Justice Kennedy's Million Dollar Question: Can you create commerce in order to regulate it?

Hoover Institution ^ | 4/3/12 | Richard Epstein

[BCrago66]

The entire landscape of Congress’s constitutional powers changed on March 27, 2012, when, very early in the argument over the individual mandate, Justice Anthony Kennedy asked a somewhat shaken Solicitor General Donald Verrilli this simple question: “Can you create commerce in order to regulate it?”

I was as surprised by that opening gambit as everyone else. But surely not as dismayed. As three full days of oral arguments confirmed, that one question turned the constitutional showdown over Obamacare into a real horse race, with a five to four vote to strike the mandate down perhaps now the most likely outcome. The public realization, with this one question, was that the moderate Justice Kennedy, long regarded as the perennial swing vote, had bought into the argument of the opponents of the statute, chiefly crafted by Professor Randy Barnett of Georgetown University Law Center.

[DaveyB]

I don’t see why not. The government creates crime and then regulates it.

[GeronL]

The Healthy Hunger Free Kids Act of 2010 did exactly that. In the next school year all kids will be made to buy a fresh fruit or veggie or pay a higher price for their meal (from what I have read).

This is an individual mandate. It passed easily in the House and no one in the Senate voted against it. As your Republican Congress critters about this.

[Caribou]

It’s called “extortion”.

Normally, congress can’t pass a law mandating citizens to buy or participate in anything so they pass a law that includes funding for such programs.

If the states or cities don’t comply, the fed just pulls the funds.

Now that states or cities are using taxpayers money from the federal level as part of their yearly budgeting process, the states or cities comply with the mandate in fear of lossing the funding.

HHS is trying to stop funds to Texas over Planned Barenhood abortions. There are other examples.

Extortion by lawmakers, plain and simple.

[newzjunkey]

It passed easily in the House and no one in the Senate voted against it. As your Republican Congress critters about this.

That's mostly true. In Roll Call 603 I see 157 NOES, including 4 Dems, in the House with just 17 Republican AYES. The Senate, however, was by unanimous consent.

You have an interesting take on the act as an individual mandate. It might be worth exploring further.

[murron]

But didn’t Justice Kennedy say something later on that the industry of health insurance already exists, so therefore Congress isn’t creating commerce, or something to that affect?

[freekitty]

You can regulate it; but you can’t control it. In other words, you can’t regulate for your own ends. You can regulate it, but you can’t control it. If you do try to control it; it will seek it’s own level and someone else will control it which is what Obama wants. State or select bunch of people to control.

[marsh2]

“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”

Congress was never delegated “police powers” to prohibit a use that causes substantuial injury to general public health and safety; as well as to “permit” that use with conditions to avoid, minimize and mitigate damage. The “police powers” of regulation belong to the state and local governments.

“Regulate” in the Commerce Clause means “to make regular.” This is to ensure that a metric system is a common unit of measurement among the states (mph, gallon, acre,); that interstate banking rules are uniform; that rules of navigation among the states are in common.

It is to ratify treaties with foreign nations to extend mutual rights of persons and property and protection of same. It is to ensure that settlers don’t make private treaties with Indian nations to settle territory beyond boundaries, such as the Stanwix Line, causing bloody Indian Wars.

It was never intended to create a regulatory power that reaches into any and every activity in the stream of Commerce. It was never intended to allow regulation of endangered foxes because tourists might cross the state line to see them.

[freekitty]

they think we are stupid and don’[t understand what they are doing. One thing for sure is Obama is going out of office. Either by voting him out or his criminal behavior.

[Unknowing]

I do not find any clause in the constitution empowering the legislature to mandate or create commerce. Article 1, Section 8 provides for the power to raise armies (and a navy), but not to compel defense contractors to provision them.

[GeronL]

“You have an interesting take on the act as an individual mandate. It might be worth exploring further”

http://middletownpress.com/articles/2012/04/01/news/doc4f780090b37b3855481492.txt?viewmode=fullstory

“If a student refuses to take the fruit or vegetable, the cafeteria employees will have to charge an a la carte fee, which typically is higher because the lunch will not be reimbursable under federal guidelines.

The federal mandate will result in extra costs for municipalities nationwide. Federal officials estimate there will be a 30-cent increase in lunch prices, and the government will provide another 6-cent reimbursement.

It may be difficult for local school districts to not raise lunch prices, food service officials predict.

State Department of Education spokesman James Polites said if a student next year declined to take a fresh fruit or vegetable, the school system cannot claim the lunch for federal reimbursement.”