The Nascent Requiem — Part II

This is the second installment of this article. If you have not already done so, please read Part I; and afterwards, Part III.

“[W]hat is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

— JAMES MADISON, Federalist Paper No. 51, February 8, 1788

The case United States v. Lopez (mentioned in Part I) concerned a federal mandate which prohibited the carrying of a firearm within a school zone. The rational for the law came from the Commerce Clause. It turns out that while the Affordable Care Act (ACA) can be viewed as an unprecedented extension of federal power, the arguments made by the government (and the law’s supporters) is not novel or unprecedented. In fact, the Court has denied the kind of reasoning being used by the supporters before. Consider the following excerpt from Lopez.

“The Government’s essential contention, in fine, is that we may determine here that §922(q) [the legal statute in question] is valid because possession of a firearm in a local school zone does indeed substantially affect interstate commerce. The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation’s economic well being. As a result, the Government argues that Congress could rationally have concluded that §922(q) substantially affects interstate commerce.

“We pause to consider the implications of the Government’s arguments. The Government admits, under its ‘costs of crime’ reasoning, that Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce. Similarly, under the Government’s ‘national productivity’ reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories that the Government presents in support of §922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate. . . . To uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.” –United States v. Lopez (1995), The Supreme Court of the United States, Chief Justice William Rehnquist (all internal citations omitted).

One of the main reasons the government believed itself to hold the power to regulate gun possession under this act was because the crime in question would impose costs throughout the population “through the mechanism of insurance.” Sound familiar? The relationship between health care and the insurance people buy to cover it are not in the least “unique” to the market. Indeed, the Supreme Court has already denied the validity of such reasoning. The reason the Court denied it in this case was because it would allow the federal government to regulate any activity that could conceivably lead to crime “regardless of how tenuously they relate to interstate commerce.” Thus, the question (narrowed by Lopez) is not “does the market have ‘unique circumstances’ that affect interstate commerce?” But rather, “does the activity being regulated substantially interfere with interstate commerce?”

The argument of the government is essentially that individuals who do not buy insurance impose costs on hospitals, which raises the cost of operation in hospitals, which raises the cost on insurers, which raises the costs that exist in the insurance market. Ah-ha! Insurance is an interstate market! Is not this chain of reasoning as tenuous, if not more so, as the one which explains the connection between carrying a gun near a school and interstate commerce? Hospitals in themselves may or may not be interstate (e.g., Scott & White may be national, but a local clinic or charitable hospital may not). Thus, the interstate nature of the payment (or failure to pay) for health services used is questionable. And the effect decreases in its size as it moves from step to step in the government’s argument until whatever is left of it reaches the interstate market.

There are several reasons an individual may choose not to buy insurance: perhaps an individual is poor or believe themselves to be completely healthy; or, perhaps, they are wealthy and are willing to pay for any health services they need without a monthly bill (or, maybe they’re an illegal alien — I mean, undocumented immigrant). But the effect they exert on interstate commerce is minimal. It turns out that that there are roughly four insured Americans for every uninsured American. This means that the costs imposed by the few uninsured are distributed amongst the many who own insurance. In addition, three fourths of the costs imposed by the uninsured is already covered by taxpayer dollars (i.e. the government).

Christopher J. Conover with the American Enterprise Institute makes an excellent point, “[C]ost-shifting by the uninsured places the following burden on the average person with private insurance: $70 apiece, which is less than $6 a month, or about 20 cents a day. . . . this is far less than the societal burden posed by those who fail to engage in exercise, which was calculated in 1989 to be 24 cents for every mile that sedentary people do not walk, jog, or run (or about double that amount in today’s dollars).” If the costs imposed by the failure to purchase health insurance justify regulation under the Commerce Clause, how much more should we allow the government to require individuals exercise? Indeed, the federal government has far more justification to require exercise than they do to require the purchase of health insurance. (I see a powerful marketing PR combo here: As Obama fights to reduce the cost of your health insurance, [which the law won’t do] Michelle is fighting obesity by requiring exercise — yeah, and it’s all protected under one clause of the Constitution. See how creative your Great Leaders are?)

From the perspective of the Court, though, numerical statistics are not the requisite. (See, Gonzales v. Raich, 2005. This Supreme Court case ruled that all that was necessary to justify a law under the Commerce Clause was that Congress demonstrated a “rational basis” a substantial effect to interstate commerce would occur; rather than setting a standard of empirical statistics.) However, it is still certainly arguable that the (in)activity in question still constitute fractions of fractions in their effect on interstate commerce. So we’ll just keep the specific statistics to ourselves (a brown paper bag is customary). The Court in Lopez also noted that the law in question had “no express jurisdictional element which might limit its reach.” Similarly, the ACA has no such element (please see the upcoming Part III). Thus, it is no stretch of the imagination to conclude that the arguments presented by the government pile inference upon inference (upon inference upon inference) in a manner that is rejected by today’s legal standards.


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