There Really Is No There There

While I agree with Calvin Massey that Linda Greenhouse could have articulated the case in favor of the individual mandate more effectively, I think she’s correct in her bottom line about the challenge to the mandate.

In particular, the constitutional challenge ultimately rests on a flawed premise—that if Congress can require people to buy a good or service solely because they are living in the United States, the commerce clause will be converted into an expansive power to compel just about any purchase. Today, we must buy health care coverage, tomorrow we might have to buy broccoli or GM cars.

But in fact, invalidation of the individual mandate would protect the public from only a few purchase mandates—mandates to purchase some kinds of insurance.

To be sure, a ruling against the mandate would mean that Congress could not force us to go out and buy broccoli or GM cars. But the government already has other ways to make us buy those goods. Congress still would have the power to require grocery stores and restaurants to include broccoli with every sale, and it still would have the power to require automobile dealers to sell only GM vehicles. If Congress really wants to make us buy something, it can find a voluntary economic transaction to regulate. That the individual mandate is not tied to a voluntary economic transaction simply reflects the fact that health care insurance must be procured in advance of the time when health care is needed.

Perhaps this demonstrates that the Court needs to curtail the ability of Congress to regulate the terms of economic transactions. But then the justices would have to invalidate all kinds of laws that impose important conditions on economic transactions. We can’t buy a new automobile without seat belts, a new baby’s crib without safety latches, or a new television set without a V-chip. There is no way for the Court to draw a principled line between requiring sales of seat belts with every sale of a car and requiring sales of broccoli with every sale of food (say with an exception if you could prove you had already bought broccoli that day or week).

In any event, history tells us that Congress has exercised considerable self-restraint when it comes to purchase mandates. As the 11th Circuit pointed out, Congress never has required homeowners to purchase flood insurance as a condition of building a house in a flood plain, even though the Constitution clearly would allow for that and even though taxpayers end up footing the bill for flood relief. When all is said and done, Obamacare critics have not explained why we need the courts to protect us from being overwhelmed by purchase mandates.

 

Comments

[anon]

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

[anon]

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.

[anon]

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.

[anon]

"There is no voluntary purchase to which Congress could link a mandate to purchase health care insurance."
Q.E.D.
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.