Would a broccoli mandate be unconstitutional?

[deepatrax]

Whoa boy. A tax levvied by a state affecting interstate Commerce will be overturned because of the negative implications of the Commerce Clause. That's why I mentioned the states. This caused you some consternation, you'll recall.

Congress apportioning a tax is a different matter.

You're just so very, very far off.

Strange...did the Moderators remove part of this discussion?

I thought I'd already replied to this.

 

[Beth]

A meme running rampant in anti Obamacare circles is that if government is allowed to force you to purchase health insurance, they would be allowed to force you to purchase broccoli. In some versions of the discussion, they would be allowed to force you to eat broccoli.

So, what's your point?

It is stated as if it were just a given that such a law is obviously unconstitutional.

I don't tend to hear many such arguments. I generally avoid listening to people who would spout them. But my reaction is that such a law is obviously a bad idea for a number of reasons. I would like to think it is unconstitutional, but what our legal system defines as unconstitutional and what I think ought be unconstitutional are often not in sync.

Personally, I think the mandate to buy health insurance ought be unconstitutional. It was definitely a bad idea if there is no public option. I was very disappointed that Obama caved on that point. Given the 'bipartisanship' and willingness to compromise that the Republicans displayed, I now think he should have simply gone for a full-fledged single-payer system.

So, broccoli haters, come forward! Defend your natural right to be free from broccoli! Let's hear it, folks.

Personally, I like broccoli. But I don't think it's reasonable for the government to force individuals to purchase anything. Whether or not it's constitutional I don't know? We've already seen four judges split even on whether or not it is. I don't think any of us will know until the Supreme Court informs us of their decision.

It seems like the only argument is that a "mandate to purchase" is beyond the powers of Congress.

For the life of me I don't see why. As TW noted, a specific mandate to purchase broccoli might be viewed somewhat differently than a specific mandate to purchase health insurance, but the idea that any "mandate to purchase" is inherently unconstitutional strikes me as somewhat bizarre.

We have plenty of "mandates to purchase" things such as car insurance, but they are all dependent on some voluntary action on the part of the citizens they apply to. You don't have to own a car, thereby negating the requirement for car insurance. I have to purchase homeowners insurance, but it is one of the conditions of my home loan. If I didn't want the loan, I could do without such insurance.

The authority for the minimum essential coverage mandate arises from the Commerce Clause to regulate economic activity that has a significant effect on interstate commerce coupled with the idea that everyone participates in the economic activity in question (the healthcare industry).

While this is true, I don't follow why it would be covered under interstate commerce. Health care is generally purchased without crossing state lines.

Minimum essential coverage is meant to be a basic standard that applies to care that every has a risk of requiring. This is very different from the observation that everyone has a risk of requiring expensive healthcare they couldn't afford if they didn't have at least minimum essential coverage.

There are some very good reasons for requiring that everyone pay into the system of health care insurance funds. But I think a tax-payer funded single-payer system would be a better choice than a mandate for individuals to purchase insurance.

Assume for hypothetical purposes that they could be enforced...

Which would result in lower Health Care costs for Americans?

1) Requiring the purchase of health insurance

2) Requiring the eating of a well-balanced diet in keeping with RDA guidelines, mandating that all able-bodied people participate in weekly exercise, and limiting sedentary activities including Television and the Internet

Are both within the enumerated powers given to Congress in the Constitution?

I think that 2 would probably result in lower health care costs over the long term but at a price in individual freedom that Americans would be unwilling to pay.

I don't think that requiring everyone to purchase health insurance will result in lower costs at all. It maintains the current costly system rather than eliminating the inefficiencies inherent to the adversarial system we currently have.

As to whether one or both are constitutional? That I won't know until the supreme court tells us their ruling.

I find unfunded federal mandates some of the WORST law, and WORST government, on record.

I'm no lawyer, but I wanted to say that I agree with this.

 

[TraneWreck]

Strange...did the Moderators remove part of this discussion?

I thought I'd already replied to this.

Well, you tried to respond, then you said this:

My friend, I think you're confusing the Commerce Clause with the Tax and Spending Clause (General Welfare Clause)...they're 2 different things.

The only taxes mention were hypothetical examples levied by a state. The Constitutional Tax clause would obviously have nothing to do with this. I am not confusing anything, you are.

In fact, calling your statement "confused" is giving it too much credit. You just have no idea what you're talking about.

Now you will respond by saying something like, "Dude, I was talking about Congress, why are you talking about the states."

And I will once again say, "Because the sort of tax I described would be unconstitutional because of the negative implication of hte Commerce Clause."

And you will say, "I already answered that..."

And around and around we go.

What is your point. Describe how you think the COmmerce Clause works and cite some legal precedent that would indicate the individual mandate in the health care bill was unconstitutional.

 

[Cylinder]

Let's say a state has a sea port where ships collect goods to export to other nations. Can that state pass a law that says, "Harbor security officials are only required to secure and guard goods from this state."?

That's "not doing something."

But in your posit, the government is not mandating a transaction that would then be subject to interstate commerce regulation. Could the government compel the same shipping company to export goods in the first place?

I can rationalize the aspect of legitimacy of the government's argument (i.e. health care costs recieve federal subsidy) but I do not agree that a federal mandate is the least restrictive option.

 

[Meadmaker]

Here's where I think the "non commerce cannot be regulated" argument falls down.

I purchase broccoli. I don't purchase a lot of it, but I do purchase broccoli. I had some today in some Chinese food. I am engaging in commerce when I purchase broccoli. Furthermore, when I purchase that broccoli, very little of it comes from Michigan. It's interstate commerce. So, obviously, Congress does have the power to regulate my broccoli purchases under the commerce clause. No arguments so far, right?

Congress also has the power to make regulations that affect my purchase of broccoli, even if the thing they are regulating is not actually commerce. That's the essence of the Wickard decision. Congress can pass laws that substantially affect interstate commerce, including commerce in broccoli, even if the specifically regulated activity is not, in and of itself, commerce. I'll bet a lot of legal scholars didn't like the Wickard decision, but it is Supreme Court precedent.

So, what if Congress decided that making you buy broccoli was a good idea, and that somehow whatever benefit it would have would be because it affected the way I purchase broccoli, and that somehow my purchasing of broccoli was the government's business under the general welfare clause. I really don't know how convincing such an argument could be, but that isn't really important for the moment. The point is that Congress has taken an interest in my broccoli purchases, and they have decided that the best way to influence my purchase of broccoli would be to force you to purchase broccoli.

If that were to happen, then it would be clear that the "non-commerce can't be regulated" argument falls apart. They aren't regulating non-commerce. They are regulating the commerce that I am engaging in when I purchase broccoli. The specific regulatory action they take is to force you to purchase broccoli. Therefore, the commerce clause is applicable. Congress has taken steps to regulate my interstate broccoli transactions by ensuring that everyone participates in the broccoli market. That's what they are supposed to do under the commerce clause.

It's important to understand, though, that just because the commerce clause applies, that isn't sufficient to declare that the law be declared an acceptable exercise of congressional power. It is within their domain of things which can be regulated, but not every conceivable law that is in that domain would pass constitutional muster. Sure, it's interstate commerce, but is it something that is an appropriate exercise of judicial power. One could argue that any penalty for non-purchase of broccoli would be an unlawful deprivation of property under the theory of substantive due process. A court might be asked to rule that the broccoli mandate served no public interest.

In other words, it might be considered unconstitutional because it's none of the government's business to mandate broccoli purchase, but it doesn't make sense to say that any mandate that affects current commerce is actually not regulation of commerce.

 

[TraneWreck]

But in your posit, the government is not mandating a transaction that would then be subject to interstate commerce regulation. Could the government compel the same shipping company to export goods in the first place?

THe hypothetical wasn't meant to deal with that issue, so it's obviously a poor fit. It was specifically made to show that "inaction" can be relevant to Commerce Clause issues.

On the other hand, the government can mandate that said state protect the goods from other states.

If the hypothetical is adjusted slightly: "State A requires out of state shippers to pay a $100 fee to protect their goods in said harbor." The government could mandate that the state charge the same fee for in state shippers through the negative implications of the commerce clause--a state cannot bias against out of state commerce.

I can rationalize the aspect of legitimacy of the government's argument (i.e. health care costs recieve federal subsidy) but I do not agree that a federal mandate is the least restrictive option.

That I agree with. Although, it's the least restrictive plausible means given political reality, which is a shame in itself.

 

[JoeTheJuggler]

While this is true, I don't follow why it would be covered under interstate commerce. Health care is generally purchased without crossing state lines.

Healthcare providers are often corporations that do interstate business. Health insurance companies too. However, the easiest argument is to recognize that just under 50% of all healthcare expenditures comes from federal tax dollars (mostly Medicare) the most purely interstate kind of commerce!

Even the judges who ruled the mandate unconstitutional didn't dispute that the U.S. healthcare system has a significant effect on interstate commerce.

BTW, that is the test. Congress can regulate any economic activity that has a significant effect on interstate commerce. The economic activity itself doesn't have to be interstate commerce.

In Wickard v. Filburn the activity was a wheat farmer who wanted to grow some wheat for his own consumption. It turns out, in aggregate farmers growing wheat for their own consumption had a very significant effect on the price and market of wheat and interfered with Congress' regulatory authority--legislation that was meant to stabilize prices.

 

[JoeTheJuggler]

Here's where I think the "non commerce cannot be regulated" argument falls down.

I purchase broccoli. I don't purchase a lot of it, but I do purchase broccoli. I had some today in some Chinese food. I am engaging in commerce when I purchase broccoli. Furthermore, when I purchase that broccoli, very little of it comes from Michigan. It's interstate commerce. So, obviously, Congress does have the power to regulate my broccoli purchases under the commerce clause. No arguments so far, right?

Congress also has the power to make regulations that affect my purchase of broccoli, even if the thing they are regulating is not actually commerce. That's the essence of the Wickard decision. Congress can pass laws that substantially affect interstate commerce, including commerce in broccoli, even if the specifically regulated activity is not, in and of itself, commerce. I'll bet a lot of legal scholars didn't like the Wickard decision, but it is Supreme Court precedent.

So, what if Congress decided that making you buy broccoli was a good idea, and that somehow whatever benefit it would have would be because it affected the way I purchase broccoli, and that somehow my purchasing of broccoli was the government's business under the general welfare clause. I really don't know how convincing such an argument could be, but that isn't really important for the moment. The point is that Congress has taken an interest in my broccoli purchases, and they have decided that the best way to influence my purchase of broccoli would be to force you to purchase broccoli.

If that were to happen, then it would be clear that the "non-commerce can't be regulated" argument falls apart. They aren't regulating non-commerce. They are regulating the commerce that I am engaging in when I purchase broccoli. The specific regulatory action they take is to force you to purchase broccoli. Therefore, the commerce clause is applicable. Congress has taken steps to regulate my interstate broccoli transactions by ensuring that everyone participates in the broccoli market. That's what they are supposed to do under the commerce clause.

It's important to understand, though, that just because the commerce clause applies, that isn't sufficient to declare that the law be declared an acceptable exercise of congressional power. It is within their domain of things which can be regulated, but not every conceivable law that is in that domain would pass constitutional muster. Sure, it's interstate commerce, but is it something that is an appropriate exercise of judicial power. One could argue that any penalty for non-purchase of broccoli would be an unlawful deprivation of property under the theory of substantive due process. A court might be asked to rule that the broccoli mandate served no public interest.

In other words, it might be considered unconstitutional because it's none of the government's business to mandate broccoli purchase, but it doesn't make sense to say that any mandate that affects current commerce is actually not regulation of commerce.

I'm not sure why you would go through such lengths with such a tenuous argument (as you say it would be difficult or impossible to make a convincing argument on several points here) when there are closer analogous examples of legislation already in place.

There are already federal insurance mandates (flood insurance) which are associated to economic activity (owning improved land in certain areas) that has a significant effect on interstate commerce (relying on FEMA, federal flood control investments, etc.)

That being uninsured is actually economic activity is easy to see if you look at it in the aggregate. The uninsured cost the public/private U.S. healthcare system some $47 billion per year. Every person who lacks minimum essential coverage (and who is subject to the individual mandate) has a risk of requiring care they can't afford to pay for. That we don't know which individuals will actually require care they can't afford to pay for really is beside the point, the group as a whole present a present cost to the system that has to account for these uncompensated services. (And they do. Hospitals and other providers have to make this part of their standard operating budget. It's a significant portion of what they do.)

The two main differences between the individual healthcare mandate and the flood insurance mandate are: 1) the flood insurance mandate is technically an insurance mandate whereas the individual mandate is a minimum essential coverage mandate since there are many ways to satisfy it without buying insurance, and 2) you can opt out of the economic activity the triggers the flood insurance mandate (by not owning improved land in those areas), but you cannot actually opt out of participation in the public/private healthcare system.

Again, point number 2 is easy to see if you look at the cost of the uninsured in aggregate to the system. It's a known, predictable and significant cost caused by everyone that has the risk of requiring care they can't afford to pay for and that has to be accounted for.

 

[JoeTheJuggler]

There are some very good reasons for requiring that everyone pay into the system of health care insurance funds. But I think a tax-payer funded single-payer system would be a better choice than a mandate for individuals to purchase insurance.

I agree wholeheartedly, and I am in favor of a single payer system over the reforms we got. (NB: the individual mandate doesn't rule out a single payer system or a public insurance option. Again, it only requires minimum essential coverage and doesn't mandate where or how you get it.)

However, just because there are better solutions (which may or may not be politically viable) doesn't mean this one is unconstitutional.

 

[Snide]

I have a law degree, but I'm not going to make a complex legal argument. I'll keep it simple on purpose. Let's pretend I'm in my first week of an undergrad business law class. So I say this:

1) The Court has a history of being pretty loose as to what it means to "regulate commerce among the several states"
2) Forcing people to purchase something that has ties across the nation sure seems to count as "regulating" it

My prediction regarding the health care law is that the SCOTUS will eventually find it unconstitutional by a 5-4 vote. It will be interesting to see exactly how they explain that among all the other things that counted in the past, this doesn't.

 

[TraneWreck]

My prediction regarding the health care law is that the SCOTUS will eventually find it unconstitutional by a 5-4 vote. It will be interesting to see exactly how they explain that among all the other things that counted in the past, this doesn't.

It is an interesting aspect of our democracy that health care coverage for 30-40 million Americans rest on the decision of one person: Justice Kennedy.

I'm betting on a sort of compromise rulin: the mandate is unconstitutional but severable.

 

[Meadmaker]

I have a law degree, but I'm not going to make a complex legal argument. I'll keep it simple on purpose. Let's pretend I'm in my first week of an undergrad business law class. So I say this:

1) The Court has a history of being pretty loose as to what it means to "regulate commerce among the several states"
2) Forcing people to purchase something that has ties across the nation sure seems to count as "regulating" it

My prediction regarding the health care law is that the SCOTUS will eventually find it unconstitutional by a 5-4 vote. It will be interesting to see exactly how they explain that among all the other things that counted in the past, this doesn't.

That seems like just the thing. If it affects interstate commerce, then in the past they have said said it's within their power.

Also, given a reasonable interpretation of the enumerated powers, you could probably balance the budget just by not doing all the stuff that isn't in the enumerated powers. Those hoping for a Supreme Court overturn of the broccoli mandate, or any other mandate, are asking for a real reversal in the court's direction.

 

[quixotecoyote]

It is an interesting aspect of our democracy that health care coverage for 30-40 million Americans rest on the decision of one person: Justice Kennedy.

And if they do rule along partisan lines as they tend to, we can expect interesting litigation in the following years as the commerce cause gets to be reinterpreted. Unless of course they do another Bush v Gore.

 

[Dorian Gray]

A meme running rampant in anti Obamacare circles is that if government is allowed to force you to purchase health insurance, they would be allowed to force you to purchase broccoli. In some versions of the discussion, they would be allowed to force you to eat broccoli.

So, what's your point?

It is stated as if it were just a given that such a law is obviously unconstitutional. I don't see why. Well, if the truth be told, I think I can see why it might be considered unconstitutional, but I would like to hear it from anyone who has put forward or agreed with such an "argument" for the unconstitutionality of the insurance mandate. I put the word "argument" in quotes, because I have never seen anything other than bare assertion. I haven't seen any real argument at all. It's just, "They can't make us buy health care because if they could do that then they could make us buy broccoli!"

It's not at all obvious to me that Congress cannot make you buy broccoli, and even if it were the case that they could not, I question whether anyone making such a claim can put forward a coherent argument to support that claim.

So, broccoli haters, come forward! Defend your natural right to be free from broccoli! Let's hear it, folks.

Bonus points to anyone who, while putting forward an argument against the broccoli mandate, can show why the health insurance mandate suffers from the same constitutional flaw.

States can make you purchase auto insurance. How is this different or shocking? Especially since most of the protesters already have insurance, so the law affects them not at all.

 

[Bob Blaylock]

States can make you purchase auto insurance. How is this different or shocking?

Asked and answered many times already.

• That's states imposing this requirement, not the federal government. See the Tenth Amendment.
• States only impose this requirement as a condition of exercising the privelege of owning a motor vehicle, and operating it on public roads. You can choose not to do so, in which case, this requirement doesn't apply to you.

 

[Meadmaker]

Asked and answered many times already.

• That's states imposing this requirement, not the federal government. See the Tenth Amendment.
• States only impose this requirement as a condition of exercising the privelege of owning a motor vehicle, and operating it on public roads. You can choose not to do so, in which case, this requirement doesn't apply to you.

So, I understand the states vs. feds argument, although I think it's a bit outdated. Most commerce is now interstate commerce, so there's really no commerce that's off limits to the federal government. That's why people have gone with the "it's not really commerce" or occasionally, "It's not really regulating" arguments.

However, that second one baffles me. You read it all the time in these arguments. The underlying principle seems to be that mandates are only acceptable if they can be avoided. I missed that part of the constitution. It would appear that they can make you buy broccoli as a condition of grocery shopping, but they cannot create an unavoidable broccoli mandate?

 

[Kopji]

Seems like the idea is more like this:

If we did not eat broccoli while we are healthy we would eventually need to make up for our lack of broccoli later, when we'd need a lot more of it. Because of that, the goverment is telling us to eat our broccoli while it is cheaper.

Humm, but that doesn't really work does it? We actually need to grow the broccoli now, while we are healthy, because later we would be too sick to do it. With everyone growing broccoli there would be enough.

But dammit, nobody is going to tell US what to grow!

 

[JoeTheJuggler]

Asked and answered many times already.

• That's states imposing this requirement, not the federal government. See the Tenth Amendment.
• States only impose this requirement as a condition of exercising the privelege of owning a motor vehicle, and operating it on public roads. You can choose not to do so, in which case, this requirement doesn't apply to you.

There are existing federal insurance mandate laws. As with the individual mandate, Congress' authority to pass such a law falls under the current interpretation of the Commerce Clause authority. The standard that is at play here is Congress' authority to regulate any economic activity that has a significant effect on interstate commerce.

The only real issue, I believe, is this idea that lacking minimum essential coverage is "inactivity". Vinson says that the uninsured don't cost the system anything, but of course, that's not true. They cost the system some tens of billions of dollars every year. The law already allows us to answer the question of whether or not this is economic activity that has a significant effect on interstate commerce in the aggregate.

 

[JoeTheJuggler]

For the record, the most current interpretation of the Commerce Clause was summarized in U.S. v. Lopez. Rehnquist spelled out the 3 categories of activities that Congress may regulate:

1. the channels of interstate commerce
2. the instrumentalities of interstate commerce
3. any activity that has a significant effect on interstate commerce.

Number 3 is the one in question. It gives Congress an extremely broad authority, but not a limitless one. In fact, Lopez was decided against the government (it was about Congress' ability to ban guns in public schools--the connection to interstate commerce was purely constructive and consisted of piling conjecture on top of inference).

So the question wrt to the individual mandate is whether or not lacking minimum essential coverage is activity that has a significant effect on interstate commerce. Since that activity costs the public/private U.S. healthcare system tens of billions of dollars every year, and that everyone lacking minimum essential coverage has a risk of requiring treatment that hospitals and other providers are legally required to provide and which they cannot afford to pay, they are a present cost to the system which must account for the roughly $50 billion in uncompensated care they will provide in the coming year. This is done through passing those costs on to everyone else (higher prices and therefore higher insurance premiums). To most legal scholars, it's a no brainer.

Congress does have this authority, and it doesn't require any new law to reach this conclusion.

So any hypotheticals would be answered the same way before and after a decision that deems the individual mandate to be constitutional. That is, deciding in favor of the government will set no new precedent, so nothing would change wrt these hypotheticals.

If one is arguing that the test should be changed to further restrict Congress' authority (compared to the current interpretation of the Commerce Clause), that's another matter. Even so, all one has to do is to distinguish these hypotheticals from the individual mandate.

I would say the simplest way of distinguishing the broccoli mandate is to show that the individual mandate is a one-size fits all minimum standard, but broccoli eating is not. If the analogy is to the fact that everyone participates in healthcare, and everyone eats, I would simply point out that while everyone eats, not everyone eats broccoli.

Further, you'd have to establish that eating broccoli has the connection to interstate commerce you're arguing about. If it's a health argument, I think you'd have a difficult if not impossible time of it. You'd even have to show why eating cauliflower isn't just as good.

If it's about price supports for the broccoli market, then the answer is also clear: Congress does have this authority. It would probably be a bad law (and again "bad law" does not equate with "unconstitutional law") since subsidies are a more efficient way of achieving the same end.

 

[JoeTheJuggler]

Sorry to pile on like this, but I think these are pretty important points:

Even though it's a broad power, it's not as broad as some would think. In the Wickard v. Filburn case, it wasn't enough to say that if enough farmers grew wheat for their own consumption it might have an effect on interstate commerce. The court would not have decided as it did if it weren't for the fact that farmers growing their own wheat was one of the largest (if not the largest) factor leading to price destabilization.

You can't rely on a tenuous connection, but Vinson thinks the connection between the uninsured and the healthcare system is a tenuous connection (relying on inference stacked on inference) but he's simply wrong. There's plenty of evidence that the uninsured do in fact cost the system tens of billions of dollars every year and definitely have a significant effect on interstate commerce.

The only way the this-is-inactivity argument would work would be if there were a way for all the uninsured to opt out of the system, but there isn't. In fact, realistically, there isn't a way for any one of them to truly opt out of the system since anyone of them could be in an accident requiring expensive emergency treatment where they come in unconscious and therefore have given implied consent to the treatment which is mandated by the hospitals to provide regardless of his ability to pay. However, all we have to prove is that we know for sure that in aggregate the uninsured will in fact cost the system tens of billions of dollars (which must be accounted for in advance).