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Day Two: Is the Mandate Constitutional?
Townhall.com ^ | March 27, 2012 | Kate Hicks

Posted on 03/27/2012 5:50:06 AM PDT by Kaslin

And now, for the main event.

Today, the Court tackles the individual mandate, and whether Congress has taken a step too far by enacting it. The question is basic: Is the individual mandate constitutional? The consequences are heady. Whichever way the Court decides will have a critical effect on the scope of Congress’ power – and possibly, our freedom.

What’s At Stake?

The individual mandate – or, as the federal government will call it, the “minimum coverage provision” – has been under fire ever since the inception of the Patient Protection and Affordable Care Act, in 2009. The political Left argues that a mandate is absolutely necessary in order to address our country’s dire healthcare situation: poor “free riders” seeking and receiving care under the Emergency Medical Treatment and Active Labor Act, which in turn drives up both taxes and the cost of insurance premiums. Besides, they argue, healthcare is a necessity, which everyone will need, and thus ought to have. The mandate simply prods the uninsured to do what’s best, both for themselves and in turn, the country at large. The Right, on the other hand, opposes the mandate on the grounds that it’s a total violation of freedom, that it will not succeed in reducing the overall cost of insurance, and what’s more, that down the line, it will result in socialized, government-sponsored healthcare programs rife with rationing and lines for doctors.

Of course, the Court isn’t supposed to address the political concerns attached to the healthcare issue (nevemind the speculation that it does). Instead, its main concern is determining whether Congress has overstepped its bounds, and does the Court need to check that power?

When Congress passed the PPACA, it justified the individual mandate using the Commerce Clause, which reads, “The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” It’s one of the most frequently exercised powers, the cornerstone of hundreds bills passing through Congress each year. In this case, Congress has classified the decision to remain uninsured as one which “substantially affects” interstate commerce, and thus subject to regulation under the commerce clause.

The Court’s job, then, is to rule on whether abstention from the market constitutes “regulatable” behavior. If the Justices find the mandate constitutional, then it will grant Congress the power to compel an individual to participate in the market. Critics argue that such a ruling would allow Congress to exert control over an individual in an unprecedented and dangerous way, one that could degenerate into a slippery slope of increasingly tyrannical regulation. Proponents say that such fears are hyperbolic; healthcare is unique, and the mandate is necessary to stabilize healthcare, and ultimately, the economy.

Solicitor General Donald Verrilli will represent the Obama administration, arguing for constitutionality. Paul Clement will represent the states, arguing that it’s not, while Michael Carvin will represent the National Federation of Independent Business, augmenting the unconstitutionality argument.

Affirmative: The Mandate Is Constitutional

The Solicitor General will argue that the interstate commerce clause grants Congress the power to compel health insurance purchases, owing to the immediate effect that remaining uninsured has on the economy. Under this logic, there is no distinction between commercial “activity” and “inactivity.” The choice to be inactive has consequences far beyond simply not owning health insurance.

Giving legs to this argument is the claim that “free riders” in the healthcare system – such as the uninsured who seek emergency medical treatment under EMTALA – shift $43 billion per year to the rest of the country. The uninsured, the government contends, generate higher taxes to cover the cost of their care, and in turn, drive up individual family insurance premiums. The supposed “inactivity” of owning health insurance, therefore, is a decision that affects the nation at large, and causes the federal government enough of a financial burden that it has the right to regulate it.

The government will apply precedent set in Wickard v. Filburn, a case decided in the New Deal era that significantly broadened the government’s powers under the commerce clause. Roscoe Filburn was a wheat farmer, whose farm exceeded a production quota set by the government during the Great Depression. He contended that the extra wheat was intended for his own private consumption, and not for commercial purposes; therefore, the government had no right to regulate it. However, the Court held that his own private wheat stash precluded his own participation in the commercial market, thereby “substantially affecting” interstate commerce. He was in violation of the law, and Congress was well within its Commerce Clause rights to regulate his private wheat consumption.

Using this logic, the private decisions one citizen makes can have enough of an impact on the economy at large that Congress may regulate those decisions. The government will argue that healthcare is one such case in which an individual’s decision has a substantial and indeed, detrimental effect on the economy. Congress, then, has the right to regulate that decision.

While the Commerce Clause is the primary justification for the mandate, the government will also rely on the Necessary and Proper clause, which says that Congress may “make all laws which shall be necessary and proper for carrying into execution the foregoing powers…” This argument will rely on the theory that the Constitution must adjust to the times. Back in the Framers’ day, healthcare meant apothecaries, bloodletting, and wooden teeth; these days, it comprises 20% of our national economy. The Necessary and Proper clause is vague and broad intentionally so as to allow Congress to address problems in the national interest as they arise. The mandate is a “necessary and proper” solution to one such national problem, they say. It ought to stand.

Negative: The Mandate Is Not Constitutional

Not so fast, the states and private parties will say. Congress can’t just seize this broad, unlimited power for the sake of “the national interest,” while assuring us all that healthcare is “special.” Who’s to say something else won’t be special someday? No, there must be a limit to Congress’ power, and the buck stops here.

Randy Barnett, a professor at Georgetown University Law Center and occasional advocate in the Supreme Court, laid out a concise case against the mandate during a talk at the Cato Institute last week. He gave four reasons for the mandate’s unconstitutionality, the model off which Mr. Clement and Mr. Carvin will work.

1) Unprecedented: Congress has never tried to claim this power before, the power to force individuals into business contracts. Nowhere does any document grant Congress the power to do so, and while that doesn’t automatically make it unconstitutional, Justice Scalia has written a most prescient opinion on this matter. He says, “If for 200 years a power this attractive has gone unused by Congress, that’s a pretty good argument that the power does not exist.” One such argument is this: instead of pumping millions of tax dollars into GM, why didn’t the government instead force us all to save the auto industry by purchasing cars or stock in the company? How different, then, is the mandate?

2) Uncabined: This is law-speak for unlimited. Interestingly, the government hasn’t been able to name a single limiting principle to this power when it’s been put on the spot. Who’s to say they can’t force us to buy other things? If Congress decides it’s in the national economic and environmental interest for all of us to drive Chevy Volts, can it issue a mandate to that end? The defense against this point is, of course, that healthcare is "different," since everyone in his or her lifetime will require some such service. But the fact that healthcare is an apparent exception to the rule doesn’t mean the mandate power has a constitutional limit. The Court may not consider a factual inquiry such as this, but it’s worth noting that the power has no visible constitutional check.

Indeed, this particular quote from the state's brief illustrates the problem with the "aggregated" or "substantially effects" theory the federal government relies on: "The federal government argues that the decision NOT to purchase health insurance has, in the aggregate, a substantial effect on the national economy, and therefore interstate commerce. However, the Court of Appeals struck down this premise: 'The court found that theory ‘limitless,’ observing that, ‘[g]iven the economic reality of our national marketplace, any person’s decision not to purchase a good would, when aggregated, substantially affect the interstate commerce.'"

3) Unnecessary: Congress didn’t seek every recourse besides a mandate to solve the national healthcare crisis; for example they could have raised taxes for the purpose of putting the funds toward the supposed $43 billion spent on indigent healthcare. Raising taxes, however, is politically unpopular (and for the record, it’s speculated that’s why Congress didn't call the mandate penalty a "tax"). This argument basically says that Congress should try other means of solving the problem without exercising constitutionally questionable power.

4) Dangerous: This is an extension of the unlimited argument. Basically, choosing to enact a mandate, enforced by a penalty, could quickly spin out of control. When Congress incentivizes behavior (the primary example being Cash for Clunkers), the only consequence is foregoing a benefit, financial or otherwise. When Congress says, "Do this or else," and means it punitively, the "or else" could eventually become a more serious consequence, such as prison. If, down the line, Congress finds that the financial penalty isn’t sufficient to induce a certain behavior (i.e. purchasing health insurance), who’s to say they won’t start jailing violators?

How Will They Rule?

This is the question of the hour. And it really is hard to say – there are precedents attached to several judges that seem to indicate they may rule either way. The most likely scenario is that the decision will be 5-4, with Justice Kennedy, as he often is, serving as the swing vote. Ultimately, the Justices will have to weigh compelling national interest against the potential for abuse of power. Tomorrow, we’ll see which points they push the most, and try to determine what factors will influence their final decision. 


TOPICS: Culture/Society; Editorial; Government
KEYWORDS: individualmandate; obamacare; scotusobamacareday; scotusocaredaytwo; supremecourt; unconstitutional

1 posted on 03/27/2012 5:50:14 AM PDT by Kaslin
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To: Kaslin

I would like them to rule that my mandate to participate in social security is unconstitutional too

I would gladly let them keep what they already have taken from me and opt out of receiving any ‘benefits’ if I could stop paying into it


2 posted on 03/27/2012 5:52:39 AM PDT by Mr. K (If Romney wins the primary, I am writing-in PALIN)
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To: Kaslin

The whole damned thing is Unconstitutional.

Plus they havent finished writing it yet. They are making up new rules as they go along.


3 posted on 03/27/2012 5:56:14 AM PDT by Venturer
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To: Kaslin

It’s not, but they got at least 3 or 4 justices in their pocket.


4 posted on 03/27/2012 5:57:04 AM PDT by GeronL (The Right to Life came before the Right to Pursue Happiness)
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To: Kaslin

Losing my freedom was not the change I hoped for.


5 posted on 03/27/2012 5:58:03 AM PDT by Travis McGee (www.EnemiesForeignAndDomestic.com)
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To: onyx; STARWISE; maggief; MinuteGal; Liz; b9

Should be the topic of the day.


6 posted on 03/27/2012 6:02:09 AM PDT by hoosiermama (Stand with God and Sarah, the Gipper and Newt will be standing next to you.)
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To: Kaslin

If the individual mandate is constitutional, there is literally nothing left of the constitution. The federal government could literally force citizens to spend a certain amount of annual income on virtually anything, like health foods or “green energy” products. Even though Justice Kagan might find those to be stupid laws, she’s virtually certain to agree they are permitted under the Commerce Clause.

Let’s not kid ourselves. Wickard v. Filburn and all of the other Commerce Clause distortions since then are blatantly unconstitutional. I think Justice Thomas is the only one to really get it. Regulating commerce between the states could not possibly mean the federal government has the right to force people to engage in commerce. That’s not regulation. That’s tyranny.


7 posted on 03/27/2012 6:07:21 AM PDT by CitizenUSA (Why celebrate evil? Evil is easy. Good is the goal worth striving for.)
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To: Kaslin

I read an article yesterday that said the justices have probably all already made up their mind how they are going to vote. These oral arguments are just for going through the process. I think its probably true. This is not rocket science. I’m looking for at least the individual mandate to be thrown out 5-4. They will probably leave the rest of it for congress to dismantle as they see fit.


8 posted on 03/27/2012 6:08:28 AM PDT by Georgia Girl 2 (The only purpose of a pistol is to fight your way back to the rifle you should never have dropped.)
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To: Kaslin
Congress has never tried to claim this power before, the power to force individuals into business contracts.

Actually, Wickard did just that. By denying the right to produce food for private consumption, which is MORE essential than health care, Congress forced each and every individual to enter into a contract obtain food.

9 posted on 03/27/2012 6:11:09 AM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: Venturer

And they can change the amount of the penalty every year.


10 posted on 03/27/2012 6:11:37 AM PDT by Sacajaweau
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To: Kaslin
What’s At Stake?

Whether we end up in living in a Communist thug state where the self appointed overseer class decides whether we get to see a doctor or not.

11 posted on 03/27/2012 6:11:59 AM PDT by Regulator (Do the math)
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To: Kaslin

Life, liberty, and the pursuit of mandatory healthcare. Doesn’t sound quite right.


12 posted on 03/27/2012 6:12:01 AM PDT by Huskrrrr
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To: Kaslin

13 posted on 03/27/2012 6:14:07 AM PDT by Mrs. Don-o ("Justice and judgment are the foundation of His throne.")
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To: Kaslin
Besides, they argue, healthcare is a necessity, which everyone will need, and thus ought to have.

This is why we lose arguments with liberals.

Healthcare has always been provided to Americans, regardless of ability to pay. Healthcare may indeed be codified in law as a right, but the right to health insurance has never been a right, let alone an obligation by virtue of citizenship.

14 posted on 03/27/2012 6:14:56 AM PDT by wayoverontheright
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To: Regulator
Whether we end up in living in a Communist thug state ...

We are already there ...

15 posted on 03/27/2012 6:15:19 AM PDT by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: Kaslin
The Court’s job, then, is to rule on whether abstention from the market constitutes “regulatable” behavior.

Be afraid. Be very afraid.

In Raich, SCOTUS ruled that activity which allegedly could reduce activity in illegal interstate commerce could be regulated to the point of - and here I $#!^ you not - an armed raid on a little old terminally ill lady's potted plants.

Given precedent cases, our only hope on this point is that the court decides that siding with the government would indeed give the feds unlimited powers - the complete opposite of what the Constitution embodies.

16 posted on 03/27/2012 6:19:35 AM PDT by ctdonath2 ($1 meals: http://abuckaplate.blogspot.com/)
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To: Kaslin

—Ultimately, the Justices will have to weigh compelling national interest against the potential for abuse of power.—

Interesting. I thought they were supposed to determine constitutionality.


17 posted on 03/27/2012 6:21:08 AM PDT by cuban leaf (Were doomed! Details at eleven.)
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To: Kaslin

If this is upheld, what is to stop the government from mandating that every family buy a Chevy Volt or equivalent. Or Maybe they mandate that each new house has to have a solar electric system.


18 posted on 03/27/2012 6:22:06 AM PDT by albionin
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To: Kaslin

Ah, the commerce clause otherwise known as the “Good N Plenty” clause for politicians to do what they think is Good for us while using Plenty of our dollars to do it.

Politicians and USSC judges have used this clause to dismantle the entire concept of limited government upon which, in part, this country was founded.

Thanks to dishonest lawyers (redundant), and activist judges, our government, which was to have derived its very limited powers from us, has become our oppressive master.

No honest reading of our founding documents could leave any doubt that the federal government was to be extremely limited in scope and thanks to communists within has incrementally increased its interference in our lives, usurped power reserved for the states and citizens, and taken on a powerful life of its own.

In a small showing of their arrogance, WE THE PEOPLE are not allowed to see the proceedings but only hear them after a 2 hour delay, which some here defend because it was standard practice. Well to those spineless individuals I say STANDARD for whom, an out of control government which only wants us to hear the edited version?

These ruling elite absolutely depend on us not getting together to fight them in the public arena of debate, the ballot box and if needed using what is left of our 2nd Amendment rights to take this country back to its very successful roots. As long as they can keep us fragmented they win and we lose.

What is the difference between when the founders got together to throw off the bonds of an oppressive king and now other than we have more lawyers and fewer people of character and backbone.


19 posted on 03/27/2012 6:25:17 AM PDT by Wurlitzer (Welcome to the new USSA (United Socialist States of Amerika))
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To: Kaslin

Before anyone raises this point, let me knock it down:

Yes, during the Clinton attempt at implementing universal health insurance coverage, the Republicans - led by Newt even - put forth the “mandated purchase” plan. This was done not out of a sense of this being the correct way, but as a rhetorical device: “ok, say we give you everything you’re asking for - will that be enough? oh, I see, it isn’t, ergo your demands are in bad faith with ulterior motives.” Sometimes you offer what is demanded as a way to prove that’s not what the demand is really about. It was not one of the better Republican moves, but it was effective in that context.


20 posted on 03/27/2012 6:30:21 AM PDT by ctdonath2 ($1 meals: http://abuckaplate.blogspot.com/)
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To: Kaslin

Wouldn’t a simpler, more powerful argument take advantage of the fact that the act’s administrators have seen fit to give exemptions to certain favored entities, and that the rest of us thus incur injury under equal protection statutes?

It certainly gives any of us standing to go before the court, and the exemptions themselves essentially refute the government’s arguments for establishing the mandate in the first place.

By arguing under equal protection the government would be forced to decide between NOT exempting the favored constituencies, or ditching the mandate. If the favored ones’ exemptions were rescinded, an unpopular law would become even more unpopular.

Maybe this should be our back-up plan if the mandate is upheld.


21 posted on 03/27/2012 6:33:48 AM PDT by wayoverontheright
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To: Kaslin
Roscoe Filburn was a wheat farmer, whose farm exceeded a production quota set by the government during the Great Depression.

The whole thing fell apart when the gummint "set a production quota for wheat".

22 posted on 03/27/2012 6:38:59 AM PDT by USS Alaska (Nuke the terrorists savages.)
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To: Kaslin
the government hasn’t been able to name a single limiting principle to this power when it’s been put on the spot

Sadly, this is true of every law, agency and enforcement action. Even more sad, most laws don't get this kind of scrutiny.

23 posted on 03/27/2012 6:42:19 AM PDT by relictele (We are officially OUT of other people's money!)
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To: Kaslin
If the Supremes rule that, "The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" gives Congress the power to compel United States citizens to purchase a product they do not want, then the United States of America is dead, and we should refer to ourselves as "subjects" of a tyrannical government, not as "citizens" of a government of the people, by the people, and for the people. We either have the rule of law or we are facing the rule of force. I'm not sure that limp-wristed liberals want to try to challenge real Americans with force.

We will lose if we base our argument on common law and federal codes that duress makes a contract invalid. The laws on duress specifically refer to "unlawful" actions that compel another to enter into a contract. Since ObamaCare is the law of the land, its threats that compel citizens to enter into a contract against their will are not technically duress. Under common law, one can be forced to enter into a harmful contract if the government uses a law as compulsion, and that government action does not qualify as duress that would void the contract. The real question is whether this legal compulsion is constitutional, and the answer is very clearly that this is far outside the proper scope of federal action authorized by the Commerce Clause.

Note: RomneyCare is constitutional within one state, since it is a state action rather than a federal action, and the MA constitution permits such actions. I will never again live in MA, both because of RomneyCare and because of their gun laws, but they have the right to pass a health insurance mandate if they so choose (their gun laws are a violation of the Second Amendment, but that's another discussion).

24 posted on 03/27/2012 7:02:32 AM PDT by Pollster1 (Can we afford as much government as welfare-addicted voters demand?)
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To: Mr. K
"...I would like them to rule that my mandate to participate in social security is unconstitutional too.."

Alas, this is the part that bothers me the most. There is precedent, the SCOTUS ruled way back that SS mandate was OK.

I am worried even about our *conservative* justices seeing this, and deciding that Obamacare is OK, too...

25 posted on 03/27/2012 7:04:48 AM PDT by Victor (If an expert says it can't be done, get another expert." -David Ben-Gurion, the first Prime Minister)
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To: Kaslin
The defense against this point is, of course, that healthcare is "different,"

Yes, and that defense just grates on me. The constitution is not written to know about healthcare vs the carriage industry - it knows about power and jurisdiction. The fedguv either has jurisdiction to reach into our private lives and control our personal decisions, or it does not. I vote with the latter, but those days are long gone.
26 posted on 03/27/2012 8:00:04 AM PDT by andyk (Go Juan Pablo!)
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To: wayoverontheright

In a rational nation, food, shelter, education, and health care are NOT rights. No one has ANY right to ANYTHING for which someone else must pay.


27 posted on 03/27/2012 8:06:32 AM PDT by Little Ray (FOR the best Conservative in the Primary; AGAINST Obama in the General.)
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To: Kaslin
Interstate commerce clause grants

Another example of the stupidity of the supporters of this law. Health Insurance is IN STATE commerce. You cannot buy it across state lines. You must buy it from a state approved Health insurance plan

28 posted on 03/27/2012 8:08:43 AM PDT by MNJohnnie (Giving more money to DC to fix the Debt is like giving free drugs to addicts think it will cure them)
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To: Kaslin
compelling national interest against the potential for abuse of power

Really, really pathetic that supposed "Conservatives" are buying this Leftist BS.

There is NO compelling national interest in favor of Obama-care.

That claim is manufactured PR hype without a shred of rational, factual accuracy. The notion that Obama care is an attempt to "Control Heath care costs" is pure nonsense. It a manufacture lie being pushed to sell an unnecessary, blatant usurpation of individual liberty by the power mad progressive fascists in the political class.

29 posted on 03/27/2012 8:18:35 AM PDT by MNJohnnie (Giving more money to DC to fix the Debt is like giving free drugs to addicts think it will cure them)
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To: hoosiermama; STARWISE; maggief; MinuteGal; Liz; b9
Listening now from my comfy couch
30 posted on 03/27/2012 10:21:43 AM PDT by onyx (SUPPORT FREE REPUBLIC, DONATE MONTHLY. If you want on Sarah Palin's Ping List, let me know.)
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To: Georgia Girl 2
I think your right, but I am not sure. Striking the mandate down will open up an interesting can of worms.
31 posted on 03/27/2012 10:21:56 AM PDT by redgolum ("God is dead" -- Nietzsche. "Nietzsche is dead" -- God.)
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To: redgolum

The mandate pushes the commerce clause way beyond anything it was ever intended for. Striking it down should be a no brainer. If the government can force you to purchase health insurance it can force you to buy a Chevy Volt. There would be no end to it.


32 posted on 03/27/2012 12:06:24 PM PDT by Georgia Girl 2 (The only purpose of a pistol is to fight your way back to the rifle you should never have dropped.)
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To: Georgia Girl 2
Well, lets hope so. The individual mandate is crucial for funding reasons. Without it, the rest of the scheme can't be paid for without drastic politically suicidal measures. I have read too that the justices will have had their research done by now, and in oral argument they seek only to help clarify and write their opinions.
33 posted on 03/27/2012 7:05:51 PM PDT by hinckley buzzard
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