Baseball Crank
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December 13, 2010
LAW/POLITICS: The Mandate

I haven't had a chance to review it or collect my thoughts yet, but here's the just-issued opinion from the US District Court for the Eastern District of Virginia holding the individual mandate portions of Obamacare to be unconstitutional on the grounds that it exceeds the scope of Congress' Article I power over foreign and interstate commerce.

UPDATE: One of my Redstate colleagues has a thoughtful analysis of some of the practical issues.

Posted by Baseball Crank at 12:27 PM | Law 2009-13 • | Politics 2010 | Comments (21) | TrackBack (0)
Comments

My first impression - the court characterizes Wickard as involving "economic activity" because the guy chose to grow wheat, as opposed to "noneconomic" activity by foregoing the purchase of health care insurance.

At first glance, that's really not the end of the story, because if I remember correctly from law school, the wheat grower in Wickard grew the extra wheat with no intention of putting it into the marketplace. He did it for his own consumption. I don't recall the court addressing that distinction. You could argue that foregoing the sale of wheat is the same as foregoing the purchase of health insurance.


Posted by: MVH at December 13, 2010 1:33 PM

You can argue that as long as you're clear that you're advocating for an expansion of Wickard. And frankly, Wickard is terribly bad law itself, and shouldn't be extended a millimeter beyond its actual holding.

Having skimmed this, the court is clearly right that the relevant issue is the Commerce Clause (Congress expressly marketed and passed this as being not-a-tax; had it been classed as a tax there would have been a whole separate round of JTO scoring and other procedural complexities under existing Congressional rules) and that it requires a further extension of Wickard.

Where you come out on extending Wickard to new, uncharted ground - or on overturning it as bad law, or simply refusing to extend it - depends on your a priori principles about how to read Article I.

Posted by: Crank at December 13, 2010 1:40 PM

I agree, and I think Wickard is really the key to this thing. If I were making the argument that Wickard applies, I certainly wouldn't characterize it as an expansion of Wickard. I'd call it the demand-side equivalent of Wickard, with Wickard being "foregoing supply," and this case being "foregoing demand," and both being about "economic activity."

Wickard is definitely an ugly case; but unless you want to overturn it outright, you have to distinguish it. The Virginia court basically glossed over the more troublesome facts of Wickard. It's a little hard to lump it in with Morrison on the ground that it's "noneconomic."

Also, I find it a little troubling that the court just dismissed the "aggregate effects" in one sentence.

Posted by: MVH at December 13, 2010 2:30 PM

MVH, I would say that Wickard presented not just a guy who 'chose to grow wheat'. Wickard presented a guy who chose to be a farmer who chose to grow wheat. Wickard prevented a farmer from feeding his own-grown wheat to his own cows - it did not mandate that a farmer, or a non-farmer, must grow wheat. It also did not require that everyone become either a farmer or a wheat-grower (or a wheat-purchaser for that matter). So Wickard is limited to the voluntary participants in a market, not to non-particpants. Similarly, Congress has an argument that it may regulate people who choose to buy health insurance, but there is nothing to say that Congress can mandate people buy health insurance.

I would find it troublesome to apply Wickard to non-market participants; a holding that the refusal (or failure) to participate in economic activity IS that 'economic activity' - such that Congress may therefore regulate that refusal - blows apart any limit on what Congress could force people to do.

Posted by: tanstaaf lunch at December 13, 2010 6:40 PM

Tanstaaf:

Here's the vexing problem with Wickard: does it make any sense to call the farmer in Wickard a "market participant" when he chose to grow his own wheat, on his own land, to feed his own chickens, without any intent to bring it to market? Essentially, the Supreme Court was saying that it if he didn't grow the wheat, he would have to buy wheat on the market. Why does it matter if he's a farmer if he's not in the business of being a farmer for profit?

You can't say that the government wasn't forcing him to purchase anything - he would have been forced to purchase feed on the market if the government prohibited him from growing sufficient amounts for himself. Essentially, the aggregate effect of him and others not buying it on the market was held to be sufficient for regulation. How is that really different than saying that the aggregate effect of someone not buying health insurance would be sufficient for regulation?

These are the tough issues. This is why I was disappointed with the Virginia opinion at first glance, not because of the outcome, but strictly as someone who likes to see quality legal analysis.

Posted by: MVH at December 13, 2010 9:23 PM

By the way, I'm relying mainly on my memory of Wickard from advanced con law, so if my facts of the case are wrong, feel free to correct.

Posted by: MVH at December 13, 2010 9:25 PM

MVH - first, I'm loath to call Wickard good law, so I wouldn't try to extrapolate from it (and I admit that I'm even more loath to re-read the case now, so I'm also working from memory). To clarify, I think the farmer became a market partiicipant in farming - he chose to be a farmer and there were rules that come with that. In Wickard, a rule for farmers was that wheat fed to cows had to be purchased from the government-sponsored cartel. Had the guy chosen to become a lawyer, accontant, or engineer, etc., other rules could apply. But before the rules can apply, the person must choose to partake in that market.

True, the farmer in Wickard found himself forced into a sub-market (for wheat) designed for farmers that he did not want to be in, but at least the farmer had other options (eg, slaughter the cows he couldn't feed, or get out of farming). Harsh options, to be sure, but at least there was an out available. With the healthcare law, you're in the market and you cannot get out of it, you have no choice (even if you were to refuse medical treatment, you would be still paying for it).

So I think Wickard can be distinguished, or narrowly read. 'Virginia' can be viewed as being consistent with Wickard - ie, when there is voluntary participation in a market, that participation can be regulated.

As for an aggregate-effect argument, I think it should not be applied until there is first shown to be voluntary participation in the market. Were it otherwise, then there would be no limit to congressional power to regulate private behavior under the commmerce clause. For the healthcare law, however, if participation cannot be mandated, then the entire economic framework for it would crash, as people could wait to insure until they have a problem.

Posted by: tanstaaf lunch at December 14, 2010 6:37 AM

As someone who frequents this site for sports content, and doesn't have any type legal background, can anyone explain how the individual healthcare mandate is unconstitutional, but individual states can mandate that people must obtain auto insurance? On the surface, they seem like one and the same to me...is the difference that one can opt not to drive, but one cannot opt not to be sick?

Posted by: cse at December 14, 2010 5:37 PM

You hit on one reason, but the more fundamental reason is that the states have general police power; they can basically do anything they want as long as they don't infringe on individual constitutional rights or gobble up powers reserved to the feds. (Note that those powers include power over interstate commerce, so if there's no limit to that power, there's essentially no room left for state law). The federal government is one of enumerated powers, and can't do things unless they've been expressly granted. (And Congress' subjects of power are considerably more explicit, and less reliant on traditional notions of what a legislative body does, than are the grants of power to the executive and the judiciary).

Posted by: Crank at December 14, 2010 5:41 PM

The "Isn't it just like auto insurance?" rationale doesn't cut it. As people keep pointing out, you don't have to buy auto insurance UNLESS you want to drive. And then the insurance is not on yourself but liability in case you hurt someone else.

The healthcare mandate applies just because you live in the US, so unless you move (or are an illegal), you have to have health insurance on yourself or be fined.

I too am not a lawyer (thank God!) so I have a hard time understanding these legal aguments that seem so obvious to me. You can't allow a law to force people to buy a product just because the government wants you to. It is just silly. The next law will require us to buy Slurpees every other Tuesday or something equally as stupid.

I also don't get how 10,000 lawyers and judges can look at the same thing and arrive at a different answer. What a way to run a profession!

Posted by: Lee at December 15, 2010 7:39 AM

Lee,

You can have lawyers and judges get a variety of answers because laws and constitutions are never all that clear. Legislators draft laws, but they can never cover every situation, and it's not always clear what they mean from the words they use in statutes.

The Constitutional provision at issue here states that Congress has the power "to regulate Commerce . . . among the several States . . . ." Is it clear, just by the words, what that means? Not really.

Strict constructionists, which would describe most conservatives, take the position that the Constitution should be interpreted as it was understood by the founders at the time. Now if you take that position, then the obvious answer is that Congress does not have power to force people to buy health care insurance.

The problem facing most conservatives is that the Supreme Court has not taken a strict constructionist position on the commerce clause. Wickard, the case we've all been talking about here, has gone as far as to say that Congress can fine a farmer for growing too much wheat under federal law, when that farmer had no intention of selling that wheat to anyone. He was purportedly using it for his own purposes.

The other problem is precedent. Many, many federal laws have been passed under an expanded understanding of the commerce clause, and all of those laws would come into question if the court suddenly reverted to an entirely new interpretation of the Constitution.

Courts are loathe, for good reason, to invalidate years and years of established precedent because it leads to an unstable nation. You do not want to live in a society where the interpretation of the Constitution changes wildly.

Posted by: MVH at December 15, 2010 10:00 AM

Wickard is one of the worst non civil rights Supreme Court decisions ever (leaving out the morally corrupt decisions like Plessy v. Ferguson or Dred Scott), and should be overturned. Since we can't count of Justice Kennedy to do that, the next best thing is to at least draw a bright line at Wickard.

Posted by: Paul H. at December 15, 2010 10:32 AM

MVH,

As part of my job I too have to read/write documents that are subject to interpretation by others, so I understand the issue. However my observation is the the legal profession pushes alternative interpretations way outside the bounds of "normal" interpretations to satisfy thier own agendas - like "It depends on what the definition of is is".

Also, I understand the concept of using precedents to provide direction and avoid mass confusion, but this depends on who selects which precedents apply to what circumstances. For example in the context of this topic, someone deciding to apply the precedence of auto insurance or the "Wickard" case seem to me "cherry picking" precedences to be self serving.

As an outside observer of the judicial system, it seems that the system allows judges way too much leeway to apply what ever they want when ever they want. If they have strict precedence to folllow, it seems that they still get to cherry pick. Even the SCOTUS seems to be a crap shoot as to what law they will apply at any time. So that is why more strictly adhering to the Constitution is (to me) important.

As for Federal/State laws being vague, that what you get when politians and lawyers mix- a big crap sandwich!

Posted by: Lee at December 15, 2010 11:01 AM

Lee, whether the judges are good or not, well, that's simply when they interpret the law the way you want to. And lawyers make their living essentially on the misery of others. Seriously. Imaginitive lawyers ply their trade by plumbing decisions for obscure and arcane interpretations. That's one thing they do...what they are paid the big bucks for. So judicial leeway will always depend upon how they find. For you ,and they are right, against you, doesn't matter how....slave owners felt Taney's Scott decision was correct after all.

If you want to be a strict interpreter, and decide things on how people in 18th century colonial America did only, then you Second Amendment guys had better shut up, because arms then can ONLY be interpreted as breech loaders, unrifled at that, swords and knives. You can't have your cake and eat it too.

So first, is health care a right or a privilege. Depends on whether or not you or your family is sick really. And can you afford the PET scans your oncologist says you need. In an unlimited world, we would say that everyone is entitled to unlimited health care, because cost is unimportant. However, you have morons like say, Sarah Palin who flies in cookies because Michelle Obama wants to see kids healthy and Palin says it's a parental choice. But it isn't when kids become obese diabetics due to parental stupidity, and it's another national problem when the armed forces has to reject close to 20% of recruits because these fat pig 20 year olds can't be whipped into shape. Health care is more than premiums. We would do better in establishing various standards, requiring health insurance so employers like me don't have to foot the bill, but not covering you when you are too stupid to not smoke or buckle you frakking seat belt.

Posted by: Daryl at December 15, 2010 12:19 PM

Lee,

You state: "For example in the context of this topic, someone deciding to apply the precedence of auto insurance or the "Wickard" case seem to me "cherry picking" precedences to be self serving."

Well, Wickard is a US Supreme Court case that directly interprets the Commerce clause; the Court will have to address it somehow. The Supreme Court is not going to be looking too far afield from Commerce clause cases to decide this one, if it goes that far.

The media tends to report all the "hard" cases. Most cases are much easier, and judges, by and large, can't - and don't - "cherry pick" from precedent. They don't have nearly as much leeway as some of the big, difficult cases might lead one to believe.

Posted by: MVH at December 15, 2010 12:57 PM

MVH,

I agree that the SC will have to address the Wickard case, and either agree it applies and overturn the lower court decision, distinguish it and uphold the lower court decision while leaving Wickard in place, or overturn it. Here's hoping they overturn it.

Posted by: Paul H. at December 16, 2010 4:22 PM

Precedent, Schmecedent.
The Supreme Court will hear the case, and decide it based on whether it helps or hurts the elite who brought them to power (see Bush-Gore 2000, Citizens United, etc).
Personally, I don't see them shooting down any law which forces people (or the government) to add to the profitability and bottom line of insurance corporations. If they do, it's only because the corporate elite have a better (and more profitable) plan for swindling the citizenry.

Posted by: Berto at December 17, 2010 1:57 PM

Wickard is a nasty case, for sure. Does anyone think that the intent of the Commerce Clause was to empower the government to pass a law saying "We want to help a certain group of wheat farmers, therefore no one else may grow wheat, so that our favorites can get a better price when they sell theirs"? Could the government pass a law forbidding anyone to grow tomatoes in their yard, so as to make a better price for officially recognized tomato growers? Or a law forbidding anyone from doing their own carpentry work, or painting their own homes, so as to make a better price for officially recognized carpenters or painters? For someone who thinks that the government should have such power, the idea that there should be any limit at all on government power must seem quaint and pointless. But if that question were put to the electorate, damn few would vote in favor of unlimited government.

But the Obamacare law has a different context. No one commenting on this blog has mentioned the weirdness of the premise about healthcare: the assumption that someone who has refused to buy healthcare should, if it later turns out that he needs medical care, be provided with care "free" (that is, at the expense of everyone else).

That principle (call it the "freeloader free care principle") put a very different light on the question whether the government can force people to buy insurance. For those who believe in limited government, it seems obvious that the government shouldn't be able to force people to buy any particular good. But if the good in question is available "for free" (at the public's expense), there is considerably more justification in requiring everyone to contribute to the cost.

Why not dispense with the freeloader free care principle? That would require a hard heart, turning away someone who needs care (who cannot pay, and hasn't paid in advance by buying insurance). That would be treating people as adults rather than children. Are we ready to start treating people as adults? That would require a basic change in attitude.

This question will be debated at great length over the next year, but let's not confuse the obvious nastiness of the Wickard principle with the odd context created by the freeloader free care principle.

Posted by: Chas427 at December 21, 2010 11:59 AM

Chas427,

You state: "But the Obamacare law has a different context. . . . For those who believe in limited government, it seems obvious that the government shouldn't be able to force people to buy any particular good."

The problem is that the logic of Wickard may not be so terribly different from the Obamacare issue. The Wickard court was in effect stating that it was OK to force this farmer to buy chicken feed on the open market rather than letting him grow the feed himself in the form of wheat. If it is OK to pass a law that forces this farmer to buy a product he doesn't want, why isn't it also OK to pass a law forcing a person to purchase health care insurance that they don't want? If you look at it that way, the context is not so obviously different.

Apart from the legal issues, turning away people that don't have insurance is a possible answer, but there are some complicating factors. It becomes problematic in emergency situations, for example, where the person has a life-threatening condition and waiting to check if he has insurance would cause him to die in the interim. Or even worse, some bureaucratic snafu by his insurance company causes him to be not listed, but he nevertheless winds up being insurable anyway.

Posted by: MVH at December 21, 2010 1:04 PM

MVH, my point is that Wickard is an abomination, but that the Obamacare question is not so extreme. The farmer in Wickhard was being forced to buy wheat if he was going to have any, but no one suggested that he should be entitled to free wheat, at the expense of others, based on an emergency.

Yes, it's very difficult to turn someone away in an emergency room. That's why emergency rooms are the free care for the uninsured (and such hell for anyone with a real emergency). There's no law requiring doctors or hospitals to provide free care except for "emergencies."

The Obamacare question can't be understood as a direct comparison to Wickard, since the free care factor is critical.

Posted by: Chas427 at December 21, 2010 3:00 PM

Chas427,

My response is: does the government even need to rest its case on that argument to fall under Wickard? I know why you raise it, because I know Holder has used that argument, but I'm not convinced they need to go that far.

Isn't it enough to say that forcing the uninsured to buy insurance will lower the price of insurance across the board? You have more people in the market, and prices will therefore drop. That was the rationale for forcing Wickard for purchasing his feed on the market: higher demand would lead to higher prices.

The counterargument is that holding such would allow the federal government to require people to purchase everything. I'm not sure that's entirely true because:

(1) you still have to have substantial aggregate effects, and health care is a huge part the national economy, and

(2) health care is a unique market - except for the few people who forgo medical treatment altogether, people will, at some point in their lives, enter the health care market. It's not the same as requiring people to buy carrots, for example. That's why the argument that this is a matter of financing, not a matter of choice, is somewhat persuasive.

Posted by: MVH at December 21, 2010 4:55 PM
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