Virginia v. Sebelius

[Jonathan Adler]

We already have a doctrine that seems to say that the government can engage
in greater interventions but not smaller ones.  So a stand-alone statue
against possessing something in certain circumstances is invalid (Lopez) but
a rule against possession that is part of a comprehensive regulatory scheme
is okay.  And in other areas, we recognize that the government may have the
“greater” power to ban a product but not the “lesser” power to regulate
speech about the product.



That said, my claim here is not that a weaker mandate has fewer
constitutional problems than a stronger one.  My point is that I don’t think
one can differentiate the mandate from the various hypotheticals – such as a
“purchase a GM car” mandate – on the grounds that this solves a collective
action problem.  All the mandate actually does is ameliorate the costs of
the government’s other actions on the margin.  That is also precisely what a
GM purchase mandate would do – ameliorate the costs and risks of the GM
bailout.   As I have yet to see any other viable basis for distinguishing
the two cases, I believe they stand or fall together – and in that case, I
would say they both fall.



JHA









----------------------------
Jonathan H. Adler
Professor of Law
Director, Center for Business Law & Regulation
Case Western Reserve University School of Law
11075 East Boulevard
Cleveland, OH 44106
ph) 216-368-2535
fax) 216-368-2086
cell) 202-255-3012
jha5 at case.edu
http://www.jhadler.net
SSRN: http://ssrn.com/author=183995



*From:* Orentlicher, David [mailto:dorentli at iupui.edu]
*Sent:* Thursday, December 16, 2010 9:30 AM
*To:* Jonathan Adler; Conlawprof at lists.ucla.edu
*Subject:* RE: Virginia v. Sebelius



It sounds like you're saying that the individual mandate would be valid if
it were tough enough to minimize the evasion problem.  Perhaps the Supreme
Court will say that this particular individual mandate is invalid but a
stronger individual mandate would be okay.  But I don't see why that makes
sense when considering underlying principles.  The principles at stake here
are limitations on individual liberty and intrusion on state government
prerogatives.  Having a weaker individual mandate is not more problematic
than a stronger individual mandate in terms of either individual liberty or
federalism.  Indeed, an individual mandate is also not more problematic in
terms of either individual liberty or federalism than a single-payer,
Medicare-for-all health care system.  If a mandate to purchase
government-provided health care is constitutional, it's hard to see why
either a strong or weak mandate to purchase private health care is
unconstitutional.



* * * * * * * * * * * * * * * * *
David Orentlicher

Visiting Professor, University of Iowa College of Law

Samuel R. Rosen Professor, Indiana University School of Law-Indianapolis


------------------------------

*From:* Jonathan Adler [jha5 at case.edu]
*Sent:* Monday, December 13, 2010 11:53 PM
*To:* Orentlicher, David; davidebernstein at aol.com; Conlawprof at lists.ucla.edu
*Subject:* RE: Virginia v. Sebelius

The individual mandate, as written, does not “solve” the collective action
problem.  It merely ameliorates it.  As the federal government has
acknowledged – indeed, assumed for purposes of the argument that the penalty
is a “tax” – the penalty is not large enough to prevent a substantial
portion of healthy people from declining to purchase qualifying insurance
plans until they get sick (and thus can be relied upon to generate
substantial revenue).  So all the mandate *actually *does is reduce the
inefficiencies and extra costs caused by the prohibition on denying coverage
for preexisting conditions *on the margin*.  This is precisely what the GM
example would do – reduce the costs of the federal bailout, on the margin.
 So I do not see how acceptance of one does not entail acceptance of the
other.



JHA





------
Jonathan H. Adler
Professor of Law
Director, Center for Business Law & Regulation
Case Western Reserve University School of Law
11075 East Boulevard
Cleveland, OH 44106
ph) 216-368-2535
fax) 216-368-2086
cell) 202-255-3012
jha5 at case.edu
http://www.jhadler.net
SSRN: http://ssrn.com/author=183995


*From:* conlawprof-bounces at lists.ucla.edu [mailto:
conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Orentlicher, David
*Sent:* Monday, December 13, 2010 7:59 PM
*To:* davidebernstein at aol.com; Conlawprof at lists.ucla.edu
*Subject:* RE: Virginia v. Sebelius



The court could distinguish the individual mandate from these other
possibilities by limiting the discretion of Congress under the Necessary and
Proper Clause.  The individual mandate really is necessary if health
insurers are prohibited from charging higher rates to people with heart
disease, cancer or other pre-existing medical conditions.  Otherwise,
healthy people would wait until they become sick to purchase insurance.  But
GM's viability does not require a mandate for hundreds of millions of
Americans to buy a GM car.  It would be sufficient, for example, if Congress
used tax credits to ensure that a few (or perhaps several) million Americans
buy a GM car.  The connection betwen an exercise mandate and the viability
of Medicare is even more tenuous.



It's also true that if we think we need to invalidate the individual mandate
to prevent Congress from having too much power, then the Court should be
worrying about other possible exercises of congressional power.  Recall, for
example, Justice Scalia's example in *Cruzan *case of "being assessed a tax
of 100% of our income above the subsistence level."  While he was speaking
about state government power, he could just as well have been speaking about
the federal taxing power.  Scalia's answer to the possibility
of unreasonable laws was "the Equal Protection Clause, which requires the
democratic majority to accept for themselves and their loved ones what they
impose on you and me."  Or recall Justice Marshall's response to the concern
about an overly expansive Commerce Clause power in *Gibbons v. Ogden *when
he wrote that we are protected from an overreaching Congress by the
accountability of elected officials to the voters.



* * * * * * * * * * * * * * * * *
David Orentlicher

Visiting Professor, University of Iowa College of Law

Samuel R. Rosen Professor, Indiana University School of Law-Indianapolis


------------------------------

*From:* conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu]
on behalf of davidebernstein at aol.com [davidebernstein at aol.com]
*Sent:* Monday, December 13, 2010 6:55 PM
*To:* stevenjamar at gmail.com; Conlawprof at lists.ucla.edu
*Subject:* Re: Virginia v. Sebelius

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.
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