"Coercion is Not Commerce"

[AZhitman]

Loving this article:

http://www.realclearpolitics.com/articl ... 08272.html

By David Harsanyi

Let's imagine -- for the sake of this discussion I'm having with myself -- that forcing people to purchase health insurance is desirable, ethical and a much-needed tool in solving a national crisis. Well, even those indulgences do not make the individual mandate any less authoritarian or dangerous.

At some point in the next few years, the Supreme Court will decide whether coercing individuals to purchase a product is constitutional. That's when we'll find out whether the document is worth anything at all anymore.

To this point, we've authorized Washington to micromanage our "economic activity" per the commerce clause -- which, technically speaking, means everything. We've permitted government to set up elaborate bureaucracies to keep us safe from drop-side cribs and artificial sweeteners. From our investment decisions to the snacks we're allowed to feed our kids in the schools we're forced to enroll them in, government makes choices for us in the name of the public good. What we haven't done is compel people to buy stuff.

Now, unlike the president, I have not garnered any special constitutional expertise. And if the Supreme Court rules that forcing citizens to become consumers against their will is tantamount to commerce itself, I'm happy to have skipped the trouble.

Commerce, in fact, is often more significant -- certainly more tangible -- to the average person than many sacred constitutional freedoms we like to talk about. Our life in commerce -- where we live, where we work and what we spend our dollars on -- consists of thousands of daily exercises in freedom and choice.

Yet if this mandate stands, any political group need only cobble together a majority of elected officials and find some open-minded judges dedicated to "doing the right thing" rather than upholding their oath, and government can be handed unlimited power to control not only what we can buy but also what we must buy.

Washington would be free, for instance, if it chooses, to mandate we all purchase newspapers (to bolster the public's knowledge!) or salubrious foods (eat well or we all pay). Local governments -- the kind that see nothing wrong in banning certain restaurants, for instance -- would no doubt be especially interested.

Oh, that will never happen, you radical, hateful, right-wing, Fox-News-crony nut job.

Because, as you all know, government never abuses a new pathway to intrusive power. Now, to be fair, I do not believe the individual mandate itself means the end of freedom as we know it or anything as dramatic as that. It's the logic behind the mandate that sets the corrosive precedent.

It would be a pleasant change of pace if proponents would be honest and say: Listen, we have concerns that are far more vital than choice or freedom (you hater), like, for example, setting up a government-sanctioned, state-monopolized, price-fixed, quasi-market for health insurance. Let's face it; there always comes a moment in any Utopia-building project when the free riders and nonbelievers have to get with the program.

Instead, we hear that Americans are all part of the health care system sooner or later. We all pay. Thus, it should be by default considered commerce, and government can proactively force "participation."

As U.S. District Court Judge Henry Hudson, who found the mandate unconstitutional recently, points out, "the same reasoning could apply to transportation, housing or nutritional decisions. This broad definition of the economic activity subject to congressional regulation lacks logical limitation."

Maybe that's the point. Force someone to buy a gun? Awful. Force someone to buy insurance? A victory for fairness. The limits of this philosophy depend solely on the subjective ideals and imaginations of powerful advocates.

So it's a good thing we have a Constitution.

One hopes.

[WDRacing]

I think the Constitution gets trampled on more then 98% of the Gen Pop realizes. So I really don't have faith in it anymore souly because the powers that be can simply choose by majority to "interpret" the damn thing however they want.

All those movies that take place in the future where the Gov controls everything are based off of a very real possibility. Because it's "for our own good". We've already set a standard of entitlement that isn't sustainable on any level. Any steps taken now are simply to make it an easier transition as we hand over more and more of our freedoms and accept more and more Gov control.

[IBCoupe]

That sums up a lot of the policy issues with a mandate quite nicely, Greg. Thank you for posting it, because it's certainly well-taken. The problem with slippery slope arguments, however, in a Constitutional context can be illustrated in this argument which aired on the West Wing between the President and a candidate for the Bench who anonymously published an opinion doubting the protection of "privacy" in the Constitution:

Bartlet: "What about the use of cream in my coffee? Surely, there can be no free speech argument to be made there?"
Harrison: "No."
Bartlet: "So you have no objection to the state of New Hampshire passing a law banning use of cream in coffee?"
Harrison: "I would have strong objection, Mr. President, as I like cream as well, but I would have no Constitutional basis to strike down the law when you brought this case to the Supreme Court."
Bartlet: "As I lose the votes of coffee drinkers everywhere."

The Supreme Court has, over the course of many years, interpreted the interstate commerce clause to give Congress the power to regulate any act that affects interstate commerce, even if the act itself is entirely local. If the Federal Government can successfully argue, as it has in front of two District Courts so far, that not having insurance is an act that affects interstate commerce, the Courts will (or, short of "activism," should) be reticent to overturn precedent and rule the provision unconstitutional. You, and the author of this article, may very well have some great policy arguments against this provisions or some other provisions in the future that follow this same reasoning, but I'm not entirely convinced that it's necessarily a "Constitutional" objection that you're (or, perhaps more properly, the author that you're quoting is) making.

With that in mind, the Supreme Court, with its current make-up, could go 5-4 in the other direction, too. This provision might be struck down, with the requirement that has been put on similar laws in the past - where the government requires you to do a thing, it must provide a public alternative. They can't force you to pay someone else just because they want to. Which means that the public option is back, and this very Conservative (notice the big C) policy is replaced by a very liberal one.