The Supreme Court & Obamacare

[Jacob]

Shelbh mentioned the civil rights legislation, upheld on commerce clause grounds in Heart of Altanta Motel.  That was a regulation of refusing to engage in a commercial act.

Running a motel is commercial activity.

Choosing to not open a motel would be inactivity.

Couldn't you say that using health care is a commercial activity, and since everyone uses health care over the course of their life it falls within the Commerce Clause?

There's no one who uses no health care in their entire life. Thus everyone is engaging in the commercial activity, and it's perfectly fine for the government to regulate how they do so.

[sbr]

It was nice to read this thread, lots of good information and none of the usual bullshit and silliness that are so common here to ruin it .  I learned quite a bit.

[jimmy olsen]

I keep hearing people say that Obamacare cannot work without the mandate.

Now, if that is true or not, is it at all relevant to whether or not the mandate is Constitutional? If we assume that it is true, for example, that doesn't make it acceptable, right? The Constitutional restriction of limited government powers is not simply removed or set aside because some law won't work if we don't give the federal government powers otherwise not enumerated to it.

I don't really understand that argument's applicability to the question.

Isn't it more of a "can we just strike down the mandate or do we have to ice the whole thing as well" more than "we can't strike down just the mandate because that  will ruin the whole program. 

[Admiral Yi]

Couldn't you say that using health care is a commercial activity, and since everyone uses health care over the course of their life it falls within the Commerce Clause?

There's no one who uses no health care in their entire life. Thus everyone is engaging in the commercial activity, and it's perfectly fine for the government to regulate how they do so.

You could.  Earlier in this thread I stated that inevitable future activity is an argument I thought the yes guy should have a done a better job of elaborating.

To answer one of my own previous questions I think the yes guy could have proposed a Commerce Clause limitation test built around the unique moral hazard of hospital emergency rooms.

[Sheilbh]

What we're all saying Shelf is that there isn't any precedent for regulating inactivity so nothing to challenge if it is found that inactivity cannot be regulated under the Commerce Clause.

Okay, I thought you were saying about the purchase requirement which is different.

So Congress has, for example, made it illegal for someone to allow another person to use their phone to make harassing calls.  That seems like regulating inactivity.  Similarly prohibiting a restaurant from not serving minority customers, or requiring certain vaccinations, or bring goods to market, or laws related to possessing (not buying) pot seem to me to regulate inactivity.

If you are allowed to make laws that prohibit inactivity and are not constitutionally forbidden then why should that not apply to the commerce clause under the necessary and proper thing that MM explained.  That it's unprecedented doesn't necessarily mean a great deal, if it's not prohibited.

I think you could have a ruling that says Congress can regulate inactivity, it has in other spheres, and it's necessary and proper but there are limits to or problems with a requirement to buy which are different.  That seems the implication in one of Kennedy's questions that if you accept that no-one is outside the healthcare market then you're really asking what sorts of regulations are permissible.

Obviously again I'm ignorant of US law including your constitution and foreign ways.

Couldn't you say that using health care is a commercial activity, and since everyone uses health care over the course of their life it falls within the Commerce Clause?

There's no one who uses no health care in their entire life. Thus everyone is engaging in the commercial activity, and it's perfectly fine for the government to regulate how they do so.

That's the government's argument.

But then I wonder how wide that is.  Surely the same argument could be used to justify a lot of environmental regulations?

[Sheilbh]

It was nice to read this thread, lots of good information and none of the usual bullshit and silliness that are so common here to ruin it .  I learned quite a bit.

On this subject I think this is the least partisan 'yoo-bah' thread on the internet

[Admiral Yi]

I don't see how the things you listed qualify as inactivity Shelf.

edit: Except vaccinations.  Which I think fall under state law but that's a guess.  Anyone know?

[Razgovory]

It was nice to read this thread, lots of good information and none of the usual bullshit and silliness that are so common here to ruin it .  I learned quite a bit.

Pft.  I don't post in a thread and it gets rave reviews.

[jimmy olsen]

Saying that "it is different' doesn't make it so. The Bill of Rights does not say that the 5th is somehow more special than the 10th.

Hasn't the 10th been treated like that for a long time? When was the last time there was a successful constitutional challenge of a law on 10th amendment grounds?

[alfred russel]

But it does mean that if that is correct, then we no longer enjoy Constitutional protection - only political.

The president and congress take oaths of office to uphold the constitution, in addition to the USSC. If we moved to the older french model without judicial review of legislative acts, we wouldn't lose constitutional protections. Only rather than 4 checks on constitutionality (house, senate, president, courts) we would only have 3.

[Sheilbh]

I don't see how the things you listed qualify as inactivity Shelf.

How so? 

Another example would be the draft.

edit: Except vaccinations.  Which I think fall under state law but that's a guess.  Anyone know?

I'd guess so, but probably not in a national emergency.

But it does mean that if that is correct, then we no longer enjoy Constitutional protection - only political.

You'd be like Britain.  Welcome

[Admiral Yi]

How so? 

Because they all involve action verbs?

Another example would be the draft.

Better.  I think the counterargument here is the specific language of the Commerce Clause.

[Jacob]

When's the ruling expected? A matter of days? Months? Tomorrow?

[Sheilbh]

When's the ruling expected? A matter of days? Months? Tomorrow?

I think it's expected by the end of this Court term.  So June-ish.

[garbon]

How so? 

Because they all involve action verbs?

Another example would be the draft.

Better.  I think the counterargument here is the specific language of the Commerce Clause.

I think Yi's right. After all in the first two, the person would be actively making harassing calls and the store owner would be actively discriminating against minorities.