Virginia v. Sebelius

Tue Dec 14 14:27:59 PST 2010

Wickard v. Filburn also involved regulatoin of commercial activity, in that case commercial farming. Indeed, the Court explicitly emphasized in that decision that Roscoe Filburn sold “a portion of [his wheat] crop” on the market and “fe[d] part to poultry andlivestock on the farm, some of which is sold.” In Lopez, the majority pointed out that Wickard “involved economic activity," so this is not just my idiosyncratic interpretation of the case.

Significantly, the regulation in Wickard applied only to "farmers," people engaged in the economic production of crops (virtually always as part of some sort of commercial enterprise). It did not, for example, compel anyone to either engage in farming or purchase wheat merely because they happened to be US citizens or permanent residents.

Ilya Somin
Associate Professor of Law
Editor, Supreme Court Economic Review
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8124
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339

----- Original Message -----
From: Malla Pollack <mallapollack3 at gmail.com>
Date: Tuesday, December 14, 2010 5:17 pm
Subject: Re: RE: Virginia v. Sebelius

> To rest on that distinction, you would need the Court to overrule 
> Wickard v
> Filburn.  You are retreating from the "its not commercial" to the
> activity/inactivity dichotomy which some (include me) consider
> unsupportable.  Certainly, that is a different point than "its not
> commercial."
> Malla
> 
> On Tue, Dec 14, 2010 at 4:15 PM, Ilya Somin <isomin at gmu.edu> wrote:
> 
> > Buying them is an economic activity. NOT buying them is not.
> >
> > Ilya Somin
> > Associate Professor of Law
> > Editor, Supreme Court Economic Review
> > George Mason University School of Law
> > 3301 Fairfax Dr.
> > Arlington, VA 22201
> > ph: 703-993-8069
> > fax: 703-993-8124
> > e-mail: isomin at gmu.edu
> > Website: http://mason.gmu.edu/~isomin/ 
> <http://mason.gmu.edu/%7Eisomin/>> SSRN Page: 
> http://ssrn.com/author=333339>
> >
> > ----- Original Message -----
> > From: Malla Pollack <mallapollack3 at gmail.com>
> > Date: Tuesday, December 14, 2010 5:06 pm
> > Subject: Re: RE: Virginia v. Sebelius
> >
> > > Why isn't buying medical services an economic activity?
> > > Malla
> > >
> > > On Tue, Dec 14, 2010 at 4:03 PM, Ilya Somin <isomin at gmu.edu> 
> wrote:> >
> > > > The relevant compulsion is a regulation of economic activity 
> -
> > > in this case
> > > > working for the unionized firm. That's different from a
> > > compulsion that
> > > > doesn't regulate any preexisting economic activity (like the
> > > individual> mandate).
> > > >
> > > > Ilya Somin
> > > > Associate Professor of Law
> > > > Editor, Supreme Court Economic Review
> > > > George Mason University School of Law
> > > > 3301 Fairfax Dr.
> > > > Arlington, VA 22201
> > > > ph: 703-993-8069
> > > > fax: 703-993-8124
> > > > e-mail: isomin at gmu.edu
> > > > Website: 
> http://mason.gmu.edu/~isomin/<http://mason.gmu.edu/%7Eisomin/>> > 
> <http://mason.gmu.edu/%7Eisomin/>> SSRN Page:
> > > http://ssrn.com/author=333339>
> > > >
> > > >  Persons not wanting to join a union but part of a certified
> > > bargaining> unit are sometimes (states consenting) required to pay
> > > representation fees
> > > > for services rendered.
> > > >
> > > >
> > > >
> > > > Isn't that a compulsion to purchase the services of a union?
> > > >
> > > >
> > > >
> > > > rt
> > > >
> > > >
> > > >
> > > > Rick Tepker
> > > > Professor of Law,
> > > > Calvert Chair of Law and Liberty
> > > > & Associate Dean of Scholarship and Enrichment
> > > > University of Oklahoma
> > > > Norman, Oklahoma 73019
> > > > 405.325.4832
> > > >   ------------------------------
> > > > *From:* conlawprof-bounces at lists.ucla.edu [
> > > > conlawprof-bounces at lists.ucla.edu] on behalf of Myron 
> Moskovitz [
> > > > mmoskovitz at ggu.edu]
> > > > *Sent:* Tuesday, December 14, 2010 11:53 AM
> > > > *To:* Steven Jamar
> > > > *Cc:* CONLAWPROFS professors
> > > > *Subject:* Re: Virginia v. Sebelius
> > > >
> > > >   It's not that simple.  Govt requires car insurance only as
> > > *condition *to driving, or home insurance as
> > > > *condition* to getting govt.-backed loan.  But I can't think of
> > > any case
> > > > where federal govt has required people to buy something, not as
> > > a condition
> > > > to exercise of some right or privilege.
> > > >
> > > >
> > > > Myron Moskovitz
> > > >
> > > > *Professor of Law*
> > > >
> > > > *Golden Gate** University School** of Law*
> > > >
> > > > 536 Mission St., San Francisco, California 94105
> > > >
> > > > Phone: (510) 384-0354; FAX: (415)563-6872; *e-mail*:
> > > mmoskovitz at ggu.edu>
> > > > *website*: myronmoskovitz.com
> > > >
> > > >
> > > >
> > > > On Tue, Dec 14, 2010 at 9:25 AM, Steven Jamar
> > > <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
> > > >>
> > > >>
> > > >>
> > > >>  On Dec 14, 2010, at 12:10 PM, Eric Segall wrote:
> > > >>
> > > >>  I think David's question is exactly the right one when trying
> > > to predict
> > > >> what the Court will do. I am not sure there is a good answer
> > > but maybe here
> > > >> is the beginning: Congress does not regulate exercise generally
> > > nor does it
> > > >> regulate cars in the sense of who buys what, where and when.
> > > But, Congress
> > > >> does regulate the health care industry comprehensively.
> > > Certainly, for
> > > >> example, Congress could stop an entity from entering the market
> > > if that
> > > >> entrance threatened the entire market. The next question is can
> > > Congress>> require an entity or person to enter the market? The
> > > answer might depend on
> > > >> how Congress regulates that market already (like in Raich). I
> > > think this
> > > >> question will present Justice Kennedy with serious heartburn.
> > > >>
> > > >>
> > > >> Best,
> > > >>
> > > >> Eric
> > > >>
> > > >>  <davidebernstein at aol.com> 12/13/2010 6:55 PM >>>
> > > >>
> > > >>
> > > >> My own guess is that the end result will depend on whether the
> > > government>> is able to 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."
> > > If there is a
> > > >> plausible "no" answer to that question, I haven't seen it yet.
> > > >>
> > > >>
> > > >> -----Original Message-----
> > > >> From: Steven Jamar <stevenjamar at gmail.com>
> > > >> To: CONLAWPROFS professors <Conlawprof at lists.ucla.edu>
> > > >> Sent: Mon, Dec 13, 2010 6:13 pm
> > > >> Subject: Re: Virginia v. Sebelius
> > > >>
> > > >>
> > > >> I read it much as Prof. Lupu does -- it is a political
> > > decision.  And that
> > > >> is how it will be decided at the court.
> > > >>
> > > >>
> > > >> If Alito, Scalia, and Roberts really follow precedent on broad
> > > commerce>> and taxing law, the outcome is pretty clear, it seems
> > > to me.
> > > >>
> > > >>
> > > >> But I expect it to be decided not on legal or precendential
> > > reasoning, but
> > > >> rather it will be decided as all or nearly all such fundamental
> > > issues of
> > > >> liberty/equality, federal/state balance are decided -- from a
> > > political>> point of view.
> > > >>
> > > >>
> > > >> Thus, it will once again fall to Kennedy to decide this case.
> > > Is anybody
> > > >> up on Kennedy to the extent that he or she is willing to hazard
> > > a prediction
> > > >> and explain why Kennedy's jurisprudence would lead to one
> > > result or the
> > > >> other?
> > > >>
> > > >>
> > > >> I suspect he supports it under power to tax, commerce power,
> > > and deference
> > > >> sort of theory, but have no real evidence to back that
> > > intuition up.
> > > >>
> > > >>
> > > >> Of course the final opinions of the court will be dressed 
> up in
> > > law and
> > > >> law-like rhetoric, like the 2nd amendment cases, but the true
> > > basis of the
> > > >> decision will lie elsewhere.
> > > >>
> > > >>
> > > >> Steve
> > > >>
> > > >>
> > > >> On Dec 13, 2010, at 5:37 PM, Ira (Chip) Lupu wrote:
> > > >>
> > > >>
> > > >> Judge Hudson's opinion (you really do have to read it in order
> > > to evaluate
> > > >> it) spends about 12-13 pages reciting all of the (quite
> > > sophisticated)>> arguments and counter-arguments from the U.S. and
> > > Virginia, and then
> > > >> "resolves" the Commerce Clause question in two paragraphs on
> > > pp. 23-24.
> > > >> He does not come close to engaging the question he says is
> > > presented --
> > > >> whether Congress can penalize someone for failure to enter the
> > > health>> insurance market, in circumstances in which there is a
> > > rational basis to
> > > >> believe that individual refusals to enter that market will, 
> in the
> > > >> aggregate, jeopardize the entire scheme of market regulation.
> > > >> Perhaps the answer is not obvious, but Judge Hudson's two
> > > paragraphs>> contain almost nothing that looks like an attempt to
> > > reason to an answer (he
> > > >> does refer to the "historic reach" of the Commerce Clause, as
> > > if that made
> > > >> the answer self-evident), and will not guide the 4th 
> Circuit or
> > > anyone else
> > > >> to a thoughtful resolution of the problem.
> > > >>
> > > >> Ira C. Lupu
> > > >> F. Elwood & Eleanor Davis Professor of Law
> > > >> George Washington University Law School
> > > >> 2000 H St., NW
> > > >> Washington, DC 20052
> > > >> (202)994-7053
> > > >> My SSRN papers are here:
> > > >> 
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg> > >>
> > > >>
> > > >> ---- Original message ----
> > > >>
> > > >> Date: Mon, 13 Dec 2010 12:44:59 -0500
> > > >>
> > > >> From: conlawprof-bounces at lists.ucla.edu (on behalf of "Miller,
> > > Darrell>> (mille2di)" <mille2di at ucmail.uc.edu>)
> > > >>
> > > >> Subject: Virginia v. Sebelius
> > > >>
> > > >> To: "Conlawprof at lists.ucla.edu" <Conlawprof at lists.ucla.edu>
> > > >>
> > > >>
> > > >>
> > > >>  For those of you following the litigation, a link to
> > > >>
> > > >>  today's opinion:
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > >
> > 
> http://www.oag.state.va.us/PRESS_RELEASES/Cuccinelli/Health%20Care%20Memorandum%20Opinion.pdf> >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>  Darrell A.H. Miller
> > > >>
> > > >>
> > > >>
> > > >>  Associate Professor of Law
> > > >>
> > > >>
> > > >>
> > > >>  University of Cincinnati College of Law
> > > >>
> > > >>
> > > >>
> > > >>  PO Box 210040
> > > >>
> > > >>
> > > >>
> > > >>  Clifton Avenue & Calhoun Street
> > > >>
> > > >>
> > > >>
> > > >>  Cincinnati, OH 45221-0040
> > > >>
> > > >>  v: 513-556-0133
> > > >>
> > > >>  f: 513-556-1236
> > > >>
> > > >>  e: darrell.miller at uc.edu
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>  faculty page:
> > > >>
> > > >>
> > > >>
> > > >>  http://www.law.uc.edu/faculty/profiles/miller.php
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>  SSRN:
> > > >>
> > > >>
> > > >>
> > > >>  http://ssrn.com/author=1107305
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >> ________________
> > > >>
> > > >> _______________________________________________
> > > >>
> > > >> To post, send message to Conlawprof at lists.ucla.edu
> > > >>
> > > >> To subscribe, unsubscribe, change options, or get password, see
> > > >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> > > >>
> > > >>
> > > >>
> > > >> Please note that messages sent to this large list cannot be
> > > viewed as
> > > >> private.  Anyone can subscribe to the list and read messages
> > > that are
> > > >> posted; people can read the Web archives; and list members can
> > > (rightly or
> > > >> wrongly) forward the messages to others.
> > > >>
> > > >> _______________________________________________
> > > >> To post, send message to Conlawprof at lists.ucla.edu
> > > >> To subscribe, unsubscribe, change options, or get password, see
> > > >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> > > >>
> > > >> Please note that messages sent to this large list cannot be
> > > viewed as
> > > >> private.  Anyone can subscribe to the list and read messages
> > > that are
> > > >> posted; people can read the Web archives; and list members can
> > > (rightly or
> > > >> wrongly) forward the messages to others.
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >> --
> > > >> Prof. Steven D. Jamar                     vox:  202-806-8017
> > > >> Associate Director, Institute for Intellectual Property and
> > > Social Justice
> > > >> http://iipsj.org
> > > >> Howard University School of Law           fax:  202-806-8567
> > > >> http://iipsj.com/SDJ/
> > > >>
> > > >>
> > > >>
> > > >>
> > > >> "I do not at all resent criticism, even when, for the sake of
> > > emphasis, it
> > > >> for a time parts company with reality."
> > > >>
> > > >>
> > > >> Winston Churchill, speech to the House of Commons, 1941
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >> =
> > > >>
> > > >> _______________________________________________
> > > >>
> > > >> To post, send message to Conlawprof at lists.ucla.edu
> > > >>
> > > >> To subscribe, unsubscribe, change options, or get password, see
> > > >>
> > > >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> > > >>
> > > >>
> > > >>
> > > >> Please note that messages sent to this large list cannot be
> > > viewed as
> > > >> private.
> > > >>
> > > >> Anyone can subscribe to the list and read messages that are
> > > posted; people
> > > >> can
> > > >>
> > > >> read the Web archives; and list members can (rightly or
> > > wrongly) forward
> > > >> the
> > > >>
> > > >> messages to others.
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>     --
> > > >>  Prof. Steven D. Jamar                     vox:  202-806-8017
> > > >> Associate Director, Institute for Intellectual Property and
> > > Social Justice
> > > >> http://iipsj.org
> > > >> Howard University School of Law           fax:  202-806-8567
> > > >> http://iipsj.com/SDJ/
> > > >>
> > > >>  Hope has two beautiful daughters. Their names are anger and
> > > courage;>> anger at the way things are, and courage to see that
> > > they do not remain the
> > > >> way they are.
> > > >> *-- Augustine of Hippo.*
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >>
> > > >> _______________________________________________
> > > >> To post, send message to Conlawprof at lists.ucla.edu
> > > >> To subscribe, unsubscribe, change options, or get password, see
> > > >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> > > >>
> > > >> Please note that messages sent to this large list cannot be
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> > > that are
> > > >> posted; people can read the Web archives; and list members can
> > > (rightly or
> > > >> wrongly) forward the messages to others.
> > > >>
> > > >
> > > >
> > > > _______________________________________________
> > > > To post, send message to Conlawprof at lists.ucla.edu
> > > > To subscribe, unsubscribe, change options, or get password, see
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> > > >
> > > > Please note that messages sent to this large list cannot be
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> > > > wrongly) forward the messages to others.
> > > >
> > > > _______________________________________________
> > > > To post, send message to Conlawprof at lists.ucla.edu
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> > > > Please note that messages sent to this large list cannot be
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> > > >
> > >
> >
> 