The Nascent Requiem — Part III

This is the third installment of this article. If you have not already done so, please read Part I and Part II.

“The judicial authority to determine the constitutionality of laws, in cases and controversies, is based on the premise that the ‘powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.'”

— THE SUPREME COURT OF THE UNITED STATES, City of Boerne v. Flores (1997)

The arguments made in Parts I and II are based upon the current legal standards. However, some supporters of the law would urge our court system to adopt a much broader reading of the Commerce Clause — Henry J. Aaron is one such individual. After the second day of oral argument, he wrote:

“The simple fact is that virtually everything is or can be construed as interstate commerce and that when the Constitution authorized Congress to regulate it and gave it all reasonable and proper means to do so, it—the Constitution—made it impossible to give a principled limit. The task of creating such a limit arises through particular facts and circumstances and the decisions by the courts on what is ‘reasonable and proper.’ It is the facts and circumstances surrounding the way in which we in the United States pay for health care and the externalities that payment arrangements generate that creates the special conditions that distinguish health care from other commodities that Congress cannot compel people to buy. It is easy to understand why thoughtful people would be uncomfortable with this result, since conservatives and liberals alike are and should be worried that Congress will intrude impermissibly on individual freedoms.” –Henry J. Aaron with Brookings, March 27, 2012

There are several reasons no one should believe a word in the paragraph above. First and foremost, Mr. Aaron is a Senior Fellow at Brookings in economic studies, not a legal scholar, historian, or anything that would give him remote credibility to speak on the interpretation of the Commerce Clause. Second (and not-so-foremost), it doesn’t make sense. (Not only is he unqualified, but he’s insane — not really. Please, no lawsuits.) The Founders established the enumerated powers for the purpose of informing the government what it is allowed to do. This presumptively comes from a position that there are some things the government can’t do. Indeed, Chief Justice John Marshall made it clear in the historic case Gibbons v. Ogden (1824), “The enumeration presupposes something not enumerated.”

As a point of clarification (and a point of Mr. Aaron’s legal sloppiness), the juridical term is not “reasonable and proper,” as Mr. Aaron would have you believe; it is “necessary and proper” (cf. Article I, Section 8 of the U.S. Constitution). And that clause of the Constitution established that the government could do what was “necessary and proper for carrying into execution the foregoing powers,” the “foregoing powers” being the enumerated powers. This is important to note because the term “necessary” employs more stringent limits on the power of the government than the term “reasonable.” The purpose of the Clause was to make sure that the government could do what it needed to in order to execute its enumerated powers, not expand the powers themselves.

Mr. Aaron claims that there can be no “principled limit” on the government’s power over commerce, and then proceeds to justify the ACA by using a similar argument to the government’s (that the unique circumstances surrounding insurance justify compulsory purchase). However, he claims that the government can regulate anything which is remotely related to commerce as long as it falls under some category that is “unique.” But the market of health insurance is not unique from the market of insurance as a whole. This is illustrated by the arguments used by the government in Lopez — that a rise in crime imposes costs on others through insurance (cf. Part II). This means that the government can regulate any market which is related to insurance. (This point was brilliantly illustrated by a question asked by Justice Alito about compelling the purchase of burial insurance; that is, if you can compel individuals to buy health insurance, why not also burial insurance? Surely participation in that market is equally involuntary, evinced by the fact that we all die.) But can’t one also say that by failing to purchase any item, one would impose costs on others who come later to buy that item?

The argument that the health insurance market entails unique circumstances is simply a myth. The Solicitor General and Mr. Aaron will both tell us the health insurance market is unique — but none of them can explain why. The nearest thing to an explanation they get is simply to say that the market is unique because participation in it is involuntary. That at some point in your life you will need health care — let’s face it folks, it’s inevitable. That may be true, but one can make an equal case to say that all individuals at one point in their life, buy and eat broccoli. Therefore, broccoli is unique to the interstate market and the government has sufficient justification to compel individuals to buy broccoli. Actually, since all individuals buy and eat broccoli at some point in their life, can they not also compel you to eat broccoli? Perhaps they will post a guard at every home to ensure the purchase and consumption of broccoli. It is, after all, a unique market. Indeed, if it is true (as Mr. Aaron argues), that anything can be construed to be connected to interstate commerce, then it is also true that the unique nature of eating broccoli subjects it to federal regulation.


Mr. Aaron in a different piece, responds “When someone consumes broccoli, one is not normally imposing costs on other consumers that make broccoli more costly or unaffordable. Furthermore, broccoli is not vital to preserving life or reducing pain.” However, Mr. Aaron misses the point. With the law in question we are not being forced to buy or consume health care, we are being forced to purchase insurance.

I emphasize here, as I did in Part I, that while an individual may consume health care, they are not necessarily consuming insurance. Thus, we are not speaking about individuals who are consuming broccoli, but individuals who are not consuming broccoli. To this, no one seems to have an answer. Also, insurance is not necessary to preserving life or reducing pain — health care is. And under the Emergency Medical Treatment and Active Labor Act of 1986, hospitals are already required to provide emergency services regardless of citizenship, legal status, or ability to pay. Thus, Mr. Aaron’s argument misunderstands the forced-purchase nature that is the reason for the question of broccoli.

The issue is not about the availability of health care, it is not about massive effects imposed on the interstate market by a failure to purchase an item, it’s not even about an activity or commerce. This law does not even meet the broad standards purposed by the law’s supporters and the law is completely unnecessary (see Part II). The only reason Congress would pass this law would be to expand the power of the government. (I would concede that the law was passed merely for political gain if it was not also unpopular.)

There is a reason Congress does not have the power to regulate a market merely because it is “unique,” there is a reason we have legal tests that this law does not meet, there is a reason the government’s powers are few and defined (cf. Federalist Paper No. 45). This case brings us back to first principals:

“There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.

“It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency. The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. . . . The inference to which we are brought is, that the causes of faction cannot be removed, and that relief is only to be sought in the means of controlling its effects.” -James Madison in Federalist Paper No. 10, November 23, 1787 (emphasis original).

While Madison was speaking here of faction (that is, political faction), his words still apply to the problem before us today. Madison outlines two broad ways the government can attempt to solve a problem: by regulating the causes, or the effects. With the ACA, as with political faction, the “problem” is that people have a choice to buy or not to buy insurance — that they have the liberty to choose. The government has sought to remedy this supposed problem by regulating the liberty that we have, rather than a remedy for the effects of liberty. This is precisely what Madison wrote against. Indeed, regulating the effects would also remove the activity issue. The cause of the “problem” is that people are not buying insurance, the effects, however outlined, would at least be composed of some kind of activity.

Must we remove air to stop forest fires? Of course not, we would rather rely on the responsibility of individuals to control fires, have fire stations in the case of accidents, and have the rest covered by Smokey-the-Bear PSAs. Must we remove the liberty of the individual to solve the problem of insurance cost-shifting? Of course not — I think Smokey can take on some more responsibility, don’t you?

Remember, only YOU can prevent insurance cost-shifting! (It may be less compelling, but at least it’s constitutional.)

The result of ignoring the intent of our Founders, the modern legal standards, and the true nature of what the government seeks to regulate, would be similar to what the Supreme Court feared and warned against in A.L.A Schechter Poultry Corp. v. United States, that “there would be virtually no limit to the federal power, and, for all practical purposes, we should have a completely centralized government.”

The simple fact of the matter is that all the justifications for the ACA that have been presented thus far do not explain or refute the compelling arguments against it. It represents an unconstitutional and unprecedented overreach of federal power that, if upheld, will present unforeseen and limitless intrusions on the rights of Americans.

Now the only thing we can do is wait and hope (and pray) that the Supreme Court will make the right decision and protect the future of the most extraordinary country in the history of this earth.

“The solutions we seek must be equitable with no one group singled out to pay a higher price. We hear much of special interest groups. Well our concern must be for a special interest group that has been too long neglected. It knows no sectional boundaries, or ethnic and racial divisions, and it crosses political party lines. It is made up of men and women who raise our food, patrol our streets, man our mines and factories, teach our children, keep our homes, and heal us when we’re sick — professionals, industrialists, shopkeepers, clerks, cabbies, and truck drivers. They are, in short, ‘We the People.’ This breed called Americans.”

— RONALD REAGAN, First Inaugural Address, January 20, 1981


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