Understanding the ACA Arguments

Wed Mar 28 14:17:41 PDT 2012

There are far tougher examples of federal laws for those opposed to the mandate to address. The federal criminal code is full of laws that facially or in application punish persons for failing to act with punishments far harsher than the yearly penalty associated with the insurance mandate. If a person discovers marijuana growing wild in their backyard, they have an affirmative obligation to destroy it. If they chose to do nothing, they could face substantial prison time (particularly if the quantity is large enough to classify the possession as having the intent to distribute). Similarly, some sex offenders under SORNA must register several times a year in person for sex crimes committed decades ago or face a sentence of up to ten years imprisonment. Because of the Ex Post Facto Clause, the federal courts have been in universal agreement that the crime of failing to register is not based upon the conduct in the prior sex offense, but instead based solely on an offender's failure to act after SORNA was enacted. Many persons who receive illegal proceeds do so because they do not take the affirmative step of reporting the ill-gotten gains. The respondent in Comstock notably was being sent to a federal civil commitment facility not based upon any actions he had taken, but because of his future dangerousness. And yet, the Court did not see any problem with the federal law committing Comstock and other similarly situated persons to a potential life term in a federal facility based on no affirmative acts.

*Shameless self-promotion* I have an essay on the subject that outlines dozens more examples of laws that punish inactivity in situations with far less connection to "commerce" than the insurance mandate even though they have been justified under the Commerce Clause: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1995586

Best regards,

Corey Rayburn Yung
Associate Professor of Law, The John Marshall Law School
Visiting Professor of Law, University of Kansas School of Law (Fall 2011)
Visiting Professor of Law, University of Iowa College of Law (Spring 2012)
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=411609
________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] on behalf of Scarberry, Mark [Mark.Scarberry at pepperdine.edu]
Sent: Wednesday, March 28, 2012 2:07 PM
To: Conlawprof at lists.ucla.edu
Subject: RE: Understanding the ACA Arguments

Quick response to Chip before I have to start furiously preparing for a class. I may have misunderstood him but:

There is of course an explicit power of Congress “To raise … Armies,” and the draft is a long-standing and very direct way of doing so. Remember George Washington’s response to the Quakers (I think it was the Quakers) to the effect that they were good citizens in all respects other than their unwillingness to bear their share of the burden of serving in the armed forces? If I’m not mistaken, they were given a conscientious objection opt-out from the draft, but I haven’t researched the history on that point. In any event, the draft is not a recent innovation.

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, March 28, 2012 11:32 AM
To: Sanford Levinson
Cc: Conlawprof at lists.ucla.edu
Subject: Re: Understanding the ACA Arguments

Following up on Sandy's comment -- I was very surprised that SG Verrilli did not counter the Kennedy assertion re: ACA "changing the relationship of the federal government to the individual in a very fundamental way" with a reference to selective service registration.  All 18 year old men in the U.S. are under such a mandate to register (and can, if Congress so acts, be drafted and have their bodies shipped overseas to defend all of us).  Of course, that is at times necessary and proper to the raising of armies, a different Art. I power, but what difference does that make?  The Court does not demand of Congress some greater than usual justification for draft registration or conscription, so why should it do when the conscription is to participate in a market, under circumstances in which the "conscripts" all present the danger of negative externalities (they suddenly are ill or injured, and demand medical care, subsidized by others)?
On Wed, Mar 28, 2012 at 1:45 PM, Sanford Levinson <SLevinson at law.utexas.edu<mailto:SLevinson at law.utexas.edu>> wrote:
Kennedy said:

The reason this is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule but that’s generally the rule. And here, the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the federal government to the individual in a very fundamental way.

Please explain to me the constitutional relevance of this.  Is Kennedy suggesting, as in Lochner, that common law norms are in fact constitutionalized and that legislatures are without power to change them?  I know this is David Bernstein’s and Richard Epstein’s view, but is Kennedy suggesting that they are in fact correct?  Does Kennedy believe it is unconstitutional for any government to pass a “good Samaritan law” or only for the national government to do so?  Why would this be the case, since, by definition, in that instance, one has conceded that such a law is a legitimate exercise of the state police power (and not, for example, invalidated because the Constitution, correctly understood, compels states to be radically libertarian)?  Also, where in the world does he get the notion that anyone is arguing that “the federal government has a duty to tell the individual citizen that it [sic] must act,” as against a power to do so when Congress believes it is necessary and proper to do so in order to achieve an end that is licensed by the Constitution.  If this were part of an answer on a final exam, what comment would we write in the margin and how would it affect the final grade.   Let me suggest that this paragraph would not count in his favor, nor would I offer to write the student a recommendation if the rest of the exam is as dubiously argued as this paragraph.

sandy

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--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg