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March 24, 2012


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What would be the rational basis for ordering car dealers to sell only GM cars?

David Orentlicher

Congress could cite the importance of a thriving domestic motor vehicle industry, observing that we should not be dependent on foreign countries for our cars and trucks. A GM-only law would ensure that foreign competition does not decimate the domestic industry. Note as well that if my GM-only law would be irrational, so would the kind of bare mandate to purchase GM cars that Obamacare critics worry about


I haven't heard that worry expressed. There are so many domestic auto makers, no one seriously would argue that saving GM to the exclusion of Ford would be rational.
Indeed, many "domestic" auto makers were not in need of help in 2008 (including Honda, etc., in states other than Michigan).
Your postulated GM law would not appear to meet the rational basis you suggest. It certainly cannot be stated with this degree of certainty that "Congress ... would have the power to require automobile dealers to sell only GM vehicles."
That seems to me to be a bit of an overstatement that detracts from your point.
As for tying seat belt requirements to the purchase of autos, you are simply arguing that insurers can be forced to include certain coverage in policies.
That has been the case for many years; no one is debating that point.

David Orentlicher

I use the GM hypothetical not because I think it's a particularly good example of a potential law, but because the critics of the insurance mandate, including a federal district judge, invoke a GM-purchase mandate as a consequence of upholding the insurance mandate. My hypothetical may not represent a rational law, but it's no less rational than the critics' hypothetical of a bare mandate to purchase GM cars. You're correct that one could reject the critics' GM mandate on grounds of irrationality, but my point is to show that even taking the critics' argument on its own terms, it still fails.

As for the fact that no one is debating the point that the terms of purchases can be regulated, that's exactly my point. Everyone, including the challengers to the insurance mandate, acknowledge that once people are engaged in voluntary transactions, the terms of the transactions can be regulated by the federal government. And once that point is recognized, then it becomes clear that Congress can mandate just about any purchase it wants by linking the purchase to a voluntarily undertaken purchase.


And, to what "voluntary purchase" would Congress link the purchase of health insurance by the young person who believes that it is unnecessary to pay premiums for health insurance?
You seem to think Congress could order that the compulsory purchase of a health insurance policy be linked to ANY purchase of ANYthing.
That notion is not demonstrated in reality, as your examples show (a new automobile without seat belts, a new baby’s crib without safety latches, or a new television set without a V-chip. Tying the purchase of health insurance to the purchase of some other unrelated product is sort of far away from what the PACA does, and not in the least an argument that proves the mandate is regulating a purchase of anything.
Congress can regulate commerce in autos, cribs and tvs. That is stipulated. As said, these observations do support the regulation of insurance products but have not much to do with the mandate.
Perhaps you believe that Cngress could order that all health care providers charge extra and then give the "extra payments" to private health insurers?
This is actually already the case, albeit not at the whim of Congress and not by way of direct payments.
SOrry, but these arguments in favor of the mandate don't really support the mandate.
Congress can't order all autos be purchased from GM, as you (not the critics) stated, and that seems to me to be relevant and significant to your assertions.

David Orentlicher

There is no voluntary purchase to which Congress could link a mandate to purchase health care insurance. That's the point. While the purchase of other goods and services and the purchase of some kinds of insurance (e.g., automobile or homeowners insurance) can be tied to a voluntary transaction, health care insurance must be procured in advance of a voluntary transaction. Thus, what we learn from the individual mandate is not that Congress will be imposing other purchase mandates but that insurance is different from other goods or services.


"There is no voluntary purchase to which Congress could link a mandate to purchase health care insurance."
There is no point is arguing about whether Congress can do this in other circumstances.
Congress should have gone with a tax (in exchange for freedom forever from ever escalating premiums and now-government endorsed obscene profits for private insurers) and Medicare for all. (Please, don't cite the 80/20 rule: see, waiver in Maine, and research the track record of the company that provoked it.)
The PACA mandate won't work and everyone who knows knows it, even if it is upheld.
But, that is a discussion about the way the real world works, totally divorced from the PACA and the hypotheticals used to justify the mandate (like the auto insurance canard, which you mercifully avoided).
Let's hope the USSCT can come close to the real issues.

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