its practice is essential. This is why you can’t make the motor boat argument.

    As for the right to be left alone, I simply question that this is really something that applies (and things like the draft call into question whether it exists at all). If you don’t want the health care, you get the tax, and nobody can argue against the government’s power to tax.

    But that’s what it’s really about, and what it’s usually about with arguments from the right: We don’t want to pay the bill. They tend to like benefits as much as anybody, they just hate paying. And that’s what most skipping out on the mandate really would be, an effort to save money now and still expect health care later. And taken in its entirety, that is an act. The government is essentially asking you to make a choice now about how you’re going to fund your inevitable health care needs.

    I love the opt-out because it results in millions of fools who read some Ayn Rand, or just listened to Limbaugh and signed up for it, lining up in ten or twenty years begging for their health care.

    To the very, very, very few individuals out there who have plans to cover all their medical expenses for life out of pocket, I respect that. That’s the opt-out…you can carry out your life that way if you please! You will just exist outside the system, and pay for when you dip into it exactly what you incur, when you incur it. Or in a series of low monthly payments. That’s how I funded a necessary operation. Wasn’t my preferred method though…would have much preferred having health insurance.

    The reality beneath all the hype is simply too different. The reality is that too often healthy people in their twenties with shitty jobs aren’t buying health care insurance because it’s prohibitively expensive, and part of that high price is because they’re not buying health care insurance when they’re healthiest. Most simply still think they’re invincible, or at least that the odds are on their side.

    The lifetime opt-out is the only really necessary response to concerns about the mandate. If I were a judge, I’d say some kind of exit has to be provided. Even if it is akin to jumping off a plane without a parachute, you’re still allowed to bring your own. The health insurance system just won’t be compelled to provide you one, and will charge you your firstborn for one if you really want it.

    I see you aren’t really biting at that idea yet. Few do. Health care out of pocket is really expensive and one bad turn can destroy most savings accounts in days or months.

    Join me in calling the bluff!