That Horse? It Left the Stable Long Ago. We Called Him Seabiscuit


Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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6 Responses

  1. Avatar Kirk says:

    Good article. Is it just me, or it getting harder and harder to tell the difference between the WSJ editorial page and

  2. Avatar Kirk says:

    sorry *or is it*Report

  3. Avatar EngineerScotty says:

    Wasn’t the WSJ a respectable paper at one time? OK, the news section probably still is…Report

  4. Avatar Dave Schuler says:

    I think the argument is actually a little stronger than you’re suggesting, Mark. I can see compelling individuals to enroll in a government insurance program if they don’t otherwise have insurance but isn’t forcing them to purchase insurance from a private company more problematic? What would be the prohibition against forcing people to buy GM cars?

    As I see it the issue is affirmative rather than negative.

    I think that one can reasonably think that if the public option is enacted into law that people can be forced onto it via the Congress’s commerce clause powers or one can believe that the Congress’s commerce clause powers are unlimited (the Court hasn’t held that) but one can’t reasonably believe that the Congress has the power to force people to buy particular products from particular private companies without believing that the Congress’s commerce powers are unlimited.Report

    • I don’t see how it makes a difference constitutionally whether the requirement is to sign up with a government run program or a privately-run program – I’m certainly not aware of any precedent that would suggest as much. If it does, then Rivkin and Casey have failed to make this argument since their column doesn’t make a distinction between private or publicly owned entities. Also, the analogy to forcing people to buy GM cars doesn’t quite work, because the mandate wouldn’t require the purchase of insurance from any particular company (indeed, if there’s a public option included, then you’re not being required to buy insurance from any private entity at all).

      Additionally, this doesn’t address the biggest weakness in the argument that this would be unconstitutional, which is that the mandate would fall within Congress’ taxation powers such that the interstate commerce clause isn’t even relevant. Even if the Child Labor Tax case is still good law (which is questionable), it’s tough to see how this would be an impermissible “penalty” under that case, and definitely not under the subsequent cases. There is a pretty clear and legitimate revenue-raising purpose behind the mandate, which immediately takes it out of the realm of a “penalties” and transparent attempts to regulate through taxation that which Congress may or may not be able to regulate ordinarily. You have to remember that Constitutionally, there is very little language limiting Congress’ taxation power and even the Child Labor Tax case required the Court to read into the Constitution limitations that do not exist on the face of the document.

      It’s certainly possible that the SCOTUS could find this unconstitutional since the SCOTUS can pretty much do whatever it wishes. But if they did, they’d have to overturn or at least severely narrow a lot of existing law. I have a hard time seeing anyone outside of Scalia or Thomas voting to rule the mandate unconstitutional, and to be honest, I’m not even certain they would go that far.Report

  5. Avatar Clint says:

    I believe they had a very similar piece in the Washington Post about a month ago on the same topic. Being utterly disinterested in the health care debate but excited about the prospect of limiting government on Constitutional grounds, I read the article with a similar conclusion to Mark’s. Also, wouldn’t the most fundamental of competition-inspiring proposals (allowing insurance competition across state lines) undermine this Commerce Clause argument?Report