What’s Liberty Got To Do With It?

By James Kwak

Constitutional law is not my field. I think we spent one day on the Commerce Clause in my constitutional law class. I’ve barely been following the Supreme Court oral arguments this week because I figured (a) they would be silly, (b) we won’t know anything useful until June, and (c) with the rest of the commentariat focusing on it I would have nothing to add. But even at that distance, I can’t help but be shocked by the ludicrous nature of the proceedings, best represented by the framing of the case in terms of individual freedom and government coercion. According to the Times, the case may turn on Anthony Kennedy’s notion of liberty.

What’s wrong with this? Liberty should have nothing to do with this case. I’ll repeat the analysis, made my dozens of law professors more expert than I (Charles Fried, for example). The question is whether Congress has the power to impose the individual mandate under the Commerce Clause, which gives it the power to regulate interstate commerce. If the individual mandate does in fact regulate interstate commerce, then it’s fine unless it violates some other part of the Constitution.

But there’s nothing in the Constitution that guarantees you “liberty” in the abstract. The Bill of Rights guarantees you various freedoms, from the freedom of speech to the freedom from unreasonable searches and seizures, but those are all specific, not general. The Ninth and Tenth Amendments don’t hold up against an enumerated power of Congress. The Fourteenth Amendment provides broad protection for liberty interests, but only protects them from being infringed without due process of law. The whole liberty thing, in the context of the individual mandate, is a pure ideological framing concocted by small-government fanatics who want the Constitution to be some kind of libertarian scripture that it isn’t.

When Kennedy asks, “Can you identify for us some limits on the commerce clause?” you have to wonder where he’s getting this stuff. The Commerce Clause doesn’t have any internal limits. The limits are in the rest of the Constitution; you couldn’t pass a bill under the Commerce Clause that violated the First Amendment, for example. The Commerce Clause itself has nothing to do with balancing individual freedoms against government action. The balance is in the Constitution as a whole; you have to find some other part of the Constitution that the individual mandate violates.

It’s hard to imagine that the conservative justices don’t understand this—at the very least, their clerks must understand this. Which makes one believe that they’ve swallowed the Tea Party line completely, whether cynically (because they want to reduce the size of government for ideological reasons) or unknowingly.

The only thing that should matter in this case is whether the individual mandate regulates interstate commerce. I think it’s obvious that it does. If you disagree, fine—but that’s where you have to make your case. The fact that, instead, the justices are making ominous warnings about the ever-expanding reach of the federal government implies that they don’t have one.

43 thoughts on “What’s Liberty Got To Do With It?

  1. Even if you take if on “liberty” arguments (aka “Bill of Rights”) it still doesn’t get them off the hook. The answer to question of “what are the limits” is “whatever the hell the SCOTUS decides” – there are no hard and fast rules.

    That’s something that people don’t get. Sure the 2nd Ammendment says you can bear arms, but clearly we don’t take that to mean nuclear arms. Is there an explicit Constitutional limit that says “No nuclear arms for citizens”, clearly no, but obviously the SCOTUS would, in the best interests of the country, apply as such.

    Free speech (1st Amendment) is similar. Sure you can express political views to your hearts content, but you can’t yell “Fire!” in a theater, you can’t advocate for murder, and you can’t support Al Qaeda. Does the Constitution say this? No, but clearly the courts and SCOTUS say this in the “best interests of the people”.

    Similarly the 5th and 14th Amendments provide due process but regardless of any literal interpretation clearly drug seizure laws and assassination (Anwar al-Awlaki) seem to fall within such “interpretation” (though the later hopefully to be questioned by the SCOTUS, that is, if the Secrecy Act doesn’t outweigh, ehem, oh so important “liberty”)(where are conservatives on that one!?).

    The point being, “where is the limit” is a stupid question. It’s wherever you want it to be SCOTUS. Every Constitutional doctrine has (probably purposefully) been left somewhat gray so that courts could judge to a degree what is in the “best interests of the public” – so that common sense can apply.

    Granted “common sense” is a malleable thing, and my “common sense” says that it’s certainly in the best interest in the country to maintain Obama’s (highly flawed) health bill, but hey, your job is to call the ball. So do it and stop playing political games in what shouldn’t be a political environment.

  2. Actually, this legal argument is based on a fundamental fallacy. The real question is what part of the Constitution gives the Federal Government the power to affirmatively force people to do something – not what part protects them from this power. That the commerce clause has been so thoroughly twisted over the past century is actually evidence of the hunt for some source of authorization in a document that provides relatively little – a power grab by the federal government. Now, even the lawyers seem to have forgotten the fundamental truth of the constitution – that a Bill of Rights was thought redundant, and it was feared that people might start reading the Bill of Rights in this very way – the only protected rights.

  3. I have to agree with Ben K. The SCOTUS’s job is to interpret the gray areas of the constitution. To say that the commerce clause allows the congress to mandate particular economic activities would be an expansion of what powers the congress has under the clause.

  4. I see a lot of rhetoric but no actual argument, BenK. Also, “non-participation” in the health care market isn’t actual non-participation, it’s just free riding.

    So yeah, no.

  5. If the issue is limits on government power, then (as they say on TV lawyer shows) Kennedy has opened a line of questioning and now should be vulnerable to that line himself. Where are the limits on Court power? Can Kennedy make up a standard that does not exist in the Constitution? If there is a standard already that serves as a precedent – such as that the Constitution as a whole serves as a check on each of its parts – under what circumstances can Kennedy ignore that precedent and create a new standard?

    The Supreme Court is one of three pillars of government, each meant to provide a check on the other two (yeah, I know, hit me with a Gingrich), and these boys and girls seem to have lost sight of the need to restrain themselves, or be restrained. Not that that is any different from the behavior of modern conservatives in other areas of government.

  6. “To say that the commerce clause allows the congress to mandate particular economic activities would be an expansion of what powers the congress has under the clause.”

    Allow me to quote the venerable Justice Scalia from the Rache case, decided a mere 7 years ago.

    “The commerce power permits Congress not only to devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 36—37 (1937). That is why the Court has repeatedly sustained congressional legislation on the ground that the regulated activities had a substantial effect on interstate commerce.”

    Does the individual mandate have a substantial effect on interstate commerce? Yes? Good. Can we go home now?

    Check out nycsouthpaw for a nice rundown of Scalia’s utterly nonsensical interpretation of HIS OWN opinion in Rache. http://www.buzzfeed.com/nycsouthpaw/justice-scalia-flip-flops

  7. When Kennedy asked about “limits on the commerce clause”, I am pretty sure he meant “limits of the commerce clause”.

    For example, if the individual mandate qualifies, then is there anything Congress could NOT force me to purchase?

    Does forcing people to engage in commerce qualify as “regulating” it? Dr. Kwak thinks “it’s obvious that it does”.

    Myself, I just think it’s funny how there is nothing liberals hate more than liberty.

  8. To ask, as Justice Kennedy does, what limit would you place on this power (to require a purchase), where would you draw the line? is to ask what no federal government attorney could ever answer. Were any of the government’s attorneys to attempt an answer, it would hold no authority. Government solicitors argue cases; they do not propose or formulate policy. Even if the government’s attorneys had huddled with the Administration and select members of Congress to prepare to go into court and had heard some member of that huddle–even the President–expatiate on theoretical limits of requiring people to purchase something, that would be conjecture. It would be only a hypothesis where the power might be taken by a future law as yet unwritten and probably not even conceived. What authority would that have? Such a law might only be enacted by a different, possibly very different congress and under a different administration. It seems that the government did quite enough by pointing out the uniqueness of the health insurance market in the way that it is vulnerable to the impact of adverse selection. It is the Court’s job to determine if this exercise of the commerce clause vioates some other part of the Constitution, not to speculate on how widely the power in question might be drawn in some future statute.

  9. Here, let me summarize and make it really simple. Government attorneys arguing in court do not make laws. They do not write or propose them. If asked how far a power might be taken if incorporated in a future law, the answer is how the h_ _ _ to they know? Even a conference of Administration officials and members of Congress could not say? The federal government’s attorneys can only make analogies and cite precedents. Even if this power changes the relationship that the govenment has to the citizen, it is still up to Justice Kennedy and the rest of the Court to establish that this law would violate a specific provision of the Constitution. This case, as James said, should not be about “liberty,” but about specific liberties.

  10. The constitution you are referring to is only an idea now. There are so many amendments to the original constitution, some parts are not recognizable anymore. Right to bear arms as long as you DON’T have it: concealed, loaded, within a school or government building, in the light of day or after dark, and anywhere that public transportation. Walk down the street with a gun on your leg like they did in 1790 and tell us how that goes.

  11. If Congressional power under the Commerce Clause is as broad as James seems to be suggesting, what is to stop Congress from enacting a bill that simply requires people to hand over money to favored lobbyists and campaign contributors? I guess the recipients would have to give back some illusory, largely worthless good or service to make it “commerce.”

    Hey, wait a minute, I seem to have unintentionally described a hypothetical law that sounds an awful lot like the ACA!

    Personally I don’t much care what happens. Congress isn’t going to fund this boondoggle next year, regardless of who wins the election or the court case.

  12. This is a pretty silly post. The entire premise of the American experiment is that every possible liberty is granted to the individual and we only then agree to have some liberties restricted in order to protect the others. Just because something is not specifically named as a personal liberty in the Constitution doesn’t mean we don’t have that liberty. The Constitution is a document which is meant to generically outline the limits to power of institutions, not individuals. Interpreting the Bill of Rights as a comprehensive list of individual liberties is perhaps the most disgraceful thing I’ve read on this blog. I truly think you should be ashamed of what you’re saying.

  13. In other words…

    “There must have been a reason, ” Yossarian persisted, pounding his fist into his hand. “They couldn’t just barge in here and force people to buy insurance.”

    “No reason,” wailed the old woman. “No reason.”

    “What right did they have?”

    “The Commerce Clause.”

    “What?” Yossarian froze in his tracks with fear and alarm and felt his whole body begin to tingle. “What did you say?”

    “The Commerce Clause,” the old woman repeated, rocking her head up and down. “The Commerce Clause. The Commerce Clause says they have a right to do anything we can’t stop them from doing.”

  14. John @ Machined Parts — Parts are now machined by robots. But you’re right, aside from that, absolutely nothing has changed since the 18th Century.
    BTW, what well-regulated militia do you belong to?

  15. James the 14th amendment does not just protect liberty from being infringed without due process of law. The doctrine of substantive due process means that there are certain liberties the state cannot prosecute you for, ex: lawrence v. Texas (states cannot outlaw sodomy). It doesn’t matter if they give you textbook due process, if the charge is sodomy, it violates the 14th amendment.

    But no matter, scalia is making it up as he goes

  16. The reason people can free ride is due to a law http://en.wikipedia.org/wiki/Emergency_Medical_Treatment_and_Active_Labor_Act
    So the new law is to fix the problems caused by the old law. Before you took what charity existed and that was it. If you wanted better care you paid for it or had insurance to pay for it. What the new law does is make you purchase insurance, which has been the police powers that are reserved for the states.

    So if Congress can force you into a private transaction, where they can then regulate your actions, what are the limits? There can be none, so thats what the concern is. If Congress decided to force you to purchase drugs, and keep a certain amount on you, but made it a crime to posses more then a certain amount. That would be legal, if Congress has the power to force the purchase of items from private corperations. You must have 6 grams of coke, but not more then 6.001 grams or you go to jail.

    So if the Consitution has limits, and that is the basis of its ratification, The Federal powers must have a limit. If not then like any contract you didn’t have a meeting of the minds making the contract null n void.

    The other concern is that if Congress can dictate priviate contracts what of contract law? You can buy a car with out insurance, but you must have it to use the public roads, but you don’t have to buy a car. So if you fail to purchase it your breaking the law, so your going to make a lot of criminals, just to control the freeloader problem caused by the first fix.

    Another item is the you must buy a GM product since the US bailed out the auto company, Every one uses transport, your food moves in a truck at some point, so that means it is covered under the commerce clause. so your automatically involved in commerce. If you claim you grow your own food, guess what ? your involved due to to the fact you DON”T use food that crosses state lines. Wickard v. Filburn. so suddenely your limited Federal government isn’t limited at all. So that means ever one who ratified the Constitiuon didn’t have a clue as to what they did. Making the whole thing null and void.

    But the real reason to avoid this mess is the knowledge problem, noone knows what you need more then your self. You make trade offs everyday, based off your needs and wants, do i get the nice clothes that will be out of fashion in 12 months that cost $150 for a pair of jeans , or get the $40 jeans that will last just as long, but lack a name brand? It will lock in the current systems, and prevent better systems from being adopted. Compare the price and quality of Lasik surgury ns insurance cost. The prices have dropped and the quality has increased. Due to the lack of insurance, most insurance plans don’t cover it. so it has to be paid for by the consumer which makes the price stay in a reasonable range.

  17. I am not an attorney but my understanding is in accord with Steve above – there are supreme court precedents which grant congress the ability through their legislative function to establish laws of interstate commerce and these laws are protected by the commerce clause without exception – this has been repeatedly upheld in several SCOTUS decisions. This is a point that l heard conservative and liberal law professors agree upon back a couple of years ago regarding this legislation.

    What these law professors forget is that we live in a Banana Republic and the rule of law is not applied evenly. I thought “13 Bankers” made that clear to everyone.

    This is not a case that will be decided on its merits – it will be decided on its political impact upon the Obama administration.

    These conservative justices are so intoxicated with power that even Lord Acton is blushing in his grave!

    Any judge (i.e. Scalia) who will not recuse himself from presiding over his own son’s case has never really pondered the blindfolded woman holding the balance!

  18. So you’re saying the commerce clause governing interstate commerce can compel individuals to participate in interstate commerce by forcing them to buy health insurance and penalizing them if they don’t? I’m fine with the ACA forcing the insurance companies to conduct their business according to Congress’s will, I just don’t understand how this power extends over individuals. Do individuals by their very existence fall under definition of those engaged in interstate commerce, in Kwak’s veiw? If Congress wants to tax my earnings for health insurance, Congress can freaking provide that that insurance itself, like it does for old folk. Otherwise I’m having none of this individual mandate bullshit which will eventually force us all into debt slavery for the benefit of the insurance industry.

  19. As the economy industrialized, new laws were needed and federal power expanded to enable the passage of those laws. The commerce clause was the Constitutional clause which provided the legal justification for the expansion of federal power. If Congress passes a law that affects commerce and has a rational basis for the law, then SCOTUS should not go behind Congress and question its reasoning. It should uphod the law. Thus, Scalia’s opinion on the commerce clause’s power which is quoted above.
    But, if the law affects a fundamental right, SCOTUS can look to see whether the law was necessary and the ends narrowly tailored to achieve the necessary purpose. This is Con Law I.
    Interesting exercise is to flip Kennedy’s question. What limits are there on individual freedom of choice to abrogate Congressional laws? Auto-insurance is the one example discussed. But, the list is endless (avoid a draft; drive on any sided of the road; sleep in the park). And, try and fashion a principle that captures limits of personal freedom to stiffle the public purposes in a Congressional law.

    How about the freedom to not go bankrupt because of medical bills? That is one question our political system does not ask. Medicare (expanded and improved) from birth to death.

  20. If the Court tosses out the individual mandate, I guess that’s the end of any future Republican proposal to “privatize” Social Security. Presume the government couldn’t force you to buy a privately sponsored financial product either. Funny, the government can tax you to provide a comparable benefit and can do the same for health insurance, as it already does for Medicare. But I guess forcing you to buy a commercial insurance product to remedy the effect that adverse selection has the affordability of individual insurance policies and protect the public purse from the high cost of crisis care for the uninsured is a dastardly offense. Hey, this case isn’t about constitutional liberty, it’s about aesthetics!

  21. Let me be the first to apologize to Mr. Kwak and some of his friends here for all the rest of us who are both frivolous and stupid.

  22. Pretty amazing that YLS found fit to spend just one day preparing you for the most important constitutional law case in 70 years. How much was the tuition?

  23. I thought months ago for sure SCOTUS wouldn’t rule against the individual mandate because an added pool of insurance-supplicants was just what the large health insurers wanted, and the proto-fascist SUPREMES would be loath to interfere with this kind of dream.

    I agree with Kwak’s observations, also, that Kennedy comes off as a boob regarding his *learned* questioning of the Commerce Clause limitations…..single payer MEDICARE for all is the way to go if this edifice collapses.

    Raise the tax rates on the wealthy, and tax WALL STREET financial transX to pay for it. So many wealthy want to pay no tax, but these social imbalances are unhealthy in the long run, and undermine the position of not only the poor and middle classes, but especially the rich.

  24. Your general idea applies to many concepts. “Privacy” for example:

    But there’s nothing in the Constitution that guarantees you “privacy” in the abstract.

    The whole privacy thing, in the context of abortion, is a pure ideological framing concocted by small-government fanatics who want the Constitution to be some kind of libertarian scripture that it isn’t.

    Your general idea does not increase understanding or provide insight into the issue you are discussing.

    The specific idea that Congress has the power to impose the individual mandate because the individual mandate regulates interstate commerce appears to be a feeble technical maneuver, and not a strong legal argument reminiscent of Marshall that will be celebrated through the ages.

    Unfortunately, both the current health care system and the proposed health care system are fatally flawed. Eventually the U.S. will be forced to implement a rational health insurance system that controls costs and actually provides universal coverage. The current debate over the individual mandate is an example of arguing about the shifting of chairs on the deck of the Titanic, vis a vis health insurance, and ignoring the iceberg.

  25. James, I must agree totally with what you wrote. That includes the fact that the Justices various questions with which I am familiar (I haven’t heard all of them) are mostly pressing meaningless points which seem to be off topic and nearly completely lacking in relevance to them making a ruling as to whether the personal mandate actually stands in line with or in violation of the commerce clause. I agree with you that it does, since it is incredibly easy to see how there are huge cross-border issues having to do with both health care and health insurance.

    The greatest tragedy, for me, is that the ACA is an incredibly contrived, expensive non-solution to creating an effective and affordable health care system in this country, with the national cost profile being about twice that of nearly all developed countries, with the fact that the system will, even when fully implemented, still fail to cover millions of Americans, and since our present system, even with modifications found in the ACA, continues to produce massively subpar outcomes both in overall health, and in life expectancy. Of course, there are lots of reasons for its high costs, and certainly aside from our system’s major inefficiencies, the greatest cause is the massive and protected pofitability built into the system and reinforced through ACA, of abnormal, even amoral profits for each vested participating oligarchy. The really disgusting thing for me is that it would have been incredibly simple to adopt one of the various successful systems employed by other nations and proven to be effective by experience (and which are all UNIVERSAL). I was amazed during the run up to the passing of the 2700 page monstrosity, that literally not one of our legislators mentioned doing this or even debating it. In fact, Max Baucus, charged with handling the debate in his committee, absolutely refused to even consider listening to the Single Payer advocates, although this is not only favored by a majority of health care professionals, but also the public, the former by 60%+ and the latter by 70%+. Just how ridiculous is that? And now, the Supreme Court has shown its truly political biases in just the questioning phase of this effort to rule on the mandate. When will all of this stop????

  26. While I agree with your premise and your feelings about the sham of the court’s behavior, the right to liberty is protected in the fifth amendment (though to apply the fifth here would be a stretch) while the fourteenth amendment (which takes its wording from the fifth) protects against the states, not federal actions. This being said, by actually discussing actual constitutional powers and their limits we’re inadvertently giving Scalia, et al too much credit. They could care less about the Constitution. Note that Scalia (or Alito) actually defended the radical position of striking the WHOLE law down, rather than just the mandate, because to not do so would bankrupt the insurance industry. That’s a pretty brazen expression legislating from the bench. Roberts meanwhile claimed that they could never know the intent of the framers of this law, yet they are magically able to know what the framers wanted?

  27. Eschewing some of the legal arguments in many comments (that’s rich you will say when discussing a Supreme Court case!), I want to refer to what James Kwak said in his blog post.
    “According to the Times, the case may turn on Anthony Kennedy’s notion of liberty.
    What’s wrong with this? Liberty should have nothing to do with this case.”
    Granted that there is nothing in the Constitution that guarantees “liberty” in the abstract. But the term came up because the solicitor general mentioned it while describing how because of health insurance and medical help a sick, say a diabetic, individual would be able to enjoy a true liberty, to go about her life without shackles of illness. To which the opposing lawyer shot back that it was a strange notion of liberty which requires people to buy something against their wishes. I am paraphrasing here. But the first interpretation of the concept is profoundly important in society. Amatya Sen, the economist, has developed a framework of capabilities which emphasizes just such rights to ensure that citizens are able to enjoy their lives (pursuit of happiness?) fully. Healthcare is so basic to how we are able to function that without these liberties, a portion of the population will suffer avoidable sickness and misery. Curious that the solicitor general didn’t or didn’t have an opportunity to elaborate on his comment.

  28. @ Guest

    First – My understanding is that SCOTUS is first and foremost supposed to interpret the law as it stands.

    Second – If precedents have been established and neither the law (ACA) nor the precedents are found to be inviolate of other constitutional provisions then the remaining question should be, “Does the law (ACA) meet the criteria for protection under previous Commerce decisions?”

    I find it curious that both conservative and liberal constitutional law professors who examined this issue previously are in accord on their belief that the ACA is constitutional – yet the conservative justices who have brought us Citizen’s United and other great “activist” decisions (Remember – Judge Roberts instructed the plaintiff to change his lawsuit in Citizen!) seem to be acting as political agents and not judicial ones.

    So, if the law says you must buy insurance or be penalized then – as unsavory as it sounds to me, too – that is the law.

    Look – we are the only major country in the world without a socialized medical system for its citizens under 65. Unpaid medical expenses remain the major cause of personal bankruptcy in the US. Our health care statistics are not that hot compared to so-called lesser countries. And it is increasingly becoming a huge portion of our GDP. Winston Churchill in WWII – when England had huge war debts piling up – started their socialized medical program… and anybody really believes Churchill was an evil socialist??? Single payer is the only solution that is truly viable.

  29. If the supreme court strikes down the health bill, which has to be considered a blantantly political act right or wrong, then would the states that require you to purchase auto insurance have to remove those laws from the books?

    I don’t doubt that many of the states that filed against the law have these laws in place- without remorse and with no thought whatsoever about constitionality.

  30. @Robertme: That is a good point. The conservative justices talk about this as though it is a substantive due process issue — the right to liberty – when in fact no one ever questioned a state’s power to have an insurance purchase mandate. This is commerce clause case, but they can’t seem to keep that straight in their minds. I don’t know how they will reconcile striking down the law on “liberty” grounds with the continued existence of state mandates, which are essential (and accepted) parts of everyday life now.

  31. Auto and health insurance have individual state authorities – thus the state insurance commissions regulate state insurance laws. Those laws not designated by the federal government as under federal jurisdiction, by default, are state laws.

    This is why an inter-state exchange of purchasing health insurance is a way to possibly make the market lower health care costs – increase competition to drive the cost lower. (I think it is a pipe dream.)

    By the way, states do not force everyone to buy auto insurance because not everyone drives or owns a car. Most NYC residents do not own a car. This law is a different animal. Driving is not a right. It is a privilege.

    By definition of US law, health care is not a right either. I think it should be since many international humanitarian organizations consider it a human right! But there is nothing in our constitution or state law of which I am aware granting it status as a right.

    We all pay taxes but we do not all benefit evenly by their re-distribution (like oil companies or agribusinesses, for example). I would prefer my tax dollars supporting health care instead of oil and agri-businesses or military weaponry.

  32. One out of every three dollars that slosh around as a *health care* cost does not provide *health care* – it’s pure skimming that impoverishes the QUALITY and availability of health care!

    As always, an educational site as to where the one dollar out of every three go…FOR PROFIT HEALTH INSURANCE is a failed product. It does not even matter anymore what SCOTUS has to say because no one is going to pay the fine to IRS and no one is going to buy into a FOR PROFIT system. Liberty is a two edged sword and all can play. True, 5 billionaires will never buy enough *health care* services as an individual to warrant the education of health care people like doctors and nurses or scientists and researchers, so listening to what 5 billionaires want is pretty insane, isn’t it? Of course they want everything to go *smaller* – government, services, etc – except for the amount of FIAT $$$$ they can funnel via the matrix to *MY ACCOUNT*.

    When considering LIBERTY, what does all this retarded yaddayadda have to do with the RIGHT that every human being has to make their lives less miserable through HONEST WORK? Ministering to the sick, mano et mano, is the most honest work there is, as is the intellectual contribution people make to the progress and advancement of managing GOOD HEALTH for everyone of us inside a skin suit.

    I will never give in to a DELUSIONAL POLITICAL *ISM* and accept a standard of living that is WAY lower than what I provide for myself with my own 2 bare freekin’ hands. Keep trying to do that, and it IS a full on brute force WAR – and I do mean WAR. Leave none of the 5 billionaires and their
    psychophants alive. Primal boundaries breached – as FEMEN sign said, “DEATH FOR SADISTS”.

    That United Health Care dude who quoted to me, over the phone from Fort Lauderdale Florida, a passage from the BIBLE that I was a moral cretin for trying to cheat the CORPORATION of 21 pennies, yup, that guy goes down first…and how many MILLIONS of people have equal stories of their PERFIDY….? And then a whistleblower comes out and says that that was one of the common schticks they pulled – that “your check was SHORT 2 pennies so you will lose your benefits”.

    WE HATE YOU. Forever. Merciless psychotic cretins.

    That’s the tipping point…don’t matter what SCOTUS says…

  33. Recently, brad delong noted that intelligence is the art of making better, more sophisticated rationalizations to defend your views.
    This has nothing to do with logic, either economic or legal.
    on the one hand, the individual mandate appeals to our emotions; please, read Kahneman’s thinking fast and slow, and the “linda’ story – your emotional brain is screaming, no i don’t want to pay the mandate, while you logica; struggles futily.

    this whole think is about the failure of the Democratic party, except for afew fringe people like sanders and kucinich (and even they were faint) to strongly ennuciate the core principal:
    Healthcare is a right
    everyone gets healthcare
    to strongly ennuciate the two problems
    today, we need to add 30 -60 million people to insurance; order of magnitude, that is going to cost (outta my fanny here) at 2K a person, what 120 billion a year – something we can afford, if we can afford Iraq, or to build M Romney an elevator for his cars
    Tomorrow, we need to bend the cost curve, as theysay, a difficult thing

    All this fluff about the mandate, and externalities, and commerce clause – it is all just fluff to rationalize how we feel

  34. @hopkin – Not everyone has a car, and this will be even more true as time goes on.

    We all have a human body, which means that commerce, itself, is the activity of keeping the human body ALIVE. Food, clothing, shelter, medicine, education. FOR PROFIT health insurance companies are a PONZI scheme with the extraction of wealth going to people who KNOW that in order to get YOUR money, they have to make you SUFFER when you are sick.

    Primal boundary breached.

  35. Keep telling you all, you don’t have the DATA to make any projections about REAL health needs to be covered by Medicare! If anyone can’t see how over-the-phone, with immense *legal* paper-pushing power to say “no” to the healthy person with a one time medical need as a way to get yours (for profit health insurance) led to this more virile branch of the same predatory gene pool, well, don’t have the time to explain it – the war is on:


  36. The comparison with auto insurance is bogus. You are required to purchase liability insurance so that if you run your car into someone else, THEY are covered. You are, in essence, buying insurance for someone else that might be effected by your actions. I suppose the health care equivalent would be insuring someone to whom you passed on a communicable disease?
    Better to let this whole law be struck down so we can move on to a REAL solution to America’s health care disgrace!

  37. @gregbob: I do not follow your comment. The purpose of the individual mandate is to prevent free riding and to protect others from bearing the costs that rightfully should be yours. It differs in detail, but not in kind from the concept of mandatory car insurance. In both cases, third parties are being protected from bearing the costs imposed by the activities of the insured.

  38. I find it curious that in 236 years of case law, the Democrats can find no example, no case whatsoever, that has involved the government compelling the purchase of any product or service. They brush this case off as if it were non-precedential. It’s a non-issue! How dare we question the almighty Commerce Clause. Kwak here is a bit modest when he relies on “…law professors more expert than [he]” to back up his own obviously expert opinion on the Commerce clause. After all, it does take an expert to interpret this mystical clause:

    The clause states that the United States Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

    The above to me is quite clear. Congress has the authority to regulate commerce across international boundaries and across state lines. But again, I’m no expert on law, so pay no attention to the mindless ramblings of a witless commoner such as myself.

    My first inkling upon reading this is…What twisted manner of delusion does one require to believe that the American Revolution had nothing to do with liberty, that the Constitution had nothing to do with liberty?

    Nevermind that I can’t think of a reason for the Supreme Court to exist but for to protect individual liberty against the whims of fleeting (passing, temporary) majorities in Congress. Their primary purpose is to enforce the Constitution’s constraints on presumptuous political majorities.

    The rhetorical question that Justice Kennedy posed, is an obvious and important one.

    This all shows me that Democrats have entirely too much faith in majority opinion. You have to ignore the majority of history in order to make the fallacious case that the Commerce Clause can and would be properly constrained by the ballot box.

  39. A lot of Republicans think that the mandate is constitutional, including the former Solicitor General under Bush. BTW, Kwak is right.

  40. Small government fanatics? Uhm. Huge government is destroying our ecenomy and atypical of a socialist regime being implemented in America. There’s nothing fanatical about wanting to downsize the federal government. Unless….you are unable to make decsions for yourself and prefer the government do it for you. Are you that weak and pathetic? That is a shame, as it will be your kind that we purge from this country. Just like cutting away a tumor so the body will survive, so to will your kind be removed from America.

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