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View Diary: Mitt: No apology for HIS individual health care mandate (80 comments)

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  •  Federal power is supreme in case of a conflict (2+ / 0-)
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    BigOkie, cocinero

    The purpose of the commerce clause is to give the federal government the power to regulate commercial transactions that cross state lines, to prevent trade barriers and wars between individual states.

    When there is a conflict between a state's power and the federal government's power under the constitution, the constitution itself specifies that the federal law wins:  federal power is supreme.

    Here is how the majority expressed that in a 2005 decision upholding the federal power to outlaw marijuana for personal use even in a state like California which had expressly authorized the personal medical use of marijuana:

    The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is " 'superior to that of the States to provide for the welfare or necessities of their inhabitants,' " however legitimate or dire those necessities may be.

    (That case was Gonzalez v. Raich, and Justice Anthony Kennedy joined that opinion.
    Justice Kennedy is likely to be the swing vote when the Supreme Court decides the constitutionality of health care reform).

    There is no doubt about the federal government's power to regulate the health insurance industry in this country because it involves and affects interstate commerce.  (That is the constitutional basis for Medicare and Medicaid programs, for example).  And the individual mandate is an aspect of this federal law that makes it work -- so it is "necessary and proper" for Congress to include it in this constitutionally-permissible law.
    Mitt is just wrong about this.

    •  This is not the issue (0+ / 0-)

      the federal government's power to regulate the health insurance industry in this country because it involves and affects interstate commerce.

      Everybody agrees the federal government can regulate insurance.  

      The issue that has never been addressed by the Court is whether the Commerce Clause allows Congress to mandate that individuals buy a particular product from a privately-owned company or pay a fine.  The Court has never addressed a situation where a citizen, by virtue of living in this country, was subject to Commerce Clause regulation because he might, in the future, enter interstate commerce (have a need for health care and not be able to pay for it). In every prior instance, the individual had to take some action to subject himself to Commerce Clause regulation and could, by stopping the action, remove himself from the Commerce Clause regulation. (For example, he elected to grow wheat, and that subjected him to Commerce Clause regulation, and by stopping that activity, he could remove himself from Commerce Clause regulation.) There are arguments that Congress can do this, and arguments it can't, and both sides have precedent -- there is precedent for striking laws that go beyond the scope of the Commerce Clause because the connection to interstate commerce too attenuated, and there is precedent for reading the Commerce Clause broadly, and the argument that this is just one more step in that evolution of the Commerce Clause.  

      Either way, there clearly is "doubt" as to how this ultimately will be decided.  The general consensus is that it's pretty much up to Justice Kennedy, and, as usual, his past opinions have something in there for both sides to hand their hat on.  

      •  But Romney invokes states' rights (1+ / 0-)
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        The Nose

        I thought that was what Mitt was trying to do -- say that his individual mandate was o.k. because he was a state governor, but it is NOT o.k. for Congress to do the same thing because of the 10th Amendment.

        But the 10th Amendment does not limit the power of the federal government to regulate interstate commerce -- that is one of the specific enumerated powers that the Constitution expressly gives to the federal government.
        And that carries with it all of the power to do anything "necessary and proper" to implement the regulation of the national health insurance industry.

        •  That's the question, of course (1+ / 0-)
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          VClib

          whether there is enough of a connection to "interstate commerce" when someone elects NOT to engage in interstate commerce.  In other words, does choosing not to buy something constitute "engaging in interstate commerce?" Or, put another way, does the ability to regulate a specific industry (in this case, the ability to regulate the insurance industry) include the ability to mandate that every person in the United States must buy a specific  product from that industry?  Those questions have never been answered by the SCOTUS.

          At least, not yet.  

          •  No, not yet (0+ / 0-)

            And another way to put the question is whether the power to regulate a national insurance market includes the ability to legislate concerning people whose choice to self-insure affects the insurance market.

            That, of course, was pretty much what the wheat farmer did in the 1942 case of Wickard v. Filburn.  He grew his own wheat for his own consumption and to feed his own chickens on his own property without selling any of it even locally (much less across state lines).  Congress passed a law that included limits on how much wheat any individual farmer could grow.  Because he grew too much he was ordered to destroy his crops and pay a fine.  The farmer, Roscoe Filburn, challenged the law and argued that it exceeded the power of Congress under the Commerce Clause because he was not involved in interstate commerce.  He lost.  The Court said:  

            That an activity: is of local character may help in a doubtful case to determine whether Congress intended to reach it.... But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'

            So the Supreme Court upheld Congress's ability to limit the amount of wheat he could grow, under the Commerce Clause.
            And the Court recently (in 2005) relied on that case to uphold the right of Congress to prohibit even the possession of small amounts of marijuana for personal medicinal use.  The law in that case was upheld under the Commerce Clause by a 6-3 decision.

            I suspect that any insurer would say that the choice by any individual to go without health insurance definitely affects the market for health insurance.

          •  Electing NOT to engage in interstate commerce (0+ / 0-)

            Is just what the wheat farmer in Wickard v. Filburn did.  He grew wheat for his own consumption and did not engage in interstate commerce.  And it is just what the marijuana grower in Gonzalez v. Raich did.  She grew her own marijuana and did not engage in interstate commerce.
            And in each case the Supreme Court said that Congress could regulate them under its power to regulate interstate commerce, because what they were doing had an effect on the interstate commerce that Congress was trying to govern.  

    •  I tend to agree with your commerce analysis, (0+ / 0-)

      but there's nothing hypocritical in someone thinking the federal government doesn't have that power but believing a state does.  Congress has specific, enumerated powers.  The Massachusetts Assembly doesn't.

      "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

      by Loge on Tue Feb 01, 2011 at 10:31:52 AM PST

      [ Parent ]

      •  Congress has more than the enumerated powers. (0+ / 0-)

        Congress has the power to "provide for the ... general Welfare of the United States."

        •  That's still enumerated, for one thing. (0+ / 0-)

          Congress can tax and spend to promote the general welfare.  If it wants to regulate, it has to establish that the regulation doesn't go beyond that which touches commerce "among the several states."  The first commentaries on the Constitution, from Justice Story thru to decisions binding on Judge Vision, have never agreed that the reference to "general welfare" in the preamble or elsewhere in Art. I section 8 is an independent grant of police power.  

          The text of the Constitution, by itself, rarely if ever answers the legal question presented without further analysis, and especially not when the quoted text contains omitted language that, if included, would change the meaning of it.  There are over 200 years of case law saying Congress has specific, enumerated powers, which are still fairly broad.  But please do not make blatantly incorrect statements about the Constitution without first disclosing that you have no idea what you're talking about.

          "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

          by Loge on Tue Feb 01, 2011 at 11:02:25 AM PST

          [ Parent ]

        •  and to enact laws "necessary & proper" (0+ / 0-)

          to carry out the laws that are provided for in the the specific enumerated powers of Congress.

      •  Not hypocritical but wrong on interstate commerce (1+ / 0-)
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        Loge

        Obviously, the states generally have broad police power that the federal government does not have.  But the idea that an individual state has the power to do something that the federal government cannot concerning interstate commerce is just backwards, and to defend it as a matter of "states' rights" is wrong, to my mind.

        After all, the individual states had the power to set up separate drinking fountains and waiting areas for bus travelers -- until Congress outlawed it.

        But once Congress outlawed that it was no longer a matter of states' rights.  The federal government had spoken, and the federal law took priority because of the supremacy clause.

        Same thing with the individual mandate.  The fact that Massachusetts could do it doesn't have any bearing on the power of Congress to do it nationwide.

        •  I think the point is that (1+ / 0-)
          Recommended by:
          twcollier

          states can regulate things that aren't commerce at all, and the recent Florida decision said not having insurance fits into that category.  The Supremacy Clause presupposes a bill that is actually Constitutional.

          As a policy matter, Romney doesn't have a leg to stand on.  Good policy can be unconstitutional all the time, and vice versa.

          "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

          by Loge on Tue Feb 01, 2011 at 11:20:34 AM PST

          [ Parent ]

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