Discussion: Government Limits

Since last week’s Supreme Court hearing on the Affordable Care Act, the President has made some fairly extreme claims about the case.

“Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

I would like to hear your thoughts on the matter. When I started this site, I wrote that I intended it to serve not only as an educational tool for conservative principles, but as a forum for thoughtful disagreement. To that end, the floor is open. I especially want to hear from anyone who disagrees. Tell your liberal friends. I’ll start.

President Obama is completely, absurdly wrong to even begin to imply that the court’s powers of judicial review are in question. The “unprecedented, extraordinary” event he refers to is something the Supreme Court has done since 1803 with Marbury v. Madison and the Court has exercised that power dozens of times since. That’s hardly disputable, though I welcome anyone who agrees with our President on this issue.

The larger question I wanted to discuss was the same one the Supreme Court itself discussed last week. My question is, essentially, does the government have any limits?

Does the federal government have, in this case, the authority to force every citizen to purchase a private service?

Can the government do absolutely anything that “promotes the general welfare”? If so, why does the Constitution have anything beyond the Preamble?

Would a Broccoli Act be Constitutional? If Congress wrote a law saying that every adult had to go buy broccoli and eat at least one serving a day, should the court allow that because it promotes the general welfare?

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  1. #1 by David Andersen on April 4, 2012 - 10:05 pm

    The government has limits, of course. As long as they coincide with my limits.

    That, I’m afraid, is the opinion of far too many.

  2. #2 by Steve on April 5, 2012 - 9:44 am

    First, let me clarify that I do not view the Affordable Care Act as a viable solution to our nation’s health-care issues. Also, I would like to clarify, just in case I get bogged down in minutia here, that I am currently undecided as to the constitutionality of the act. Whether or not something is constitutional is a completely separate issue from whether or not it is a good idea*. This case seems to center around the commerce clause, and those cases are a little out of my depth, even for internet arguments. I will say that I believe that the courts give the legislature greater freedom under the commerce clause than in any other arena. A ruling in either direction would not surprise me.

    To give the benefit of the doubt to the statement mentioned earlier, while it isn’t exactly unprecedented, it is extremely rare for the Supreme Court to actually overturn a congressional law (in its entirety). I’m not even sure that it’s happened in the past 60-70 years. They will happily invalidate portions of them, or provisions, but just tossing them out in their entirety, not so much. That’s actually very rare.

    My honest opinion on the mandate is that there were so many ways to achieve the same effect that are clearly constitutional that I have no idea why Congress opened itself up to this. If it had been me, and I wanted to make Americans buy health insurance or pay 95 dollars, I just would have increased taxes ever so slightly, then offered a tax credit of the same amount for anybody who can staple a copy of their policy to their tax return. Problem solved. I can probably come up with a half dozen other ways to achieve the same end result.

    As for mandates in general, we have had a couple of mandates in the past (they’re even more unprecedented than the Supreme Court striking down acts of congress, but they exist, nonetheless). Namely, the Act for the Relief of Sick and Disabled Sailors (http://www.scribd.com/doc/29099806/Act-for-the-Relief-of-Sick-DisabledSeamen-July-1798), and the so-called “Musket Mandate” (http://en.wikipedia.org/wiki/Militia_Acts_of_1792), which pretty much said “Not only are you drafted, but you have to supply your own gear”. What makes these relevant, despite their age, is that they are actually from the era of the founding fathers, so if we want a look at what the framers thought about the federal government making us buy stuff, that’s what we’ve got to work with. Also, while these are not perfect analogies, they’re certainly closer than any hypothetical taking place in the produce aisle.

    As for an attempt at arguing constitutionality: My gut instinct when I hear the question “Can the federal government force you to buy something from a private party?” is “of course not”. Then when I think about it, I find myself saying “wait…why not?”. Most government mandates come in the form of “If you do X, you must have Y (and of course, the only way to get Y is to go out and buy it)”. We’re almost all OK with this. If you have a factory, you might need to provide safety equipment. Don’t like it, don’t run a factory. If you drive a car in public, the state makes you carry insurance. Nobody trusts that if you wreck somebody, you’re good for the repair and medical bills, nor should they. If you go hunting, you are expected to carry only the appropriate equipment. If you want to hunt deer during bow season, but don’t have a bow, tough shit. Buy one, or sit out. You don’t get to bring anything else. Is it a federal vs state issue? Perhaps. Car insurance is handled at the state level. So are hunting regulations. But there are plenty of other if X, then Y regulations from the feds. Trucking laws, for example. Clearly interstate commerce, and I doubt very much that the federal government pays for the inspections, equipment, or time needed to comply with the regulations. Of course, you’re always free not to drive a truck in interstate commerce if you don’t like it.

    I guess you’re always free not to go to the hopsital, or use any other form of health care, but since we all do, then we’re all pretty much subjected to whatever if X, then Y regulations regarding it. Healthcare is very much interstate commerce, even more so than trucking. I’m sure there are many trucks that stay in state. Show me a doctors office where the equipment was all made in-state. Drugs especially…

    I suppose if I had to make an argument for constitutionality based on the commerce clause that would be it. Healthcare is almost always inseperable from interstate commerce, and therefore, participants must follow federal regulations. If the government wants to say that all truckers have to have certain equipment, they can say that all health-care users must carry insurance. Since the government has already shown a willingness to give out waivers to people who actually don’t use health services for religious reasons, I think the law might stand up to that.

    *edit per followup comment -Marc

    • #3 by Steve on April 5, 2012 - 9:46 am

      Minor edit: “Whether or not something is constitutional is a completely different issue than whether or not it is permissible under the constitution.”
      should read as “Wher or not something is constitutional is a completely seperate issue from whether or not it is a good idea”

    • #4 by basicconservative on April 9, 2012 - 9:11 pm

      Well, it’s telling that pretty much nobody anywhere is actually attempting to justify the “unprecedented” statement. I agree that it’s not altogether common, but that’s no way to rationalize the President’s claim. From what I can find, I think you’re right that an entire law hasn’t been invalidated since the 30s–though portions get struck much more often. And, the Supreme Court hearing made it clear that they are considering both options (striking the entire law, or only the individual mandate).

      When it comes to the mandate, neither of your examples are really a fair comparison. The Sailor Act only charged sailors for something that would only affect sailors, so it’s nothing like this sweeping mandate that covers every US citizen. The “musket mandate” also fails to be a true apples-to-apples comparison, as it applied to the military only, through the Executive’s power as Commander In Chief. The country had recently experienced a shocking defeat and a couple of rebellions, and the CIC responded by conscripting a military and mandating that all the new soldiers buy a gun and show up for drills and exercises in this time of emergency. We still have a system in place for the draft today. It’s unrelated to the Commerce Clause.

      I don’t think these are closer at all than a hypothetical broccoli mandate. A Broccoli Act would attempt to use the exact same Constitutional justification as Obamacare–regulating interstate commerce, for the “common good.” I’m assuming the vast majority of broccoli is grown in one or two areas and shipped across state lines. Therefore, using these arguments, the federal government has the power to regulate it–and if they can regulate it, they can make us purchase it, under this argument.

      The other mandates you bring up are even further from being useful analogies. First off, most of what you mentioned are state regulations; I can find a few isolated bloggers arguing that Romneycare at the state level is unconstitutional, but that’s hardly the argument of most of the ACA’s opponents. It’s certainly not my argument. States have much more authority than the federal government. It would be equally unconstitutional for the federal government to regulate hunting, I would think–except where issues cross state lines, or are on federal land, which is exactly where we find the only federal hunting regulations (migratory birds, transportation of game, etc).

      That’s the main problem here. Yes, most people will choose to go to the doctor sometimes. Just because you buy drugs that were made in another state doesn’t mean it’s the federal government’s business how you do business with your family practitioner down the street. Regulate the sale of drugs, sure. Force everyone everywhere to buy federally-approved health insurance? Different matter.

      • #5 by Steve on April 10, 2012 - 12:20 am

        “The Sailor Act only charged sailors for something that would only affect sailors, so it’s nothing like this sweeping mandate that covers every US citizen.”

        So what? It forced sailors to buy health insurance. What’s the difference between sailors and every other U.S. citizen, except that at the time, they were seen as more likely to need hospitalization? I don’t see any actual difference, constitutionally, between “sailors” and “Americans who are not prohibited by religion from using health care”. If anything, the second category is more constitutional, because it takes care not to run afoul of the first amendment. So it’s broader. There’s nothing in the constitution that says “You can do this, but only for narrow categories”.

        “The “musket mandate” also fails to be a true apples-to-apples comparison, as it applied to the military only, through the Executive’s power as Commander In Chief. The country had recently experienced a shocking defeat and a couple of rebellions, and the CIC responded by conscripting a military and mandating that all the new soldiers buy a gun and show up for drills and exercises in this time of emergency. We still have a system in place for the draft today. It’s unrelated to the Commerce Clause.”

        This is not correct. Congress created the militia, and congress issued the mandate. While it did give the CIC powers to call it up and use it, they issued the mandate on their own. It was absolutely a congressional mandate, not an executive one.
        http://en.wikisource.org/wiki/United_States_Statutes_at_Large/Volume_1/2nd_Congress/1st_Session/Chapter_33

        Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled…
        George Washington did not conscript the militia, and did not issue the mandate through executive powers.
        The reasoning behind this law and the health care mandate is actually very similar. It was believed to be in the public interest to have every abled-bodied male own a musket, so by god, they wrote a law saying that every abled bodied male had to go get himself a musket. Now, it’s seen as in the public interest that anybody who can afford it carry health insurance, so they’ve written a law requiring it. Replace “experienced a shocking defeat and a couple of rebellions” with “experienced losing 45,000 citizens a year to lack health insurance”, (http://pnhp.org/excessdeaths/health-insurance-and-mortality-in-US-adults.pdf) and you’ve got the exact same logic.

        “It would be equally unconstitutional for the federal government to regulate hunting, I would think–except where issues cross state lines, or are on federal land, which is exactly where we find the only federal hunting regulations (migratory birds, transportation of game, etc).”

        I’m fairly certain the endangered species act prohibits hunting or trapping of anything that the federal government declares to be endangered, without regard to its migratory patterns, state lines, or whether or not it resides on federal land. Saying “here’s a list of animals you can’t hunt” is pretty much the mother of all hunting regulations.

        As for the commerce clause and your local doctor, a good case to look up for this sort of thing would be Wickard v Filbunrn. ( http://en.wikipedia.org/wiki/Wickard_v._Filburn ). The take-away here is that if a behavior has any effect on interstate commerce, the court will tend to allow the federal government to regulate it. Show me a visit to your local doctor that involves less interstate commerce than a guy growing some extra wheat on his land, and eating it himself.

        On one final note, the use of “unprecedented” to describe something that hasn’t happened in 70 some odd years is no worse than saying “Does the federal government have, in this case, the authority to force every citizen to purchase a private service?” when we know the law doesn’t exactly do that. It’s close enough. As far as I know, no American who would be forced to buy private health insurance has had the Supreme Court overturn a full congressional law in their lifetime.

        • #6 by basicconservative on April 13, 2012 - 6:38 pm

          The difference for the sailors is, you’re talking about an “If you do X, then you must do Y” situation. Especially in a case like this, where X is by its very nature interstate or even international commerce, then the federal government’s authority in the matter is obvious. You could say the Obamacare mandate is the same thing only if “X” stands for “eXisting.” I stand by my statement that these are not comparable.

          You’re right on the musket mandate coming from Congress–my mistake, I read it quickly and misremembered all the stuff in the first few paragraphs about “The Commander in Chief will have the authority to etc…” as, rather, the CIC ordering this to take place. However, you’re still misinterpreting the mechanics of the law. They didn’t say “it would be better if every able bodied male had a musket, so let’s make them all buy a musket.” They said “this is an emergency and we expect future similar situations, so we need every able bodied male in the military right now.” What they ordered their soldiers to do afterwards is irrelevant. A couple of years later they called up the militia to put down the Whiskey Rebellion, but I wouldn’t expect anyone to use that precedent to say the President today has the authority to call me on the phone and tell me to grab a gun and go arrest my neighbor–not without drafting me into the military first, anyway.

        • #7 by basicconservative on April 13, 2012 - 6:56 pm

          Wickard v Filburn is interesting. Honestly, that’s a shocking ruling, and I would be surprised if the case turned out the same way were it tried today. That ruling came after FDR essentially threatened and strong-armed the Supreme Court into letting him have his way in several cases. The Court and public sentiment about government power is very different today.

  3. #8 by heaven on June 3, 2012 - 9:46 pm

    excellent informative ideas! honestly i hope that this information helps to observe our future. and i also hope that the government will be take some different way to go ahead.

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