Stephanie Cutter, Assistant to the President for Special Projects, charged with managing the communications and outreach strategy for the Patient Protection and Affordable Care Act, writing on the White House Blog, said:
Those who claim this provision exceeds Congress’ power to regulate interstate commerce are incorrect. Individuals who choose to go without health insurance are making an economic decision that affects all of us . . . .
Now, that’s some interesting logic. Congress certainly does have the power to regulate interstate commerce. And in his dissent on the 11th Circuit Court of Appeals ruling holding the individual mandate provision of the ObaminableCare law, “Circuit Judge Stanley Marcus accused the majority of ignoring the ‘undeniable fact that Congress’ commerce power has grown exponentially over the past two centuries,’”¹ as though that is somehow a good thing.
Judge Marcus noted that the Patient Protection and Affordable Care Act was designed to:
regulate quintessentially economic conduct in order to ameliorate two large, national problems: first, the substantial cost shifting that occurs when uninsured individuals consume health care services — as virtually all of them will, and many do each year — for which they cannot pay; and, second, the unavailability of health insurance for those who need it most — those with pre-existing conditions and lengthy medical histories.
And he continues to assert²:
In the process of striking down the mandate, the majority has ignored many years of Commerce Clause doctrine developed by the Supreme Court. It has ignored the broad power of Congress, in the words of Chief Justice Marshall, “to prescribe the rule by which commerce is to be governed.”³ It has ignored the undeniable fact that Congress’ commerce power has grown exponentially over the past two centuries, and is now generally accepted as having afforded Congress the authority to create rules regulating large areas of our national economy. It has ignored the Supreme Court’s expansive reading of the Commerce Clause that has provided the very foundation on which Congress already extensively regulates both health insurance and health care services. And it has ignored the long-accepted instruction that we review the constitutionality of an exercise of commerce power not through the lens of formal, categorical distinctions, but rather through a pragmatic one, recognizing, as Justice Holmes put it over one hundred years ago, that “commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business.”4
The individual mandate, however, is something new. With it, Congress seeks not to regulate transactions between businesses, or between businesses and individuals, but to compel individuals to buy the products of a particular set of businesses.
In April of 2010, I bought a new Ford F-150. It was my decision to buy a new truck, I chose the truck I would purchase, and I paid for it with my own money. However, this was also after the federal government bailed out General Motors, but before GM returned to being a publicly traded company. At the time I bought my F-150, 61% of General Motors was owned by the United States Government. If, to use the formulation by Miss Cutter, I was taking “an economic decision that affects all of us” by buying a Ford, the product of a privately owned company, rather than a Chevrolet, the product of a company majority owned by the government — did not my decision deny some profit to GM, and thus to the government? — why wouldn’t the Congress, under the interstate commerce clause, have had the right not only to outlaw my purchase of a Ford, but require me to by a Chevy?
After all, my decision negatively affected the value of GM, and thus the government, and thus the taxpayers!
There are plenty of economic decisions which can be said to affect all of us. By shopping at WalMart, am I not taking, for the selfish reasons of my own, personal budget, a decision which imperils the higher-priced but locally-owned shops in my community? Why can’t the federal government, under Miss Cutter’s reasoning, require that I spend 50% of my discretionary dollars at stores locally owned and operated? Under Miss Cutter’s logic, is there anything beyond the reach of the Congress, via the interstate commerce clause?
This is the problems with our friends on the left! They think that every problem requires a government solution, and, when the government solutions just happen to trample on individual rights — unless we are talking about abortion! — well that’s too bad for individual rights, but Resistance Is Futile; You Must Comply.
And that’s why we have to just plain kick them out in the next election.
¹ – State of Florida, et al, v Department of Health and Human Services, et al, p. 208.
² – State of Florida, et al, v Department of Health and Human Services, et al, p. 208.
³ – Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196 (1824).
4 – Swift & Co. v. United States, 196 U.S. 375, 398 (1905).