Would a broccoli mandate be unconstitutional?

[Meadmaker]

Vinson says that the uninsured don't cost the system anything, ...

He said that? That deserves a .

 

[dc1971]

Or maybe we'll just be forced to SING about broccoli...

 

[Meadmaker]

Just so we don't lose the specific focus of this thread I want to bring it back to the main point which, to my mind, hasn't been addressed.

Let us suppose, for the sake of argument, that everyone agreed broccoli purchase was a very important part of our lives. Everyone recognized that when putting together family and corporate budgets, ensuring broccoli availability was a very high priority, but one that many families were having difficulty achieving.

In that case, I think everyone would agree that the heart of the matter was that broccoli consumption was a very significant aspect of interstate commerce and surely something that Congress could regulate. However, the argument goes that while Congress has the power to regulate commerce in broccoli, that regulation cannot take the form of mandating the purchase of broccoli.

What is it about an individual mandate that makes that specific form of regulation taboo?

 

[Cylinder]

Vinson says that the uninsured don't cost the system anything, but of course, that's not true.

Florida v. HHS, 48-51

Second, and perhaps more significantly, under Lopez the causal link between what is being regulated and its effect on interstate commerce cannot be attenuated and require a court “to pile inference upon inference,” which is, in my view, exactly what would be required to uphold the individual mandate. For example, in contrast to individuals who grow and consume marijuana or wheat (even in extremely small amounts), the mere status of being without health insurance, in and of itself, has absolutely no impact whatsoever on interstate commerce (not “slight,” “trivial,” or “indirect,” but no impact whatsoever) --- at least not any more so than the status of being without any particular good or service. If impact on interstate commerce were to be expressed and calculated mathematically, the status of being uninsured would necessarily be represented by zero. Of course, any other figure multiplied by zero is also zero. Consequently, the impact must be zero, and of no effect on interstate commerce. The uninsured can only be said to have a substantial effect on interstate commerce in the manner as described by the defendants: (i) if they get sick or injured; (ii) if they are still uninsured at that specific point in time; (iii) if they seek medical care for that sickness or injury; (iv) if they are unable to pay for the medical care received; and (v) if they are unable or unwilling to make payment arrangements directly with the health care provider, or with assistance of family, friends, and charitable groups, and the costs are thereafter shifted to others. In my view, this is the sort of piling “inference upon inference” rejected in Lopez and subsequently described in Morrison as “unworkable if we are to maintain the Constitution’s enumeration of powers.”

Being uninsured and remaining uninsured up to a point in time where one is sick or injured and opting for treatment et cetera costs the system in subsidies. The mere fact that one does not opt for health insurance does not cost the system anything absent these other features. Judge Vinson continues:

I do not mean to suggest that these inferences are illogical or unreasonable to draw. As did the majority in Lopez and Morrison, I do not dispute or question their underlying existence. Indeed, while $43 billion in uncompensated care from 2008 was only 2% of national health care expenditures for that year, it is clearly a large amount of money; and it demonstrates that a number of the uninsured are taking the five sequential steps. And when they do, Congress plainly has the power to regulate them at that time (or even at the time that they initially seek medical care), a fact with which the plaintiffs agree. But, to cast the net wide enough to reach everyone in the present, with the expectation that they will (or could) take those steps in the future, goes beyond the existing “outer limits” of the Commerce Clause and would, I believe, require inferential leaps of the sort rejected in Lopez.

Footnotes and citations removed for clarity.

 

[Cylinder]

What is it about an individual mandate that makes that specific form of regulation taboo?

Does the Commerce Clause allow Congress to mandate that you purchase a Premiun Membership to billoreilly.com?

 

[Beth]

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

Thanks for the legal lectures. I appreciate your sharing your knowledge on the matter.

What is it about an individual mandate that makes that specific form of regulation taboo?

While I instinctively feel that such a mandate ought be taboo, I don't know what our laws say about it. I would also appreciate an answer to this question from our legal experts.

 

[JoeTheJuggler]

The mere fact that one does not opt for health insurance does not cost the system anything absent these other features.

That's what Vinson says, but it's not true.

The mere fact that there are tens of millions of people lacking minimum essential coverage is a current cost to the system. Even if an individual never requires mandated care that he can't afford to pay, in aggregate, this is a cost to the system which has to be accounted for. The non-zero risk that anyone lacking minimum essential coverage has of requiring care he can't afford is a cost to the system.

The "mere fact of being uninsured" argument would only work if those people could somehow opt out of healthcare altogether. Since there is a federal law requiring car to be given regardless of the person's ability to pay (as well as the legal notion of implied consent to treatment given by unconscious people at, for example, the scene of a traffic accident) means that there is no such thing, really, as the "mere fact that one does not opt for health insurance" without "these other features".

It's an arbitrary and irrational splitting off. I could as logically just count the benefit and not the cost of any economic activity and claim that the mere fact that I don't wish to pay the cost means there is no cost.

This is not piling inference upon inference as was the argument that construed the possession of a gun as having a significant effect on interstate commerce. This is much closer to the facts of the case of Wickard than to the facts of the case in Lopez.

Again, it's a real cost that is part of the budget of every hospital in the U.S. The only way you can claim it's not is by giving a bogus and over-narrow definition of what the activity of the uninsured is in the U.S.

 

[JoeTheJuggler]

Just so we don't lose the specific focus of this thread I want to bring it back to the main point which, to my mind, hasn't been addressed.

Let us suppose, for the sake of argument, that everyone agreed broccoli purchase was a very important part of our lives. Everyone recognized that when putting together family and corporate budgets, ensuring broccoli availability was a very high priority, but one that many families were having difficulty achieving.

In that case, I think everyone would agree that the heart of the matter was that broccoli consumption was a very significant aspect of interstate commerce and surely something that Congress could regulate. However, the argument goes that while Congress has the power to regulate commerce in broccoli, that regulation cannot take the form of mandating the purchase of broccoli.

What is it about an individual mandate that makes that specific form of regulation taboo?

Again, I don't think it's at all necessary or even a good idea to use such tenuous hypotheticals to answer the question.

The problem is that some people define being uninsured by only looking at the inactivity part and they ignore the economic activity that reliably and predictably has a significant effect on interstate commerce. That is, they claim it isn't the regulation of economic activity, but is rather Congress requiring economic activity where there was none.

It is very much analogous to the case of farmers growing wheat for their own private consumption. Taken in aggregate this is economic activity that had a significant effect on the price stability of wheat. One could easily claim that the "mere fact" of growing wheat and not selling it is not economic activity, and any one farmer doing so would have no effect on interstate commerce. But that would be ignoring the fact that many farmers were doing this, and in the aggregate that "inactivity" (essentially not buying wheat on the open market) actually was a significant factor in destabilizing wheat prices.

ETA: Also, FWIW, there is no such taboo. The people arguing that position are going against legal and social convention in an effort, I think, to support some ideological objection to a strong central government.

 

[Meadmaker]

Again, I don't think it's at all necessary or even a good idea to use such tenuous hypotheticals to answer the question.

Neither do I, but such tenuous hypotheticals are, in fact, the thread topic. A lot of people have been saying that if they can mandate health insurance, they can mandate broccoli.

I'm asking why it is that they think Congress can't mandate broccoli. As a secondary question, I'm asking if the same argument that applies to broccoli applies to health insurance.

 

[Meadmaker]

Does the Commerce Clause allow Congress to mandate that you purchase a Premiun Membership to billoreilly.com?

Memberships to billoreilly.com are interstate commerce, so Congress can regulate the purchase of those memberships. It is within the scope of those things which Congress can consider.

An actual law that specifically required a premium membership to billoreilly.com would probably run afoul of other constitutional prohibitions, but the fact that there was a mandate would not be the stumbling block.

 

[KingMerv00]

actually it's not.

"The Congress shall have Power To regulate Commerce"

Commerce = transactions (sales and purchases) having the objective of supplying commodities.

Thank goodness you are here to clear up decades of confusion. If it were simple, the issue would have been solved a long time ago.

 

[JoeTheJuggler]

A lot of people have been saying that if they can mandate health insurance, they can mandate broccoli.

And they're presupposes 2 false things: 1) that it's not possible to distinguish the actual law from this hypothetical law as it pertains to the authority of Congress under the Commerce Clause, and 2) that for the individual mandate to pass a constitutional challenge it would require a change in the current interpretation of the Commerce Clause (and thus establish precedent that would open us up to other possible laws that aren't currently allowed).

 

[Cylinder]

That's what Vinson says, but it's not true.

The mere fact that there are tens of millions of people lacking minimum essential coverage is a current cost to the system. Even if an individual never requires mandated care that he can't afford to pay, in aggregate, this is a cost to the system which has to be accounted for. The non-zero risk that anyone lacking minimum essential coverage has of requiring care he can't afford is a cost to the system.

But our Constitution does not empower Congress to regulate all non-zero risk enterprises. It does empower Congress to regulate inerstate commerce but I don't see where it empowers Congresss to mandate it. You are asking to give Congress a blank check - the power to mandate something that then comes under its regulatory power. That is contrary both to the spirit and the letter of our system of laws.

The "mere fact of being uninsured" argument would only work if those people could somehow opt out of healthcare altogether. Since there is a federal law requiring car to be given regardless of the person's ability to pay (as well as the legal notion of implied consent to treatment given by unconscious people at, for example, the scene of a traffic accident) means that there is no such thing, really, as the "mere fact that one does not opt for health insurance" without "these other features".

That issue is not relevant, since Congress does have an existing power to raise taxes to offset these expenses. The individual mandate hands Congress vastly expanded powers at the expense of an existing, enumerated power.

What aspect of interstate commerce is affected by an uninsured citizen who (for the time they are uninsured and unable to pay) does not recieve medical care. If you think people cannot and do not opt out of medical treatment, then I sumbit that I have back pain about once a month that - even though I am insured and could probably afford the care through a payment arrangement - I have opted not to have treated (at this time) simply because I judge the time lost from work and the oppurtunities that could be lost pursuant to the lost time is not to my advantage.

It's not desirable on a social level but it is less desirable to vastly expand the power of Congress when an existing and enumerated power exists at their disposal to remedy the desired social change. Political expediency is not a Constitutional arguement.

It's an arbitrary and irrational splitting off. I could as logically just count the benefit and not the cost of any economic activity and claim that the mere fact that I don't wish to pay the cost means there is no cost.

Vinson clearly articulated that at the point cost is accured that it is well-established the Congress can act within the existing confines of the Commerce Clause. In addition, Congress could act within the structure of other enumerated powers (i.e. Article 1; Section 8: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;)

Think about it for a moment. Why did Congress opt for an unprecedented individual mandate over well-established tax-funded programs? Does that answer in any way justify a vast expansion of power handed to Congress?

This is not piling inference upon inference as was the argument that construed the possession of a gun as having a significant effect on interstate commerce. This is much closer to the facts of the case of Wickard than to the facts of the case in Lopez.

Let's examine:

Again, it's a real cost that is part of the budget of every hospital in the U.S.

For those who require [Inference 1] and recieve treatment [Inference 2] and are unable or unwilling to pay [Inference 3]. Of course the reality is that both of these situation exist in the real world but Congress is already empowered to deal with them when they arise. The real crux is that they are also currently empowered to plan ahead for these eventaulities through their power to lay taxes.

US Constitution; Article 1; Section 8 (revised):
"The Congress shall have the Power to Lay and Collect Taxes unless They Feel that the Voters won't Like it Too Much, in Which Case They have the Power to Make Stuff Up as it Suits Them."

Unelegant, but it get the job done.

 

[Cylinder]

Memberships to billoreilly.com are interstate commerce, so Congress can regulate the purchase of those memberships. It is within the scope of those things which Congress can consider.

An actual law that specifically required a premium membership to billoreilly.com would probably run afoul of other constitutional prohibitions, but the fact that there was a mandate would not be the stumbling block.

Yikes!

 

[JoeTheJuggler]

Thank goodness you are here to clear up decades of confusion. If it were simple, the issue would have been solved a long time ago.

Wow--I totally missed that one. If deepatrax's formula were right, Wickard v. Filburn would have been decided differently.

The case law clearly says that Congress has the authority to regulate any activity that has a significant effect on interstate commerce and not just "transactions".

Where did that transactions-only idea even come from?

 

[Beerina]

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.

Ironically, some find a mandate to purchase being constitutional to be somewhat bizarre.

And an aggrandizement of power. As such, the presumption should be the government, in lieu of explicit authorization, does not possess this power.


But nobody cares about (stream of words) and therefore government can do my pet idea that I like. Most people don't learn from history, and don't recognize the purpose of the deliberately slowly-changing process of amending the Constitution.

It's in their way. (Stream of words.) Now it isn't. No harm in that, historically. Nope. No problem with that.

 

[Meadmaker]

Yikes!

The thought process seems to be, "If they can make me buy X then they can make me buy Y", regardless of the values of X and Y.

I'm saying that the "make me buy" part is not inherently beyond the powers of Congress, and I would like to hear someone give some sort of argument why they can't do that, beyond bare assertion. If it is within the legitimate exercise of governmental power to be concerned with my purchase of broccoli, then the specific means, such as a purchase mandate, are not very important. If, on the other hand, it is none of the government's business whether or not I buy broccoli, then a broccoli mandate is unconstitutional. However, the "mandate" is not the unconstitutional part. It's the "broccoli" that makes it unconstitutional.

 

[KingMerv00]

Wow--I totally missed that one. If deepatrax's formula were right, Wickard v. Filburn would have been decided differently.

The case law clearly says that Congress has the authority to regulate any activity that has a significant effect on interstate commerce and not just "transactions".

I'd be more interested about the Civil Rights Act of 1964 and the War on Drugs. Both were justified using the Commerce Clause. How do conservatives feel about the latter? Are they comfy striking down part of Reagan's legacy?

Where did that transactions-only idea even come from?

Wishful thinking.

 

[JAStewart]

Broccoli is one of the very very few vegetables I'd be happy to eat.

 

[KingMerv00]

Broccoli is one of the very very few vegetables I'd be happy to eat.

Mandate me all you want. I'll just slather it in melted cheese.