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Constitutional law prof: Mitch McConnell's attack on health reform is "absurd"

By Greg Sargent

As you may have heard, Mitch McConnell has thrown in his lot with states suing to overturn Obamacare, filing a friend-of-the-court brief arguing that the individual mandate is unconstitutional.

I just checked in with a constitutional law professor -- this seemed like a good hook to ask an expert to take a look at this claim, since it's so widespread -- and he dismissed McConnell's argument as "absurd."

Louis Seidman, a professor at Georgetown University, spelled out why the primary arguments advanced by McConnell's brief don't hold any legal water. It argues, as many others have, that the commerce clause in the Constitution does not authorize the creation of an individual insurance mandate.

The commerce clause "does not authorize Congress to mandate the purchase of a particular product, only to regulate commercial activity in which people are engaged," the brief says.

But Seidman counters that the mandate is Constitutional, because it falls under the Constitution's authorization of Congressional regulation of commercial activity that has a substantial impact on interstate commerce -- and that this has been upheld by the Supreme Court. The 1942 decision Wickard v. Filburn allowed Congress to prohibit farmers from growing excess wheat for their own use, on the grounds that so doing would impact the interstate wheat trade.

Under the decision, Seidman points out, Congress was allowed to compel people to stop producing their own wheat and buy it on the interstate market. Seidman argues that under this precedent, the individual mandate is constitutional, because health reform does the same.

"The claim that opponents of the mandate make is that Congress has never forced people to engage in interstate commerce," he says. "But Wickard did that."

Seidman, who allows that he generally supports Dems and Obamacare, also argues that the McConnell case is off base in another way. He says that Congress in a sense already compels the purchase of insurance.

Seidman points to Medicare Advantage, and notes that it's supported by taxation which, of course, is compelled by the Federal government. Under Medicare Advantage, this money is used by the Federal government to purchase health insurance. "We require people to give money to the Federal government, which then gives it to insurance companies," he says.

Seidman adds that this is not meaningfully different from Obamacare's mandate that individuals buy insurance: "It is absurd to argue that the Constitution requires that the Federal government be a conduit for money taken from individuals and given to insurance companies," he says.

In other words, he concludes, it's absurd to argue that removing the Federal government from this equation somehow suddenly makes the arrangement unconstitutional.


UPDATE, 1:48 p.m.: Post edited slightly from original.

By Greg Sargent  | November 10, 2010; 1:19 PM ET
 
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Comments

But see, with the Thomas court, what doesn't hold Constitutional water suddenly does.

These right wingers are intent on destroying this countries middle class wage earners so their lower wages can compete globally to increase the profits of those that get these plutocrats elected.

These cases could be rejected in the lower courts and get to the SC then suddenly the SC will have some sort of enlightening and find something none of the other courts could find to make this unconstitutional. It's time for Americans to declare war on our S.C., in the political sense.

Posted by: mikefromArlington | November 10, 2010 1:31 PM | Report abuse

The only reason this is even a topic of discussion isn't that there are any merits to the argument. It's the fact that the Supreme Court is very willing to legislate what conservatives want (Citizens United) Whether this will come to pass with the ACA is uncertain, but the fact that they might do it is more a testament to the makeup of the court than it is to the law in question.

Posted by: DDAWD | November 10, 2010 1:33 PM | Report abuse

"The 1942 decision Wickard versus Filburn allowed Congress to prohibit farmers from growing excess wheat for their own consumption, on the grounds that so doing would impact the interstate wheat trade."

Wow.

Posted by: sold2u | November 10, 2010 1:35 PM | Report abuse

"absurd"
"no basis in fact"
"totally off-base"

Looks like another 5-4 decision for the Red team.

Posted by: klautsack | November 10, 2010 1:39 PM | Report abuse

"The 1942 decision Wickard versus Filburn allowed Congress to prohibit farmers from growing excess wheat for their own consumption, on the grounds that so doing would impact the interstate wheat trade."

Finally! someone mentioned Wichard and the precedent it set. It basically blew the doors open by turning the commerce clause into a catch all for "whatever we want" instead of limited and delegated power.

Travesty, really. Can't grow my own wheat b/c it depresses your prices? not my problem.

Posted by: NoVAHockey | November 10, 2010 1:39 PM | Report abuse

Meanwhile, an estimated 59 million people in the United States are without healthcare insurance, a new high, and several million more than just a couple of years ago. Many lost their insurance when they lost their employment, many employers are no longer offering insurance.

What are people who oppose ACA proposing as a solution to this problem? Would they prefer that the uninsured sick people be turned away from care completely? Do we really want people dying in the streets in the USA because of the lack of access to care?

Posted by: suekzoo1 | November 10, 2010 1:39 PM | Report abuse

OT:

General Motors Co posted a $2 billion third-quarter profit on Wednesday, driven by an accelerating turnaround in North America as it rushes to complete an initial public offering of stock set for next week.

The quarterly profit was the largest for GM since it emerged from bankruptcy in July 2009 and provides the last piece of financial data for investors evaluating the automaker's $13 billion IPO.

GM said it expected to post solidly profitable results for 2010, its first full-year profit since 2004.

http://abcnews.go.com/Business/wireStory?id=12106358

Posted by: Ethan2010 | November 10, 2010 1:41 PM | Report abuse

Greg - I'm fairly sure McConnell knows his case is without merit; he is just trying to placate the base would be my guess.

Given the amount of time the GOP, as a whole, has spent fluffing the tea baggers, they have to at least make a good show of attempting to repeal health care. If they were to walk away without doing anything... I guess it would be all right with the baggers as long as Limbaugh said it was good, but even so, there is a small chance that some of the baggers might notice and take offense.

Stunts! Expect lots of meaningless stunts over the next two years all aimed at making baggers feel like they weren't fooled (again) by the GOP. Also too, expect it to work. About the only way it won't work is if someone manages to drive a wedge between the wingnuts on hate radio and the GOP insiders.

Posted by: nisleib | November 10, 2010 1:42 PM | Report abuse

sold2u

You seem reasonable - the Constitution traces out two powers Federal and State - and states there is a line between the two.

Obviously, with industrialization and the 1930s cases, this line was shifted out.

However, that does not mean that the line has to permanently be moving outward. The movement of the line can stop. The movement of the line can be adjusted.

There is a line.

The Lopez case in 1995 is a better guide. It clearly states that there is a line - and the regulation guns within "school zones" is outside the line of Federal authority.

So where are we.

There is widespread sentiment in this country to STOP the outward movement of this line. Plus, there is little economic justification. Meaning that with industrialization, the outward movement of that line was justified on the basis that there was a new economy, and the Constitutional caselaw needed to adjust to the new economy.


ON health care, the nation has a two hundred year history of health care being within the domain of the States' powers. There is no economic changes like industrialization to justify the movement of the line.

If the Federal government is now in control of health care, does that mean that doctors now have to go to the Federal government for their licenses? Are all State laws on health care now pre-empted by the Federal government??? Because pre-emption is the result of the movement of the line.


The liberals are side-stepping these issues - and just saying that because the line was moved in the 1930s, it will be moved again. I don't buy that.


Posted by: OrangeForces | November 10, 2010 1:47 PM | Report abuse

"These right wingers are intent on destroying this country's middle class wage earners so their lower wages can compete globally to increase the profits of those that get these plutocrats elected."

Shhhhh, don't say that. What if everybody finds out?

But as others have said, the strict Constitutional Constructivists will decide the founding fathers would have been against a federal role in the operations of a health care system. Leaches, bone saws, laudanum and mercury were readily available.

Posted by: shrink2 | November 10, 2010 1:48 PM | Report abuse

@NoVAHockey: "Can't grow my own wheat b/c it depresses your prices? not my problem. "

Nope. Not your problem. Your inability to understand the Constitution is your problem.

Article I, Section 8, Clause 3:

“[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;”

The wheat thing is just Congress regulating the interstate wheat trade. And if you're saying you disagree with Congress' ability to do that, then forget about an "interpretation" of the Constitution, you disagree with, or don't understand, the wording of the clause as it was originally written.

Posted by: Ethan2010 | November 10, 2010 1:50 PM | Report abuse

I'm not so sure the attack is absurd. It maybe absurd to say use some of the adjectives that have been used to describe the mandate, but to want the SCOTUS or to rule it to be unconstitutional isn't absurd. It's probably absurd to expect a lower court to repeal the mandate given the holding in Wickard.

Can both sides stop calling the opposing interpretations of the Constitution "absurd" or other similar adjectives? If the SCOTUS Justices who are rather brilliant can come to different conclusions and do so amicably certainly skip or kevin and I can do the same.

Posted by: ashotinthedark | November 10, 2010 1:50 PM | Report abuse

As a paralegal, I think that Seidman's views are directly on point. However, I think the goal is to move this question directly to the Roberts SC where they expect to get a ruling favorable to Republicans.

Posted by: Alex3 | November 10, 2010 1:51 PM | Report abuse

@sold2u ""The 1942 decision Wickard versus Filburn allowed Congress to prohibit farmers from growing excess wheat for their own consumption, on the grounds that so doing would impact the interstate wheat trade."

Wow."

Correct. It will be interesting to see if the court uses this as an opportunity to overturn Wickard v Filburn as wrongly decided.

"A farmer, Roscoe Filburn, was growing wheat to feed his chickens. The U.S. government had imposed limits on wheat production based on acreage owned by a farmer, in order to drive up wheat prices during the Great Depression, and Filburn was growing more than the limits permitted. Filburn was ordered to destroy his crops and pay a fine, even though he was producing the excess wheat for his own use and had no intention of selling it."

"Filburn argued however that because the excess wheat was produced for his private consumption on his own farm, it never entered commerce at all, much less interstate commerce, and therefore was not a proper subject of federal regulation under the Commerce Clause."

http://en.wikipedia.org/wiki/Wickard_v._Filburn

If they can find some old pictures of Roscoe Filburn having to burn his wheat with a member of the Department of Agriculture backed up by the police looking on, it would be great fodder for Glenn Beck.

The only real distinction here is that the individual mandate requires you to positively purchase something from a private company whereas Wickard v Filburn bans an activity (unauthorized wheat growing above a government quota). Banning activities has usually gotten more deference than positive requirements.

The better argument in favor of the mandate is based on it being a tax and the fact that there are no real limits on how the income tax can be levied after the sixteenth amendment. I.e. the fine is structured as a deduction based on having health insurance that meets certain qualifications.

Posted by: jnc4p | November 10, 2010 1:52 PM | Report abuse

klautsack and NoVaHockey

Exactly the Constitution is a document of limited and delegated Powers - and no more.

The 10th Amendment is sitting there. Funny how the liberals LOVE to ignore the 2nd and 10th Amendments of the Bill of Rights.


Anyway - there is a division of Federal and State powers - and that line has to be drawn - it is not the EXISTENCE of the line that is in question, the question is what is on that side and what is on this side of the line.


Anyway - the fact that the liberals are ignoring the issue implies that they know they are wrong.


.

Posted by: OrangeForces | November 10, 2010 1:54 PM | Report abuse

Oh my. A law professor thinks the case is without merit. Well then, the states AG's should just drop it. After all who would know better than a law professor?

Posted by: skipsailing28 | November 10, 2010 1:55 PM | Report abuse

"...the SCOTUS Justices who are rather brilliant..."

Not all of them, sorry to say.

Posted by: shrink2 | November 10, 2010 1:58 PM | Report abuse

O/T: "The Obama administration has decided to begin publicly walking away from what it once touted as key deadlines in the war in Afghanistan in an effort to de-emphasize President Barack Obama's pledge that he'd begin withdrawing U.S. forces in July 2011, administration and military officials have told McClatchy."

Read more: http://www.mcclatchydc.com/2010/11/09/103468/obama-administration-moving-away.html#ixzz14uKXSRsD

Posted by: sbj3 | November 10, 2010 2:01 PM | Report abuse

After all who would know better than a law professor?

Posted by: skipsailing28
----------------------------------------

oooh..oooh...Pick me. Pick me. I know the answer.

A largely anonymous business owner from ohio who knows more about the Constitution than those elitist Georgetown professors who have devoted their life to the study of the document.

Posted by: ashotinthedark | November 10, 2010 2:06 PM | Report abuse

jnc4p at 1:52 PM


I would like to add to everything you said, because everything you said is correct.

The Wheat case rested on the idea that if the farmer did not grow the excess wheat, he would have to purchase the wheat in commerce for the use on his farm. This affects the total demand of wheat on the market

OR if the farmer used some of his wheat grown under his quota, the farmer would have less to sell in commerce. This affects the total supply of wheat on the market.


That is significantly different that requiring someone to enter commerce.


It is significant that in both cases, the government is manipulating the free market, and creating a system of fines in order to have people conform to the market conditions which the government wants to create.

__________________________


If the health care bill was different - and required people to enroll in a new Medicare Part instead of requiring them to purchase it from a private company.

Well, that may be viewed as a tax direct to the government -

However, that "tax" may or may not withstand the "equal protection" clause because it only affects those without insurance.

____________________________


The problem with saying that the purchase of private insurance is the same as such a "tax" is that the government does NOT disburse the funds. The funds are disbursed by a private company - and some are used for private profit.


In contrast, a "tax" is disbursed by the government - in accordance with a budget passed by Congress.


So, Congress is delegating its Power to make a budget TO a private company - that makes no sense.

________________________


That brings us back to the Medicare Part, which the conservatives will not like because it is too close to the public option.


There is more here - defining ALL health insurance as interstate commerce is problematic.

A small business purchasing health insurance - and all the Federal regulations coming - all designed to CHANGE behavior in the market - is that really a Federal Power ??? It is a difficult question.

Posted by: OrangeForces | November 10, 2010 2:09 PM | Report abuse

Better yet. If all of these things are unconstitutional, why do Republican presidents keep nominating justices who apparently don't understand the constitution. After all, keeping a copy in your back pocket makes you a constitutional scholar and all.

That's why I keep a copy of the periodic table in my back pocket. I clearly know more than all those chemistry professors.

BB

Posted by: FairlingtonBlade | November 10, 2010 2:09 PM | Report abuse

"The wheat thing is just Congress regulating the interstate wheat trade. And if you're saying you disagree with Congress' ability to do that, then forget about an "interpretation" of the Constitution, you disagree with, or don't understand, the wording of the clause as it was originally written."

Oh please. Obviously Congress can regulate the interstate sale of wheat, or any other product. Wicker states that Congress can compel you to enter the market. Wicker destroyed any limits on the power of the commerce clause, which I think is a travesty. but this argument has been going on for decades. I think the SC had an overally broad reading of the commerce clause in Wickard.

Wichard cuts both ways though. Liberals who celebrate it now should be prepared for when the GOP uses this power to do something they don't like. For example, commerce clause was used to uphold the Partial-Birth Abortion Ban Act.

Posted by: NoVAHockey | November 10, 2010 2:24 PM | Report abuse

Ethan noted

"General Motors Co posted a $2 billion third-quarter profit on Wednesday, driven by an accelerating turnaround...The quarterly profit was the largest for GM since it emerged from bankruptcy in July 2009...GM said it expected to post solidly profitable results for 2010, its first full-year profit since 2004."

It turns out direct federal intervention in manufacturing industries, both saving and creating new jobs as in the case of "Government Motors" is not only possible, but painless, relatively easy and necessary.

Posted by: shrink2 | November 10, 2010 2:25 PM | Report abuse

"Major projected losses from TARP include $17 billion from about $80 billion spent to rescue General Motors, Chrysler and their financing arms."

Posted by: sbj3 | November 10, 2010 2:42 PM | Report abuse

so Ethan, you are all for the government telling private citizens what they can grow for their own use on their own land?

It certainly seems that way. After all you supported the government telling us how many gallons of water our toilets must use, what kind of light bulb we must use and on and on and on.

Essentially to you Ethan there is no limit to the intrusion of the government into our lives to which you would object.

Posted by: skipsailing28 | November 10, 2010 2:46 PM | Report abuse

1. so Ethan, you are all for the government telling private citizens what they can grow for their own use on their own land?

2. It certainly seems that way. After all you supported the government telling us how many gallons of water our toilets must use, what kind of light bulb we must use and on and on and on.

3. Essentially to you Ethan there is no limit to the intrusion of the government into our lives to which you would object.

Posted by: skipsailing28 | November 10, 2010 2:46 PM | Report abuse

---

1. Well, conservatives seem fine with the government prohibiting the growth of various "herbs", though encourage the growth of a pretty bad carcinogen.

2. Hit Home Depot. You'll find plenty of incandescent bulbs.

3. Pot meet Kettle. Kettle, Pot.

BB

Posted by: FairlingtonBlade | November 10, 2010 2:58 PM | Report abuse

I object to Clarence Thomas declaring pubescent girls need to fear having their panties searched at any time by school officials or districts won't be able to enforce their zero tolerance programs. [Safford United School District #1 v. Redding]

I object to The Patriot Act. I object to countless laws and intrusive government rules and regs that have come from the right wing of American politics. I object to your war.

Wingnuts are not for small government or less intrusion and neither is the left. We want government to intrude in some areas and leave others alone. You want big government all over some things and not over others. We disagree, but not about whether government should intrude, just on whose behalf, for what purpose.


Posted by: shrink2 | November 10, 2010 2:59 PM | Report abuse

@ shrink2 -- There's so much wrong with the Patriot act. but on a day-to-day, it's the pseudoephedrine restrictions

Posted by: NoVAHockey | November 10, 2010 3:11 PM | Report abuse

"Liberals who celebrate it now should be prepared for when the GOP uses this power to do something they don't like. For example, commerce clause was used to uphold the Partial-Birth Abortion Ban Act."

Snoozer. I support the U.S. Constitution.

And while I may disagree with SCOTUS from time to time I have the utmost respect for the judicial system of the United States.

As such, I firmly believe in the Congress' ability to regulate interstate commerce, just like I firmly believe in the right to free speech and the separation of church and state.

Posted by: Ethan2010 | November 10, 2010 3:14 PM | Report abuse

Greg

Ask the professor if there is a product the government cannot compell me to buy, if the so chose. Why, under your reasoning, cant Congress force you to buy a gun?

Posted by: TrollMcWingnut | November 10, 2010 3:18 PM | Report abuse

All over 'merca noses are dripping on keyboards as a direct result of the vast right wing conspiracy.

Posted by: shrink2 | November 10, 2010 3:21 PM | Report abuse

Mr Wingnut, who hasn't already bought a gun?

Pick a better example. Can't Congress force you to buy gay pornography? There, that ought to offend lots more people.

Posted by: shrink2 | November 10, 2010 3:24 PM | Report abuse

@Troll: "Why, under your reasoning, cant Congress force you to buy a gun?"

Your argument is fallacious. You either support the Congress' ability to regulate interstate commerce or you don't and you disagree with the Founders.

If a law is passed where Congress regulates interstate gun commerce, and the end result is forcing citizens to buy a gun, then that should be fine according to the Constitution. Don't like it? Change the members in the Congress in the next election and make sure they change the law. The implication that it is the Commerce Clause that is problematic and not the law is literally ludicrous.

Posted by: Ethan2010 | November 10, 2010 3:27 PM | Report abuse

"Your argument is fallacious. You either support the Congress' ability to regulate interstate commerce or you don't and you disagree with the Founders."

Thanks for clearing that up Ethan. Glad your comfortable with this interpretation, that didn't exist until 1942, that you ascribe to the founding fathers. Does this mean I have to destroy my tomato plant?

Posted by: TrollMcWingnut | November 10, 2010 3:36 PM | Report abuse

"The implication that it is the Commerce Clause that is problematic and not the law is literally ludicrous"

What's ludicrous is you seem to think the commerce clause gives Congress carte blanche, when the rest of the Constitution establishes a government of limited powers.

The commerce clause did not originally mean "The government can do whatever it wants."

Posted by: NoVAHockey | November 10, 2010 3:47 PM | Report abuse

"Glad your comfortable with this interpretation, that didn't exist until 1942, that you ascribe to the founding fathers."

I'm comfortable Article I, Section 8, Clause 3 of the Constitution that explicitly gives Congress the authority to regulate interstate commerce.

Aren't you?

"Does this mean I have to destroy my tomato plant?"

It means you have to abide by the the laws of the United States, which, themselves, are beholden to the Constitution.

Posted by: Ethan2010 | November 10, 2010 3:48 PM | Report abuse

You can still have a some kinds of tomato plants if you don't save its seed or clone it.

Agribiz got a law passed allowing the ownership and preventing the unauthorized propagation of patented plant genomes.

http://www.planthaven.com/plantpatentlist.html


Posted by: shrink2 | November 10, 2010 3:49 PM | Report abuse

@Troll: "The commerce clause did not originally mean 'The government can do whatever it wants.'"

The commerce clause originally meant:

'The government can do whatever it wants with regards to regulating interstate commerce.'

Posted by: Ethan2010 | November 10, 2010 3:52 PM | Report abuse

Incandescent light bulbs will no longer be available for purchase after 2014. It is amazing that you didn't know this. After that, we can only use light bulbs approved by congress or the standing Federal government.

I guess you have no problem with that either.

I have no idea what you are talking about with the "herb" comment.

As for encouraging the growth of a carcinogen, again, to what do you refer?

Why not try making some sense BEFORE inserting the egregious snark? It would do wonders for your communication skills.

If the patriot act is so troublesome, post a copy of a letter you sent to Obama demanding that he stop relying on it. That would improve your credentials as a liberal, no?

Posted by: skipsailing28 | November 10, 2010 3:59 PM | Report abuse

'The government can do whatever it wants with regards to regulating interstate commerce.'

and interstate commerce has since come to be defined as "any activity, or inactivity, at any time, at any place."

Posted by: NoVAHockey | November 10, 2010 4:03 PM | Report abuse

@Ethan2010 "The commerce clause originally meant:

'The government can do whatever it wants with regards to regulating interstate commerce.'"

The proper response to Ethan 2010 is to inquire as to what activities (if any) he believes Congress would NOT be allowed to regulate under the Commerce Clause.

I would submit that the Commerce Clause "Article I, Section 8, Clause 3:
“ [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;" is designed to do exactly what it says, regulate Commerce among the Several States meaning activities that involve buying and selling something across state lines. Regulation of things like growing wheat (or marijuana) on your own land are the proper domain of the individual state governments.

On a broader note, I can not subscribe to a view liberty and freedom (which is what the Constitution was established to preserve) that allows the Federal government to force a farmer to destroy food that he has grown on his own land for his own use and pay a fine under threat of being sent to prison. The founders would have been appalled at this decision.

Posted by: jnc4p | November 10, 2010 4:14 PM | Report abuse

"The proper response to Ethan 2010 is to inquire as to what activities (if any) he believes Congress would NOT be allowed to regulate under the Commerce Clause. "

The proper answer from Ethan2010 is that ANY activities that effect interstate commerce can be regulated by Congress. That was the intent of the Founders and it is explicitly provided in the Commerce Clause.

Once again, your problem is with certain specific or hypothetical laws created by Congress -- a temporary body -- not with the Commerce Clause, a main facet of the governing document of our country since its founding.

The sooner those of you who oppose regulation address that fact, the better.

Posted by: Ethan2010 | November 10, 2010 4:25 PM | Report abuse

I think what Ethan means to say is this:

no law can be unconstitutional. interstate commerce means "everything" and as congress can regulate commerce, it can regulate everything. and if you don't like it, instead of an pointing to an obvious institutional check on federal power, vote for someone else next time.

Additionally, I refuse to acknowledge that a court case in 1942 resulted in this broad interpretation of the commerce clause, a ruling from a time period of judicial activism so controversial it has become known the “constitutional revolution of 1937" and allowed the expansion of government regulatory power over the economy. I also refuse to acknowledge that the meaning and interpretation of said clause has been subject to debate since about 1800.

Posted by: NoVAHockey | November 10, 2010 4:53 PM | Report abuse

@Nova: "Travesty, really. Can't grow my own wheat b/c it depresses your prices? not my problem."

Indeed. That decision may be constitutional, as determined by the court at the time, but really, it shouldn't be. That was a bad precedent, irrespective of an individual mandate for insurance, which I can see stronger legal arguments for than "you can't grow your own food". So I could legally be prevented from growing my own jalapenos peppers because it might affect the interstate jalapeno trade? And what if I'm a farmer who is competing with a different strain of wheat, and thus affect the interstate commerce of other farmers?

That's not just a legal decision, it's a pandora's box. I think it's a very poor defense for the individual mandate, and if a legal case on the individual mandate overturns Wickard versus Filburn, that could only be good.

I agree that describing the mandate as a tax--essentially, a tax on those without insurance--is a much better legal approach. Wickard versus Filburn oughta be overturned, frankly. ;)

Posted by: Kevin_Willis | November 10, 2010 5:06 PM | Report abuse

Another question for Ethan: what is the goal of all this regulation?

I'm asking because we've seen the result of intense, intrusive regulation. The example used by Milton Friedman in his series "free to chose" was India under the paper work raj. That over bearing regulatory approach stifled innovation, destroyed free will and kept the indian people mired in poverty. The removal of the paper work raj allowed the tremendous expansion of the Indian economy we're now seeing.

So if we know the result is a dreadful moribund economy, surely, Ethan, the goal must be something lofty. Like what? What would be worth the destruction of the American economy and way of life Ethan?

Do tell.

Posted by: skipsailing28 | November 10, 2010 5:09 PM | Report abuse

Ethan, is there any activity or inactivity that does not effect interstate commerce in some way?

Posted by: TrollMcWingnut | November 10, 2010 5:12 PM | Report abuse

@skipsailing: "Incandescent light bulbs will no longer be available for purchase after 2014."

You'll be able to get them on the Internet. Specialty shops. Incandescent bulbs made in America are no longer available, at all, thanks to that law, though.

Good idea, to close factories and put people out of work--even if it's not a ton of people--during a recession.

I just know we aren't making light bulbs any more. In the birthplace of the light bulb. That just kinda sucks.

How does the law effect halogen bulbs? Or sodium arc lights? I was never clear on that.

Posted by: Kevin_Willis | November 10, 2010 5:13 PM | Report abuse

The proper response to Ethan2010 is...


{{{ciúnas...chirp}}}

Posted by: tao9 | November 10, 2010 5:21 PM | Report abuse

@Troll:

"Ethan, is there any activity or inactivity that does not effect interstate commerce in some way?"

It's not up to me. It's up to Congress to make the laws. Whether or not the laws Congress passes are constitutional ALSO not up to me, but to SCOTUS.

Again. All these hypotheticals and all this hand-wringing is totally besides the point.

I will say this for the third time on this thread:

Your collective problem is not about specific laws that Congress may or may not pass, but with the Commerce Clause itself.

Have any of you addressed that?

No.

Case closed.

Posted by: Ethan2010 | November 10, 2010 5:23 PM | Report abuse

Ethan, I think the problem I'm having with the Commerce clause is the exceedingly broad interpretation of it that was implemented in the '30's and '40's to justify the New Deal. We've seen some roll back with, I think it's the Lopez descision, and my guess is that the mandate will further erode this broad definition. What will be interesting is the economic impact of the collapse of the medical insurance industry.

Posted by: TrollMcWingnut | November 10, 2010 5:33 PM | Report abuse

And if you want to get into specifics about Wilburn, here is the rationalization for the court's unanimous decision:

"Filburn argued that since the excess wheat he produced was intended solely for home consumption it could not be regulated through the interstate Commerce Clause. The Supreme Court rejected this argument, reasoning that if Filburn had not used home-grown wheat he would have had to buy wheat on the open market. This effect on interstate commerce, the Court reasoned, may not be substantial from the actions of Filburn alone but through the cumulative actions of thousands of other farmers just like Filburn its effect would certainly become substantial. Therefore Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial."

http://en.wikipedia.org/wiki/Wickard_v._Filburn

Simply:

The production or lack of production of a good or commodity, which is sold en masse throughout the country, can effect interstate commerce in the aggregate. As such, that good or commodity can and should be regulated.

It's actually a pretty clear concept and I'm surprised you guys don't get it. It really is quite straight-forward.

Posted by: Ethan2010 | November 10, 2010 5:34 PM | Report abuse

yeah, I was in the toledo area over the weekend. A ghost town in the making Kevin. No more Sylvania even in Sylvania it seems.

Posted by: skipsailing28 | November 10, 2010 5:34 PM | Report abuse

"I think the problem I'm having with the Commerce clause is the exceedingly broad interpretation of it"

That's what I don't understand. You keep talking about the interpretation of the Commerce Clause, but it is not a subjective thing. You either CAN regulate a good or commodity or you CANNOT. If you can regulate interstate commerce for the good or commodity then you have to be able to regulate the negative of that or the clause fails, hence the inverse commerce clause. It's not a matter of choice. You simply cannot have a commerce clause without its inverse. That is why you can regulate BOTH the production of a good or commodity AND the lack of production of the good or commodity. It also explains why you can regulate a good or commodity in the wholistic/national sense and the local sense, as is the case with Filburn. If you regulate the production of wheat nationally, as the Commerce Clause explicitly allows, then by failing to regulate small batches of production then you are undercutting the regulation in aggregate.

"What will be interesting is the economic impact of the collapse of the medical insurance industry."

That would be awesome. Think of all the extraordinarily talented people who could use their intellect developing industries that do something productive for society rather feed an industry where the sole mission is to make money off of people's health care.

Posted by: Ethan2010 | November 10, 2010 5:47 PM | Report abuse

I understand your confusion on my opinion, so I ask then, name an activity that does not effect interstate commerce.

Posted by: TrollMcWingnut | November 10, 2010 5:56 PM | Report abuse

So here's a question for all the constitutional law experts out there, including the professor from Georgetown. The Justice Department is defending this law as a tax. Name one time the SC has upheld a tax that penalizes a private citizen for not entering into a contract with a private company. I'll be waiting.

The professor is the one who is absurd. He takes one small portion of the arguement, and doesn't even try to rebut the rest. I'd ask for my money back if I were a Georgetown student. The SC stated in Lopez, a much more recent case (1996) that there are three conditions where congress can regulate interstate commerce: use of the channels of interstate commerce, the "instrumentalities" used in interstate commerce, and activities that substantially affect interstate commerce. Interesting that the professor (at least from this article) didn't even attempt to address the concerns laid out in Lopez.

This is requiring a person to take an affermative action. I personally think the Wickard case is just as wrong as the Kelo case. I'm sure many people here agree that Kelo was bad law. So why so quick to defend the Obama administration? Ultimately the end result is the same: private property (money) is compelled by Government action into private hands.

Posted by: Bailers | November 10, 2010 5:57 PM | Report abuse

I also will note that I do not think that healthcare is a right, so the collapse of the medical insurance industry does not seem such a good thing.

Posted by: TrollMcWingnut | November 10, 2010 5:59 PM | Report abuse

I also will note that I do not think that healthcare is a right, so the collapse of the medical insurance industry does not seem such a good thing.

Posted by: TrollMcWingnut | November 10, 2010 5:59 PM | Report abuse

"name an activity that does not effect interstate commerce"

You can make the most mundane activity into a good or service that effects interstate commerce. So I'd argue that most activities could be subject to regulation. As I have said, which activities can be regulated -- and to what extent they can be regulated -- is for the courts to decide. That's why we have a court system.

If you take opposition to certain regulations, that's one thing. But to suggest or imply that you oppose regulation on the basis that the Commerce Clause hypothetically allows for the regulation of most or all activities is to ignore the logical conclusion of that thought process. That being, that NOTHING should be regulated by the Federal government.

And that, as the Founders so wisely understood, is a recipe for a country without a central (aka Federal) government, and thus a recipe for anarchy and total disaster in a country and region ruled by commerce (as the colonies were from the very beginning).

Posted by: Ethan2010 | November 10, 2010 6:07 PM | Report abuse

Can the government regulate what stories the WaPo can publish? Can it tell me what articles in the WaPo I have to read

Posted by: TrollMcWingnut | November 10, 2010 6:32 PM | Report abuse

"Can the government regulate what stories the WaPo can publish? Can it tell me what articles in the WaPo I have to read"

As I've said, you need to ask the courts, not me.

Get it?

Posted by: Ethan2010 | November 10, 2010 6:51 PM | Report abuse

@Ethan2010 "Simply:

The production or lack of production of a good or commodity, which is sold en masse throughout the country, can effect interstate commerce in the aggregate. As such, that good or commodity can and should be regulated.

It's actually a pretty clear concept and I'm surprised you guys don't get it. It really is quite straight-forward."

We "get it" in the sense of understanding the argument you are attempting to make, but reject your argument as being completely at odds both with the original understanding of the Commerce Clause and with the idea of a Federal Constitution of limited, enumerated powers in general.

The Commerce Clause was meant to regulate trade that crosses state lines (i.e. Virginia can't tax goods made in Pennsylvania just because they are from Pennsylvania instead of Virginia), not activity that occurs solely within a state. The "aggregate effects" argument is simply a rationalization that ignores the plain meaning of "interstate". Presumably you feel that United States v. Lopez was wrongly decided as the guns at issue in the case could conceivably "effect interstate commerce in the aggregate".

http://en.wikipedia.org/wiki/United_States_v._Lopez

More substantively, the argument that a modern industrial economy needs centralized federal regulation is a fine argument to make for amending the Constitution, which is the mechanism that the Constitution provides for updating itself. It is not proper to simply pretend that the restrictions on the Federal government in the Constitution no longer exist once they become inconvenient.

I also take issue with the idea that the Supreme Court and "constitutional scholars" are some sort of high priesthood with secret decoder rings who can find "penumbras" and "emanations" in the text that are hidden from us ordinary mortals, and that therefore whatever they say on these matters should never be revisited due to "stare decisis". The Constitution was written down in clear language precisely to prevent these sorts of shenanigans.

Posted by: jnc4p | November 10, 2010 6:51 PM | Report abuse

"...so the collapse of the medical insurance industry does not seem such a good thing."

Sir Wingnut, the medical insurance industry is not only in no danger, it may survive to be the last industry thriving in America.

There is lots to worry about, but you just don't have to worry about the medical insurance industry. I hope you feel better. Don't thank me.

Posted by: shrink2 | November 10, 2010 7:03 PM | Report abuse

All this discussion proves, once again, is that Ethan could never pass a constitutional law course.

Posted by: quarterback1 | November 10, 2010 7:30 PM | Report abuse

@jnc4p: "reject your argument as being completely at odds both with the original understanding of the Commerce Clause and with the idea of a Federal Constitution of limited, enumerated powers in general"

That's fine, except for the fact that the Founders specifically wrote the Commerce Clause to give the Federal government those powers, limited or otherwise.

That you cannot deny.

Posted by: Ethan2010 | November 10, 2010 7:52 PM | Report abuse

"More substantively, the argument that a modern industrial economy needs centralized federal regulation is a fine argument to make for amending the Constitution"

Yeah right. Let's leave commodity regulation to the states! Hilarious. Do you like the United States or would you prefer 50 different small countries?

"The Constitution was written down in clear language precisely to prevent these sorts of shenanigans."

The judiciary was formed to solve these sorts of *ahem* 'shenanigans.'

Taking your two comments together, it appears that you are expressing your disapproval with a centralized Federal government, with the Constitution's manner of addressing commerce, and with the judiciary. Quite frankly, is there anything about the United States government that you DO like? I ask because I don't see -- and clearly the Founders didn't see -- how a union of colonies could last indefinitely as a country without these three vastly important elements of our society holding it together.

Maybe the dissolution of the USA is your desired end-goal, I don't know. But me, I prefer the United States of America to be one country, indivisible, with Liberty and Justice for All.

Posted by: Ethan2010 | November 10, 2010 8:08 PM | Report abuse

@Ethan2010 "But me, I prefer the United States of America to be one country, indivisible, with Liberty and Justice for All."

Except for Roscoe Filburn.

Posted by: jnc4p | November 10, 2010 8:28 PM | Report abuse

"Except for Roscoe Filburn."

Poor Roscoe...

...what with having to buy wheat on the free market and all.

...what with having to abide by the laws of the United States and all.

Yeah. Poor Roscoe. I weep.

Posted by: Ethan2010 | November 10, 2010 8:38 PM | Report abuse

Free Roscoe Filburn!

That would have been a great Keep the Fear Alive sign.

So, fill me in, Roscoe could grow all the wheat he wanted, he just could not sell it into the wheat market without dealing with The Law.

I hope this isn't tmi, but I grow wheat for fun, barley too. I even have four cherry trees. Now you think I am being facetious, but a couple years ago, the rich son (of course) of a cherry grower ranted about people who had cherry trees and who give them away, don't spray properly yadda yadda and did not have to conform to all the rules and regulations and how wrong that was. After all, what if everyone grew cherries (?!), the industry would...well you get my point.

So, I am asking, you can grow wheat and not sell it to anybody, right?

Posted by: shrink2 | November 10, 2010 9:09 PM | Report abuse

@Ethan2010
"...what with having to buy wheat on the free market and all."

The entire point of the Agricultural Adjustment Act of 1938 was to prevent a free market in wheat and thus drive up the price.

http://en.wikipedia.org/wiki/Agricultural_Adjustment_Act_of_1938

That's what the case was about to begin with.

@shrink2

"So, fill me in, Roscoe could grow all the wheat he wanted, he just could not sell it into the wheat market without dealing with The Law."

No, you are missing the point. Under the Agricultural Adjustment Act of 1938 Roscoe was only allowed to grow the amount of wheat that the Federal Government, through the Agriculture Department, permitted him to grow, regardless of the use.

"So, I am asking, you can grow wheat and not sell it to anybody, right?"

Under the interpretation of the Commerce Clause in Wickard v. Filburn, you are only allowed to grow the amount of wheat that the Federal government permits you to grow. I do believe that the limits Agricultural Adjustment Act of 1938 have seen been superseded, but according to Wikipedia the law is still on the books.

Also, found a picture of Roscoe:

http://www.law.louisville.edu/constitution-day/gallery/roscoe-filburn

Posted by: jnc4p | November 10, 2010 9:42 PM | Report abuse

"The entire point of the Agricultural Adjustment Act of 1938 was to prevent a free market in wheat and thus drive up the price."

I was being facetious. Should have put "free market" in quotation marks.

But the fact remains that Poor Roscoe had to abide by the law just like everyone else.

I, personally, do not support artificial price supports for agricultural products. But what I DO support is the ABILITY of Congress to regulate agricultural products. And as I've said, what, 100 times now, this whole debate is about the Commerce Clause and NOT, repeat, NOT the viability of any specific or hypothetical regulation.

As I've said, the Commerce Clause gives Congress the Constitutional authority to write laws regulating commerce. PERIOD.

That is the full extent of the Commerce Clause. PERIOD.

Any further debate on the MERITS of the regulations passed by Congress is a totally different topic, each instance specific to its law. And, as I've said, each member of Congress can and should be held accountable based on their performance in writing those regulatory laws. Don't like the law that forced Roscoe to burn his crops and your Rep voted for that law? Vote him out.

But again, to suggest that this one regulation shows some kind of flaw with the Commerce Clause as written in the Constitution is bizarre and not credible.

Posted by: Ethan2010 | November 10, 2010 9:55 PM | Report abuse

@Ethan2010 "As I've said, the Commerce Clause gives Congress the Constitutional authority to write laws regulating commerce. PERIOD. "

Presumably this interpretation means that the Eighteenth Amendment to the Constitution (Prohibition) was completely unnecessary as the Commerce Clause alone should have sufficed to grant Congress the power to enact the Volstead Act? Why would you need to amend the Constitution to regulate alcohol but not wheat?

http://en.wikipedia.org/wiki/Eighteenth_Amendment_to_the_United_States_Constitution

http://en.wikipedia.org/wiki/Volstead_Act

Posted by: jnc4p | November 10, 2010 10:18 PM | Report abuse

"Presumably this interpretation means that the Eighteenth Amendment to the Constitution (Prohibition) was completely unnecessary as the Commerce Clause alone should have sufficed to grant Congress the power to enact the Volstead Act? Why would you need to amend the Constitution to regulate alcohol but not wheat?"

I would agree with that, that the 18th amendment was unnecessary due to the government's ability to regulate alcohol as a commodity.

Cannabis/marijuana is regulated by the Marijuana Tax Act of 1937 and the effect of the law is to effectively prohibit use of the use of the plant.

Posted by: Ethan2010 | November 10, 2010 10:34 PM | Report abuse

It seems pretty obvious to me that this has nothing to do with growing wheat, it has to do with selling the wheat that was grown. After all, we are talking about commerce.

Posted by: shrink2 | November 10, 2010 10:50 PM | Report abuse

jnc4p: "Presumably you feel that United States v. Lopez was wrongly decided as the guns at issue in the case could conceivably 'effect interstate commerce in the aggregate'."

That's not a correct inference. Lopez wasn't about guns; it was about restricting the carrying of guns within a certain distance of a school. From the cited Wiki entry: "The Court reasoned that if Congress could regulate something so far removed from commerce, then it could regulate anything, and since the Constitution clearly creates Congress as a body with enumerated powers, this could not be so."

But health insurance is not "far removed from commerce"; it is very tightly bound up in commerce. So Lopez, which is not about guns generally but about guns within a certain distance from schools, doesn't apply.

Posted by: dasimon | November 11, 2010 12:05 AM | Report abuse

"Why, under your reasoning, cant Congress force you to buy a gun?"

Posted by: TrollMcWingnut

===

Because Government is not legally obliged to provide you with a gun. You only have a right to buy and own a gun.
But Government IS legally obliged to provide you with (access to) Healthcare. The Healthcare industry is legally obliged to provide you healthcare when you need it, no matter the circumstances.

Posted by: wimprange | November 11, 2010 9:16 AM | Report abuse

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