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A federal judge ruled that mandating insurance for everyone is Constitutional.  How can that be?

I try to explain the decision below the fold.

This is the "pass the popcorn" moment for those in the legal field.

The Supreme Court, over the generations, has expanded the scope of the commerce clause to a fairly extreme scope.  This has been going on for 70-80 years, and the clock ain't going to be turned back now.

First: the Constitution.  Quite simply and directly, the Constitution specifically empowers Congress "To regulate Commerce with foreign Nations, and among the several States."  Period.  

There are two very important precedents here:

One is Wickard v. Filburn (1942), a case about wheat price supports etc.  U.S. government had imposed limits on wheat production based on acreage owned by a farmer, in order to drive up wheat prices during the Great Depression, and Filburn was growing more than the limits permitted. Filburn was ordered to destroy his crops and pay a fine, even though he was producing the excess wheat for his own use and had no intention of selling it.  The Court agreed with the federal government that Roscoe Filburn’s decision to grow excess wheat for himself would affect interstate commerce, because the farmer would not be forced to buy extra wheat under a New Deal regulatory scheme designed to increase wheat prices during the Great Depression.

The Agricultural Adjustment Act was to stabilize the price of wheat on the national market. The federal government has the power to regulate interstate commerce through the Interstate Commerce Clause of the Constitution. In Filburn the Court unanimously reasoned that the power to regulate the price at which commerce occurs was inherent in the power to regulate commerce.

Note: it was unanimous.  Whether it was fair or not has nothing to do with this -- the question is whether Congress has that power under the interstate commerce clause.

OK, one more case: The 2005 Gonzales v. Raich medical marijuana case.  Defendant here was growing his own marijuana for medical use (in Calf, where it was permitted under state law) and got busted by DEA (federal).

The Court essentially ruled that even a person growing pot in his own back yard for his own consumption effects the marijuana market, and therefore effects interstate commerce, and therefore can be regulated by Congress.  The Court relied on the Filburn wheat case.

Well . . . if you take those two that decision as law and precedent, it would seem to be controlling in this case.  And indeed, the judge used Raich, and concluded that:

...the costs of caring for the uninsured who prove unable to pay are shifted to health care providers, to the insured population in the form of higher premiums, to governments, and to taxpayers. The decision whether to purchase insurance or to attempt to pay for health care out of pocket, is plainly economic. These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance. These are the economic effects addressed by Congress in enacting the Act and the minimum coverage provision."

In addition, the judge ruled that the individual mandate is essential to a "broader regulatory scheme" because it's connected to the regulation forcing insurers to cover those with pre-existing conditions.

So there you go.  Exact same logic as Filburn and Raich.  When you have Filburn and Raich as precedent, it would seem one would have to conclude that the insurance mandate is also constitutional.

As Andrew Sullivan likes to note (with a comment of mine inserted):

This is a good time to remind conservatives that the War on Drugs has undermined limited government in all sorts of ways over the years [me: particularly in terms of 4th Amendment, rights of privacy, search and seizure, wiretapping, etc etc.]. If you want to stop a federal mandate for healthcare, you might just have to stop federal enforcement of marijuana Prohibition as well.

Originally posted to A DC Wonk on Fri Oct 08, 2010 at 06:12 AM PDT.

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