Virginia v. Sebelius

[Kermit Roosevelt]

I think the necessary and proper clause would have to be stretched pretty far to allow the 30 minute exercise requirement.  So the distinction between that and the individual mandate would be that there's a much tighter connection.  As to forbidding the purchase of Toyotas, I think Congress could do that, unless there was some sort of individual rights problem.  Congress can forbid transactions in pretty much whatever it wants, can't it?

Kermit Roosevelt
Professor of Law
University of Pennsylvania Law School
3400 Chestnut St.
Philadelphia PA 19104
215.746.8775

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of davidebernstein at aol.com
Sent: Tuesday, December 14, 2010 3:01 PM
To: mmoskovitz at ggu.edu
Cc: Conlawprof at lists.ucla.edu
Subject: Re: Virginia v. Sebelius

I actually didn't ask a question.  I made a prediction, which is that the government will probably lose
if it can't provide a plausible "no" answer to this question: "If we uphold the law, does that mean that the federal government would also have the power to require all Americans to exercise thirty minutes a day if deemed by Congress necessary and proper to shore up Medicare and other federal health programs, that Congress can mandate that individuals buy GM cars instead of Toyotas to ensure that the bailout of GM is successful, etc."

Prof. Jamar seems to think that one of either of two answers suffice. First that the federal government CAN require us to do just about anything, just like it requires us to have car insurance (actually, not a federal law) or have house insurance.  I assume he's implying that the government can require the purchase of GM cars, or exercise of 30 minutes a day.  But I'll reiterate my guess that you can't get 5 votes of that.

Second, Prof. Jamar seems to suggest that the health insurance mandate is simply a tax, and can be upheld on that basis.  So what if the government said, "either exercise 30 minutes a day in a federally-supervised gym, or pay a fine?"  Is that also "just a tax"?  Not to mention that it's not at all clear that the Justice will agree that this is a tax in the face of public Obama administration denials that it's a tax.  That said, differentiating the health care law from other potentially coercive legislation on the grounds that it looks more like traditional tax legislation might sway one or more justice.

My prediction or guess, by the way, is not based on a substantive view of either the Constitution or precedent, but on what the five conservative Justices will find palatable.  And if the government can't find a reasonable limiting principle that says that the federal government can't make individuals do all sorts of activities on pain of financial penalties, I don't think you can get their votes.

On Tue, Dec 14, 2010 at 9:25 AM, Steven Jamar <stevenjamar at gmail.com<mailto:stevenjamar at gmail.com>> wrote:
The government requires us to have car insurance.  The government requires us to have house insurance if we want government-backed house loans. The government requires us to favor veterans when we hire.

Prof. Bernstein's question is specious.

This is a tax, plain and simple (though not quite so simple in form as an income tax or a medicare tax or a social security tax or unemployment tax).

I have no problem with those who think it wrong as in infringement on liberty as a matter of policy.  But I do have a problem with transmuting a simple tax and health policy into a constitutionally constrained liberty issue.

How is the FDA constitutional?  We all pay for it in the food prices we pay, right?  A tax on everyone.  Oh.  There are those who opt out and grow all of their own food.

The real question is how will Kennedy vote?  And my interest is in why people think he will vote one way or the other and secondarily what theory will be called upon to explain the decision to us all.  This case will not be decided on syllogistic application of law or even of policy -- it will be decided as so many cases are on politics and on a vision of what is the role of the court in protecting its version of liberty vs. equality.

Steve


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