Question about the alleged health insurance "mandate
bbell at kinoy.rutgers.edu
Tue Mar 23 13:34:55 PDT 2010
The marriage example is problematic. I suspect the Justices who agree
with Lopez and Morrison don't view marriage as a commercial or economic
activity, even though it may have economic effects. If that is the
case, not marrying would also presumably not qualify as commercial or
economic activity. Indeed, it makes some sense to me to consider
mandating an activity and prohibiting an activity to be considered as
equivalent for purposes of the scope of congresses enumerated powers.
So engaging in an activity and not engaging in an activity should either
both be commercial or economic activity reachable by Congress or both be
viewed as non-commercial and non-economic activity (which might
nevertheless be reachable under other Commerce Clause theories).
More generally, essentially everyone uses or will use the health care
system at some point in their lives. The health care sector as a large
and significant sector of the economy and in general individuals
obtaining such services do so in an economic matter, exchanging money
for services. Thus it is individuals' inevitable participation in a
major economic sector, and their current intention on doing so if they
need to, that provides a basis for requiring individuals to participate
in an insurance system in an attempt to prevent subsidization by those
who purchase health insurance. So the mandate is tied to economic
activity or the intent to engage in economic activity rather than not
Bernard W. Bell
Professor & Herbert Hannoch Scholar
Rutgers Law School-Newark
123 Washington Street
Newark, NJ 07102
(973) 353-5464 (voice)
(973) 353-1445 (fax)
bbell at kinoy.rutgers.edu
>>> Ilya Somin <isomin at gmu.edu> 3/23/2010 4:05 PM >>>
It is true that "not buying" has economic effects. So does not doing
virtually anything of any importance.
That does not make all refusals to engage in activities themselves
"economic activity." If I decide not to get married, that will surely
have economic effects. It does not follow that the state of being single
is "economic activity." In the case of corporations required to buy
insurance, the "economic activity" being regulated is presumably that of
becoming a corporation engaged a particular type of business.
I agree that the constitutional case for the law would be stronger if
it merely stated that people who choose not to purchase health insurance
are not allowed to get free emergency room care paid for by the
government. But that of course is not what it says.
Associate Professor of Law
Editor, Supreme Court Economic Review
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
e-mail: isomin at gmu.edu
SSRN Page: http://ssrn.com/author=333339
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