I've Got It! I've Finally Got It! (I Think)
Reading Richard Epstein and John Yoo on the constitutionality—or, as I continue to hope against hope that the Supreme Court will ultimately find, the unconstitutionality—of ObamaCare these last couple of day, I’ve been searching for something. The nub. The crux. The One Big Question I could hold in my little mind as we watch the progress of the case against ObamaCare that twenty state attorneys general have brought in Florida.
Rading a recent post by John, I finally found the One Thing. Reaching it took three steps.
Step 1: “[I]f the rational basis test is used,” John wrote, “ObamaCare will survive.”
Step 2: “But the rational won’t apply if the law in question [ObamaCare] lies outside the Commerce Clause entirely.”
Step 3: The Commerce Clause has never been used to punish inactivity. So, John concludes, does “sitting on one’s couch, watching TV, and refusing to buy health insurance is itself an economic activity subject to government regulation.”
And there it is, the One Big Question: Under the Constitution of the United States, does the federal government possess the authority to deploy the coercive resources of the state—to levy fines on, or, ultimately, to imprison, ordinary citizens—merely for doing…nothing?
At least I think that’s the One Big Question.
John? Richard?
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May '10
Re: I've Got It! I've Finally Got It! (I Think)
After reading the series last night, I, too, came to the same conclusion about the One Big Question. I wondered if, alas, the answer is, "Yes, the government can do that. Isn't that what they do with income taxes? I can't just sit on my couch, watching TV, and do nothing on 4/15, and expect to get away with it."
Gosh, I hope I'm wrong.
May '10
Re: I've Got It! I've Finally Got It! (I Think)
Yup- that's the question, and John Yoo's point. He says that the Court should reject the notion, and Richard says they probably won't. I hope John is right, because that idea makes sense. The arguments against will probably focus on the implementation of the mandate, since enforcement ostensibly flows through the states.
Tom, the income tax is not relevant here- we are talking about the scope of the Commerce Clause, not taxing and spending. And the 16th Amd, plus the body of case law does kind of make that a moot point except for a few survivalist types.
May '10
Re: I've Got It! I've Finally Got It! (I Think)
Dave Carter said this..
The Constitution enumerates a power to regulate interstate commerce. It should not take advanced degrees in irrational rationality to ascertain that where no commerce is taking place, e.g. someone elects NOT to purchase health insurance, there is no commerce to regulate. This is the difference between regulating and mandating, and it should be plain to anyone with a 7th grade education.
As a non-lawyer I like his way of putting it. Or am I missing something this doesn't fully cover?
May '10
Re: I've Got It! I've Finally Got It! (I Think)
Well, er, it sort of depends on what you want the answer to be. If enough justices believe in the "living Constitution" because the old one is too rigid (see Wickard v. Filburn and Flast v. Cohen), and it requires kind of glossing over the difference between regulating and mandating to get the "correct" outcome, voila!
Flast is probably the best example of that. The Court believed that there should be a right for a citizen to challenge government spending if the taxpayer believed that money might be going to further an unconstitutional (e.g., religious) purpose, and the Constitution say anything like that (in fact, case law went the opposite way to stop citizens from filing frivolous suits against spending unless they were personally harmed), and they thought it should have said that..... so they made it up. Warren, ever creative, wrote the opinion.
Jun '10
Re: I've Got It! I've Finally Got It! (I Think)
I think there could be a fascinating discussion around the rights for citizens to do nothing.
For example, there is no requirement to vote, or even to register. Nor is there an obligation to defend the country against enemies foreign or domestic, unless otherwise drafted in the armed forces. There are sanctions for aiding and abetting enemies of the state, and certainly domestic criminals/fugitives etc - however, there is still lots of debate (and some laws) requiring witnesses of a crime to report such activity.
Citizens must cooperate with law enforcement, though they have the right to not self incriminate, and can refuse to speak.
Citizens must pay taxes but only if they earn income. There is no requirement to have a job, earn income, or even to have a residence at all. Education is mandatory but one can refuse to learn. I believe you can even refuse all medical care even if its life saving.
In light of all the recognized rights Americans have the ability NOT to do, say, or participate in within our society in very fundamental ways - I find it hard to believe one can refuse all the above things, but not a health insurance policy.
May '10
Re: I've Got It! I've Finally Got It! (I Think)
So, I've done some reading as you suggested Duane, and I'm afraid you are telling me that our enumerated federal powers evanesced (to use Peter's imagery) in 1942 with Wickard v. Filburn. Please tell me I'm wrong! I do have this pesky tendency to study things superficially and imagine I understand them deeply ;)
May '10
Re: I've Got It! I've Finally Got It! (I Think)
It sounds like Peter's (admittedly skeptical) deductive argument is as follows:
Argument #1
1. Obamacare authorizes the use of governmental force to punish inactivity
2. Anything that authorizes the use of governmental force to punish inactivity is unconstitutional (not justified by the Commerce Clause)
3. Therefore, Obamacare is unconstitutional (not justified by the Commerce Clause)
The argument is deductively valid, but unsound (premise #2 is false).
It further sounds like Peter's (again admittedly skeptical) rationale for premise #2 is as follows (albeit, inductively):
-Argument #2
4. Anything that authorizes the use of governmental force to punish inactivity has never been constitutional (not justified by the Commerce Clause in the past)
5. Therefore, anything that authorizes the use of governmental force to punish inactivity is unconstitutional (not justified by the Commerce Clause)
As we see, why would the above conclusion follow from the premise? The conclusion of argument #2 could be proven deductively, if in fact the essence of the Commerce Clause was definitive. The problem is that it is not definitive. The Commerce Clause is sufficiently vague and ambiguous to invite different interpretations, especially very broad interpretations.
You mean to tell me that the Commerce Clause cannot be used to justify inactivity punishment merely because it never has before!?!
May '10
Re: I've Got It! I've Finally Got It! (I Think)
“But the rational won’t apply if the law in question [ObamaCare] lies outside the Commerce Clause entirely.”
What lies outside the Commerce Clause? What is the Commerce Clause? Not a soul can offer a timeless, definitive, description of the purview of the Commerce Clause unless one offers the following: a legal instrument subject to continual change, especially change that enables it to justify greater acts of intervention. As evidence of its impenetrable nature, I give you the current conversation - if the nature of the Commerce Clause was available to laymen, whether it justified Obamacare or not would be public knowledge and not the subject of legal esoterica (rational tests, etc.).
The Commerce Clause has been expanding - for years. For example, New Deal legislation would have been unthinkable in the year 1800. Today, the federal government conducts itself in ways it never has before. Why should I believe, given the nerve of our present politicians, that, among all of the new acts of intervention they have committed within the past few years - that using the Commerce Clause to justify inactivity punishment will not be one of them? Will the trend in expanding government abandon this step somehow? Is inactivity punishment that inconceivable?
Re: I've Got It! I've Finally Got It! (I Think)
I think Peter has the point right, and the one over which Richard and I disagree (as a matter of predicting what the Supreme Court will do; I think we agree on what the Commerce Clause originally meant). Does the Commerce Clause allow the federal government to regulate inactive people; does it allow Congress to require an individual citizen to participate in interstate commerce even when he or she does not want to. I can think of only two examples -- military service via the draft, and jury service -- where the Constitution grants the government this power. To say that the Commerce Clause has been read broadly, or is difficult to interpret, does not logically mean that therefore it has no limit. The Court interprets vague terms in the Constitution all the time -- due process anyone? -- and places limits on them. For me, inactivity versus activity makes sense as a line-drawing exercise between federal power and state power, and one that I think is consistent with what the Framers had in mind (though they would have had an even narrower view of interstate commerce, I think).