November 10, 2010

Liberals in denial ongoing some more

Greg Sargent reports on negative reaction to a friend of the court brief filed by a number of U.S. Senators in State of Florida v. DHHS:
Under the [Wickard v. Filburn] decision, Seidman points out, Congress was allowed to compel people to stop producing their own wheat and buy it on the interstate market. Seidman argues that under this precedent, the individual mandate is constitutional, because health reform does the same.
Compelling to stop is distinguishable from compelling to start. Stopping something assumes there was some thing happening that needed to be stopped, whereas compelling to start something acknowledges that there was no thing happening to begin with.

This remains at the crux of the argument: activity vs. inactivity, and Wickard v. Filburn offers no such obvious solution to that dilemma, whether the Commerce Clause empowers the regulation of inactivity.
Seidman points to Medicare Advantage, and notes that it's supported by taxation which, of course, is compelled by the Federal government. Under Medicare Advantage, this money is used by the Federal government to purchase health insurance. "We require people to give money to the Federal government, which then gives it to insurance companies," he says.
The taxing power argument already failed in the district court.*


* Seidman's example would work in support of a single-payer system.


gnarlytrombone said...

"if the Court views the Act as manifestly unpopular, there may well be five Justices who are open to valid constitutional objections they might otherwise resist," says Barnett.

I wonder how much of the GOP's forthcoming kabuki tantrum is designed around this supposition.

grumps said...

Any chance that a silver-tongued devil makes the case that it is an inactivity which is the harmful behavior and that this compels a stoppage of that harmful inactivity?

illusory tenant said...

I think by the time it gets to the Supreme Court it's going to be more about the Necessary and Proper Clause. That is, the Commerce Clause doesn't authorize the mandate but it's necessary and proper nevertheless. In which case the only devil silver-tongued enough to persuade the Court got shot by Aaron Burr in 1804.