Health Care Question

Humbach, Prof. John A. jhumbach at law.pace.edu
Mon Mar 22 12:00:36 PDT 2010


Self-insuring is an "activity" as much as any other.

The so-called "action/omission" distinction refers not to a difference in kind but a difference in emphasis-or, more precisely, a difference in wording.

Did Gandhi fast or did he omit to eat? Did the diners at the banquet eat or did they omit to fast?

John A. Humbach, Professor of Law
Pace University School of Law
78 North Broadway
White Plains, New York 10603
Tel. 914-422-4239  -- jhumbach at law.pace.edu
personal homepage: humbach.net
________________________________
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Monday, March 22, 2010 14:10 PM
To: Steven Jamar
Cc: CONLAWPROFS professors
Subject: RE: Health Care Question

Will any court considering such claims ultimately have to decide such basic philosophical questions as the "killing" v. "letting die" distinction, which rests, of course, on the notion that only the first is an "activity," while the latter is something else?  If it's true that judges are going to get into such issues -which also, of course, are at the heart of the bed of quicksand called the "state action doctrine"-then shouldn't those future judges called law students be required to take serious courses in philosophy so that they might be aware of the complexities and not sound like the hopeless amateurs they, of course, are?

sandy

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Monday, March 22, 2010 12:59 PM
Cc: CONLAWPROFS professors
Subject: Re: Health Care Question

Buying and not buying health insurance is clearly just as much an economic activity as growing or not growing (or eating what you grow) wheat.  Aggregate all the health insurance purchases together, and you have a substantial impact.  That is Wickard -- of course one can read it narrowly and distinguish it.

But clearly health care system and insurance issues affect interstate commerce in a very substantial way, in the aggregate.
On Mon, Mar 22, 2010 at 1:49 PM, Christopher Green <crgreen at olemiss.edu<mailto:crgreen at olemiss.edu>> wrote:
The key argument distinguishing Wickard is that failing to buy health insurance isn't an "activity."  Wickard's key holding, 317 U.S. at 125, is that "even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.' "  Limiting the consumption of home-grown wheat is different from a mandate to buy insurance.

________________________________
From: conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu> [mailto:conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu>] On Behalf Of Steven Jamar
Sent: Monday, March 22, 2010 11:20 AM
Cc: CONLAWPROFS professors
Subject: Re: Health Care Question
I'm clearly  missing something.  I thought Wickard was still good law.  And I thought the whole, comprehensive scheme was benefit enough.  I am unfamiliar with the need for the federal government to bribe each person individually.

As I said, I'm clearly missing something.

Steve

On Mar 22, 2010, at 10:03 AM, Eric Segall wrote:

How many people think Justice Kennedy would uphold a federal requirement that every citizen has to buy health insurance without the requirement being tied to a federal benefit of some kind?

Wouldn't this implicate his libertarian tendencies?

Eric Segall
Profesor of Law
Georgia State College of Law
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Prof. Steven D. Jamar                     vox:  202-806-8017
Associate Director, Institute of Intellectual Property and Social Justice http://iipsj.org
Howard University School of Law           fax:  202-806-8567
http://iipsj.com/SDJ/


"It is by education I learn to do by choice, what other men do by the constraint of fear."



Aristotle




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Prof. Steven Jamar
Howard University School of Law
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