Health Care Question

Ilya Somin isomin at gmu.edu
Mon Mar 22 15:09:20 PDT 2010


The steel company was already involved in the business of producing steel, which is fairly clearly an "economic activity" and one that has a significant effect on interstate commerce. The NLRA sought to regulate the production processes that these firms used in their preexisting enterprises (forcing them to include unionized labor).

 By contrast, merely existing within the territory of the US is not an "economic activity."

I'm no great fan of Laughlin Steel, Wickard and similar cases. But upholding the health care mandate would go even farther than they did.

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: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339

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"'While Congress has used its taxing power to fund Social Security and
> Medicare, never before has it used its commerce power to mandate that
> an individual person engage in an economic transaction with a private
> company.'  Examples that contradict this statement would be most
> helpful in enriching and advancing our conversation."

Would NLRB v. Jones & Laughlin Steel Corp. be relevant.  Court upheld a federal statute that barred employers from discriminating against workers who joined unions.  In other words, it forced an individual person (the employer) "to engage in an economic transaction" (hiring or retaining an employee) with another private individual.  I realize that the transaction is with a private individual, not a private company, but I don't know why that would make a difference.  The key to the case is the effect that hiring or not hiring union members would have on interstate commerce.  Preventing strikes was the purpose of the statute.


Harry Pohlman
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