Commerce Clause Limits are Dead, Dead, Dead

I will disagree with most commenters -- there is no support for the commerce clause implying any kind of regulatory limitations in this decision.  Any discussion of the commerce clause and what the Supreme said about it is irrelevant.   By this decision, Congress can essentially mandate any activity it pleases as long as it imposes a financial penalty for an individual who ignores the mandate.  SCOTUS upheld that the commerce clause has limits, and then made these limits irrelevant.


  1. Dan:

    I don’t think the difference is meaningless; taxing drug users would be a major improvement over no-knock raids.

  2. Josh:

    Isn't it sort of the opposite of dead? It's like some beast that was nice and charming at one point, but has grown into an unstoppable monster. Like a polar bear cub that seemed like a cute pet when you first got it.

  3. KTWO:

    Perfect analysis. The Commerce Clause wasn't the problem here. Try taxes.

    If government declares that what it desires is somehow related to money and thus to taxes it can be mandated.

    That relation need not be clear enough to convince. When government says it is related that will suffice.

    Now change the FIT tax code so that every person pays, or at least owes, a minimum of one cent of tax. No exceptions whatever. That should make everyone subject to any order.

  4. LarryG:

    there's a second part. You can be taxed for "anything" if it is determined that your later actions could cause expenses to other taxpayers.

    That's the premise of Social Security and Medicare and it's the premise of the individual mandate in every other industrialized country in the world.

    it's not that the govt tells you to buy broccoli... it's what happens if you do not.

    the act is not to force you to do anything; it is to protect other taxpayers from your irresponsible behaviors.

    If you do not buy broccoli it harms no one downstream. If you do not buy health insurance and subsequently need medicare care and others have to pay for it then the govt can (if it demonstrates) argue that ultimately everyone will eventually need health care and at that point - the choice is who pays for it?

    we're fooling ourselves if we think people who do not buy health insurance are not costing others including taxpayers. this is a lot like the "I don't need auto insurance, I'm a safe driver" argument. And notice how many mortgage companies don't "mandate" that you buy insurance as a condition of them loaning you money.

    The ultimate question never really answered by those opposed is what do you do about someone who shows up at an ER without insurance ?

    The answer I've heard most from those who oppose ObamaCare or similar is "turn them away or "let them die".

    Now, that we've gotten over that fiction.. what's a realistic Plan B?

    We ARE the ONLY industrialized country in the world who refuses to deal with this reality.

    It's CHEAPER to have everyone that can pay into a fund ahead of time than it is to get sick and expect others to pay - and again - name a major country in the world from Singapore to Hong Kong to Australia to Canada that does not do this.

  5. me:

    You can, unfortunately, be taxed for anything.

    There is, for instance, a rather steep tax on having relatives abroad or deciding to live outside the US.

    I have a long and impolite set of thoughts related to that that I am going to spare you.

  6. Matt:

    I guess the positive regarding the regulatory state may be that instead of mandating behaviors, they must be enforced by tangible and quantifiable taxes that voters may more easily consider the next time some politician says we should make people do stuff.

    It sounds weak, and we still have the law to deal with, but just playing devil's advocate I suppose.

  7. el coronado:

    It ain't the *Commerce Clause* that's dead, Bubba - it's the Constitution itself. I'll let the legal scholars argue as to the exact date of death: 1803, 1865, 1913, 1917, the '30's & '40's...whatever.

    The abortions that our 9 black-robed Lords and Masters put forth Monday and today was just A)spiking the ball and B)letting us proles know the way things are gonna be from now on. Better get started on practicing your expressionless faces for dealing with The Authorities, lest any visible sign of disobedience anger them; and set aside time for the mandatory 'love for The Fatherland and our Dear Leaders' rallies coming soon. Y'all _think_ I'm exaggerating, don't you.

  8. Jim Collins:

    The funny thing is that one of the largest overheads in the health care industry is the paperwork and documentation required to process insurance claims. If we just totally got rid of health insurance, maybe the price would come down enough to afford health care without it. The doctor that I see is in practice with three other doctors. Each doctor has a receptionist and a nurse for a total of twelve people. There are another fifteen people who are needed to process insurance claims.

  9. KTWO:

    Larry G. presents some known arguments well.

    I do not contend the ACA itself requires me to do anything. The logic in the decision is a different matter entirely. Not regarding insurance but slavery.

    Roberts would see no reason the IRS cannot appear at my door today, order me to vacate, and try to survive naked somewhere in the desert. (at the same time the EPA would order me to never pee on the sand).

    And why not? Each item of clothing and every shingle sheltering me can be said to be related to taxation, in the past, present or future. And I may use them in doing something irresponsible which others deserve economic protection from. Every drop of water is part of the environment.

    To answer your ultimate question? When the injured show up at an ER I solemnly vow not to tell the medical community what to do. They can treat, they can go to lunch, sobeit. There was no fiction or dilemma which I had to get past.

    I certainly am not fooling myself, and I do not think others are, about whether the people who do not buy health insurance shift a cost somewhere. But I don't care. Others are not obliged to welcome the costs or in anyway agree with government rulings about it.

    Don't be alarmed, your side will win. Science Marches On. Implanted brain chips will bring the grouchy around soon enough. And in Roberts we have just the fellow to endorse that.

    Why should I care if other nations decide otherwise? Whether 50% do or 99% do. "Everyone else does it" is not even an argument. More of a subtle intimidation. Response to intimidation is a judgement call. OTOH real force counts, I sure won't stop much, some mornings preparing coffee is a physical challenge.

  10. DoctorT:

    Some people who oppose the repeated misuse of the commerce clause by Congress were happy with today's decision. They are delusional. The commerce clause was not invoked to support the individual health insurance mandate. So what? Nothing in this Supreme Court decision overturns any previous misuses of the the commerce clause. Nothing in this decision prevents future misuses of the commerce clause. The decision will discourage future legislation directly mandating an activity, but Congress simply will legislate a hefty tax on those who don't engage in a desired activity. We have won nothing.

    Note also that the five schmucks on the Supreme Court who ruled in favor of ObamaCare by redefining a penalty as a tax obviously closed their eyes and ears to the facts that Congress and the attorneys arguing the government's case explicitly had stated multiple times (in writing and in oral arguments) that the penalty for not buying insurance was NOT a tax. So, if Congress indicated that the penalty wasn't a tax, how could the Supreme Court rule that it was? Easy. They redefined words just as the did in the Kelo eminent domain decision in which "public use" was redefined to mean "any use that the local government believes will be beneficial."

  11. Doug:

    @LarryG: No, it is YOU who is advocating PlanB. PlanA occurred when government inserted its nose into the healthcare fray, where it has no business being. Once they did that, THEN you and they can argue someone is costing us money by being unhealthy. I reject PlanA, and therefore your PlanB premise is downright silly. Why should I pay for your healthcare to begin with? Pay for it yourself, dammit!

    And BTW: I can think of a lot of "healthy kids" who should be taxed at a much higher rate than old me. Namely, those kids who ski, hang glide, mountain climb, ride motorcycles, play sports, and all sorts of other glamorous, youthful activities that can, and sometimes do, get a person seriously maimed or killed.

    Screw the idea of a Constitutional Amendment to prevent flag burnings or define marriage; let's create an amendment to define "taxes" and "mandates" in language that even a black-robed dolt can understand.

  12. Slocum:

    "The ultimate question never really answered by those opposed is what do you do about someone who shows up at an ER without insurance ?"

    Treat them. If they're not poor, charge them (and if they don't pay, send them to a collection agency). If they ARE poor and can't pay, then their care was going to be subsidized ANYWAY. Instead of subsidizing them by writing off emergency room care, we'll be providing them subsidized insurance (probably via Medicaid expansion). This will not save any money. And it probably won't even keep them out of the ER (because Medicaid reimbursements are so low, they'll have a hard time finding 'normal' providers to accept them as patients).

  13. caseyboy:

    I'll bet Obama wishes he had this decision while he still had his majority in the House. He could have made Solendra a huge success just by instituting a tax for anyone that does not install solar paneling in their home or business. Tax credit is you do, tax penalty if you don't. Would have turned around that whole situation. How about a big old tax penalty if you drive a traditional gas powered vehicle?
    What is that old saying, if you want less of something tax it, if you more of it remove the tax? Behavior modification anyone? "O'r the land of the free, and the home of the brave".

    Yesterday was kind of an anti-liberty day. Leviticus 25:10, "Proclaim Liberty throughout all the land unto all the inhabitants thereof" (inscribed on the Liberty Bell).

  14. Bill Drissel:

    Circulating around Texas riflemen: Let's pass a law requiring everyone to buy a center-fire rifle and fine ^H^H^H^H^H tax everyone who doesn't.

  15. Patrick:

    You have arrived at the "legal gordion knot".... from here on out ...
    We have officially gone done the rabbit hole from which there is no return ...

    I'm now at a point where all logic appears to be .... gone from the legislative process .... and we have arrived at pure mental masturbation. This is beyond Orwellian. These are interesting times ....

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