In the end, you may have chosen not to pay for health insurance coverage, but you have not chosen to avoid an economic transaction. Surely Congress has the authority under the Commerce Clause to regulate the aggregate effect on interstate commerce of all those individuals who have chosen to engage in that particular economic transaction.
You really need to read his whole argument (don't worry, it isn't too long). Part of its persuasiveness is in its simplicity. Anyway, I would like to hear some of those who believe it is unconstitutional. So, have at it in the comments.
5 comments:
I'll play.
For perspective, I'm crazy old school with constitutional interpretation, had Justice Thomas's clerk for Constitutional Law I, and Ilya Somin for Con Law II. I don't agree with them on a lot of things, but you get the idea.
The problem with Friedman's article, is Wickard is a terrible case. It was written by a Supreme Court that was scared of FDR and spent the previous 10 years rubber stamping his social agenda and expanding the power of the federal government.
Wickard is difficult to read in conjunction with the letter and spirit of the text of the Constitution. If you believe the Constitution grants the federal government certain enumerated powers and the remaining powers are left to the people or the states (see the text of the Constitution and McCulloch v. Maryland), then it is difficult to imagine an interpretation of that Constitution that allows the federal government to regulate EVERYTHING.
And this is the problem with Commerce Clause interpretation; it allows the federal government to define almost everything as commerce, then in turn, regulate almost everything.
The Friedman article points out this problem nicely. "... [N]o individual living in the United States can help being a part of the health care market." Wickard did not even engage in an economic transaction, but SCOTUS found that growing his own wheat and thus failing to buy wheat in the interstate market had an aggregate effect on the market for wheat. Under this reasoning applied to health care, people who actually choose to handle all health care concerns in the home (ignore religious issues and think Amish) will still be required to have insurance.
And think, in the aggregate, every human action has an effect on a particular interstate market. In the aggregate, people who choose to have sex without condoms create a detrimental effect on the interstate condom market. In the aggregate, people who eat food without salt have a detrimental effect on the interstate salt market. In the aggregate, people who live off the grid have a detrimental effect on the interstate market for electricity. Does mean that the federal government has the power to fine you for having sex without a condom, or eating (or not eating) McDonald's french fries, or not using enough electricity?
I have a hard time believing that a Constitution which grants the federal government certain enumerated powers, and explicitly reserves other powers to the people or the states, gives the federal government the power to force every person in this country to pay for particular products it decides we should have or pay a fine.
Kickin' it old school. I like that. I was taught Con Law by commies... I think.
In any case, it's not that I disagree with the general point of your argument regarding the potential expansiveness of the commerce clause versus the enumerated powers, I think I just disagree with the implicit idea that this exact balance of powers, or the original balance, as it were, is necessarily sacrosanct.
The examples you give as to how this can all go awry (condoms, etc.) are a cleverly disguised slippery slope argument. The answer to that argument is that Congress is a perfectly appropriate body to be engaging in the type of line drawing that allows for a healthcare mandate while not rising to the level of regulating condom usage. (And I only say that a quarter tongue-in-cheek.)
Fine, I'll whip it out too. I was taught law by New England elitists, I think...Professor Friedman is from New England anyway.
I agree with Burnsy that you are basically making a slippery slope argument. Your argument is still probably the most thoughtful I've heard yet for its unconstitutionality. That being said, I have at least 2 more issues with it. As poor of a decision as you think Wickard may be, it is still the law and has been the law for a long time. Of course, it can always change, but at this moment in time, it's what we have.
Second, it's much more plausible that a person can choose to do all of your examples, but that is not the case with healthcare. Say for example, Joey Two Times is driving down the street and Mary Six Pack T-bones him before taking off. Joey gets rushed to the ER in an ambulance and requires emergency treatment. In the US, thats going to be a 5 figure bill. If he doesn't have insurance, guess who pays for it? The American tax payer. Therefore, his decision to not purchase healthcare could very easily lead to the taxpayers covering his bill regardless of his wishes.
Gentlemen,
Good points, I considered addressing them in my original comment but it was already absurdly long (it is your blog, not mine, of course).
As to Wickard being the current law, you're right on this point, so my argument may be slightly premature. I haven't actually read the text of Virginia v. Sebelius yet, but let's face it, this thing is going to SCOTUS, SCOTUS has the authority to overturn its own bad precedent, and Wickard will be under fire.
As for getting t-boned and rushed to the ER, and choosing or not choosing to participate in the market, the point with my examples is that under Wickard choosing not to purchase something in a market is considered market participation just like choosing to purchase something in that market, so no one really has a choice but to be considered a participant in every interstate market. It's the fundamental flaw of Wickard.
As for the characterization of my argument as the dreaded "Glen Beck" like "slippery slope," I think my argument may look that way superficially, but upon closer examination you'll realize it's not. There's a distinction between what someone will/might inevitably do ("give a mouse a cookie"), and what someone currently (<--- read "right now") has the AUTHORITY AND POWER to do. I'm not trying to say that Congress will ever force people to wear condoms (as long as there are Republicans and abstinence only education, that will never happen). I am simply pointing out, that under the flawed reasoning of Friedman and Wickard, Congress has the AUTHORITY AND POWER to do that right now, if they could get the votes.
This brings me to Burnsey's conclusion that the answer to my slippery slope problem is having Congress be the "perfectly appropriate body" for line drawing. In most circumstances, I would agree with you that the legislature is the body to draw lines and determine the balance of interests of the American people. However, good friend, I can't disagree with you more in this circumstance. The LAST body that I want to determine the reach of Congress's power is Congress itself.
What you are describing is British Parliament (a legislature without a written constitution that keeps itself balanced). And that system of government certainly works well for them. But it's not our system. We have a written constitution designed to separate and LIMIT the powers of the different branches and levels of government. I think the premise (if not the ultimate embodiment) of the health care bill makes a lot of sense economically, but that doesn't mean Congress has the constitutional authority to implement it in its current form. If Congress wants that authority, there are constitutional procedures to ask the people to amend the Constitution to grant them that authority (and this is what Congress did when it wanted to tax our income).
I understand there is a level of disingenuineness in this article (http://www.slate.com/id/2278621/), but it must equally be admitted that there is a level of truth re: the healthcare critique that devolves into chicken little.
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