******************** THIS BLOG HAS MOVED TO WWW.LEGALINSURRECTION.COM ********************

This blog is moving to www.legalinsurrection.com. If you have not been automatically redirected please click on the link.

NEW COMMENTS will NOT be put through and will NOT be transferred to the new website.

Tuesday, March 23, 2010

We Need "Blue Light" Mandates

The mandate is front and center in the constitutional challenges to Obamacare's requirement that everyone purchase health insurance or suffer penalties.

I've been posting about the mandate since last summer, since the mandate for the first time punishes and taxes the failure to engage in economic activity.

Although Obama opposed a mandate during the campaign, it should not be a terrible surprise that he would trumpet a law requiring people to engage in economic activity he deemed central to his overall health care plans:

Barack Obama will require you to work. He is going to demand that you shed your cynicism. That you put down your divisions. That you come out of your isolation, that you move out of your comfort zones. That you push yourselves to be better. And that you engage. Barack will never allow you to go back to your lives as usual, uninvolved, uninformed.
Whether such a mandate is constitutional is the subject of another good discussion at Volokh Conspiracy, this time from David Kopel (h/t Instapundit), Is the tax power infinite?:

One source of the impending constitutional challenge to the Obamacare mandate is that exceeds the enumerated powers granted to Congress under Article I, section 8....

Does Congress have the infinite power to control people’s behavior (such as by ordering them to engage in commercial transactions) via the tax power? I suggest not. When the Bill of Rights was being debated in front of Congress, the skeptical Rep. Theodore Sedgwick of Massachusetts asked if there should also be an enumeration that “declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper.” 1 Annals of Congress 759–60 (Aug. 15, 1789). Sedgewick’s point was that national laws about bedtimes and hat-wearing were self-evidently beyond the authority of Congress.

However, if the tax power means that Congress can order citizens to buy something they don’t want to buy, why does Congress not have the power to assess taxes on people who get too little sleep, or too much sleep, and thereby harm their own health and the public fisc? Or who wear hats so little that they increase their risk of skin cancer? Or who wear hats so often that they dangerously reduce their levels of vitamin D?

If the government can force people to purchase private health insurance under threat of penalty because such purchase is necessary for the health care insurance system to work, then why not have Congress decree weekly "Blue Light" mandates to further various legislative purposes.

How about requiring people to replace the brakes on their cars, even if not yet worn out, to lower the risk of accidents? Or reversible ceiling fans to lower energy use? Or two shovels, one for themselves and one for a community shovel ready project (if they can find one)?

Any other suggestions?

Related Posts:
Freedom So Willingly Relinquished
Taxing Your Mere Existence
Get Rid of the Mandate

Follow me on Twitter and Facebook
Bookmark and Share


  1. THANK YOU for posting this. I love your blog!!

    Common Cents

  2. How about requiring all of us with desk jobs to perform calisthenics every morning in the parking lot?

  3. Require people to watch only the government-sanctioned television network and read only the government-sanctioned newspaper/internet news source/blogs in order to cut down on mis-information (or, heaven forbid, dis-information), and consequently reduce stress-related illnesses.

  4. Why not require individuals to buy a gym membership. Think of the benefits.

    People who exercise are healthier so that will reduce health care costs. Because everyone would be buying a membership but not everyone would be using the facilities, it would drive down the cost. Many more gyms would open up and strengthen our economy.

  5. Actually I've always kind of wanted a birth control mandate for those dependent on public assistance for a large portion of their sustenance.

    Since, by design, this is more or less where we're all headed maybe it is time to back off that wish.

  6. Suggestions? Well for starters, let's tax the poor. Give them an incentive to be rich.

    And let's travel back in time to Montgomery, Alabama in 1955 and the bus boycott. The boycott was an economic problem for the city. Don't you think it would have been OK to tax those who did not ride the bus?

    (In this respect, I think one way to attack the bill is as a First Amendment issue. Boycotts are powerful political speech. Suppose we refuse to buy health insurance as a boycott? Is compelling us to break the boycott a violation of our First Amendment rights? [And suppose Great Britain had tried to tax colonists who did not buy tea in protest of the tea tax?])

  7. Since the government owns most of GM, and it tells us that oil is evil but green energy is virtuous, why not force everyone to choose between a white Chevy Volt electric car and a yellow Chevy Volt electric car when you are in the market for a new car? Since you have choice, you are free!! And green!!

    What a terrific idea.

  8. How about a gym membership to help with obesity to help with healthcare costs? Or solar panels to save . . . um, the polar bears? Or a GM car because Government Motors is too big to fail?

  9. Mandate marriage. Married men are healthier than single men.

  10. People have been sitting around talking or yelling from street corners. Don't you think it is time to organize and begin a real effort to hurt the politicians and get our conservative message out?

    For instance, what about a day of driving the interstates at 40 miles an hour or less. Of course that may be the ordinary speed for some of you, but the point is to slow down significantly, not quite breaking the law. This may sound punitive, but it gets press coverage and could lead to other slow down efforts. Simply taling to these people does not seem to work. I have been in Italy when they shut down the highways or trains, it carries a message.

  11. Mandate that all US citizens must annually purchase one handgun, rifle, or shotgun.

    I'm sure I could come up with some rhetoric as to why this should be done, but why bother? If the government can force us to buy something, then is a reason really necessary?

    While we're at it, everyone should be required to purchase 2 packs of cigarettes a week. Smoking them, of course, will be illegal.

  12. Mandate that all health insurance be illegal and fine anyone who buys it. If we all had to pay out of pocket wouldn't health care cost plummet?

  13. Mandate that Congress be required to make specific cost analyses of proposals so the people really know the true cost of proposed legislation.

    Few people understand about the doctor fix bill and that it as not rolled into health care bill because it would have taken it over the top limit promised.

    I don't know how much my Medicare will cost me and what will be cut from it. I should know that before agreeing to support the bill.

  14. [w]hy does Congress not have the power to assess taxes on people who get too little sleep, or too much sleep, and thereby harm their own health and the public fisc?]

    they wouldn't go that far now would they? Oh wait, they already do that and I have the logbooks to prove it! Semi accidents have increased, not decreased since they imposed draconian mandates on us a few years back. But not to worry, those that think a yoke is that yellow substance in the center of an egg rather than a critical part of the driveline of the truck are making the rules and they are looking out for your best interest.

    FYI, over 80% of all 4-wheeler/18 wheeler accidents are the fault of the 4wheeler.

  15. Professor Jacobson,

    Thank you for posting these words from Michelle Obama:

    "Barack Obama will require you to work. He is going to demand that you shed your cynicism. That you put down your divisions. That you come out of your isolation, that you move out of your comfort zones. That you push yourselves to be better. And that you engage. Barack will never allow you to go back to your lives as usual, uninvolved, uninformed."

    I read them today in a new light.

    She's right, but not in the way she meant.

    None of us will ever go back to our lives as usual, uninvolved, uninformed.

    Give me liberty or give me death.


  16. Hmmm..... Good question. Here are some:

    Everyone must buy and consume certain green vegetables (to ensure proper levels of B vitamins, important for healthy women and pregnancy);

    Everyone must purchase and consume x lbs. of beef (cows produce too much greenhouse gas, harming the environment and our health);

    We must purchase florescent bulbs (oh, wait,they've done that already, via banning incandescent ones!);

    We must purchase shoes made of man-made materials only (PETA would be happy);

    We must purchase x dollars of vacation time per year (even if you don't get paid - R&R is good for your health).

    Need I go on? And....for malclave's idea: the government will justify BANNING guns because of their health risks, using this new bill/law/monstrosity as justification. They DO know what is best for us rubes, doncha know! /sarc

  17. The Election Projection site has a headline

    "Tuesday, March 23, 2010
    Rating change: With no credible GOPer, AR-1 moves to DEM hold.

    This is INSANE. We're giving up the seats without a fight.

  18. Comment on "I"'s entry (9:29 pm) -

    That relates to an earlier comment I made on another thread: we MUST have Republican - Conservative Republican! - candidates running against each and every Democrat for his or her seat, or we won't have a chance to run these guys out of DC on a rail (tarred and feathered would be my preference, but I digress).

    People need to step up and run for office, challenge these Leftist guys and gals. Not everyone is a viable candidate, but there must be SOMEONE in each district who can take on these tyrannical, lying liberals (or, as Al Sharpton says, socialists)!!

    Otherwise, as you astutely note, we are giving them free reign to do whatever they want - without a fight.

  19. I for one would like a public registry of everyone who doesn't own a gun..

  20. Its hard to think of an area of life not regulated or about to be.

    The CapnTax included a provision the before you could sell your house, you had to bring it up to California type energy code standards.

    If the idea is that the government needs to force you to do something for your own good how about starting a business. Many small business were started on less than the cost of one year of health care subsidy, and many politicians seem to think it is easy to make money.

  21. Does the text of the law claim that "healthcare" is a RIGHT, as we understand that term in American jurisprudence (as opposed an ambiguous right that is touted by some UN document)? If we are talking about a "right" as understood by our legal system, the mandate forces us to exercise our "right" to healthcare (more specifically, health insurance), or pay a penalty. Owning a gun is a right that is recognized by the constitution. Can they enact a law that requires everyone to buy a government-approved gun (which would be a water gun, under this Administration), to promote the general safety and welfare, and ensure that everyone's right to own a gun is achieved? What about the "right" to an education that the Left is so fond of? Can they enact a law that requires everyone to attend a government-approved school (or otherwise pay a fine) in order to promote the general welfare? Or require that we must exercise our "right" to vote, or pay a fine? Seems to me that they have it backwards.

  22. Every week mandate every male related to a pregnant female to view the ultrasound of the baby/fetus before every abortion. Every male from the owner of the sperm to his father, grandfather and close friends.

  23. You can only change your underwear once a week (to save water and lower detergents polluting the aquifer) and to enforce it, require all underwear be worn ojn the outside, so gov't officials can see you are complying! (h/t to Woody Allen's Bananas, spoofing a crazy Castro)

  24. We do have the public school mandate (or pay twice to send your kids to a private school). In Pennsylvania property taxes on your home are quite expensive indeed, and go to the public schools overwhelmingly.
    Hey, that's just as expensive if not more than Obamacare's penalty to opt out of the mandate.

  25. A sewer system to replace all septic systems (oh, wait, they already did that to me at a cost of $12,000)

  26. Everyone MUST buy a trigger lock for a gun (even if they don't own a gun!)

  27. Everyone pay 40% more to heat or cool their home (oh, wait, Cap 'n Tax will accomplish that with Carbon credits and mandates!)

    This is fun! :-)