Our Day In Court

It was a big day at SCOTUS, and long awaited: the Justices heard oral arguments about the constitutionality of Obamacare’s individual mandate, and the buzz seems to be that it was rough sailing for the Solicitor General.

Transcript here. Decide for yourself.

Tomorrow: severability. If the mandate falls, does it take down the whole rotten structure? Judge Vinson thought so.

37 Comments

  1. the one eyed man says

    I think that the conventional wisdom of a 5-4 decision overturning the mandate is wrong. My fearless prediction is for a 6-3 decision in favor of the mandate, with Roberts writing the majority opinion.

    First, the three arguments which were advanced yesterday against the mandate all defy common sense.

    The first argument is that health care is not an interstate market. However, any industry which is 16% of the economy is interstate simply by virtue of scale. Moreover, there are many ways in which health care crosses borders. Medical equipment, which is a large part of health care costs, is a national market. Inevitably citizens who live in states which do not have a mandate will require medical care in states which do. And so forth.

    The second argument – the broccoli argument – is that requiring insurance is the first step in a slippery slope where the government requires you to (in Roberts’s words) buy a cell phone so you can call an ambulance if you have to. However, health care is sui generis insofar as the care itself is mandated, and those who are uninsured necessarily shift the cost of their care to others. If I am hungry, the supermarket is not obligated to give me broccoli. However, if I have a myocardial infarction, the hospital is obligated to treat me. My inability to afford it necessarily shifts the cost to those who may be unwilling to pay for it. Like any great constitutional issue, it’s a conflict of freedoms: your freedom to avoid paying for insurance clashes with my freedom to avoid paying for your irresponsibility.

    The third argument is that compelling someone to buy something is so different from restraining someone from doing something that it nullifies the Commerce Clause. However, the government compels many actions, such as paying taxes, registering for the draft, and serving in the military. If the government can force me to face possible death in a war which I may disapprove of, it can certainly force me to buy insurance to cover my health care needs.

    Secondly, the reason that Roberts will surprise the world is that the Court is an inherently political institution, and if there is a 5-4 decision overturning the mandate, it will be perceived (correctly, in my view) as a Republican Court which uses results-based jurisprudence to do the Republicans’ business. This is the third major case in a dozen years. In the first two, the five Republican-appointed Justices issued rulings which clearly benefited the Republican Party. Bush v. Gore was such an embarrassment that the Court’s opinion stated that it is a one-off decision and could not be used as legal precedent. Citizen’s United conferred enormous advantages to the Republicans, and the Court flouted stare decisis in making a ruling which could have been ruled on much narrower grounds. A 5-4 decision here which overturns seventy years of Commerce Clause law and nullifies an action of the other two houses of government – not to mention the signature achievement of a Democratic administration – would deprive the Roberts court of any pretense of being an impartial arbiter of the law, relying on precedent and not politics.

    Judicial opinions often have unintended consequences. Citizens United may well have hurt the Republicans, as the billionaires who are funding Santorum and Gingrich are extending a messy food fight with Romney. If I am wrong and there is a 5-4 ruling, I think that it will lead America to join the rest of the developed world and use the public option. We spend 18% of GDP on health care which is far from universal. England provides universal care for 9% of GDP. To be sure, the care which is available here to those who can afford it is superior to what you will get with National Health. However, if it were a fair comparison and England doubled their health care spending, it is certainly reasonable to think that they would have a far better system in all respects than we do, for the same cost. As a member of the Church of What Works, that sounds pretty good to me.

    Posted March 28, 2012 at 11:41 am | Permalink
  2. Malcolm says

    We’ll see.

    I agree with you that health care is a national market. I disagree with most of the rest of what you say here, including your prediction for the outcome in June.

    As for the broccoli argument, I think it is a valid concern, as I argue here. This is a very slippery slope indeed.

    As for the partisanship of the Court, I think the division we see here simply reflects the same ideological fissure that divides the nation as a whole. It is not that the conservative Justices are Republican partisans; it is that they are conservatives, and so their rulings tend to align more closely with the more conservative of the two parties. (Likewise, it is not hard to understand that the more-conservative Justices happen to be the ones who were appointed by the Republicans.)

    You wrote:

    The third argument is that compelling someone to buy something is so different from restraining someone from doing something that it nullifies the Commerce Clause. However, the government compels many actions, such as paying taxes, registering for the draft, and serving in the military. If the government can force me to face possible death in a war which I may disapprove of, it can certainly force me to buy insurance to cover my health care needs.

    That’s a pretty loose argument there, Peter, and could be used to justify pretty much any expansion of coercive Federal power whatsoever — which is exactly what the conservative wing of the Court is leery of. What’s your limiting principle here? Or are you saying — as I think you’ve said before with regard to the Commerce Clause — that once you have established the national scope of a market, there simply isn’t one?

    Posted March 28, 2012 at 12:58 pm | Permalink
  3. the one eyed man says

    In this case, the limiting factor is the unique nature of health care. The need for it is universal: is there anyone you know who has never used the health care system? While there are other things which are universal, health care is unique insofar as the provider is mandated to provide care, regardless of whether or not the recipient is able to pay for it. Hence an uninsured patient places an undue burden on others, which is not a factor in any other industry. Restaurants don’t have to feed the hungry and gas stations don’t have to fill you up if you’re broke. In my view, that distinction is so fundamental that it places a very clear distinction between health insurance and all other commercial activity.

    As you know, I take a much more expansive view of Article I Section VIII than you do, believing that the common welfare is whatever Congress says it is (provided there is no conflict with the Bill of Rights, the Fourteeenth Amendment, and so forth). The fact that legislation may be unprecedented, unwise, or just plan silly does not mean that it is unconstitutional. If Congress mandated that we all hop on one foot and sing Country Joe’s Fish Cheer, I’m not sure that it would be unconstitutional. (Amusing, to be sure.) While Obamacare is flawed – as any solution to an intractable problem will necessarily be – I think it is a major improvement on the status quo, and well worth it.

    Posted March 28, 2012 at 1:53 pm | Permalink
  4. Malcolm says

    Let us grant for a moment your point about the uniqueness of health-care. So you admit, then, of no limiting principle whatsoever as regards Congress’s power to mandate individual activity, so long as it is determined to affect the “unique” health-care market.

    Therefore, if it is determined that our eating broccoli reduces the overall cost of healthcare, then we can be compelled by Congress to eat broccoli. Q.E.D.

    Leaving aside all the other arguments I might make here, I think that you are making the case for a terrifying expansion of government power, and that whatever the social benefits of socialized medicine may be, they do not justify letting such a large and hungry camel get its nose under the tent.

    To invert your remark above, just because legislation may confer what many perceive to be much-needed social benefits doesn’t mean it’s Constitutional!

    Anyway, I do not concede your point about the intrinsic uniqueness of health care. In itself it is no more essential than other human necessities, such as food. (Do you know anyone who has never used the grocery system?)

    Your case for the uniqueness of the health-care market rests, then, only on the mandate imposed on providers to provide care regardless of the recipient’s ability to pay, and without regard to his current state of health. But that mandate is itself highly arbitrary and contingent; in Justice Scalia’s words, the whole issue is a “self-created problem”.

    Ultimately, the problem is one of axioms. We disagree about the relative importance of liberty and security. But as Franklin pointed out: if you give away liberty for security you shall have neither.

    Posted March 28, 2012 at 2:11 pm | Permalink
  5. the one eyed man says

    “Therefore, if it is determined that our eating broccoli reduces the overall cost of healthcare, then we can be compelled by Congress to eat broccoli. Q.E.D.”

    Well, no. If you don’t eat your broccoli, it only hurts yourself. Its relation to “the overall cost of healthcare” is negligible, tenuous, and indirect. I can’t stand broccoli, and I am a perfect physical specimen. If you don’t pay your hospital bill, it hurts the hospital, the taxpayer, and those who are responsible enough to buy insurance. This harm is immediate, quantifiable, and substantial. There is a difference in scale between the monetary benefits which accrue from the salutary effects of eating broccoli and the cost of hospital care which places this hypothetical on the absurd end of the reductio-ad-absurdum-o-meter.

    As for Scalia’s characterization of the mandate as a “self-created problem:” this may be, but as long as we mandate that hospitals treat those who need care, the problem exists. I have no problem with abandoning the insurance mandate if we abandon the mandate for hospitals. If someone doesn’t want to purchase insurance, that’s fine, provided that he either pays for his care out of his own pocket or waives his right to health care. If he is uninsured and crashes his Carrera: sorry to hear that. But if you want to have it both ways – avoid health insurance and let others pay if something bad happens – you are offending every right-thinking American’s sense of fairness.

    Posted March 28, 2012 at 2:42 pm | Permalink
  6. Malcolm says

    There is a difference in scale between the monetary benefits which accrue from the salutary effects of eating broccoli and the cost of hospital care which places this hypothetical on the absurd end of the reductio-ad-absurdum-o-meter.

    Not so absurd as you would like us to think. Once the federal government has the power to mandate activity in the interest of the “unique” health-care market, we are on a very slippery slope. Sure, broccoli per se may be a negligible factor in overall cost, but the extra health-care costs generated overall by poor diet, lack of exercise, and similar individual choices is gigantic — and would obviously be remediable by using the coercive power of government to mandate individual activity. Given the huge social and economic benefits, why not do it? In the absence of a clearly articulated limiting principle, then there is nothing in place to prevent the government from assuming such sweeping powers.

    As for your last paragraph, that is a consistent position. I agree, though I think we proceed in different directions from there. I’d get rid of the underlying mandates.

    Posted March 28, 2012 at 3:27 pm | Permalink
  7. Malcolm says

    Here’s another discussion of slippery slopes.

    Posted March 28, 2012 at 4:37 pm | Permalink
  8. the one eyed man says

    I thought of this thread as I passed by the broccoli at the store today. I decided to take a leek instead.

    There is a sharp distinction between paying for health care costs and paying for broccoli, Jenny Craig, and gym memberships.

    The first involves direct payment to health care providers to remedy an immediate health issue. The latter examples are all things which may lead to better health – assuming that broccoli is better for you than barbecued ribs – but if so, they do so indirectly, minimally, and occasionally. Eating all of the broccoli you can handle won’t prevent cancer, Alzheimer’s, or cranial rectal inversion.

    The distinction is clear: when direct payment to health care providers is required to treat an immediate or chronic condition, then it is justifiable to require people to purchase insurance in the event that this treatment is warranted. If it is something which might indirectly lead to better health: not so much. There is an enormous difference between paying a surgeon to remove a brain tumor and doing push-ups so your chances of a heart attack are reduced. We should mandate that the cost of surgery is either socialized or born by the individual through insurance, but we should not mandate dancing to the oldies with Richard Simmons. This is a clear and sensible distinction which limits individual responsibility to those health issues which demand treatment, and leaves things like diet and exercise to the discretion of the individual.

    Posted March 28, 2012 at 6:23 pm | Permalink
  9. the one eyed man says

    There is another way to demonstrate the difference between broccoli eating and health care costs. The legal principle of the Law of Necessity states that an emergency situation may trump the normal application of the law. The classic example is a hiker lost in a storm who breaks into a cabin for shelter. The life of the hiker supercedes trespass laws and the property rights of the cabin owner.

    When someone shows up at the emergency room in a coma, there is a necessity which can only be addressed by immediate medical care. There is, however, no necessity for anyone to eat broccoli, except maybe Chris Christie.

    Requiring individuals to purchase insurance to pay for life-saving medical intervention is far different from requiring them to be a vegan or live a life without baconchilicheeseburgers.

    Posted March 28, 2012 at 6:49 pm | Permalink
  10. Malcolm says

    This makes no sense. If the only plausible rationale for this unprecedentedly intrusive mandate is to bring down the overall cost to the system of providing medical treatment, then it makes far more sense to mandate activity that has a preventive effect than to mandate the purchase of insurance by healthy people to offset the (much higher) cost of treating others after they get sick. Far better to catch these nascent costs upstream: prevention is cheaper than treatment, and you have the added benefit of seeing to it that everyone is healthier and happier! You made the prevention argument yourself just recently, when we were discussing contraception.

    As long as you’re just coercing individual activity anyway, it will be far cheaper to see to it that everyone eats right and gets lots of exercise than to make young, healthy folks pay for heart transplants for lazy old fat people who have eaten and loafed their way into the E.R.

    And once the government has been granted this kind of power in the first place, one would have to be awfully naive to imagine that it would stop at mandating only the latter, anyway. Why would it? It would be so much more effective to do both, no? On what Constitutional principle could there be any lingering objection?

    And another question: speaking of mandates, what about other necessities, such as food? Why is health-care unique? Why am I mandated to stitch you up if you are bleeding, but not to feed you if you are starving? Seems to me that food is a lot more of a necessity than contraception, but heath-care providers are now being told they have to give birth-control away for nothing, with even so much as a co-pay.

    Posted March 28, 2012 at 6:49 pm | Permalink
  11. Malcolm says

    In other words: it’s hard to see what general Constitutional principle you think you are articulating here as establishing the uniqueness of this particular mandate. If you can’t do that, then to let the mandate stand opens the door to a vast new landscape of federal powers. And we should all be wise enough to understand that where power is available, it will be seized.

    Posted March 28, 2012 at 7:15 pm | Permalink
  12. Malcolm says

    “I consider the foundation of the Constitution as laid on this ground that ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.’ To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, not longer susceptible of any definition…

    …It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please. Certainly no such universal power was meant to be given them. [The Constitution] was intended to lace them up straightly within the enumerated powers and those without which, as means, these powers could not be carried into effect.”

    –Thomas Jefferson, Opinion on a National Bank, 1791

    Posted March 28, 2012 at 7:21 pm | Permalink
  13. the one eyed man says

    “The only plausible rationale for this unprecedentedly intrusive mandate” is not “to bring down the overall cost to the system of providing medical treatment.” It is to make people who need immediate medical care responsible for the payment of that care, instead of forcing others to pay their bills. There are other elements in ACA which involve cost reduction, but the individual mandate is not one of them.

    You are correct that “prevention is cheaper than treatment.” That is why the ACA requires the following preventive services to be available without co-pay:

    http://www.healthcare.gov/news/factsheets/2010/07/preventive-services-list.html

    If people don’t have to pay for vaccines, more will get them, and fewer will get sick, lowering the cost curve. However, we don’t mandate that people get vaccinated, and we certainly wouldn’t mandate that everybody eat their peas, where the connection to health is far more distant and tenuous. Instead of mandating that the individual use preventive care, ACA makes that care more easily available to them. Hence the notion of requiring people to eat broccoli is a false analogy. The correct analogy would be government subsidy of broccoli prices.

    Of course food is a necessity. That’s why we have food stamps, so the cost is socialized. Nobody demands that the grocer feed the hungry, which is why society bears the cost instead through issuing food stamps. However, we do demand that hospitals treat the sick, but we require them to also pay for the care they provide. There is a burden placed on the hospital which is not placed on the grocer. That is the fundamental reason why the indivdual madate (or the public option) is justified.

    Posted March 28, 2012 at 7:28 pm | Permalink
  14. the one eyed man says

    The constitutionality of the mandate comes from Article I Section VIII and the commerce clause.

    The uniquity derives from the necessity of providing health care in emergency or life-threatening situations. As stated above, there are other necessities, but the cost to provide for them is socialized. Medical care is unique insofar as it is the only necessity whose the provider is required to both remedy the necessity and pay for it as well.

    And as riveting as this thread may be, this is my last post. It’s time for pork ribs wrapped in bacon and deep fried – who can turn down that porcine goodness? – and maybe a little drinky-poo.

    Posted March 28, 2012 at 7:39 pm | Permalink
  15. Malcolm says

    You cannot with a straight face argue that the rationale for the individual mandate is not to subsidize the overall cost. That is the entire basis of the arguments made on its behalf: that economic inactivity on the part of individuals increases the cost borne by providers as a result of the compulsion to provide health “insurance” without any actuarial regard to existing conditions. To defray the cost of that burdensome compulsion is the only rationale that anyone has suggested for the expansion of federal power to impose this unprecedentedly intrusive mandate.

    You wrote:

    If people don’t have to pay for vaccines, more will get them, and fewer will get sick, lowering the cost curve.

    Right. It lowers the cost curve — just like insisting that healthy people buy health insurance they don’t want.

    However, we don’t mandate that people get vaccinated, and we certainly wouldn’t mandate that everybody eat their peas, where the connection to health is far more distant and tenuous.

    Wouldn’t we? How can you possibly know that? You still haven’t offered any explanation whatsoever why we couldn’t mandate vaccination, or the eating of peas, once the door has been opened to federal mandates of individual activity in order to prop up the health-care balance sheets. Both vaccines and healthy diets can make a big difference in future health costs, after all — which is all the justification that anyone has put forward in favor of the individual mandate.

    You tend to look at highly contingent arrangements (that we happen, currently, to place certain sorts of burdens on hospitals but not grocers, for example), take them as an immutable foundation, and extrapolate and generalize from them to what you hope are reliable projections for the future. But the only real bulwark against unlimited and arbitrary expansions of government power is the Constitution, and the interpretation of that document by the Supreme Court. That’s why we have to err on the side of caution and parsimony at critical junctures like this one.

    Posted March 28, 2012 at 7:56 pm | Permalink
  16. the one eyed man says

    It is a true statement that “the rationale for the individual mandate is not to subsidize the overall cost.” You’re missing the word “overall.” The individual mandate does not reduce aggregate health care costs, but it reallocates those costs so that the cost of health care is paid by those who require it.

    As for vaccinations: this is something which is not only constitutional but accepted practice. In order to register my daughter for school, I had to produce proof that she was vaccinated against the usual childhood diseases. We allow the government to quarantine people who have dangerous infectious diseases. We sent lepers to leper colonies. I’m not aware of any constitutional objections to these practices, and for good reason. Let’s suppose that the first signs of a bird flu pandemic were spotted, and the only way to prevent massive death is to require vaccinations. Wouldn’t you want the government to have the power to do this?

    Posted March 29, 2012 at 11:00 am | Permalink
  17. Malcolm says

    You’re splitting hairs. Obviously services must be paid for. The point of the individual mandate is to compel people who would not otherwise be entering the insurance market now to do so in order to subsidize the shortfall imposed on healthcare providers by government guaranteed-coverage mandates.

    As for vaccines: I didn’t bring them up, you did — apparently as an example of things we don’t mandate, to show me that I shouldn’t be worried about any “slippery slope” concerns if we loosen all restrictions on federal powers under the Commerce and Necessary and Proper clauses. Now you’re saying that any right-thinking person ought to grant the power to mandate vaccination. So what was your point in bringing it up in the first place?

    Posted March 29, 2012 at 11:34 am | Permalink
  18. the one eyed man says

    You are correct that “the point of the individual mandate is to compel people who would not otherwise be entering the insurance market now to do so in order to subsidize the shortfall imposed on healthcare providers by government guaranteed-coverage mandates.” However, that is very different from asserting that “the rationale for the individual mandate is not to subsidize the overall cost.” The overall cost remains the same, but it is reallocated among the various players.

    My initial statement about vaccinations was wrong, because I was thinking of them only in the context of requiring them for the purpose of cost control. I had not thought of the many instances in which they are required to prevent pandemics or keep diseases like smallpox or polio from resurfacing. From a legal perspective, the difference derives from the Law of Necessity. It is a necessity to prevent a pandemic but it is not a necessity to force people to take flu shots.

    However, you evaded my question. Given the hypothetical of an imminent bird flu pandemic, should the government have the authority to require vaccination or quarantine people who could spread the disease? If not, why not? If so, what happens to the rest of your argument?

    Posted March 29, 2012 at 11:49 am | Permalink
  19. Malcolm says

    Peter, “subsidizing” a cost doesn’t mean reducing it, or making it go away. It means paying for it.

    The question of emergency federal powers is an interesting one. Matters like this are historically more the role of state and local agencies, and my understanding of Constitutional law on this question is that there is no precedent for mandatory vaccination at the Federal level. (States, of course, are not bound by the same Constitutional limits as the central government when it comes to such things.) Well within the scope of federal power, I think, would be to distribute vaccines to the states, and to impose quarantines on travel to and from states that did not get their citizens vaccinated.

    The invocation of “states of emergency”, thereby permitting the arrogation of extraordinary power to the government and its executives, is one of the most historically familiar maneuvers by which tyranny takes root. So I am reluctant to put a foot on that buttered slide.

    Posted March 29, 2012 at 12:39 pm | Permalink
  20. the one eyed man says

    So it’s “a terrifying expansion of government power” if the federal government requires you to get vaccinated, but it’s A-OK if New York State does so?

    In both cases, you get a needle in your arm, or you are sanctioned if you don’t. If causing someone to take an affirmative action regarding health care is such an appalling violation of individual freedom, why should it make any difference if the edict comes from the state or federal level?

    Posted March 29, 2012 at 1:07 pm | Permalink
  21. Malcolm says

    So let me get this straight: you see no difference between a Republic forged between the several States, and a monolithic central government?

    The idea — if I really have to explain this to you — is that people are generally happier living under political regimes that are more flexibly adjusted to their local concerns, temperament, priorities, and changing circumstances.

    Here’s a shocker: a lot of people think there is a large subset of civic affairs that are best managed not even at the State level, but by counties and local municipalities. If the good people of New York State want to adjust the limits of Albany’s coercive power, they have a State Constitution of their own that they can alter as they see fit. Likewise town charters, etc. The idea? That power flows from the people upward, not from the Federal government downward — and that power should be concentrated as closely to the people as possible.

    The United States Constitution was designed specifically to grant only those powers to the Federal government that were necessary for the governance of matters that affected the new Republic as a whole — in particular its relations with other world powers, the issuance of a common currency, and the the interactions between the several States. But it has been very clear from the outset, and is made explicit in the Tenth Amendment, that those powers not explicitly granted to the Federal authority are reserved for the States, and the people.

    In short, the philosophical core of the Constitution is that the default assumption in matters of governance should be to defer, wherever possible, to local preferences, and to limit Federal power as much as is practical. You may not like it — and you certainly would never guess it if your first look at America was in 2012 — but that’s the principle upon which this Republic was founded.

    Posted March 29, 2012 at 1:53 pm | Permalink
  22. the one eyed man says

    So let me get this straight: preventing the deaths of millions of people has nothing to do with “providing for the general welfare?” If saving lives in the face of a national epidemic is not part of the general welfare, then what is?

    And “providing for the common defense” against an army of invading pathogens is something the federal government has no right to get involved in?

    Posted March 29, 2012 at 3:31 pm | Permalink
  23. Malcolm says

    I haven’t said that there are no circumstances under which the federal government might assume emergency powers. A sudden, nationwide outbreak of a lethal and highly contagious disease, where action at the state level was clearly inadequate to meet the threat, might be such a circumstance.

    But such crises are very rare — as far as I know, there has never been a Federally mandated vaccination program — and the lessons of history, the founding principles of our Republic, and the text of the Constitution itself all counsel us to be very circumspect about such “emergency” escalations of central power.

    Posted March 29, 2012 at 3:44 pm | Permalink
  24. “…, why should it make any difference if the edict comes from the state or federal level?”

    The answer to that one is obvious: “if the edict comes from the state” there are 49 other states one can move to (or in Obama’s case, 56 other states).

    Posted March 29, 2012 at 3:59 pm | Permalink
  25. the one eyed man says

    OK, we’re making progress here. You will concede that the federal government has the authority to coerce individuals to be vaccinated when there is a national emergency and the states can’t do it.

    Where does it specify that the federal government’s power to provide for the common weltare and defense are limited to emergency situations? And what powers does this clause give the federal government, and why is it there in the first place?

    We don’t need Bruce Psaty to look at the board and tell you that you’re hosed. You’ve got a hanging rook here. Time to knock over your king and start another game. You can have white.

    Posted March 29, 2012 at 4:17 pm | Permalink
  26. Malcolm says

    Ha! I’ll let Jefferson respond, with the quote I’ve already posted, just above:

    “I consider the foundation of the Constitution as laid on this ground that ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.’ To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, not longer susceptible of any definition…

    …[To interpret the Necessary and Proper Clause as Peter recommends] would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please. Certainly no such universal power was meant to be given them. [The Constitution] was intended to lace them up straightly within the enumerated powers and those without which, as means, these powers could not be carried into effect.”

    Obviously, if the intention of the Founders was simply to grant the federal authority unlimited power of the kind you seem to lust for, there would have no need for the Tenth Amendment: it would be drained of all meaning. What do you think Jefferson was talking about when he spoke of “lacing up” the federal government within its enumerated powers? Why would the Founders bother to restrain federal authority so explicitly if their intent was just to grant it limitless scope elsewhere in the document?

    Under your view, why even have a Republic at all? So we can have different official state birds?

    Why are you so eager to move all power to Washington, anyway? Why do you leap at a desperate, hypothetical measure, taken in the face of a dire existential emergency, and seek so ardently to make it an argument for granting the federal government limitless coercive authority? What do you love so much about one-size-fits-all, centralized power?

    Ultimately, of course, it’s up to the Court. This is why Supreme Court appointments matter so much, and are so hotly contested.

    Posted March 29, 2012 at 4:44 pm | Permalink
  27. the one eyed man says

    Providing for the general welfare and common defense are enumerated powers. The words general and common signify issues of national scope. By any definition, this would include protecting the country against a national pandemic or fixing a health care system which is one sixth of the national economy.

    If you drive home from work today and some guy rear ends your car, that is a local issue outside this enumerated power. Hence there are no federal laws about liability in car accidents, because this type of thing – along with a whole host of situations addressed by state-level criminal and civil law – is properly within they state’s jurisdiction. These are local matters with no national significance.

    Seems like a pretty clear distinction to me.

    Posted March 29, 2012 at 5:03 pm | Permalink
  28. the one eyed man says

    Wuy do I leap at desperate measures? Because leaping to conclusions and running late is the only exercise I get.

    Posted March 29, 2012 at 5:07 pm | Permalink
  29. Malcolm says

    Also, just so we’re clear: The Necessary and Proper Clause only grants Congress the authority to make such laws as are necessary to “carry into execution” such powers as are explicitly enumerated in Article One, Section Eight.

    You mention “general welfare” a lot. But the General Welfare Clause only refers to Congress’s power to raise taxes (and other forms of revenue):

    The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

    For this reason, the General Welfare Clause is also know as the Taxing and Spending Clause.

    So, on a strict interpretation, Necessary and Proper only authorizes Congress to make such laws as it must have in place to exercise its power to raise such taxes (duties, imposts, etc.) as are needed to provide for the “general welfare”. It is not just a general-purpose loophole intended to allow Congress to make any laws it sees fit.

    Posted March 29, 2012 at 5:13 pm | Permalink
  30. Malcolm says

    Jefferson was very clear about this, every chance he got. Here’s another remark he made about it:

    [T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [Congress] are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.

    Posted March 29, 2012 at 5:20 pm | Permalink
  31. Malcolm says

    Finally, even the broadest interpretations of the General Welfare Clause understand it as having to do only with the power to tax and spend. I don’t think that there is any legal scholar anywhere who would interpret it as granting, for example, the power to coerce vaccination.

    Posted March 29, 2012 at 5:24 pm | Permalink
  32. Malcolm says

    Here is the full list of those enumerated powers. It’s pretty short.

    The Congress shall have power:

    To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

    To borrow Money on the credit of the United States;

    To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

    To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

    To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

    To provide for the Punishment of counterfeiting the Securities and current coin of the United States;

    To establish Post Offices and post Roads;

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

    To constitute Tribunals inferior to the supreme Court;

    To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

    To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

    To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

    To provide and maintain a Navy;

    To make Rules for the Government and Regulation of the land and naval Forces;

    To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

    To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

    To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

    —And
    To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

    Posted March 29, 2012 at 5:27 pm | Permalink
  33. the one eyed man says

    I’m having trouble finding space travel as an enumerated power, and it has nothing to do with raising revenue. Is NASA unconstitutional?

    Finding a cure for cancer isn’t there either. Is it unconstitutional for the federal government to give grants for medical research?

    How about FEMA? Should New Orleans have paid for its own reconstruction after Katrina?

    The National Weather Service? The national park system? The Washington Monument? All examples of unwarranted federal overreach?

    Posted March 30, 2012 at 9:54 am | Permalink
  34. Malcolm says

    If you haven’t noticed the common thread by now, these are all departments of the Executive Branch, or functions thereof. Once brought into existence, these departments have considerable leeway to spend money on whatever they like, provided they are funded by Congress.

    The existence of executive departments is noted in the Constitution, so by implication there is a Constitutional presumption that such departments will be created — but the names and number of them is unspecified. By established precedent new departments are requested by the Executive, then formally established by Congress. Congress’s power to do so is assumed to flow from the Necessary and Proper Clause, because the existence of executive departments is assumed in the Constitution itself as part of the structure of the federal government, so when new ones need to be created, somebody‘s gotta do it.

    But it’s fuzzy, and has been contentious right from the beginning, I think (though less so now, due to there being so much precedent).

    There is a big difference, though, between creating executive departments that spend money (I’m sure, for example, that the Founders never had in mind the Solyndra boondoggle and Chevy Volt subsidies, but nobody has raised a Constitutional challenge to them, so far as I know), and Obamacare’s individual mandate.

    Just how big? We’ll find out in June.

    Posted March 30, 2012 at 11:32 am | Permalink
  35. Malcolm says

    Bottom line: Constitutional law is a fascinating study, combining history, literature, philosophy, logic, and even psychology. You and I can discuss it at any length we like, and it’s stimulating and interesting to do so, but ultimately what we decide here doesn’t really matter. We have our opinions, but the only opinion that carries any weight is the Court’s, and even that one looks to be fairly closely divided on this issue.

    Supreme Court appointments matter. It’s one of the big reasons why the the next Presidential election matters so much.

    Posted March 30, 2012 at 11:46 am | Permalink
  36. the one eyed man says

    NASA was established by an act of Congress and is not – as far as I can tell – part of the executive branch.

    The Smithsonian is not part of any branch of government, yet it is funded and authorized by Congress. Establishing a national museum is not an enumerated power, but it’s a really cool place and lots of people like it.

    There are plenty of laws passed by Congress which are not enumerated powers and do not have anything to do with raising revenue, such as bills establishing a national drinking age, expressing disapproval of Iran, and establishing National Mom and Apple Pie Month. Ditto for more substantial legislation – such as the Civil Rights Act of 1964 – although that you could make an argument that this one is justified because of the Fourteenth Amendment or the Commerce Clause.

    My point is not merely to be annoying, although that is always a satisfactory by-product of posting here. I will concede that my admittedly impressive grasp of constitutional law does not extend very far into enumeration-of-powers issues, as they don’t come up very often. However, the real issue here is an eternal one: is the Constitution a flexible set of guidelines meant to guide the country through issues and circumstances which would have been inconceivable to the Founders, or is it a static document which is fixed and immutable?

    Posted March 30, 2012 at 12:19 pm | Permalink
  37. Malcolm says

    Sorry, but NASA is part of the Executive Branch.

    The Smithsonian was established as a result of a gift to the United States.

    As for your other examples: the National Minimum Drinking Age Act does not mandate a national drinking age. It does not precisely because it can not: that power is still reserved to the States. What it does do is to make the distribution of highway funds contingent upon a State’s drinking age.

    I’m glad you brought that one up, because it is a perfect example of how the Constitution restricts Congress from usurping the powers reserved to the States, and of the ways that Congress has to invent clever work-arounds to conform to Constitutional limitations on its power. If Mississippi decided next week that they wanted to lower the drinking age to 12, they would be in violation of no Federal law.

    You are right about the justification for the Civil Rights Act.

    As for the rest, they are meaningless. Announcing that March is now Victimized Gay Baby Whales of Color History Month, or tut-tutting at Iran, binds nobody to anything, and compels no behavior on the part of any individual or other entity.

    The Constitution is both of the things you suggest. It is a set of guidelines, deliberately vague in places, intended to be flexible enough as “to guide the country through issues and circumstances which would have been inconceivable to the Founders” (though the idea that people might get sick and want medical treatment is hardly such an issue or circumstance). It is designed not to be static, but to have enough rigidity not to collapse when buffeted by passing social and political storms. It is not immutable, but is mutable only according to a well-defined process that is intended to make alterations very difficult.

    Posted March 30, 2012 at 12:51 pm | Permalink

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