(Infuriating) Quote of the Day—Congress Can Regulate the Conduct of Everyone Who Makes Money and if You Don’t Like It, Earn Less Money
[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]
Somehow this escaped my notice, but the Michigan Obamacare case has been before the Sixth Circuit Court of Appeals, and we have this fairly outrageous bit from the argument. It’s not sound-bitey, but once you read it in context, your blood will boil…
During the Sixth Circuit arguments, Judge Jeffrey Sutton, who was nominated by President George W. Bush, asked [Acting Solicitor General* Neal Kumar] Kaytal if he could name one Supreme Court case which considered the same question as the one posed by the mandate, in which Congress used the Commerce Clause of the U.S. Constitution as a tool to compel action.
Kaytal conceded that the Supreme Court had “never been confronted directly” with the question, but cited the Heart of Atlanta Motel case as a relevant example. In that landmark 1964 civil rights case, the Court ruled that Congress could use its Commerce Clause power to bar discrimination by private businesses such as hotels and restaurants.
“They’re in the business,” Sutton pushed back. “They’re told if you’re going to be in the business, this is what you have to do. In response to that law, they could have said, ‘We now exit the business.’ Individuals don’t have that option.”
Kaytal responded by noting that the there’s a provision in the health care law that allows people to avoid the mandate.
“If we’re going to play that game, I think that game can be played here as well, because after all, the minimum coverage provision only kicks in after people have earned a minimum amount of income,” Kaytal said. “So it’s a penalty on earning a certain amount of income and self insuring. It’s not just on self insuring on its own. So I guess one could say, just as the restaurant owner could depart the market in Heart of Atlanta Motel, someone doesn’t need to earn that much income. I think both are kind of fanciful and I think get at…”
Sutton interjected, “That wasn’t in a single speech given in Congress about this…the idea that the solution if you don’t like it is make a little less money.”
(Emphasis added.) Mmnm, I think Solicitor General Kaytal hasn’t gotten the memo about trying to stimulate the economy.
(Sorry to snark, but sometimes that’s how I express my anger.)
Later on in the same piece, we see this bit:
Judge James Graham, a Reagan district court appointee who is temporarily hearing cases on the appeals court, said, “I hear your arguments about the power of Congress under the Commerce Clause, and I’m having difficulty seeing how there is any limit to the power as you’re defining it.”
Kaytal responded by referencing United States v. Morrison, in which the Supreme Court struck down parts of the Violence Against Women Act, and United States v. Lopez, which struck down gun free school zones. In those cases, Kaytal responded, the Supreme Court set the limit that the Commerce Clause had to regulate economic activities.
But that argument proves too much. According to him the mere act of earning money in any context allows the Federal Government to regulate everything in your life, however unrelated it might be to the actual commerce you engage in. Yes, I know he said you can avoid it by earning less, but that is a statutory limitation. That isn’t a constitutional principle. If you can force a man who earns $1 million a year to buy health insurance, you can equally force a man who earns only a single dollar and the fact that Congress hasn’t chosen to regulate the second man has nothing to do with the question of whether Congress has the power to regulate either of them.
But if the mere fact you earn money allows Congress to regulate every aspect of your life, even if its not directly related to you earning a living, then that means that United States v. Morrison and the United States v. Lopez were both wrongly decided. Which means that Obama’s attorney was making a specious Constitutional argument. In order to win this case, they have to enunciate principles that 1) still provide limits for Congress’ authority, and 2) don’t conflict with the holding in Morrison or Lopez (or any other case where they found that Congress exceeded its commerce clause power).
Hat tip: Jim Treacher (it was a tweet, but I am linking to his blog as my thank you).
—————————
* Fyi, the Solicitor General is more or less the lawyer who officially represents the President in court in numerous cases. Generally they stick to the Supreme Court. I am not sure why he was involved here…
[Posted and authored by Aaron Worthing.]
It seems to follow then, just to follow this argument to its “logical” conclusion, that if you really disagree with how government controls your life, the best solution is murder your family and then commit suicide.
Is that really how it’s supposed to work, or is the tail on the wrong end of the dog?
Wilco Tango Kilo.
bobdog (166386) — 6/3/2011 @ 6:01 am…er…Foxtrot.
bobdog (166386) — 6/3/2011 @ 6:02 amThe MFM will not report this. Watch.
JD (0d01eb) — 6/3/2011 @ 6:25 amPerhaps Beldar and Aaron can correct me if I am wrong, but are there not instances of men jailed for not earning enough to pay child support and or alimony? Where the court has determined the man has chosen to deliberately not earn enough to pay the court ordered amounts? If I am right, it’s an interesting situation where on the one hand a state court could jail a man for not earning enough money intentionally to avoid child support/alimony which is collectable by the IRS and on the other hand the government argues the same guy can avoid his health insurance mandate by deliberately earning less.
The arrogance and idiocy of the argument espoused by the government is breath taking. I can avoid being an indentured servant of the state by choosing to become a ward of the state.
cubanbob (409ac2) — 6/3/2011 @ 6:40 amWhat floors me is that the judges did not ask the obvious question to acting SG Kaytal: if one can intentionally avoid a mandate by deliberately choosing to earn less money, the implication being the individual in question has the ability to alter his or her income downwards therefore the same individual who has deliberately chosen to make less can also equally chose to earn more and therefore pay the mandate which then is no longer a mandate but a tax. Hence intentionally earning less is not just tax avoidance but tax evasion. To earn just enough to avoid the mandate intentionally puts the government in the position of providing you with health care insurance along with other entitlements and hence costing the tax payers money when you could earn more money and not be a dependent of the taxpayers. Which would mean the argument the government is making is you not only must pay for the mandate but you must earn the maximum you can to avoid being dependent on the taxpayers.
What about food insurance?
If Kaytal’s reasoning for the government to regulate purchasing of health insurance because everyone will at some point participate in that market, then the exact same reasoning holds for food. After all, you need food much more than health insurance. Why not mandate people to buy a certain level of foodstuffs or certain kinds of foods?
EC (dda60e) — 6/3/2011 @ 6:41 amThis is a decisive response to Kaytal’s attempt to explain a limit to the power of Congress under the Commerce clause.
aunursa (a2a019) — 6/3/2011 @ 6:41 am#6 EC,
Same with transportation. Everyone will at some point participate in the transportation market. So why can’t Congress mandate that each resident (who meets a certain income threshold) purchase a GM vehicle?
aunursa (a2a019) — 6/3/2011 @ 6:44 amAaron, this is catnip to stalkerboi. Or “katnip to Kman”?
Simon Jester (eabfd0) — 6/3/2011 @ 6:45 ambobdog beat me to it on the suicide argument (not so much the murder your family first part). I was going to say:
I guess if you want to avoid Congressional regulation you could always just die.
Patterico (135ea8) — 6/3/2011 @ 6:45 am#8 aunursa,
Exactly! There are many more examples of goods and services that are “essential” like food and transportation, so there is literally no limit to how far and wide the government could intervene in our lives in order to manage it as they see fit.
This whole Obamacare and the mandate arguement reeks of FAIL!
EC (dda60e) — 6/3/2011 @ 6:55 amIn order to win this case, they have to enunciate principles that 1) still provide limits for Congress’ authority, and 2) don’t conflict with the holding in Morrison or Lopez (or any other case where they found that Congress exceeded its commerce clause power).
AW, you ask far too much.
AD-RtR/OS! (2cb6fc) — 6/3/2011 @ 7:02 amThey don’t want any limits to Congress’ authority, except as to how it might restrict the
King’sPresident’s actions;for, after all,
He Won!
Cubanbob
> Perhaps Beldar and Aaron can correct me if I am wrong, but are there not instances of men jailed for not earning enough to pay child support and or alimony? Where the court has determined the man has chosen to deliberately not earn enough to pay the court ordered amounts?
Its been a long time since I took family law in law school, but I do believe there have been outcomes like that.
> Hence intentionally earning less is not just tax avoidance but tax evasion.
Shhh… DON’T GIVE THEM IDEAS.
Joking aside, not really. Taxes are based on what you earn, not what you could earn. And the courts have specifically said that if you engage in certain behaviors to avoid owing taxes, that is perfectly fine. for instance, take the charity exemption. The federal government tried to say that they could require your motives to be pure and not at all to avoid your tax burden. And the courts said, “give me a break. you are allowed to change your conduct to deliberately reduce your lawful obligation.” That’s a paraphrase, of course.
Also try to watch the double postings. no biggie, just try to avoid it.
Aaron Worthing (e7d72e) — 6/3/2011 @ 7:04 amTaxes are based on what you earn, not what you could earn.
Isn’t there provisions in Cap-Gains tax law on Mutual Funds (or some such – since I don’t have one I’m not up on it, but something stuck in the back of my head is trying to work itself loose) that you have to pay taxes on the accretion of the fund even though you haven’t cashed it out?
AD-RtR/OS! (2cb6fc) — 6/3/2011 @ 7:09 amthe most egregious free rider in America is its cowardly feckless government
happyfeet (3c92a1) — 6/3/2011 @ 7:14 amNo, I don’t think that is what he is saying (although that makes for a good sound bite-y quote). He is only talking about government regulation in the unique situation of health care, because that is something that everyone SPENDS money on… at some point in their lives.
In any event, even assuming your broad interpretation, so what? If you want to opt out of Obamacare, earn less money. How is that more draconian than telling hotels that if they didn’t want to desegregate, they could always go out of business?
And in point of fact, most people complaining about this are covered by their employer anyway, and this doesn’t affect them at all.
Kman (5576bf) — 6/3/2011 @ 7:14 am“Infuriating” doesn’t begin to describe it. What I really want to know is whether Kaytal actually thought it through and believes the quote he gave reflects a constitutional and persuasively logical argument, or whether he is so unprepared, so clueless, and so disrespectful of the 6th circuit Court of Appeals that he is just winging it– or to quote another famous constitutional scholar (Alcee Hastings) “we make it up as we go along”.
elissa (e89bf6) — 6/3/2011 @ 7:16 amelissa:
Yes, because he also believes in the words of Fortney ‘Pete’ Stark:
We can do anything we want!
It’s is the great difference between The Ruling Class, and The Country Class.
AD-RtR/OS! (2cb6fc) — 6/3/2011 @ 7:23 am}%*\>|>*%*\^|£<{¥+^]¥\¥€~€{*^\*>~£
They hate America.
JD (0d01eb) — 6/3/2011 @ 7:26 amI’m not an attorney, so forgive me if I sound ignorant or arrogant, or even come off as supporting racism; which I don’t, by the way.
To beging with, the “landmark civil rights case” where the commerce clause was used to compel private businesses to serve all people was perhaps socially expedient at the time but was pure BS in my own humble opinion. The market will punish those who are openly discriminatory. And although changing the societal inertia might have taken longer, it would have been enough to mandate the end to institutional segregation; society would have followed.
Business owners should always have the right to refuse trading with anyone, for whatever reason they like. It’s like telling me who I have to like of dislike, and is a fundamental violation of personal liberty.
In regards to the matter at hand, it’s simply another case of over-reaching via the commerce clause.
Considering that the original intent was to avoid states engaging in unfair taxation between other states as well as adding, or negating, import duties at ports of entry, it’s use, and abuse, over the years to compel behavior in any other way has built up a dangerous body of legal precedent that allows it to cover just about anything Congress wants to legislate; or it would seem so by hearing them cite it so often…
And yes, I’m aware of the Interstate commerce act and the Sherman anti-trust suits of the late 19th century, and the “exigencies” that in part have led to it’s expanded and seemingly all-encompassing application.
I just believe that it’s BS; more penumbras emanating and such…
Bob Reed (5f2db5) — 6/3/2011 @ 7:29 amBob Reed:
100 years after the end of the civil war, and “the market” failed to end discrimination. And even today, if you were to leave it strictly up to “the market”, you know there would still be plenty of whites-only golf clubs that would avoid any “punishment”.
Kman (5576bf) — 6/3/2011 @ 8:54 am“According to him the mere act of earning money in any context allows the Federal Government to regulate everything in your life, however unrelated it might be to the actual commerce you engage in”
Are you adding in the words “everything in your life”? Upholding the mandate does not overturn Lopez and Morrison. The economic / non-economic distinction is still valid.
jvc (2afffb) — 6/3/2011 @ 9:58 amJvc – how many names have you commented under?
JD (29e1cd) — 6/3/2011 @ 10:01 amYou are correct. The south had to pass Jim Crow laws to make sure white business owners would discriminate against blacks. The southern Democrats knew not enough would voluntarily go along to keep the KKK happy.
So they had to tell bus companies, restaurants, pool halls, taverns, hospitals, etc., how to run their businesses. Otherwise, they wouldn’t have discriminated.
Steve (cabe23) — 6/3/2011 @ 10:15 amYou’re just asserting he’s wrong, without any attempt to distinguish the government’s argument from Lopez or Morrison.
That’s lame. If you even understand Aaron’s post, or the government’s argument, or the law in those precedents, it shouldn’t be that hard to explain your point. Simply saying ‘no, you’re wrong’ just shows you really really wish Aaron were wrong, but when you racked your brain for an argument, you realized you didn’t actually have one.
What was Kaytal’s argument? Try to rephrase that in your own words. What is the constitution saying about the power to mandate my behavior, according to Kaytal. How does a person constitutionally avoid being regulated, under Kaytal’s views.
It’s not possible, is it?
Kaytal cited two commerce clause precedents to prove that the only limitation on the commerce clause is this binary ‘is there anything economic to it’. Lopez and Morrison did not establish such a broad power.
And yeah, Aaron’s snark that this meant ‘everything in your life’ may be regulated is fair.
Do you really want the government to have this much power over you? Imagine your least favorite Republican, knocking on your door to tell you that you have to do exactly what he orders you to do. Not merely abide the law, or do certain regulated activities legally, but even if you’re doing nothing at all, he can order you to obey commands, spending thousands of dollars, or moving across town, just because he thinks that would be better.
I don’t want that kind of country.
Dustin (c16eca) — 6/3/2011 @ 10:19 amsomebody needs to remind these idiots that we the people have more options than just quiet acquiescence to their dictates.
redc1c4 (fb8750) — 6/3/2011 @ 10:20 amI honestly think JVC is just too stupid and lazy to absorb the argument.
Ordinarily, we consent to the government regulating the parts of our lives that affect others directly. Or make sure we do regulated activities a certain way. If I want to take a car onto the interstate, it has to meet a number of specifications. I have to drive according to a number of rules.
I can be prohibited from a number of crimes.
If I want to sell food, it has to meet some standards.
etc
etc
etc
It’s a big step up from that to Kaytal’s philosophy. Instead of telling me to drive under 65 mph if I choose to drive, Kaytal is telling me I must go out and buy a certain kind of car and then I must go out and drive it on these certain roads.
It’s simply a fundamental change in the role of government in my life, to a constitutional power to control everything, instead of to regulate activities I choose to do.
Did JVC understand this distinction? Granted, this is just a troll I’m talking to.
Dustin (c16eca) — 6/3/2011 @ 10:34 amDo you really expect you’d get any other response to that assertion than the one Pelosi gave when a reporter asked her about possible limits on her authority?
Pelosi: “Are you serious? Are you serious?”
Steve (cabe23) — 6/3/2011 @ 10:36 am“The market will punish those who are openly discriminatory.”
But the markets didn’t. Not in the 160-some years of the US before the civil rights act. In the south, there were organizations devoted to punishing those who weren’t openly discriminatory, the White Citizen’s Councils. Even when not organized, when the power structure in your location supports segregation, you can see why business would go along with that.
This also explains why big business might like the civil rights act. A national chain who had to be segregated in the south would prefer to be forced to be integrated rather than stick its neck out.
“You’re just asserting he’s wrong, without any attempt to distinguish the government’s argument from Lopez or Morrison.”
I pointed out the economic/non-economic distinction. That comes from Lopez and Morrison. Do you understand what that is in the context of Lopez & Morrison? That’s what Katyal is getting at.
“What was Kaytal’s argument? Try to rephrase that in your own words. What is the constitution saying about the power to mandate my behavior, according to Kaytal.”
You don’t need to rephrase it. The article says it here: “In those cases, Kaytal responded, the Supreme Court set the limit that the Commerce Clause had to regulate economic activities.”
Rewriting what Katyal said will lead to misunderstanding what he is saying. Understanding what Lopez and Morrison say about regulating economic vs. non-economic activity will lead you to understand Katyal’s argument. And if your understanding is that it “allows the Federal Government to regulate everything in your life” then you don’t get one or all of of: Lopez, Morrison, or Katyal’s argument.
jvc (0eb116) — 6/3/2011 @ 10:44 amJvc/imdw – how many names is that?
JD (306f5d) — 6/3/2011 @ 10:50 am‘Getting at’?
No, you’re wrong. Kaytal is reducing the limitation radically.
I already do understand this distinction, and obviously that’s my point. Katyal is defending a mandate forcing regulation of behavior people do not want to do.
What is this?
You and Katyal are defending mandates on the basis of the mere economic / non economic distinction. I’m OPPOSING using Lopez to justify mandates.
This is why I asked you to explain what you think Kaytal is saying, and explain how that follows from commerce clause precedents.
Your reply is to mush everything together and again just assert you’re right. You put words in my mouth that aren’t there, and you obnoxiously pretend not to understand Aaron’s point.
Did the constitution give the government the power to tell me I must buy a car and drive it on certain roads? Or is it more like telling me that if I drive on the roads, the government can establish a speed limit? Please don’t obnoxiously explain that’s a state law issue.
Stop being a partisan hack and understand the difference, and why someone would say the scheme of mandating people to buy insurance is a radical increase in government power, and if Kaytal is right, that’s a radical departure from Lopez and Morrison, which merely make an economic / non economic distinction (somehow, you seem to think this helps her argument).
Frankly, explaining the most basic point, and then asserting we don’t understand them, while missing the more relevant point after it’s explained several times, makes you come across as an obnoxious and dishonest hack.
But maybe you really have no idea what’s going on. Can you rephrase Kaytal’s argument, explaining how she has the power to go so much farther than any previous government? Can you rephrase Aaron’s explanation of why that power exceeds the powers known if you read Lopez? Do you have any idea what the argument even is?
Dustin (c16eca) — 6/3/2011 @ 10:54 amAlso, imdw loved to call MLK a socialist, and clearly had some kind of beef with black people. If JVC is using a proxy, that’s a good indication it’s imdw and he probably doesn’t need to be here.
though I would like to discuss this issue with a defender of radical, practically total government control over everything in our lives. That’s Kaytal’s argument, whether you want to phrase it some softer way or not.
Dustin (c16eca) — 6/3/2011 @ 10:56 amComment by Dustin — 6/3/2011 @ 10:34 am
Actually, all the examples you give are not so far off from mandating health care. For instance, the only rationale for allowing the government to mandate you meet standards to be allowed to drive, and obey speed limits, etc. is public safety–to make sure that you are not a danger to others. And once you admit that rationale, there’s nothing in it which limits the government from saying, for instance, public safety demands you own a certain type of car, and drive it on only certain roads. (And technically speaking, using Obamacare as the parallel, the government would be mandating you own the car, but not mandating you actually use it.)
I think Lopez and Morrison can be easily distinguished from the Obamacare cases, btw, because health care and health insurance are types of commerce, whereas the activities covered by Lopez and Morrison were, outside of Congress sticking the label commerce on them, not commerce.
And I’ll say again what I’ve said before: I think the individual mandate can be justified by the line of 20th century cases dealing with the Commerce Clause–that if the Supreme Court rules the mandate is unconstitutional, it will implicitly undermine most 20th century precedents–and that undermining those precedents would not be a bad thing at all.
kishnevi (cc1ec4) — 6/3/2011 @ 10:59 amBob
> I’m not an attorney
Its cool. No snobbery here.
> To begin with, the “landmark civil rights case” where the commerce clause was used to compel private businesses to serve all people was perhaps socially expedient at the time but was pure BS in my own humble opinion. The market will punish those who are openly discriminatory. And although changing the societal inertia might have taken longer, it would have been enough to mandate the end to institutional segregation; society would have followed.
Well, I think in secret the logic was two fold. First, I think the supreme court SAID commerce but they really meant Section 5 of the 14th amendment. In other words, they thought the “Civil Rights Cases” as the cases are referred to in the 1800s were wrongly decided, but they never ever want to admit any supreme court was wrong, so they went with a dubious commerce clause argument.
And as far as coercing equality of treatment, I also think that they were acting more in equity than in law. The supreme court got it wrong in Plessy where they said a state can REQUIRE segregation. The correct answer is that the state couldn’t. So that social inertia you were talking about wasn’t naturally occurring in the market but was the result of a legal regime that the supreme court gave its thumbs up to, so this was like penance or something.
The problem is that then we have to live with the principles of that caselaw.
Aaron Worthing (e7d72e) — 6/3/2011 @ 11:04 amPlease don’t obnoxiously explain that’s a state law issue.
May I point that according to Mitt Romney, that’s a very relevant point in regard to health care mandates?
(Not that I agree with Romney….)
kishnevi (cc1ec4) — 6/3/2011 @ 11:05 amYou just made the huge leap in logic.
No, the government cannot tell me I must own a certain type of car. Millions of Americans don’t want a car at all. They shouldn’t be forced to buy one. They don’t want to enter the roads. If they do, of course, that choice subjects them to regulations.
I actually think there’s a chance you’re right. I don’t agree with Wickard, and along the same lines. If I don’t want health insurance, and I want to just pay for that myself, that’s kinda similar to wanting to grow my own food.
But there is a rather radical distinction.
Do you agree? The government is not doing more here than telling Wickard about his choice to farm. It’s telling everyone to buy insurance, no matter their wishes. IF they have that constitutional power, they can regulate our entire lives. We do not have a limited government this is such an obvious corruption of what our constitutional republic was intended to be.
Sure, it’s crept into that direction over time, but at some point we need to just admit, this is not constitutional. Plainly ordering everyone to buy insurance is not something the federal government was empowered to do by the constitution when ratified or amended.
I don’t understand what you’re trying to say. The government is forcing me to spend my hard earned money, but that’s OK because it’s not like I have to go to the doctor? Frankly, didn’t you just concede that the justification for Obamacare, saving us from ourselves, isn’t even happening then? Isn’t this not even fair to Obamacare? We’ll have to get checkups. There is too much power concentrated in administrative law for these forced insurance policies not to lead to ‘guidance’ on what I do.
This will get pretty ugly, too.
Dustin (c16eca) — 6/3/2011 @ 11:08 ambtw, thanks Kishnevi for the honest and intelligent argument.
Dustin (c16eca) — 6/3/2011 @ 11:08 amHow true Aaron, it’s a shame they didn’t just overturn the earlier finding, since at least up to the present day this can be used as precedent in other cases.
And didn’t Plessy refer to public institutions? Since it involved schools I mean.
It’s academic, of course, but I tend to think businesses would have come around on their own if the institutional practice had not been prevalent.
And I didn’t think you all were the discriminating types here (swidt), I was just pre-excusing my ignorance.
My Regards.
Bob Reed (5f2db5) — 6/3/2011 @ 11:10 am“I’m OPPOSING using Lopez to justify mandates. This is why I asked you to explain what you think Kaytal is saying, and explain how that follows from commerce clause precedents.”
Katyal is saying that the limits set by Lopez and Morrison still exist and that upholding the mandate still keeps those limits.
“her argument”
His.
“I think Lopez and Morrison can be easily distinguished from the Obamacare cases, btw, because health care and health insurance are types of commerce, whereas the activities covered by Lopez and Morrison were, outside of Congress sticking the label commerce on them, not commerce.”
Basically what Katyal is saying. The limits set by Lopez and Morrison are still valid, and upholding the mandate would not upset those limits.
jvc (a20862) — 6/3/2011 @ 11:12 amHuh? Plessy had nothing to do with schools.
Milhouse (ea66e3) — 6/3/2011 @ 11:40 amFilburn. Wickard was the Secretary of Agriculture.
Milhouse (ea66e3) — 6/3/2011 @ 11:41 amIt seems to me that Kaytal makes a good point. If Heart of Atlanta was correctly decided, then we don’t have a God-given right to engage in commerce with each other, but rather need the government’s permission; and since we need that permission the government may impose whatever conditions it likes. I mean, that is the logic of Heart of Atlanta, isn’t it? If you don’t want to comply with the Civil Rights Act, don’t run a business. And if you don’t want to comply with Obamacare, don’t earn more than the amount Congress said. And yes, Congress could set that amount at any level above zero, because you need Congress’s permission to earn even one dollar.
What’s more, it seems to me that the original sin goes back, not to Heart of Atlanta but to the Slaughterhouse cases. That was when the Court rejected the idea that the right to engage in commerce is one of the inalienable rights referred to in the Declaration of Independence, preserved by the Unenumerated Rights clause of the 10th amendment and protected by the Privileges and Immunities clause of the 14th. And it was wrong to do so. Most of the USA’s problems in the 20th century flow from that decision.
Yes, that would be the argument he’s making. What’s wrong with it? So long as the privilege of earning a living depends on Congress’s good will, why can’t it impose arbitrary conditions on that privilege?
True. But Congress can’t regulate the third man who earns no dollars. Congress can set the level of income that triggers a requirement at any arbitrary level higher than zero; it cannot set it at or below zero.
No. The laws struck down in Lopez and Morrison applied to everybody, whether they engaged in commerce or not. One could not get out of them, even by not engaging in any commerce at all.
Of course, spending money is commerce too, so to avoid Congress’s clutches one would have to refrain from that too. Which leaves only the person who lives off the land, growing only noncommercial crops, and not buying, selling, trading, giving, or taking anything of value from any other human being. A frightening prospect, but under the Supreme Court’s precedents it would seem a constitutional one. Which means the problem is with those precedents. But Kaytal’s job is merely to defend the Act before the court, and it seems to me he’s doing that job competently.
Milhouse (ea66e3) — 6/3/2011 @ 12:01 pmWhy do people assume good faith on jvc/imdw’s part?
JD (d48c3b) — 6/3/2011 @ 12:02 pmThe markets didn’t operate during the Jim Crow era, i.e. the end of Reconstruction and the passage of the Civil Rights act. So your argument simply isn’t rational.
The fact that there were plenty of “scalawags” (white southerners) and “carpetbaggers” (white northerners) who demonstrated they were perfectly willing to work with blacks during Reconstruction demonstrated that the market would have filled any vacuum. No matter how much hostility such businesses faced from “unorganized” locals.
That is, in the absence of laws such as Jim Crow making such economic activity expressly illegal.
Jim Crow is what it took to get businesses to “go along.”
Steve (cabe23) — 6/3/2011 @ 12:09 pmSorry Milhouse, I was thinking of the case that overturned Plessy.
As I said upthread, I’m not an attorney. A thousand pardons…
Bob Reed (5f2db5) — 6/3/2011 @ 12:10 pmI don’t. I just think this is worth a real discussion. It’s extremely important that liberals understand what they are defending.
A Kimberlin shill doesn’t care at all about this kind of thing, but at least he could be a springboard.
It is clear by how he reversed my argument about Lopez, and then acted like he’s the only one who has any idea what’s going on, while ignoring the argument present, shows he’s acting in bad faith. You don’t even need to know his background to see it.
Dustin (c16eca) — 6/3/2011 @ 12:10 pmHa!
Thanks for the correction.
Dustin (c16eca) — 6/3/2011 @ 12:11 pmMilhouse, while it’s true the law applies to everyone then and now, it’s a big leap from that point to the point of requiring everyone to buy insurance for their own good, even if they don’t want to.
It depends on what you really care about. Right now, we have a mess of creeping commerce clause jurisprudence. A ‘good point’ by your reasoning, is that if some case was right, then it’s not too much different to creep a little further, and a little further.
OK… that’s not unreasonable. Except that it’s creeped to the point where clearly this is not a limited government at all. This interpretation of the commerce clause, if looked through the most extreme interpretation over several steps, allows the government to have practically unlimited power. All we need is some economic aspect, and suddenly the constitution doesn’t limit the government from very radical control over our lives. And that is absurd.
The implication, of course, is that the ladder that got us up this high, has faults further down.
It’s very unfair to say that the ladder must be accurate when it led us to this lofty level of unconstitutional power, to those who think that aspect of precedent was also incorrect.
At some point, we can give up on stare decisis and ask if the constitution really gives the government this kind of power.
At any rate, that wasn’t what Lopez and Morrison meant when making the commerce/non commerce distinction. As you know, that’s the difference between necessary and sufficient.
Dustin (c16eca) — 6/3/2011 @ 12:17 pmmilhouse
> No. The laws struck down in Lopez and Morrison applied to everybody, whether they engaged in commerce or not. One could not get out of them, even by not engaging in any commerce at all.
except by their expansive understanding of the term “commerce” just about everyone does. what about kids? well, do they earn an allowance. do they buy things? then we can regulate anything in their life, however unrelated to that “commerce.”
Aaron Worthing (e7d72e) — 6/3/2011 @ 12:34 pm“If Heart of Atlanta was correctly decided, then we don’t have a God-given right to engage in commerce with each other, but rather need the government’s permission; and since we need that permission the government may impose whatever conditions it likes.”
The constitution does say congress can regulate interstate commerce — that means conditions. One simple condition could be to prohibit some commerce. Congress did do that, even before the new deal. The Heart of Atlanta case was more about whether that motel was interstate enough.
The typical way it is distinguished from the PPACA mandate is that the civil rights act imposes obligations only on those who choose to run a particular type of business.
“The markets didn’t operate during the Jim Crow era, i.e. the end of Reconstruction and the passage of the Civil Rights act. So your argument simply isn’t rational.”
Oh I see what you mean. You mean that the whole ‘let the market sort it out’ argument would depend on there being enough political will in individual southern states to end jim crow? Oh then this is fanciful indeed.
However, in reading a chronology of the Greensboro, NC sit-ins, I see that Woolworths said the would abide by local custom, and would only integrate when all the other businesses did too. That’s not someone following a jim crow law. That’s someone following market pressure.
“The fact that there were plenty of “scalawags” (white southerners) and “carpetbaggers” (white northerners) who demonstrated they were perfectly willing to work with blacks during Reconstruction demonstrated that the market would have filled any vacuum.”
How well did that turn out? Those aren’t terms of praise you’re using, are they?
“It is clear by how he reversed my argument about Lopez”
And here I thought I was merely explaining Katyal’s argument. Oh well.
jvc (411830) — 6/3/2011 @ 12:42 pmThat’s right. Look around you; does the government look limited? Why were Lopez and Morrison at all newsworthy? Why are we still talking about them more than a decade later? Because they’re unique, outliers, exceptions to the general rule that the Interstate Commerce clause is a wide-open pass through which Congress can drive whatever it likes. And thus, that the Enumerated Powers doctrine is a nullity. Even Lopez was a purely technical decision that Congress promptly got around by re-passing the law with slightly different language.
Yup. Your point is?
Yes. We live in an absurd world.
It clearly doesn’t. And it doesn’t give the Supreme Court the power to make it so. When the Court makes a decision that is clearly contradicted by the constitution it’s acting ultra vires, and its decision is not law. Now all we need is people who are willing to act on that obvious fact.
Yes. Was I insufficiently clear on that point? Almost everybody engages in commerce, and thus, under current Supreme Court doctrine, may be regulated by Congress almost without limit; but it remains possible not to do so. I described the person who remains free in these United States: the person who lives off the land, growing only noncommercial crops, and not buying, selling, trading, giving, or taking anything of value from any other human being.
Milhouse (ea66e3) — 6/3/2011 @ 1:01 pmMake that “…to or from any other human being”.
Milhouse (ea66e3) — 6/3/2011 @ 1:02 pmHush, imdw. Your sophistry never fails to be tiresome.
JD (bc40cd) — 6/3/2011 @ 1:02 pmmilhouse
i have to disagree. the SC doctrine is not as expansive as you claim.
Aaron Worthing (e7d72e) — 6/3/2011 @ 1:03 pmDoes that mean that the Obamacare waivers are going to be revoked?
malclave (4f3ec1) — 6/3/2011 @ 1:31 pmjvc/imdw – I am anxiously awaiting Secretary Sebelius’s mandate for me to purchase broccoli, since I have to eat, I need to buy food, which is commerce, so by your logic, the government can mandate that I purchase something healthy.
amirite?
daleyrocks (bf33e9) — 6/3/2011 @ 1:38 pmKeep waiting. I expect they’ll just tax you and give you food stamps.
jvc (059a24) — 6/3/2011 @ 1:41 pmImdw is obsessed. Jvc/imdw just cannot stay away, despite having been banned about 50 times. Creepy.
JD (bc40cd) — 6/3/2011 @ 1:43 pmNo, the government cannot tell me I must own a certain type of car.
More precisely, the government should not be able to tell me I must own a certain type of car. But I think the 20th century cases give the government the power to so that, and to get rid of the mandate you will have to get rid of those cases–meaning, they will have to overruled. Or else we get rid of the Constitution and start with a new one that’s much clearer about what government can and can not do.
I think, btw, that this is one of those places in which me being a libertarian and you being a conservative does make a difference in our approach to this matter–I think you’re more willing to classify more things as being legitimate or necessary “public safety” matters than I would.
But think of it this way: if the government has the right to say that driving over x miles an hour is unsafe to others, then why doesn’t have it the right to say that not driving a certain type of vehicle is unsafe to others?
kishnevi (cc1ec4) — 6/3/2011 @ 1:46 pmRational basis review.
Milhouse (ea66e3) — 6/3/2011 @ 1:48 pm“…he can order you to obey commands, spending thousands of dollars, or moving across town, just because he thinks that would be better.
I don’t want that kind of country.”
Comment by Dustin — 6/3/2011 @ 10:19 am
You mean like the many Muni Codes, under the rubric of Civic Enhancement/etc, that mandate that you as a property owner, must install and maintain “proper” landscaping, even on the city’s strip of land between the curb and the sidewalk, under penalty of fine or imprisonment (misdemeanor)?
Last time I looked, I didn’t see a “civic enhancement” exception to the prohibition against Involuntary Servitude found in Amendment XIII.
AD-RtR/OS! (b8ab92) — 6/3/2011 @ 1:49 pmIsn’t it? How do you distinguish the cases?
Milhouse (ea66e3) — 6/3/2011 @ 1:49 pmOne of the problems that we have with congress, is that they are also trying to regulate intrastate commerce along with interstate commerce.
peedoffamerican (ee1de0) — 6/3/2011 @ 1:55 pm@ Steve: “Are you serious? Are you serious?”
yes. they may not believe we are, but that’s how wars start.
redc1c4 (fb8750) — 6/3/2011 @ 1:56 pmOh, OK, I think I see your point: Heart of Atlanta only gave the government the right to regulate the actual commercial activity in question. If you run a motel, the government may place any conditions it likes on how you run it, as a condition of its giving you permission to do so. So it can require you to paint the motel pink, give each guest free blue towels but also ban guests from bringing in any yellow ones, etc. But it can’t impose a condition on your private life outside the business, e.g. to make it a condition of your hotel license that you not smoke at home, or that you go to the gym.
Here the government, as a condition of allowing you to earn more than a certain amount of money, isn’t just regulating how you earn it, but telling you to buy something outside work, for your private, non-work-related use. And that, you claim, is beyond what the commerce clause has been stretched to so far.
But I’m not convinced. The government is telling you what to do with the money you’re earning by its permission and good will, and having health insurance is rationally related to your earning capacity because if you get sick you won’t be able to work, so it’s just ensuring that those who engage in commerce take reasonable steps to guarantee their continued ability to engage in that commerce, thus bringing stability to the marketplace. Or some gobbledegook like that.
Milhouse (ea66e3) — 6/3/2011 @ 1:58 pmNo, either lack the intelligence to see what I mean.
Either that, or it’s just your intellectual dishonesty that forces you to argue against your own strawmen.
In you aren’t woth the waste of time.
Steve (cabe23) — 6/3/2011 @ 2:20 pmHealth insurance does not cure me if I get sick. Health care may cure me. Health insurance merely is one method of paying for health care.
However the government mandate penalizes me if I choose — not to purchase health insurance — but rather if I select another other means of obtaining health care.
aunursa (a2a019) — 6/3/2011 @ 2:22 pmLive preview hasn’t been working consistently for me; too bad, it really helps me catch editing and spelling errors before I post. Such as the missing words “you,” and “any case,” and a missing “r.”
Steve (cabe23) — 6/3/2011 @ 2:25 pmOr else he’s simply not aware of what the term “Jim Crow” means. A lot of people aren’t, apparently. They think it means racial discrimination. It doesn’t. It means legally mandated discrimination, enforced by legal penalties. And it was mostly a creation of the “Progressive” movement.
Milhouse (ea66e3) — 6/3/2011 @ 2:27 pmAnd that is a rational relation.
Milhouse (ea66e3) — 6/3/2011 @ 2:28 pmInfuriating but not surprising.
DohBiden (15aa57) — 6/3/2011 @ 2:30 pmjvc, market forces were prevented from defeating segregation by Jim Crow laws themselves. Segregationists used the coercion of government to compel discrimination that would have disappeared under market forces as people competed for the dollars of black families.
SPQR (26be8b) — 6/3/2011 @ 2:31 pmSPQR, you might as well be talking to a stone.
AD-RtR/OS! (b8ab92) — 6/3/2011 @ 2:37 pmIt has its narrative, and nothing that anyone says, or does, will alter its twisted perception of the reality around it.
“The government is telling you what to do with the money you’re earning by its permission and good will”
Milhouse – No. The mandate applies to all Americans by virtue of their breathing not by virtue of their capacity to work as you posit. It is a universal mandate. How much each individual is required to spend out of their own pocket is subject to means testing.
daleyrocks (bf33e9) — 6/3/2011 @ 2:38 pmEven if I have zero earned income, I am still required to have health insurance under ObamaCare.
daleyrocks (bf33e9) — 6/3/2011 @ 2:39 pm“…you’re earning by its permission and good will…”
Which goes directly to the corruption of the Republic, and the concept that the People are Sovereign, and grant powers to the Government, not receive dispensations from it.
AD-RtR/OS! (b8ab92) — 6/3/2011 @ 2:41 pmThe only real solution is to adopt Milton and Rose Friedman’s proposed amendment:
Milhouse (ea66e3) — 6/3/2011 @ 2:41 pmDefine “legitimate goods and service”?
Once you allow Government to define the terms, they own you.
AD-RtR/OS! (b8ab92) — 6/3/2011 @ 2:43 pmKaytel claims that’s not true; that there is no universal mandate, because people who earn less than some amount are not subject to it. We’re not discussing whether Kaytel is telling the truth, but whether his argument is sound. Aaron thinks it isn’t, merely because the result is absurd. I disagree; we’ve already become absurd a long time ago, and this is a logical conclusion of that absurdity.
Milhouse (ea66e3) — 6/3/2011 @ 2:46 pmAny good or service which it is lawful to provide. Congress or a state may ban some good or service altogether, if it has the constitutional power to do so; but if it doesn’t, then it can’t interfere in the arrangements people make for its provision.
Milhouse (ea66e3) — 6/3/2011 @ 2:48 pmaunursa, regarding your comments in #64, you are 100% correct.
Unfortunately, most people find it inconceivable that there is another method of obtaining healthcare.
And even more unfortunately, the same sort of people who have been breaking the health care system since the 1930s have come up with an even bigger scheme designed to break it even faster. But it won’t work (to break it, that is) unless larger numbers of people are forced into it. Which in addition to making the cost of health care skyrocket, will overburden the system; two reasons it’ll break faster.
As Ted Kennedy once said, this didn’t just happen. We were regulated into it.
In any case, leaving you in charge of your own decisions about how to pay for goods and services just won’t do. It reduces the government’s ability to come up with excuses to confiscate your money. And, as we are seeing with Social Security and MediCare, never deliver what they promised.
Steve (cabe23) — 6/3/2011 @ 2:50 pmSteve, aunursa’s point is irrelevant. It doesn’t matter that there are other ways to obtain health care; the fact that insurance is a common way of doing so is enough to establish a rational relationship between Congress’s means and end. And that’s all that’s required, provided we first concede that the end is legitimate. The flaw is in that part.
Milhouse (ea66e3) — 6/3/2011 @ 3:19 pm“Kaytel is telling the truth, but whether his argument is sound.”
Milhouse – I was addressing your claim, not Kaytal’s.
daleyrocks (bf33e9) — 6/3/2011 @ 5:28 pmAbove should read – “We’re not discussing whether Kaytel is telling the truth”
daleyrocks (bf33e9) — 6/3/2011 @ 5:30 pmI see Nancy Pelosi saying ” We can do whatever we want. “, then marching off away from the mic and cameras.
SiliconDoc (7ba52b) — 6/3/2011 @ 9:07 pm—
All the legalistic discussions are nice, but this is just another notch AND about 4 holes, in the government’s belt.
Let that gigantic, gorged, fat belly stretch out some more, Uncle Sam.
smoking laws
seat belt laws
mandatory vehicle insurance laws
pasteurized milk only laws
—
a million other laws I have no clue about since I’m not the giant entity(ies) lobbying and lawyer-ing for all the mess.
—
Crack open your wallet, Uncle Sam is now your physician – and Obama is going to give us all back half a trillion doing it – after his pig enforcers fly out of your fridge …
“Tell us how much you make, so we can fine you if you don’t buy our product, and by the way, we can make sure you die sooner rather than later, keep that in the back of your mind before redressing anything but the paper gown you’ll don for us at our demand – this is going to hurt more than a bit…”
SiliconDoc (7ba52b) — 6/3/2011 @ 9:22 pm—
Now, if someone else told me I have to tell them how much I make, so they can decide how much to charge me for their product they say I must purchase or pay them anyway if ‘I choose’ not to… I see me laughing at first, and then with their unrelenting persistence, I see my fist plowing into their yapper and schnocker and eyeballs, over and over again, all over their gourd and chest and neck, pummeling them.
—
Whatever, they’re going to do it no matter what. What a shame, from something to be proud of and feel respect for, to something hated for it’s constant gigantic lies and absurdities it spews to force it’s sick agenda, twisted ever more in implementation, down everyone’s throat.
—
Nope, cannot stand em anymore – too many lies.
Milhouse, your comment #81 is amazing.
What is this “provided we first concede that the end is legitimate” business? You’re right, the flaw is in that part.
“We” never conceded anything. At least, not the “we” who will foot the bill. I wasn’t around when “they” conceded the government should be in the mortgage industry, providing pensions, or be in the healtcare business.
But since some selfish prior generation decided to commit generational theft, you advocate larger and larger ponzi schemes as a means to that end.
And succeeding generations are never asked to concede anything. “We” are being told.
An arrogant Congress and an imperial judicial system dictates it can’t be undone. Precedent has been established long before most of us were born. So we can’t disagree or undo it, we can only comply with demands to give up ever more economic self-determination and more money.
I’ve never read a more ringing endorsement of taxation without representation.
Steve (cabe23) — 6/3/2011 @ 11:54 pmSteve, you have a serious reading disability. You are seeing things that aren’t there. Try reading carefully before commenting, and responding only to what someone actually writes, not to the voices in your head.
Milhouse (ea66e3) — 6/5/2011 @ 6:12 pmOk, you tell me. Who is this “we” who decides such and such is a legit end of government?
Because no one asked me.
Steve (cabe23) — 6/6/2011 @ 1:52 am