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Friday, October 8, 2010

Up is Down, In is Out, Inactivity is Activity

I don't have time today to get into detail on the Michigan trial court decision upholding the Obamacare mandate under the Commerce Clause.  The decision can be boiled down to these three words:  "Inactivity is Activity."

Here is the money quote from the decision (at pp. 16-17)
There is a rational basis to conclude that, in the aggregate, decisions to forego insurance coverage in preference to attempting to pay for health care out of pocket drive up the cost of insurance. The costs of caring for the uninsured who prove unable to pay are shifted to health care providers, to the insured population in the form of higher premiums, to governments, and to taxpayers. The decision whether to purchase insurance or to attempt to pay for health care out of pocket, is plainly economic. These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance. These are the economic effects addressed by Congress in enacting the Act and the minimum coverage provision.

The health care market is unlike other markets. No one can guarantee his or her health, or ensure that he or she will never participate in the health care market. Indeed, the opposite is nearly always true. The question is how participants in the health care market pay for medical expenses - through insurance, or through an attempt to pay out of pocket with a backstop of uncompensated care funded by third parties. This phenomenon of cost shifting is what makes the health care market unique. Far from “inactivity,” by choosing to forgo insurance plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars, $43 billion in 2008, onto other market participants.
Here is Randy Barnett's explanation:
...Judge Steeh offers no limiting principle to the “economic decisions” theory. His acceptance of the government’s argument that the health insurance market is “unique” is window dressing. Allowing Congress to regulate all “economic decisions” in the country because Congress has a rational basis for thinking such mandages are essential to its regulation of interstate commerce cannot and will not be limited to the sort of public goods argument offered in support of this mandate. Given that his decision, on his own account, is expanding federal power beyond existing Supreme Court doctrine, was it not incumbent upon him to deal with the slippery slope issues raised by his newly-minted “economic decisions” doctrine? 
And also check out Orin Kerr's somewhat contrary analysis.

This is just the first in what will be a line of trial court decisions.  Everyone knows this is going to the Supreme Court, so I'm not particularly worried by this decision.

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  1. By this theory, the government could force all Americans to pay 10% of their income toward a new food entitlement. You'd go to the grocery store (now staffed by unionized federal workers) and they would load your cart with whatever food the gov't that week decided was appropriate for your family in terms of quantity and nutritional value. Enrollment would be compulsory, but warranted by the Commerce Clause insofar as people's decision on how much and what kinds of food to buy undoubtedly affects the price of groceries, the fitness industry, etc.

  2. The food market must also be unique in the same way. As is the water market. And the air market. The transportation market (whether by foot or some vehicle) must also be unique in the same manner. Come to think of it, every market is unique in that "No one can guarantee his or her [insert word], or ensure that he or she will never participate in the [insert word] market."

    Of course, that would mean that none of those markets are unique.

  3. The states need to hold a constitutional convention, and do the following:

    1. Strike the commerce clause.

    2. Strike the general welfare clause (since that would be the socialists' next excuse for continuing the welfare state).

    3. Repeal the 16th and 17th amendments.

    4. Augment the 22nd amendment to impose term limits on senators and representatives of two and four terms, respectively.

    5. Amend the constitution such that the section 10 prohibition that "No State shall ... make any Thing but gold and silver Coin a Tender in Payment of Debts" also applies to the Congress's section 8 responsibility "To coin Money, regulate the Value thereof". This fifth point is critical because as long as we remain on a fiat currency system, there will be inflation. As long as there is inflation in excess of interest rates that are available on savings, we will always be doomed to be wards of the state because it will be impossible to save for retirement. Saving for a self sufficient retirement is impossible under the present currency regime because over a 60-year timeframe, a dollar saved is a nickle earned.

  4. The states should also pass another amendment that is almost a verbatim copy of the tenth amendment, the only difference being that it is in ALL CAPS and with a minor addition on the end:


  5. One more example of inane reasoning by liberal jurists who ought to be stripped of their robes. The Commerce Clause was not written to allow the Federal government to claim jurisdiction over each and every aspect of American life. Just as the guarantee of free speech does not, as the 9th Circuit Court claims, grant one the right to lie with impunity (as in claiming decorations not earned, or military service not served, ala Blumenthal in Connecticut)

  6. Once again, the commerce clause is misused by a judge. The commerce clause did not intend for "regulation" of commerce, but that commerce be made "regular" i.e. that it remain free and natural and not be hampered by artificial constraints INCLUDING the federal government.

    As for the 'general welfare' clause, liberals need to realize that is one phrase in a much larger document, and that larger document makes clear that all the things the Obama government is using that clause to justify are NOT ALLOWED. Next they will be claiming that the constitution allows for prohibition of religion, as long as it can be shown to be in the 'general welfare.' That would ignore the First Amendment though, and be a cherry pick of the Constitution which is what libs always do.

  7. I second FZ.

    Only a constitutional convention, as difficult as that is, can reverse the interpretations of the commerce clause imposed by FDR and added to for 75 years.

    The interpretation of the commerce clause is a loophole big enough to drive a tyranny through. It has been and will be used to justify any intervention by government. If we can't reverse it, then we might as well submit to our educated, elite masters.