Because I teach constitutional law and it's that time of year, I've recently been teaching old cases about the commerce clause. Because I live in the Boston area and it's that time of year, I've been shoveling snow from the sidewalk in front of my house. And because I've been doing both, I've figured out why some think the Affordable Care Act is unconstitutional. I've also decided why they're wrong.
What does shoveling snow have to do with the constitutionality of health care reform?
The most controversial piece of the health care reform is the individual mandate, the requirement that we all buy health insurance. This has been criticized as being destructive to individual liberty.
My town -- like many in New England -- has an ordinance that requires me to shovel when it snows. And we've had a lot of snow this year. So unless I hire an entrepreneurial teenager to do it, I have to drag myself out to shovel before someone slips and falls. It's annoying as hell and destructive to my individual liberty to sit inside where it's warm.
Notice that both the individual mandate and the snow removal ordinance would punish me for inaction. If I sit on my hands and do nothing, I will be fined.
In my view, the individual mandate is the same as the snow ordinance. Unless I can come up with a reason why I have a constitutional right not to shovel snow, I cannot resist the health care mandate either.
Here's why. When figuring out a constitutional question, one must look at questions of government power on the one hand and individual rights on the other. Too often these issues are conflated. Let's separate them.
As to power, governments cannot do whatever they want. The federal government is said to be a government of "enumerated powers," meaning that Congress has only those powers expressly listed in Article I of the Constitution. If Congress passes a law outside its authority -- a grant of a title of nobility, for example -- then courts will strike it down. Though states are generally assumed to retain a general power to regulate, often called the "police power," they, too, have limits to their authority. States cannot, for example, enter into treaties.
In the case of the snow removal law, the city doubtless has the power (delegated to it by the state) to adopt the ordinance. It's a run-of-the-mill regulation of public safety. With the health care law, the question of authority is also straightforward. A regulation of the $2 trillion health care industry clearly falls within the enumerated authority to "regulate commerce." Moreover, the individual mandate is a "necessary and proper" part of the framework, to quote another important constitutional provision. Even the Florida federal judge who struck down Obamacare recognized that the individual mandate was essential to its statutory design.
So the only way I have a right to refuse to buy insurance or shovel my walk is if I have some kind of fundamental individual right to refuse. And the "right" has to be more weighty than my tendency to be a curmudgeon.
Do I have a free speech right to refuse to buy health insurance or shovel my walk? Of course not. A right to privacy? Nope. A right based on freedom of religion? Not unless being a jerk to my neighbors or demanding free care in emergency rooms is a fundamental tenet of my faith.
Do I have a right to not engage in economic transactions? That, like a right to be free from shoveling duties, is nowhere to be found in the Constitution.
Like a failure to shovel, a failure to pay for my own health insurance is simply a way to shift risk onto my neighbors to avoid personal responsibility. The assertion that I have a constitutional right to impose those costs on others is ludicrous.
Finally, the inaction/action distinction makes no difference. If the government is acting within its authority and where I don't have a fundamental right to refuse, it can force me to act. I can be required to register for the draft, or even to serve in the military during time of war, pursuant to the federal authority to raise and maintain an army. I can also be forced to file tax returns or serve on a jury. The fact that I might be punished for inaction is neither here nor there.
The snow is finally melting, and the commerce clause section of my con law course is about to come to an end. If only the constitutional challenges to the ACA would fade as quickly.
Follow Kent Greenfield on Twitter: www.twitter.com/kentgreenfield1
On a personal level, the individual mandate is a great idea and works only if one also provides a public option, which in my opinion should have been included in ACA. You cannot mandate young, healthy individuals to give up gym membership to purchase health insurance - this is a disasterous policy!
He talks about a snow removal mandate---he knows that is a STATE issue.
By contrast, the new health care mandate is a FEDERAL issue. The power of the Federal government is supposed to be limited to specific areas.
Now, it COULD be that a STATE could require health insurance for all residents.....
But that is a DIFFERENT issue than a FEDERAL requirement for the same!
So the SNOW removal analogy is a snow job!
Of course making people cross the street might be a bad thing but your streets do have 2 sides. Pardon me but I will help my neighbor almost all the time but I will not take responsibility for them walking on icy or snow covered sidewalks.
I'm poor now and pay my medical bills - why should I pay for your medical care?
I'm going to be rich soon enough - why should I pay for your medical care? I'll gladly give to pay for the care of poor people - but why should I pay for a lawyers medical care?
"I can also be forced to file tax returns"
Practically yes, but legally no. Shouldn't you be familiar with the 5th Amendment? I ain't no big city lawyer, heck I ain't no lawyer at all, but I know that.
"A regulation of the $2 trillion health care industry clearly falls within the enumerated authority to "regulate commerce.""
No it doesn't. Commerce is "the exchange or buying and selling of commodities on a large scale involving transportation from place to place". Health insurance is not a commodity. Nor is it transported. Nor is it INTERstate. Further and most importantly, if there is no exchange or buying or selling then it most surely isn't commerce. Last but not least to "regulate" means "to make regular". It's not regular to have everyone enslaved from birth to health insurance corporations.
"If only the constitutional challenges to the ACA would fade as quickly."
Do you really expect it will be easy to enslave 300 million and sell them to the insurance companies?
No Kent, it is actually your getting health insurance which is simply a way to shift risk onto your neighbors to avoid personal responsibility for paying for your own health care. That's fine as it's voluntary. It's not fine if you want to force me to pay for your health care.
"The assertion that I have a constitutional right to impose those costs on others is ludicrous."
Others may have made that argument. If so, I haven't read them. I assert that you have no right to "free" medical care.
Others may have made that argument. If so, I haven't read them. I assert that you have no right to "free" medical care."
Patriot, I believe what he was referring to is the fact that if I don't have any health insurance but go to the emergency room and can't pay, the cost is shifted to you via the taxes you pay. As I understand it, he is saying that the Constitution does not give me a right to do this to you. Therefore, in the absence of said right, the mandate is still constitutional.
Currently, you and I are actually paying for people who don't have health insurance to receive medical attention when they can't pay. With the mandate, these people would actually have to pay for their own insurance or pay a fine. I don't see how the mandate forces you to pay for someone else's insurance.
It is yet to be seen if this will actually be the case, but theoretically, the mandate should reduce insurance costs for you and me because right now you and I are shouldering the burden for others.
That's how people were bamboozled into supporting the income tax. Now poor people such as myself pay twice the rate paid by the rich people originally subject to the income tax, and on all of my revenue instead part of it.
Automation leverage capital, ownership, towards infinity. Without more and more progressive taxation of the rich, the top 1% or less will own everything and we will be reduced to serfdom. With proper taxation the whole society benefits from automation, the countries I listed for instance, without it 99% people starve. The fact that 50% or so of Citizens don't pay any federal income tax is simply proof of the power of automation. Nobody gets this rich without it. Tariffs will not work for many reasons. The founders did not imagine the levels of automation and tech we have now. One of their few oversights.
I have no idea whether the Court will hold that mandate is legal or illegal. But as a Con law prof, you have a duty of candor to note, IMO, that there is no decision of the S. Court that upholds this kind of mandate. This is new ground.
First of all nobody is talking about do it yourself healthcare. But lets discuss this in terms of shoveling, but with more acuracy this time.
The healthcare mandate amounts to a law that says you must pay a private syndicate to pay others to shovel your walk. You are categorically prohibitted from shoveling it yourself. Whats more, the private syndicate charges 35% extra for their own services even though these consist only of taking your money and paying the shoveling teenagers. The syndicate, which you are forced to buy into by law, is a for profit business that is allowed to charge whatever they want and is not held accountable when they decide its cheaper to skip your sidewalk during a heavy snowstorm and pocket the money that would have gone to the teenagers.
People wanted a government non-profit alternative that would pay the teenagers at the same rates they already get, without the 35% surcharge that the sysndicate uses for such questionable expenses as corporate jets and fancy office buildings. The people argued that such a systemwould work better for all, but at the very least it should be an option because it would make shoveling service more affordable and it would be a powerful incentive for the syndicate to lower its costs and improve performance.
But instead we got stuck with a lousy mandate to buy into the syndicate with no public option.
The point I was trying to make was that as you have presented it, the analogy of snow shoveling is a bad metaphor for the healthcare law.
I believe that your argument is a false one for several reasons:
Obamacare legally requires that I pay a private for profit intermediary for services that I may or may not need from a third party. In your snow shovel example this means that the government has first of all made it illegal for you to shovel your own walk, while at the same time mandating that you pay snow shoveling insurance to a private for profit intermediary.
I know of no comparable precedent for this. I can choose not to drive and therefore do not need to pay for car insurance. I can choose to rent and therefore may not need earthquale or fire insurance. Can you name any precendents where a person is required by law to pay a for profit private business, even if one owns no property or does not wish to engage in a select activity?
Not having universal single payer healthcare is incredibly shortsighted bad policy, yes. In other nations it would be unconstitutional also, but then the health and well being of the public is not part of our constitution. This is why we also have no federally mandated building code, again unlike every other modern nation, which is why our buildings are not as well built.
"WHEREAS: This failure to adequately remove snow and ice from the City’s sidewalks results
in a lack of reasonable access and mobility for wheelchair users, the elderly, the
disabled and other residents, and causes significant public safety issues"
http://www.cityofboston.gov/Images_Documents/Bos_Snow_Ordi_tcm3-19366.pdf
The author does not understand why there is serious objection to the mandate on constitutional grounds.
I do not understand how the author became employed to teach constitutional law.
Isn't it obvious? He doesn't understand constitutional law, thus he's quite qualified to teach lawyers (and future judges and politicians). Lawyers, judges, and politicians would not be able to morally, legally, practically justify their actions if they understood the law.
The federal government is going to command that every citizen buy a product......from them or their approved list of vendors.
That sounds a lot more like extortion than insurance.
Public health and safety is actually more like your house or your neighbor's house being on fire.
But with the bought off and paid for representatives of this country making deals with lobbyists everywhere you turn...the idea of them mandating people to participate in the profit making of favored industries is apalling.