Sunday, November 20, 2011

A mandate by any other name...  

The fervor on the right for the SOTUS to declare the health care insurance mandate unconstitutional is far from a stand-alone issue. I have written before about the comparison to the ethanol mandate, but it is even more abstruse legally than I had imagined.

For instance, if the ACA mandate doesn't pass muster, it could impact the 1938 Farm Bill, which undergirds every farm bill since.
The role the Wickard decision will play in the health care reform lawsuits that are now before, or headed toward, the U.S. Supreme Court is unclear, because some lower court judges have refused to use the 1942 case as precedent, while others have.
ISU’s Harl notes in his article that “one of the more influential opinions from the appellate courts” did take notice of Wickard and upheld the health care law “as within the power of Congress to legislate under the commerce power.”
Of particular interest, Harl said, is the fact that the three-judge panel of the District of Columbia Court of Appeals that made the decision was headed by Judge Laurence Silberman, a conservative judge who was appointed by President Ronald Reagan in 1985.
The Silberman decision, Harl wrote, stated that “Wickard … comes very close to authorizing a mandate similar to (the health care legislation), at least indirectly.”
Also, Harl noted, “Judge Silberman, in the opinion, concluded with the statement ‘we are obliged — and this might well be our most important consideration — to presume that acts of Congress are constitutional.’ ”
Harl’s article concludes with a question: “What are the chances that the current (Supreme) court will follow the path taken by the District of Columbia Court of Appeals and uphold the legislation?”
The high court, he wrote, “has a choice — overturn Wickard v. Filburn or, at least distinguish it, which could be difficult to do, or uphold the 2010 health care legislation.” [More]
Moreover, striking it down will really complicate other applications of the Commerce Clause, which has allowed Congress to meddle in all kinds of sectors to reward constituents/supporters.

To be sure, a number of the Supreme Court's Commerce Clause cases have used the word "activity" to describe behavior that was either regarded as within or without Congress's authority.  But those cases did not purport to limit Congress to reach only existing activities.  They were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question--presented here--of whether "inactivity" can also be regulated.  In short, we do not believe these cases endorse the view that an existing activity is some kind of touchstone or a necessary precursor to Commerce Clause regulation. . . .
Indeed, were "activities" of some sort to be required before the Commerce Clause could be invoked, it would be rather difficult to define such "activity."  For instance, our drug and child pornography laws, criminalizing mere possession, have been upheld no matter how passive the possession, and even if the owner never actively distributes the contraband, on the theory that possession makes active trade more likely in the future.  And in our situation, as Judge Sutton has cogently demonstrated, many persons regulated by the mandate would presumably be legitimately regulated, even if activity was a precursor, once they sought medical care or health insurance. [More]
 And it's just that simple.

Seriously, the legal fallout from this case will be immense regardless of the decision.

Update: Another opinion that cites Wickard as an important guiding precedent.


Bill Harshaw said...

"For instance, if the ACA mandate doesn't pass muster, it could impact the 1938 Farm Bill, which undergirds every farm bill since." I think this is very doubtful. I believe Wickard deals with the enforcement of wheat marketing quota penalties for growing in excess of the allotment. The 1940 wheat program was a mandatory one. We haven't had mandatory programs for the field crops since the 1960's, nor for tobacco and peanuts since the last decade. What underpins the voluntary programs for wheat, feed grains, cotton, rice has been a quid pro quo: if the farmer signs up for the program and abides by its conditions, he or she will (or may) get money. So even if the Supreme Court decided that Wickard went too far, it wouldn't affect the major farm programs.

Anonymous said...

John, I think your grasping at straws in your blind support of Obama. Fear and brute force (with out compromise) got us this rotting health care bill. Now that brute force is gone fear is the only weapon left to keep it.

Anonymous said...

I always like how those associated with agriculture criticize government actions for others like the health care bill and seem to forget that over the decades their very existence in agriculture is because of government. Farm bill after farm bill of safety nets. Just a nice little fact many like to gloss over and ignore. Better put on your sunglasses guys, the harsh glare of reality is pretty bright.

John Phipps said...


I don't pretend to follow the nuances of Harl's observation, but have read several other legal scholars who have similar questions about the scope of the mandate decision and its impact on other seemingly disconnected legislation.

Also the sugar program would seem to be a closer fit to this analysis, I think.

anon 1: My answer was pre-written for me by David Frum. His words, my thoughts.

anon2: The difference is farmers deserve our government dollars. At least this is the frame of reference I usually encounter.

Anonymous said...

My family has received a lot of gov't money over the years, but I just wish they would go away and leave us alone. Then we could plow through those so called, "wetlands", which were made by old tile stopped up years ago. Central Indiana.

Anonymous said...

We have the most diverse, highest quality, and least expensive food in the world. Our health care is the most diverse ( to go to Mexico to get that drug) highest quality ( to go to Europe to get that treatment)
Well at least we deliver it the cheapest of anywhere in the world...NOT.
Yes...I can sure see the similarities between our agriculture and our health care.

John Phipps said...


Got any data to back up your food assertions? I have talked about the "cheapest food" myth before - it's the most affordable since our incomes are so high.

As for diversity, I would suggest its because we import enormous amounts of produce. And what measurement do you use for quality?

Finally the comparison is not between food and health sectors, but food and health laws.

Bill Harshaw said...

Anon 3: You realize neither Congress nor the FSA bureaucrats are forcing you to take the money?