House to vote on health care reform Sunday.

[Admiral Yi]

There are plenty of mandates that require people to do things.  We require people to send kids to school.  We require them to answer the Census.  We require them to file a tax return even if they made no income.   If the claim is that the government cannot impose a penalty for failure to comply with these mandates it has zero support in either constitutional law or practice.

Please see my responses to Marty and grumber above.  Truancy is state or local jurisdiction.  The census and tax returns are covered by specifically enumerated powers of Congress.

I have a question for you (or anyone else): what powers does Congress *not* have, besides those proscribed in the Bill of Rights?

[DontSayBanana]

Don't you have stuff like mandatory car insurance? Or don't certain professions have to get a mandatory malpractice insurance?

Yes, but you make a proactive choice to drive, and you make a proactive choice to enter into a given profession.  This would be the first blanket commercial mandate.

[Neil]

Looking forward to the supremacy of Congress in the US, and the final annihilation of your archaic written constitution.  There is nothing so wretched as a formal, written constitution.

[Habbaku]

Is it really that hard to do it the right way and just make an amendment? Sheesh. 

Yes, which is why the efforts are made to circumvent the process entirely.

[Faeelin]

Okay, here's a quote from the last case to find that Congress had violated the Commerce Clause. I think it illustrates why I think it will be very, very hard here. It's from United States v. Morrison

As we observed in Lopez, modern Commerce Clause jurisprudence has "identified three broad categories of activity that Congress may regulate under its commerce power.""First, Congress may regulate the use of the channels of interstate commerce." "Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." "Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, ... i.e., those activities that substantially affect interstate commerce."


(This is quoting LopezUnlike the earlier cases to come before the Court here neither the actors nor their conduct has a commercial character, and neither the purposes nor the design of the statute has an evident commercial nexus. The statute makes the simple possession of a gun within 1,000 feet of the grounds of the school a criminal offense. In a sense any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so far" (citation omitted)). Lopez's review of Commerce Clause case law demonstrates that in those cases where we have sustained federal regulation of intrastate activity based upon the activity's substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor.

Finally, our decision in Lopez rested in part on the fact that the link between gun possession and a substantial effect on interstate commerce was attenuated. Id., at 563—567. The United States argued that the possession of guns may lead to violent crime, and that violent crime "can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe." Id., at 563—564 (citation omitted). The Government also argued that the presence of guns at schools poses a threat to the educational process, which in turn threatens to produce a less efficient and productive workforce, which will negatively affect national productivity and thus interstate commerce. Ibid.

We rejected these "costs of crime" and "national productivity" arguments because they would permit Congress to "regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce."

(returning to the case itself)
We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local. In recognizing this fact we preserve one of the few principles that has been consistent since the Clause was adopted. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States. Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.

See the difference here?

[Hansmeister]

Not really.  For one, not purchasing a product is by its very definition noneconomic and thus arguably doesn't fall under the commerce clause.  Second, there is a total prohibition in place on the purchase of health insurance across state lines in the individual market.  Since there is no interstate market for individual health insurance by law, an individual mandate to procure health insurance cannot have an effect on a nonexisting interstate market.

[grumbler]

Not really.  For one, not purchasing a product is by its very definition noneconomic and thus arguably doesn't fall under the commerce clause.  Second, there is a total prohibition in place on the purchase of health insurance across state lines in the individual market.  Since there is no interstate market for individual health insurance by law, an individual mandate to procure health insurance cannot have an effect on a nonexisting interstate market.

False assumptions lead to false conclusions.  This applies even when false assumptions are falsely called true "by definition."  An economist will tell you that the decision to spend money on X rather than Y is an economic activity.

[Hansmeister]

Not really.  For one, not purchasing a product is by its very definition noneconomic and thus arguably doesn't fall under the commerce clause.  Second, there is a total prohibition in place on the purchase of health insurance across state lines in the individual market.  Since there is no interstate market for individual health insurance by law, an individual mandate to procure health insurance cannot have an effect on a nonexisting interstate market.

False assumptions lead to false conclusions.  This applies even when false assumptions are falsely called true "by definition."  An economist will tell you that the decision to spend money on X rather than Y is an economic activity.

Of course the decision to purchase Y instead of X is an economic activity - the nonpurchase of X is not an economic activity.

[Faeelin]

Not really.  For one, not purchasing a product is by its very definition noneconomic and thus arguably doesn't fall under the commerce clause.  Second, there is a total prohibition in place on the purchase of health insurance across state lines in the individual market.  Since there is no interstate market for individual health insurance by law, an individual mandate to procure health insurance cannot have an effect on a nonexisting interstate market.

The lack of a market in insurance across state lines was itself a decision made by Commerce. There is nothing in the Constitution which forbids it. Saying "You can't sell insurance across state lines because unders its Commerce Clause powers Congress forbade it, and therefore it isn't an interstate activity commerce can regulate" is a bit. Umm.

[Barrister]

Of course the decision to purchase Y instead of X is an economic activity - the nonpurchase of X is not an economic activity.

I am utterly unconvinced of your argument on this point.  If that's the crux of the constitutional challenge, IMHO your side is sunk.

[Hansmeister]

Not really.  For one, not purchasing a product is by its very definition noneconomic and thus arguably doesn't fall under the commerce clause.  Second, there is a total prohibition in place on the purchase of health insurance across state lines in the individual market.  Since there is no interstate market for individual health insurance by law, an individual mandate to procure health insurance cannot have an effect on a nonexisting interstate market.

The lack of a market in insurance across state lines was itself a decision made by Commerce. There is nothing in the Constitution which forbids it. Saying "You can't sell insurance across state lines because unders its Commerce Clause powers Congress forbade it, and therefore it isn't an interstate activity commerce can regulate" is a bit. Umm.

Not really.  Indeed, the law was put in place in order to leave the regulation to the States in the first place.  Congress could have opened up the interstate market but didn't  Congress is trying to have it both ways.  Currently, there is no interstate market, thus nothing for Congress to regulate by the Constitution.  If Congress created an interstate market they then would have the power to regulate the interstate market they created.  They chose not to do so.  But even if it did create an interstate market Congress has no power from the Constitution to order, as a requirement of citizenship or residency, an individual to purchase a commercial product against his will.  There is no precedence in this to be found anywhere in our history.

[Hansmeister]

Of course the decision to purchase Y instead of X is an economic activity - the nonpurchase of X is not an economic activity.

I am utterly unconvinced of your argument on this point.  If that's the crux of the constitutional challenge, IMHO your side is sunk.

For commerce to occur there has to be an exchange taking place, it is the very basics of economics.  No exchange of goods, no commerce.

[Barrister]

Of course the decision to purchase Y instead of X is an economic activity - the nonpurchase of X is not an economic activity.

I am utterly unconvinced of your argument on this point.  If that's the crux of the constitutional challenge, IMHO your side is sunk.

For commerce to occur there has to be an exchange taking place, it is the very basics of economics.  No exchange of goods, no commerce.

No, I understood the point you were making.  I simply remain completely unconvinced that it will fly.

[Hansmeister]

Of course the decision to purchase Y instead of X is an economic activity - the nonpurchase of X is not an economic activity.

I am utterly unconvinced of your argument on this point.  If that's the crux of the constitutional challenge, IMHO your side is sunk.

For commerce to occur there has to be an exchange taking place, it is the very basics of economics.  No exchange of goods, no commerce.

No, I understood the point you were making.  I simply remain completely unconvinced that it will fly.

Realistically speaking, what is far more important than any legal argument is what Justice Kennedy will have had for breakfast the day he casts the tiebreaker.  He will weigh between his desire to defer to Congress and the unprecedented powergrab by the gov't, while considering the unpopularity of the bill.  The four conservative justices will fall back on the Constitution to oppose it, while the four left-wing justices believe that the only limits on gov't power are in the bedroom and in the prosecution of war against Al Qaeda.

[DGuller]

Not really.  Indeed, the law was put in place in order to leave the regulation to the States in the first place.  Congress could have opened up the interstate market but didn't  Congress is trying to have it both ways.  Currently, there is no interstate market, thus nothing for Congress to regulate by the Constitution.  If Congress created an interstate market they then would have the power to regulate the interstate market they created.

How does flood insurance fall with the Interstate Commerce thing?  Homeowners insurance can't be sold across state lines, and yet we have a federal program that takes care of the flood hazard regardless.  Is the gov't flood insurance unconstitutional?