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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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Comment Preferences

    •  Call the mandate penalty a tax (0+ / 0-)

      Where the individual gets an equal amount as a credit if the meet they have health insurance.  However, there will be reluctance by the WH to argue this is a tax administered by the IRS.

      The most important way to protect the environment is not to have more than one child.

      by nextstep on Fri Oct 08, 2010 at 07:37:25 AM PDT

      [ Parent ]

  •  Thanks for this explainer n/t (0+ / 0-)

    In the choice between changing ones mind and proving there's no need to do so, most people get busy on the proof.

    by jsfox on Fri Oct 08, 2010 at 06:18:12 AM PDT

  •  After Raich (1+ / 0-)
    Recommended by:
    Jagger

    the federal government could probably regulate which hand you use to wipe your ass and get away with it. The Commerce Clause as anything other than an unlimited grant of authority is a dead letter.

  •  I"m not a lawyer, but (2+ / 0-)
    Recommended by:
    Jagger, Shaviv

    how about under the General Welfare clause?

  •  as precedent (5+ / 0-)
    Recommended by:
    Inland, sewaneepat, 57andFemale, JL, Apost8

    I prefer Jacobson v. Massachusetts which obligated citizens to obtain smallpox vaccinations or face a fine.

    "The way to see by faith is to shut the eye of reason." - Thomas Paine

    by shrike on Fri Oct 08, 2010 at 06:25:30 AM PDT

  •  True libertarians are rare, so (4+ / 0-)

    it's not surprising that conservatives pass and support laws against dope reach the outer limits of the commerce clause and necessary clause, creating precedents that harm their plan to thwart congress through the courts.

    Some feel more comfortable with the certainty that comes from losing power and letting republicans stab them in the front. It's a failure of nerve.

    by Inland on Fri Oct 08, 2010 at 06:30:25 AM PDT

    •  And Honest Libertarians Almost Nonexistent (1+ / 0-)
      Recommended by:
      socalmonk

      since there's never been a libertarian push to amend away Congress' Article 1 authority to tax to pay for the general welfare. Every libertarian I know falsely asserts gov't has no business doing that, they won't even admit that the authority is in there.

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

      by Gooserock on Fri Oct 08, 2010 at 06:32:41 AM PDT

      [ Parent ]

    •  And control your actions in the bedroom. (0+ / 0-)

      Conservatives have no problem with that.  But if anything might affect the profits of big corporations, they get all freedom-y.  

  •  Same As the Child Bearing Mandate (1+ / 0-)
    Recommended by:
    HamdenRice

    and the job offshoring mandate, isn't it?

    Federal law requires you to bear children, and if you're a business to send jobs overseas, same as it requires you to buy health insurance.

    --Via a tax break. You pay less taxes if you do those things.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Fri Oct 08, 2010 at 06:30:57 AM PDT

    •  I think that may even be a stronger argument (0+ / 0-)

      Another way to look at it is that nobody is required to buy insurance. You won't get thrown in jail for not doing so. Rather, everyone just got a tax hike, but gets a credit if they buy health insurance, just like solar energy credits, child care credit, mortgage interest tax break, and the list can go on and on...

      So just like single childless, renters, those without health insurance don't get a tax break.

  •  If they can mandate car insurance I guess it's ok (0+ / 0-)

    Not sure about constitutional, but it is morally wrong to mandate something without cost controls, we shouldn't have to end up with legit middle class people essentially going on govt welfare to afford a mandated thing.

    •  ...but you could always argue (1+ / 0-)
      Recommended by:
      FishOutofWater

      that folks don't have to drive a car.  Here, everyone has to get insurance, whether they want it or not.

      •  will people be thrown in jail (0+ / 0-)

        if they are found to not have health insurance, if they went off the grid or ignored the IRS's calls? How much are they going to enforce this mandate. You get thrown in jail if you're pulled over and found to not have car insurance, well maybe not jail but your car is impounded anyway. Health insurance is so ridiculously expensive, someone who is legitimately in the middle class, has a good job and everything, cannot afford it. Car insurance is expensive but not that ridiculous.

        •  Are you seriously asking (0+ / 0-)

          if people are going to be thrown in jail if they don't get insurance?

          In the choice between changing ones mind and proving there's no need to do so, most people get busy on the proof.

          by jsfox on Fri Oct 08, 2010 at 07:00:46 AM PDT

          [ Parent ]

          •  rhetorical question (0+ / 0-)

            because I think that's what would actually make it unconstitutional. If it's just a mandate that you must have insurance and if you can't afford it the govt pays for the rest that is not so bad although it is unfair to make people use such a high percentage of their income on something.

        •  No one will be thrown in jail (0+ / 0-)

          You will just pay higher taxes - Just like single, childless, renters. Yeah, if by "going off the grid" you mean tax evasion, you'll go to prison - nothing new there.

          Also, if you are under $88k you will get some subsidy to buy it.

          •  that's my point (0+ / 0-)

            if you are making just under 88k, say 60 k, that's good money, or it should be anyway, you shouldn't essentially have to be on welfare.

            Healthcare is 20% more expensive this year, repubs blame "obamacare" because they call their insurance companies to complain and the companies also blame obamacare. But let's not forget insurance was increasing at that rate before the new insurance reform.

            •  C'mon, government subsidizes many things (0+ / 0-)

              Like that Tesla Roadster that costs over $105k.

              But I get your point, we need cost reduction. Of course the easiest way to do that is to take away insurance's anti-trust exemption.

              •  Very true (1+ / 0-)
                Recommended by:
                Jagger

                tesla roadster not a good example though because there's no mandate to buy one. This effects everyone. This mandate without cost controls is just going to further depress the economy, taking a significant portion of people's earnings away in a time with high unemployment and declining real wages.

      •  Also, auto insurance is a state thing (1+ / 0-)
        Recommended by:
        output
      •  That is not a serious argument (1+ / 0-)
        Recommended by:
        Jagger

        if you live in a rural area.  

        The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

        by fladem on Fri Oct 08, 2010 at 07:50:04 AM PDT

        [ Parent ]

    •  Car insurance is different (0+ / 0-)

      Because there is no mandate to own a car. So you only have to have auto insurance if you own a vehicle. Which you don't have to do.

  •  how about the decision (1+ / 0-)
    Recommended by:
    jakbeau

    by the Supremes about how someone who grows pot in the backyard is engaged in interstate commerce because she wasn't selling it and that affects the prices for everyone else? She was because she wasn't. The end justifies the means.

  •  Raich case is ridiculous (5+ / 0-)

    In the wheat case, the farmer was involved in interstate commerce because he was producing wheat for market. The court could reasonable conclude that his personal use should be included in his allotment.

    There's no doubt he was involved in interstate commerce.

    The Raich case involves someone who was not involved in interstate commerce. Moreover, there is no legal interstate market for pot.

    Raich is a gross legal overreach. The courts have bent the law and the Constitution to prosecute "the war on drugs".

    look for my DK Greenroots diary series Thursday evening. "It's the planet, stupid."

    by FishOutofWater on Fri Oct 08, 2010 at 06:53:36 AM PDT

    •  Sorry, got called away while I was typing my (3+ / 0-)
      Recommended by:
      buddabelly, FishOutofWater, output

      comment, directly below, and did not see that you had written from pretty nearly an identical point until after I hit post.

      Pancho needs your prayers it's true, but save a few for Lefty, too. Townes van Zandt

      by DaNang65 on Fri Oct 08, 2010 at 07:08:27 AM PDT

      [ Parent ]

    •  Fact error? (3+ / 0-)
      Recommended by:
      burrow owl, Inland, output

      I think that in the wheat case the farmer was arguing that the extra wheat he was growing was for his own consumption.  The court essentially said: fine, we accept that you are growing for your own consumption, but that means you are purchasing less on the market.

      FWIW, the wheat case was 9-0; the pot case was 6-3.

    •  The commerce clause isn't limited to "legal" (1+ / 0-)
      Recommended by:
      FishOutofWater

      interstate clause.  I certainly don't see that limitation in the constitution.

    •  Well, congress has power to ban commerce, too: (0+ / 0-)

      If congress wanted to ban all commerce between the states or with a foreign county, it could.

      So I would argue that the only way to ban interstate commerce in pot is to prevent local persons from growing their own, thereby freeing up supplies for "export".  

      The problem that conservatives have with the commerce clause is that when it was written, the plenary power over interstate commerce had little practical effect.  Thirty miles from Boston was the limit of practical trade: Go into any house, and there would be a bible and maybe nothing that wasn't mae in the immediate locality.

      Today, it's the other way around.   I don't know if there's a single item in my house that's exclusively made in my state.

      Some feel more comfortable with the certainty that comes from losing power and letting republicans stab them in the front. It's a failure of nerve.

      by Inland on Fri Oct 08, 2010 at 07:14:50 AM PDT

      [ Parent ]

  •  I can see, and even agree with the reasoning of (3+ / 0-)
    Recommended by:
    buddabelly, FishOutofWater, output

    Wickard, given that his self help plan, however minisculely, effects the wheat market.
    Gonzales, otoh, stands on shakier reasoning since, by the Feds own actions, there is no legal medical marijuana market.
    Stretching the Commerce clause to illegal markets is surely a marvel of legal wizardry.

    Pancho needs your prayers it's true, but save a few for Lefty, too. Townes van Zandt

    by DaNang65 on Fri Oct 08, 2010 at 07:05:14 AM PDT

  •  They can tax the type of your blood if they want (1+ / 0-)
    Recommended by:
    burrow owl

    The insurance mandate is a tax everyone must pay, but you get exempted if you own medical insurance.  It's constitutional because the right to tax is.

    Change happens because of you...Barack Obama

    by Adept2u on Fri Oct 08, 2010 at 07:09:55 AM PDT

    •  Not all taxes are constitutional. (3+ / 0-)

      If the mandate charge is a direct tax - and I think it may be - rather than income tax or an excise tax, then it would be an unconstitutional tax.

      •  Lols (0+ / 0-)

        Dude the constitution itself says the power to tax is with the congress and where do you see it limited.  The power for them to do so is mind  blowing.  What do you mean direct tax.  The can direct tax your very  blood cells if they want.

        Change happens because of you...Barack Obama

        by Adept2u on Fri Oct 08, 2010 at 07:53:11 AM PDT

        [ Parent ]

        •  Specifically forbidden in the Constitution. (0+ / 0-)

          Article 1, Section 9:

          No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.

          A direct tax would still be legal is proportioned to the state population via the census, but that wouldn't work for the insurance mandate.

          •  That section was modified (1+ / 0-)
            Recommended by:
            shrike

            by the Sixteenth Amendment.

            I don't mean to be rude, but generally far rightists cite that section without mentioning the existence of the Sixteenth Amendment specifically enacted to allow direct taxation.

            •  That's not relevant. (0+ / 0-)

              The 16th only extends to income, and there's no way the mandate could be construed as an income tax.

              If they'd made it a flat percentage of your income, it might have flown, but they decided to make it a flat surcharge at the bottom end of the spectrum.

  •  The counterargument, of course, is that those (2+ / 0-)
    Recommended by:
    FishOutofWater, output

    cases are about people who have entered into activity that affects interstate commerce.  By contrast, the mandate case is about people deciding not to enter activity that affects interstate commerce.

    It could be, of course, that the decision to create a "negative commerce clause" jurisprudence is the correct thing to do, but make no mistake that this case will result in an expansion of the scope of the commerce clause above and beyond prior decisions.

  •  Simpler:It's a tax deduction for buying insurance (2+ / 0-)
    Recommended by:
    shrike, 57andFemale

    I don't think you even have to go into the commerce clause stuff.  A lot of lawyers are scratching their heads that anyone can even propose it's not constitutional.

    The language of "mandate" to buy is unfortunately misleading, because frankly it's not forcing anyone to buy insurance.  

    It's simply saying that if you buy insurance you get one tax treatment and if you don't buy insurance you get a different tax treatment.  Call it a penalty or call it not getting a benefit; same thing.

    The tens of thousands of pages of the Internal Revenue Code and regulations are filled with this stuff and the mandate to buy insurance is no different.

    It's like saying there's a mandate to purchase real estate because there's a tax deduction for interest on mortgages and local property taxes.

    The legislation could have been better sold as a deduction/credit for purchasers, but that would have required saying it was a tax increase for everyone who didn't.

    So they said it wasn't a tax increase but a mandate.

    As for the so called constitutional issues: Yawn.

    •  It's an unconstitutional direct tax (2+ / 0-)
      Recommended by:
      Jagger, MGross
      A direct tax is a flat levy on individuals regardless of income.

      That's what the mandate is: a direct tax with a credit for insurance premiums paid.

      There's no doubt the court will ok the mandate, and the question is just what disingenuous method it uses.  The tax argument may be the weakest of the lot.

      •  Wow. You are 100% wrong! (0+ / 0-)

        Or more accurately, to paraphrase the physicist Wolfgang Pauli, you're so off base you're "not even wrong."

        First of all, direct taxes may have been unconstitutional at one point, but the Sixteenth Amendment made direct taxes constitutional.  Only the lunatic fringe who think that a constitutional amendment imposing a tax is itself unconstitutional make the argument you're making.  

        So all the mandate is, is a modification of the rates of the income tax.  This happens all the time based on our divergent behavior and ability or inability to enjoy tax benefits, deductions and credits.  

        There is no constitutional requirement that the rates set by congress on income taxes not be flat or be progressive, or be flat or not progressive.  Haven't you been paying attention to all the politics of raising and lowering taxes for the last 60 or so years?

      •  Sorry for the uncalled for snark! (0+ / 0-)

        I didn't even see your screen name.  I usually like and respect your comments and point of view.

        This makes me introspect and realize I have to stop the rhetorical excess I brought from another board where snark was the predominant mode.  The fact that I snarked you makes me realize that I've snarked people who are probably equally interesting commentators.

        My main point though is that there are very few adjustments in rates, deductions, credits, etc., that are unconstitutional.

  •  Answers to questions in (0+ / 0-)

    Diary by somethingthedogsaid.

  •  It's sad...this personal mandate thing, but (1+ / 0-)
    Recommended by:
    Jagger

    the democrats guaranteed it would happen, by starting negotiations so far to the right and then walking even further in that direction. If they had started with single payer on the table and fought, they might have gotten half (or more) of what their constituents wanted and continue to need. Without punishing people for not buying worthless health insurance from probably the most predatory industry in America, maybe on the planet. But be of good cheer...part of your mandatory premiums will be going to the coffers of democratic as well as republican lawmakers.

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