Understanding the ACA Arguments

Wed Mar 28 18:00:47 PDT 2012

A lot of us haven't free-loaded on government health care programs, but almost everyone who is subject to the mandate has in fact purchased health care in the past. Ilya, do you mean to say that the mandate would be much easier to defend if it were limited to persons who have either free-loaded or purchased health care in the past? Would the mandate be facially valid if it could be applied constitutionally to almost everyone? (What is the story with respect to as applied versus facial challenges here?)

I do remember, though, getting sugar cubes with polio vaccine in them at a fire station many years ago, when I was perhaps five or six years old. The vaccine was free as part of a mass vaccination program. Am I a freeloader who as a result can be made subject to the mandate?

Just to clarify what I said before, I did not mean to say that people have a right to receive health care from the government. What I meant to suggest is that there is a right to obtain health care at your own expense or at the expense of someone else who is willing to pay for it for you; the government cannot prevent you from obtaining it.

I also didn't mean to address the issue whether a single-payer government health insurance plan could be implemented so as to prohibit people from buying health care services outside the government plan. I think such a prohibition would be unconstitutional, but that's a different subject. (Wasn't there a decision from another country's highest court -- Canada's or the UK's? -- that people cannot be prohibited from buying their own health care with their own money?)

Mark

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

-----Original Message-----
From: Ilya Somin [mailto:isomin at gmu.edu]
Sent: Wednesday, March 28, 2012 5:13 PM
To: Scarberry, Mark
Cc: Conlawprof at lists.ucla.edu
Subject: Re: RE: Understanding the ACA Arguments

If the law were structured to apply only to those who had purchased health care or used free government-mandated health care in the past, it would be a different case. I would still have constitutional objections to it, but it would be much each easier to defend under current precedents.

However, there are no limits to the Commerce Clause if it justifies imposing regulations on anyone who might have done something economic in the past or might do so again in the future.

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: 703-993-8124
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339

----- Original Message -----
From: "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>
Date: Wednesday, March 28, 2012 8:02 pm
Subject: RE: Understanding the ACA Arguments

> Of course essentially everyone covered by the mandate has engaged in
> prior activity in the health care market. That probably should not
> make a difference; I don't think the law should be able to impose
> obligations on someone because of past conduct that did not violate
> the law or anyone's rights (and that did not cause harm as in the
> black lung coal company cases, if I'm remembering them correctly).
> Perhaps that is an overstatement, but such a principle may be
> especially true here with regard to past obtaining of health care,
> given the strong interest (a liberty or substantive due process right,
> perhaps?) that each of us has in obtaining health care. The mandate
> certainly is not limited to persons who have freeloaded on the health
> care system in the past.
>
> Mark S. Scarberry
> Pepperdine Univ. School of Law
> Malibu, CA 90263
> (310)506-4667
>
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> bounces at lists.ucla.edu] On Behalf Of Ilya Somin
> Sent: Wednesday, March 28, 2012 4:44 PM
> To: Ira Lupu
> Cc: Conlawprof at lists.ucla.edu
> Subject: Re: RE: Understanding the ACA Arguments
>
> A "likelihood" of future activity is not the same thing as actual
> prior activity. Moreover, the regulation is not in fact conditioned on
> any such future activity, likely or otherwise. By contrast, the laws
> Corey cited are in fact all explicitly conditioned on prior activity,
> often of a clearly "economic" kind.
>
> I have responded to the "everyone uses health care" rationale for the
> individual mandate in greater detail elsewhere, most recently
> here:
> http://volokh.com/2012/03/25/shortcomings-of-the-everyone-uses-
> health-care-rationale-for-the-individual-mandate/
>
> 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: 703-993-8124
> e-mail: isomin at gmu.edu
> Website: http://mason.gmu.edu/~isomin/ SSRN Page:
> http://ssrn.com/author=333339
>
>
> ----- Original Message -----
> From: Ira Lupu <iclupu at law.gwu.edu>
> Date: Wednesday, March 28, 2012 7:36 pm
> Subject: Re: RE: Understanding the ACA Arguments
>
> > Ilya (responding to Corey) says "All of these laws are in fact
> > premised on prior activity."  Yep, and the ACA mandate is
> premised on
> > a very high likelihood of future activity (seeking medical care when
> > ill or injured).From a libertarian perspective, prior and certain
> > activity is different from subsequent and uncertain activity -- but
> > from a perspective of commerce clause reasonableness, or what
> > constitutes necessary and properregulation, there is no
> difference at
> > all.
> >
> > On Wed, Mar 28, 2012 at 6:26 PM, Ilya Somin <isomin at gmu.edu> wrote:
> >
> > > All of these laws are in fact premised on prior activity:
> > committing a sex
> > > crime, receiving money (surely an economic activity even under  a
> > narrow> definition thereof), and so on. Even acquiring a house (a
> > prerequisite to
> > > liability for the marijuana case, which is your best example) is
> > activity.>
> > > It's true that courts claim that the criminal penalty is only
> > punishment> for failure to report rather than for the earlier crime
> > that triggered a
> > > reporting requirement (or in Comstock's case, the power of the
> > government> to keep him in civil confinement). But the earlier
> > crime is clearly a legal
> > > prerequisite for the application of the reporting laws.
> > >
> > > I don't deny that somewhere in the voluminous federal criminal
> > code there
> > > might be a genuine law that punishes people merely for inaction
> not> > predicated on any prior economic activity and can't be
> justified> under> anything other than the Commerce Clause. If there
> is one,
> > I'm surprised the
> > > DOJ hasn't found it yet, after two years of litigation.  But I
> > certainly> can't rule it out.
> > >
> > > But even if such a law exists in some obscure corner of the US
> > Code, I
> > > don't think it matters much to the legal issues in this case. A
> > > little-noticed law whose constitutionality has never been upheld
> > by a
> > > court, and which likely passed Congress with little or no serious
> > > consideration is hardly a powerful precedent.
> > >
> > > I hasten to add that I think some of the laws listed by Corey are
> > > unconstitutional. But that's a separate issue.
> > >
> > >
> > >
> > > 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: 703-993-8124
> > > e-mail: isomin at gmu.edu
> > > Website: http://mason.gmu.edu/~isomin/ SSRN Page:
> > > http://ssrn.com/author=333339
> > >
> > >
> > > ----- Original Message -----
> > > From: "Yung, Corey" <7Yung at jmls.edu>
> > > Date: Wednesday, March 28, 2012 5:17 pm
> > > Subject: RE: Understanding the ACA Arguments
> > >
> > > > 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
> > > >
> > > >
> > > > _______________________________________________
> > > > To post, send message to
> > > > Conlawprof at lists.ucla.edu<mailto:Conlawprof at lists.ucla.edu>To
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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>
> > > _______________________________________________
> > > > To post, send message to Conlawprof at lists.ucla.edu To subscribe,
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> > > >
> > > > Please note that messages sent to this large list cannot be
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> > > _______________________________________________
> > > To post, send message to Conlawprof at lists.ucla.edu To subscribe,
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> > >
> > > Please note that messages sent to this large list cannot be
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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
> >
> _______________________________________________
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