Question about the alleged health insurance "mandate

Ilya Somin isomin at gmu.edu
Tue Mar 23 16:17:11 PDT 2010


I'm not a big fan of distinctions between activity and inactivity. If it were up to me, I would base the doctrine on other considerations, such as limiting Congress' powers to the actual text of the Constitution.

 But the Supreme Court's commerce Clause doctrine for some 70 years does in fact explicitly focus on economic activity, which means that we have to consider what counts as "activity." I don't doubt that making such distinctions sometimes leads to seemingly artificial line-drawing. The same, of course, can be said of many other legal categorizations, such as the distinction between speech and action and that between "process" and "substance." 



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


----- Original Message -----
From: Bernard Bell <bbell at kinoy.rutgers.edu>
Date: Tuesday, March 23, 2010 7:03 pm
Subject: Re: RE: RE: Question about the alleged health insurance	"mandate

> 
> As to point 2, you seem to say that it might be within the Commerce
> Clause power to prevent someone with a communicable disease from going
> someplace where there are a lot of uninfected people (regulating
> activity), but it is definitely beyond the Commerce Clause power to
> require that same person, who first learns that s/he has a 
> communicabledisease while in an area with many uninfected people, 
> to leave that area
> (regulating non-activity).  With respect to the Commerce Clause, this
> seems to be making a distinction without a difference --- to me 
> there is
> no practical difference between the two situations, and I'm not sure
> what constitutional principal or value is furthered by making such a
> distinction.  Distinctions between activity and inactivity seem to me
> artificial and quite slippery.
> 
> 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 6:29 PM >>>
> In brief answer:
> 
> 1. There may well be more externalities to not buying health insurance
> than to not getting married. But this is a policy argument. It doesn't
> answer the doctrinal point I made. Moreover, there are  
> externalities to
> not getting married too. For example, married people pay taxes at a
> higher rate than single people, are less likely to commit crimes, etc.
> 
> 2. Regarding federal quarantine legislation, I have doubts about its
> constitutionality. However, it's  a less extreme case than the
> individual mandate. The quarantine legislation at least regulates an
> actual activity (moving around). By contrast, the mandate 
> regulates the
> nonactivity of not buying insurance. 
> 
> 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
> 
> 
> ----- Original Message -----
> From: Theodore Ruger <truger at law.upenn.edu>
> Date: Tuesday, March 23, 2010 6:08 pm
> Subject: RE: RE: Question about the alleged health insurance "mandate
> 
> > The financial risk of uninsurance is quite different than that 
> of 
> > remaining single, however, in terms of the externalities 
> involved. 
> > As other have mentioned here, poor bets on remaining uninsured 
> > are typically spread to private insurance pools (which in the 
> past 
> > decade have borne most of the cost of unreimbursed EMTALA 
> expenses 
> > by virtue of higher hospital rates charged to privately insured 
> > patients) and thus the broader economy.  
> > 
> > An apt analogy might be federal quarantine legislation:  do we 
> > really think that the modern Commerce Clause doctrine would 
> > preclude the CDC from ordering a person with a new virulent 
> strand 
> > of SARS, for instance, to remain at home or to remain in a 
> medical 
> > facility?  If the answer is no, it is due to the predictable 
> > externalities on broader populations (and eventually the 
> > interstate market) of that extremely contagious person's moving 
> > about untreated.  And if that's the case, what principle of 
> > Commerce Clause doctrine justifies treating pathogenic 
> > externalities differently from financial externalities?
> > 
> > I'm sure there are many on the list who think that the federal 
> > government has both individual quarantine authority and 
> individual 
> > insurance mandate authority, and many who think it has neither.  
> > But does anyone think the feds can quarantine individuals but 
> NOT 
> > impose insurance mandates -- if so I'd be interested in the 
> > principle of distinction.
> > 
> > Best,
> > 
> > Ted
> >    
> 


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