Just So I Have This Right…

Thursday, October 7th, 2010

….a federal judge has just ruled that the federal government can force me to purchase a product from a private company, under the argument that my not purchasing that product affects interstate commerce.

For those of you who support this ruling: Under an interpretation of the Commerce Clause that says the federal government can regulate inactivity, can you name anything at all that the feds wouldn’t have the power to regulate?

And if you can’t (and let’s face it, you can’t), why was the Constitution written in the first place? As I understand it, the whole point was to lay out a defined set of federal powers, divided among the three branches, with the understanding that the powers not specifically enumerated in the document are retained by the states and the people.

But if that set of powers includes everything you do (see Wickard and Raich), and everything you don’t do (what Obamacare proponents are advocating here), what’s the point in having a Constitution at all?


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93 Responses to “Just So I Have This Right…”

  1. #1 |  Sam | 

    Two points:

    1. Congress has never set a local speed limit. They’ve simply said they were going to withhold funds. States were free to choose after that and they always chose to get the funding. That isn’t Congress’s fault. That’s the states, who could have taken a stand for liberty and freedom and didn’t.

    2. Why don’t those states so opposed to the individual mandate choose to do something else? They’re certainly allowed to: http://www.huffingtonpost.com/2010/03/24/wyden-health-care-lawsuit_n_511748.html

  2. #2 |  Marty | 

    with the IRS involved as the enforcers of this mandatory healthcare plan, I can’t see how anyone can feel good about it. give the IRS more power? what could go wrong?

    I get the feeling that the increased level of abuses doled out to us are directly related to how easy it is to abuse us… if it wasn’t so easy for cops to do an information colonoscopy on us, they wouldn’t run IDs ‘just because’… all these govt agencies are finding it easier and easier to rake us over the coals. before the uber-databases, it was a pain in the ass to dig up info on people so they left us alone.

  3. #3 |  Boyd Durkin | 

    Again, I sure didn’t vote for Obama. Who didn’t see this crap coming? It’s going to take us 10-20 years to undo the stupidity of the last two years, if we ever are able.

    Why wouldn’t you try to undo the stupidity dating all the way back to the New Deal? Doesn’t matter…cannot be undone.

  4. #4 |  Jackel | 

    what’s the point in having a Constitution at all?

    Radley… that is exactly what this loser of a President is trying to accomplish, whether through the front door or the back door.

  5. #5 |  Waste93 | 

    Sam,

    Ref point 2. Though states may opt out of some of the medicare provisions and such. The residents of the states can not. The residents will still have to fill out their federal tax forms and still have to pay the individual mandate if they do not have insurance.

  6. #6 |  Waste93 | 

    Elemenope,

    Actually medicare isn’t that efficient. The issue with medicare is that it is subsidized by those of us with private insurance. Medicare pays below costs and the Dr’s and hospitals make up for this by increasing the costs for those with private insurance. Government can force the Dr’s and hospitals to agree to their terms by force of law. Private insurers lack that ability. Which is part of the reason for high health care costs. We’re subsidizing the governments programs. And that is also why a single payer system will fail. Companies can not operate indefinately at a loss and government will make them do so. To cut costs they will reduce benefits, cut back on preventative procedures, salaries, etc. You can see horror stories from the UK health system on a regular basis. And what are you gong to do when something goes wrong under a single payer system? Sue the government?

  7. #7 |  RWW | 

    In defense of the majority of libertarians (a label, by the way, that I am reluctant to apply too strongly to myself), compared to the current state of affairs, a return to what the writers of the Constitution seem to have intended would be a vast improvement.

  8. #8 |  Boyd Durkin | 

    Could some explain this new healthcare plan to me like I’m a six year old?

    If you make any money, you will pay a lot more and get a lot less. Much of the money you pay will go to politicians and corps. Competition will erode.

    If you don’t make any money, you’ll get some free and crappy health care.

    If you don’t pay, you’ll go to jail just like anyone else who doesn’t pay their taxes (after they seize all your assets).

    Like education, the budget will expand every year (throw more money at the problem).

    Like education and other services, a public service workers union will dominate health care and force the government to tax you more, give them raises and pensions and job security in exchange for their voting block.

    Millions of people will hold up the crappy and expensive collectivist health care system as a model of patriotic American value children love hugging wave flag here and fight terrorists.

  9. #9 |  RWW | 

    I’m so going to laugh my ass off when you go to a Harvard trained doctor who’s actually lying through his teeth (and actually only took anatomy in high school) and die because you were lied to. That will truly be amusing.

    Putting aside your juvenile (but very typical) sneering at the potential misfortune of others, I wonder how it is that you believe that the government is protecting me from liars in a way that a free market could not.

  10. #10 |  Sam | 

    Waste,

    The states are free to not implement individual mandates if they can come up with other, better ways to fix the health care problem. Why haven’t any done that?

  11. #11 |  Matt | 

    Doesn’t that ruling mean that the entire Congress, which stitched the Obamacare monkey to our backs but exempted themselves, is guilty of the same “inactivity” and must therefore participate?

  12. #12 |  Nick T | 

    Radley, I agree. To expand the meaning fo the word “regulate” to include requiring the purchase of a private product is to expand it to have no meaning whatsoever in it’s Constitutional context.

    People can, and have on this thread, argued that this is an understandable or apporpirate understanding of what it means to “regulate” *something* and I suppose that might be correct, but the context is key. Article I Section 8 is supposed to *limit* congress’ authority, and none of the words there should be interpretted to allow such a remarkable encroachment on liberty or to render the word meaningless in terms of any limitation.

    People can also say that this mandate is so important in the context of health insuarance that it’s justified in this particular case, or because others will bear the costs so it’s ok, but of course the government won’t be restrained by such arguments or exceptions, and they’ll look for new ways to mandate new products using similar *sounding* arguments that don’t make any sense. Soon we’ll all be required to buy other kinds of insurance, and probably some sort of home gym or a juicer – ya know, cuz staying healthy saves everyone money.

  13. #13 |  StrongStyle81 | 

    #41 and #58

    Thanks a lot. Now that I have pretty good grasp of what it actually is a quote comes to mind.

    “If you see a sign that says ‘free blowjobs’ with a line in front of it. Don’t be surprised when you finally get to the front of the line that you’re the one who gets f*cked.” – Jim Cornette

  14. #14 |  Mattocracy | 

    There is no reason any self respecting “liberal” should support ObamaCare. It goes against every thought regarding personal freedom and self determination. Telling us that heathcare is a public good opens the door for regulating our eating habits. I’m sure plenty of people think that’s a great idea until Conagra and Purdue lobby to outlaw organic food and make it mandatory to pump all livestock with steroids/hormones and genetically engineer all crops. Any other food will be deemed a health hazard.

  15. #15 |  Mattocracy | 

    The Healthcare Crisis in America is a supply and demand issue. The government has reduced the supply of healthcare with overbearing regulation and lisencing. It has increased demand with an insurance mandate. Prices will only go up. It’s a simple and supply vs. demand equation.

    Until we fix the supply issue, nothing will get better. Regardless of who pays for HC, people are gonna get shafted out of service either because they can’t afford it or because they’re on the waiting list. ObamaCare has solved absolutely nothing and it won’t give anyone better odds at getting live saving care.

    Also, let’s not believe for a second that Republicans are going to fix this. A president McCain would’ve advocated for the same shit if he were in office.

  16. #16 |  jrb | 

    that is exactly what this loser of a President is trying to accomplish, whether through the front door or the back door.

    This president? You’ve not been paying attention, have you? Nearly every president has attempted to subvert the constitution in one way or another. It’s been a long, slow process that’s really accelerated in the last 10 years.

    Too bad we didn’t just stick with the Articles of Confederation.

  17. #17 |  DarkEFang | 

    #21 JS –

    “My dad and I went to Germany a few months ago and he got really sick after a day at the Hofbrauhaus in Munuch and we had to go to an emergency room. The doctor came out immediately to see him and in less than 30 minutes he was out and they put a catheter in him. The whole thing cost $90 US. Back in Houston the same catheter cost $1500. I don’t know the answer to health care but all things considered I think I’d rather get sick in Germany than Houston.”

    You understand that Germany has socialized health care? German taxpayers picked up the rest of the cost beyond the $90.

    Also, Germany – as well as pretty much every other nation on earth – caps prices on medical equipment and pharmaceuticals. The result is lower medical costs for Germans, but the burden of financing medical R&D is placed squarely on the US, where there are no price caps.

    #25 RWW –
    “Your question, couched in such meaningless collectivist terms, misses the point entirely. The question should be whether there are some circumstances under which you have a right to steal systematically from others.”
    I’m operating under the assumption that we’ve already decided that people do not have a right to steal systematically from others. The question is then whether medical services are a service that we expect everyone to have access to, or if it is a luxury that should be restricted to those who choose to pay/can afford to pay.

    #26 JS –
    “… Make insurance illegal. The only reason that everything here costs so much is because they are gouging the insurance companies. No way a bottle of alcohol costs $80 or some q-tips costs $25 or something. Get rid of insurance and you make everything costs fair market value just like it would if you bought it in a store.”
    Health insurance is not to blame for jacked up hospital bills. The uninsured are.

    When uninsured people go to the hospital, someone is paying for those medical bills. Sometimes the uninsured person has the ability to pay, but most of the time they do not. And since there are no magical hospital-bill-paying gnomes, those bills end up being paid by various groups: taxpayers, who reimburse hospitals for some of their unrecoverable accounts receivable; insured patients, whose insurance ends up paying inflated prices for medical services; hospitals, who eat a portion of the unpaid medical bills; and uninsured patients who are able to pay, who end up paying hugely inflated prices.

  18. #18 |  Highway | 

    The states are free to not implement individual mandates if they can come up with other, better ways to fix the health care problem. Why haven’t any done that?

    One, because that would be hard. Two, because the people who determine what ‘better’ is are the same folks that saddled everyone with this.

  19. #19 |  SamK | 

    So.

    I think the invocation of the commerce clause was lazy work by the judge. He’s essentially kicking it up to the supreme court…and I don’t disagree with him moving it along in that light. The commerce clause being applied to everything under the sun needs some attention and I think this is a beautiful way to bring that out.

    The current application of the commerce clause shouldn’t be even remotely legal and the people that started that shit should be retroactively shot. The constitution does not support government health care or this mandate.

    That said, I think I’ve been vocal enough of my support of socialized medicine that no one here will be surprised when I say I’d support a constitutional amendment that made universal health care a part of the constitution.

  20. #20 |  JS | 

    DarkEFang “You understand that Germany has socialized health care? German taxpayers picked up the rest of the cost beyond the $90.”

    Yea and that’s not the same as forcing people to buy insurance, I guess was my point.

  21. #21 |  delta | 

    #35 said: “Delta, the notion that a big all encompassing government run healthcare system would be low cost and efficient is laughable when you look at US and world history.”

    This is ideology and not facts. Look at any example of universally available health care — Germany, UK, Canada, Hawaii, etc. — and you’ll find that it’s more efficient cost-wise, with better outcomes health-wise, with greater public popularity, than we have here.

  22. #22 |  Kevin | 

    It is astonishing to me that anyone can rationalize the federal extortion of the States as it takes the citizen’s money and then threatens to not give it back unless they do certain things. IMO, this is a blatant violation of the equal protection clause. State A gets nice new roads, State B does not, even though both States have done nothing but operate under the freedom they are guaranteed under the Constitution.

    Arguing that the States are free to not accept the money is misguided. States all compete for businesses, citizens, etc. They do that by having low taxes and decent services. States that accept federal money (which is simply the feds giving the State’s citizen’s money to the State) are essentially getting money from the States that don’t accept it. The ‘principled’ State’s only option is to raise taxes to pay for roads. What’s the State motto supposed to be? “Come to our State, you pay a lot more, but you get to drive 75!” ?

    The fact that the federal budget so far exceeds the budgets of the several States is in direct conflict with basic intent of the Constitution. It’s sad that we keep electing officials who don’t recognize that.

  23. #23 |  Sean L. | 

    thefncrow:
    “If Mr. Smith could talk to them, he might explain that he switched insurance providers six months ago, and that they need to call Blue Cross/Blue Shield.”

    Yeah, that’s what insurance cards are for.

  24. #24 |  John222 | 

    “I’m so going to laugh my ass off when you go to a Harvard trained doctor who’s actually lying through his teeth (and actually only took anatomy in high school) and die because you were lied to. That will truly be amusing.”

    A government license to practice medicine in no way indicates competence. I have never heard of an unlicensed physician amputating the wrong limb, leaving instruments inside a person etc. It has always been a Doctor licensed by the state.

    A private company, on the other hand, could easily come up with a method to ensure competence on the part of the practioner. They could charge fee for their certification as well as a fee for access to a list of those they have certified.

  25. #25 |  Mattocracy | 

    @#71 | delta |

    What you just said is also idealogy and not fact.

  26. #26 |  la Rana | 

    Radley, I usually only drop in here to give you a hard time, but you are right on the money with this.

    I would add only that Thomas, not Scalia, has the best view on the Commerce Clause among current SCOTUSpersons. See his concurrences in Lopez and Morrison. He basically says that the majority is lying when it claims to be following precedent, because Wickard allows the government to regulate anything and everything, but that the majority’s conclusion is incidentally in accordance with the constition. (Yet, Thomas also seems to think that the court’s decisions track the text of the constitution, which ironically is not how the court has ever operated, or ever will)

  27. #27 |  thefncrow | 

    Sean L.:
    “Yeah, that’s what insurance cards are for.”

    Because insurance cards don’t ever get lost. Or get borrowed by another family member. And, of course, it could never happen that anyone could have left their wallet someplace and have an accident on the way to retrieve it, or get attacked by a mugger for their wallet, leaving them injured and without their insurance card.

    Thank god for how those insurance cards magically follow us everywhere at all times. Let there be no confusion at any hospital across the land, for this magical Insurance Card fairy will allow it so that there will never be any doubt about the current status of any individual’s insurance coverage!

  28. #28 |  Eyewitness | 

    I guess the Constitution isn’t everything it’s cracked up to be.

    “But whether the pretended “constitution” really be one thing, or another, this much is certain – that it has either “authorized” such a “government” as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.” Lysander Spooner

  29. #29 |  Elliot | 

    Dang Radley, you sound like Glenn Beck now.

    Don’t go out on any boats.

  30. #30 |  Lysander Spooner | 

    Here’s what I think:

    “Inasmuch as the Constitution was never signed, nor agreed to, by anybody, as a contract, and therefore never bound any- body, and is now binding upon nobody ; and is, moreover, such an one as no people can ever hereafter be expected to consent to, except as they may be forced to do so at the point of the bayonet, it is perhaps of no importance what its true legal meaning, as a contract, is. Nevertheless, the writer thinks it proper to say that, in his opinion, the Constitution is no such instrument as it has generally been assumed to be ; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, differ- ent thing from what the Constitution itself purports to author- ize. He has heretofore written much, and could write much more, to prove that such is the truth. But whether the Consti- tution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.”
    (No Treason, No. 6: The Constitution of No Authority, p. 59 in the original document)

  31. #31 |  Graham Shevlin | 

    Radley, I would be a lot more impressed with your writing if you would quit the cheap empty sloganeering. “Obamacare” is a talk radio meme, it says next to nothing useful, all it does is personalize a health care reform. I am somewhat disappointed that you are prepared to ignore sound argument in favour of what is essentially a cheap-shot ad hominem. Your readers deserve better.

  32. #32 |  Radley Balko | 

    I am somewhat disappointed that you are prepared to ignore sound argument in favour of what is essentially a cheap-shot ad hominem. Your readers deserve better.

    Heavens. Sorry to have disappointed you. “Obamacare” is shorthand for “the health care plan proposed by Obama, amended and passed by through the Congress by Obama’s party, which Obama ultimately signed.” There’s nothing inherently derogatory or “sloganeering” about it. I’ve also used the term “Reganomics” to apply to Ronald Reagan’s economic policies, some of which I happen to think were wise.

    I do hope with all my heart that, someday, you will be “more impressed” with my writing. But I have a feeling that would require me to stop writing about issues where you happen to disagree with me.

  33. #33 |  RWW | 

    I’m operating under the assumption that we’ve already decided that people do not have a right to steal systematically from others. The question is then whether medical services are a service that we expect everyone to have access to…

    Have you made some typo here? Your second sentence clearly presupposes that it is possible to justify systematic theft.

  34. #34 |  DarkEFang | 

    My examples of national defense, fire protection and police are all services that everyone has access to. Everyone pays for them with their tax money, so there is no theft of service. If we expect our health care system to be the same as these examples, then everyone is buying in, and there is no theft.

    Or am I misunderstanding you, and the mandatory nature of these services is what you consider the theft?

  35. #35 |  pam | 

    ha, wrong thread

  36. #36 |  Cynical in CA | 

    #81 | Graham Shevlin — “I am somewhat disappointed that you are prepared to ignore sound argument in favour …”

    Favour? This idiot’s Canadian.

    Or worse — British.

    Ignore.

  37. #37 |  mad libertarian guy | 

    This is no different than enforcing prohibition: it’s assuming that a particular moral agenda is so right, that it justifies the use of government force to coerce everyone who doesn’t believe. The only difference is the moral agenda.

    It’s fucking tyranny and immoral, and if I hadn’t already had a heart attack at age 33, I’d dump my insurance the very day the mandate kicks in.

  38. #38 |  DonH | 

    I think the most delicious irony is that the product we’re being required to purchase is one that explicitly cannot be purchased across state lines. I can purchase only health insurance plans approved by my state’s insurance commisioner, not plans offered in other states.

    It’s almost like a parlor game: given Wickard v Filburn, what’s the most ridiculous possible claim of “interstate commerce”?

  39. #39 |  Herb | 

    Since I think insurance is essentially a racket, I don’t want to be forced to purchase health insurance either. But how else were we going to retain the private insurance model that everyone loves so much?

    Health insurance isn’t insurance. It’s a way of paying for medical services. We’re not being forced to “buy a product.” We’re being forced to pay for medical services this particular way.

    I’m certainly open to discussing alternatives, but I don’t wanna hear any crap about death panels or socialism or the UK’s NIH……

  40. #40 |  RWW | 

    Everyone pays for them with their tax money, so there is no theft of service…

    When I mentioned theft, I wasn’t thinking of those who take advantage of state services. But since you bring it up, in fact, many people effectively do not pay taxes. And among those who do, there is a vast disparity in how much the services cost. This can hardly be summed up fairly with a phrase like “everyone pays for them.”

    Or am I misunderstanding you, and the mandatory nature of these services is what you consider the theft?

    Theft is a pretty straightforward concept: No matter what “services” you offer me, it is unmistakable theft to force me to buy them.

  41. #41 |  RWW | 

    Since I think insurance is essentially a racket, I don’t want to be forced to purchase health insurance either.

    True insurance is a very good idea.

    But how else were we going to retain the private insurance model that everyone loves so much?

    There is no such model in operation today.

    Health insurance isn’t insurance.

    It could be.

    It’s a way of paying for medical services. We’re not being forced to “buy a product.” We’re being forced to pay for medical services this particular way.

    I see no benefit in making fine distinctions between the many varieties of coercion.

  42. #42 |  Billy Beck | 

    “…what’s the point in having a Constitution at all?”

    Oh, Radley, you adorable little feeb.

    I’m reminded of a story from my flight training. In a discussion of twin-engined airplanes, one instructor offered what she called an old adage: “In case of an engine failure in a twin, the second engine is there to reliably get you to the crash site.”

    You don’t understand, Radley.

    The constitution has reliably gotten us to where we are today.

  43. #43 |  It’s the $64,000 question « No Truce With Kings | 

    […] No Truce With Kings « Navigating with the Archos 5 It’s the $64,000 question October 17, 2010 I dislike re-posting other people’s blog posts in their entirety. But there are exceptions to every rule and Radley Balko hits the nail squarely on the head in this post from October 7: Just So I Have This Right… […]