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SCOTUS–Supreme Ignorance? Health Care Mandates?

April 11, 2012

A post on Huffington Post begins with the inflammatory title: SUPREME IGNORANCE, Misunderstanding May Complicate Health Care Decision.(This  title is most likely prominent for today, 4/11/2012 only.) Clicking on this title then leads to an article with a slightly less inflammatory tone: Supreme Court Justices Possibly Misunderstood Insurance Requirement in Health Care Case. The article woefully proceeds in its own misunderstood attempt to argue that the government’s legal strategist presenting before the Supreme Court somehow missed the option to argue that there is a “bronze” or lowest-cost option available to all pe0ple purchasing insurance which should somehow make the argument of mandated purchase more palatable on a Constitutional level.   The argument the writer makes is significantly flawed on multiple levels.

The writer has confused the concept of low-cost premiums with Constitutional challenges.  The issue with the health care mandate’s Constitutional challenge stems from the fact that the Constitution only requires that citizens be required to pay taxes, not that the government can mandate, based on  citizenry, product purchase from a third-party company.  I would say that this approach is unprecedented, but it’s not.  The 2nd millennial version of yesteryear’s oil baron is the insurance conglomerate.  The commerce domination holding today’s democracy hostage is the insurance/banking industry.   The insurance industry, no doubt envisioning heretofore unlimited profits, would certainly win a huge victory if every single U.S. Citizen were required to purchase their product and have pushed out a massive public misinformation campaign to try to convince consumers and governmental agencies that purchasing health insurance will somehow benefit everyone.

It’s not true that everyone will benefit from any one thing, and it’s not true that purchasing health insurance will benefit even many people.  Health care costs are rising, but purchasing insurance isn’t guaranteed to help any one but the insurance companies.  Could it be argued that it might benefit the average consumer?  Well, maybe, but is it true that it will benefit everyone? Certainly not, and not even if, as the Huff Post writer speculates, the government mandates a “bronze plan,” that costs less.

During the recent oral arguments some of the justices and the lawyers appearing before them seemed to be under the impression that the law does not allow most consumers to buy low-cost, stripped-down insurance to satisfy its controversial coverage requirement.

In fact, the law provides for a cheaper “bronze” plan that is broadly similar to today’s so-called catastrophic coverage policies for individuals, several insurance experts said.

What most people, writer Ricard Alonso-Zaldivar included, fail to understand is that it’s not the size of product that the government is mandating citizens purchase, it’s the fact that it’s simply not a tax that has been allowed for in the Constitution.  The government’s argument that by passing the health care mandate, the government is simply regulating interstate commerce is shaky.

There are set guidelines for regulating interstate commerce, and those guidelines aren’t based on what is best for any particular industry.  The government has no compelling argument to state why it would be necessary to regulate interstate commerce for insurance companies, nor have the government’s solicitors presented any solid evidence for universal gain by mandating personal purchases of products.  By regulating interstate commerce, the government could impose regulations on the insurance companies, but there is no constitutional component for the government’s mandate of any particular product based on the argument of regulating interstate commerce.  Can the government mandate that all U.S. citizens purchase vehicles because that is a form of regulating interstate commerce? Can the government mandate that all U.S. citizens only purchase U.S. made products, as opposed to imports, because that’s a form of regulating interstate commerce?  Could the government make the claim that all U.S. citizens purchase homes in order to regulate commerce?  The easy answer is “no.”

What is harder to prove is how the government can mandate a purchase of product (health insurance) when it’s only allowed to mandate that its citizens pay taxes, which directly contribute to the country’s budget.  There is no Constitutional provision that allows the government to issue a proclamation mandating the purchase of a product because of citizenry status.  It becomes a ridiculous proposition:  do only registered citizens face penalties for failure to purchase insurance?  Do we award citizenship to all current illegals and then fine them for failure to make a product purchase?  Where does the money from these penalty payments end up?  Who regulates the penalties and procedures?  We already have an over-burdened court system, criminal justice system and IRS system. Who would manage a product purchase/penalty system?

No, it’s not that the U.S. Supreme Court failed to understand that there is a cheaper product available; it’s that the government would force a product purchase from an industry on citizens simply because they are U.S. citizens.  There is no legal precedent for product purchase for citizens, nor for inflicting a penalty for failure to purchase any particular product.  Essentially, the government has no standing to require the purchase of anything.  The government can force people to pay taxes, but it can’t force people to buy products under current Constitutional provisions.

Back in the 1800’s, the U.S. created an Interstate Commerce Commission to “support” the favored industry of those times, the railroad industry.  The government was supposedly going to use the ICC to regulate interstate commerce, the same claim used by the Obama administration for its favored industry, the insurance industry.

The ICC was created under the auspices of guaranteeing equal treatment of U.S. citizens with regards to an industry, much like the Health Care Act seeks to regulate insurance companies and their handling of targeted groups such as those with pre-existing conditions. In 2005, using the Commerce Clause, the U.S. Supreme Court determined that Congress could criminalize the production of cannabis, even though a person may only be growing and using cannabis at home as opposed to producing it for sale.  In this particular case, the USC ruled that primary purpose of regulating commerce was to prevent “discriminatory state legislation.”

“The Commerce Clause emerged as the Framers’ response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890.”Gonzales v. Raich, 545 U.S. 1 (2005)

The ICC and the Health Care Act were both supposed to eliminate discrimination.  The ICC didn’t fare so well, according to Wikipedia’s version:

The ICC was established by the 1887 act, which was signed into law by President Grover Cleveland.[1] The creation of the commission was the result of widespread and longstanding anti-railroad agitation. Western farmers, specifically those of the Grange Movement, were the dominant force behind the unrest, but Westerners generally — especially those in rural areas — believed that the railroads possessed economic power that they systematically abused. A central issue was rate discrimination between similarly situated customers and communities.[2]:42ff Other potent issues included alleged attempts by railroads to obtain influence over city and state governments and the widespread practice of granting free transportation in the form of yearly passes to opinion leaders (elected officials, newspaper editors, ministers, and so on) so as to dampen any opposition to railroad practices.

Various sections of the Interstate Commerce Act banned “personal discrimination” and required shipping rates to be “just and reasonable.”

In much the same way the railroad industry tried to control the governmental office, so does the insurance industry hope to gain unlimited customers and heft by a mandate of health insurance or penalty. In  1995, Congress fully abolished the agency, although its powers had eroded beginning in the 1960’s and 1970’s.

When, in 2005, the government declared that growing marijuana was a form of interstate commerce, they did so by loosely linking the personal cultivation of a product with the agricultural industry’s larger claim to said product:

The government also contended that consuming one’s locally grown marijuana for medical purposes affects the interstate market of marijuana, and hence that the federal government may regulate—and prohibit—such consumption. This argument stems from the landmark New Deal case Wickard v. Filburn, which held that the government may regulate personal cultivation and consumption of crops, due to the aggregate effect of individual consumption on the government’s legitimate statutory framework governing the interstate wheat market.

Most cannabis users know that this a bit of a gross oversimplification–how is the sale of marijuana a recognized form of interstate commerce?

Even respondents acknowledge the existence of an illicit market in marijuana; indeed, Raich has personally participated in that market, and Monson expresses a willingness to do so in the future. More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U.S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.Gonzales v. Raich, 545 U.S. 1 (2005)

Isn’t the sale of marijuana criminalized under DEA guidelines?  If the government criminalizes the market, can it therefore set regulations governing said prohibited market?  Basically, it came down to the fact that the U.S. Supreme Court believed that the woman growing marijuana for home use had the power to affect the entire United States marijuana market, and therefor, she should not be allowed to grow her own medical marijuana, even though it was legal in California.  Strange but true that the U.S.C. managed to pull out that decision that Congress could regulate a market it had criminalized, but the interstate commerce clause has been used in other crazy ways, too.

Regulating interstate commerce had been the focus of many transportation companies, from trains, to buses, and steamers.  Admitting the insurance industry into the realm of interstate commerce regulation is different from regulating a form of transportation.  People don’t have to purchase modes of transportation as citizens.  According to the Affordable Health Care Act, just because a person is a citizen, he or she would have to purchase insurance, so it’s not the cost that is relevant but the principle.  Technically regulating interstate commerce refers to the movement of a goods or products, not just a purchase, but this has been open to debate since 1824  when the United States Supreme Court ruled in Gibbons v. Ogden that”commerce” included both the buying and selling of goods, as well as their transportation.

The U.S. Constitutional provision to which all this argument has been attributed is surprisingly lean:

The Congress shall have Power […] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; (Article I, Section 8, Clause 3)

Because our governmental system has a set of checks and balances, Congress may pass laws, but the judiciary may determine whether or not they are Constitutionally solid.  Historically, there has been almost a tug of war between Congress seeking to enact laws that benefit a pet industry and the judiciary which finds them Constitutionally infirm:

During the John Marshall era the Commerce Clause was empowered and gained jurisdiction over several aspects of intrastate and interstate commerce as well as non-commerce. During the William Rehnquist court era the Commerce Clause was restricted, thereby allowing states more control over business conducted within its borders.

The issue remains:  how does mandating a purchase of a product from a particular industry based on citizenship constitute regulating interstate commerce?

When the U.S. Supreme Court wrote the decision to not allow the woman to grow her own medical marijuana based on the assumption that she would affect the entire national marijuana market, which the U.S. government refused to regulate, the Court did write that the woman didn’t challenge the constitutionality of the law that with which she was charged:

Respondents in this case do not dispute that passage of the CSA, as part of the Comprehensive Drug Abuse Prevention and Control Act, was well within Congress’ commerce power. Nor do they contend that any provision or section of the CSA amounts to an unconstitutional exercise of congressional authority. Rather, respondents’ challenge is actually quite limited; they argue that the CSA’s categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress’ authority under the Commerce Clause.Gonzales v. Raich, 545 U.S. 1 (2005)

In the case of Obamacare, those who aren’t in favor of the health insurance mandate have already stated that Obamacare is essentially “an unconstitutional exercise of congressional authority;” mainly that Congressional authority doesn’t extend to forcing citizens to purchase something, whether it be a car, a house, insurance, or even a piece of paper based on the citizenship of a particular person.

Of course, this is a simplified view of the issues, with Wikipedia providing some of the most readable explanations of the laws in question; however, the whole question of “Supreme Ignorance” is based on the faulty supposition that it’s the product’s cost at question, as opposed to Obamacare mandating a purchase because we are U.S. citizens.

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