A Self-Refuting Metaphor

The Times reports on the challenge to ObamaCare in a Federla court in Virginia.  The judge was sympathetic to the notion that maybe the lack of severability language meant the whole thing should be tossed. 

But I like this self-refuting metaphor that came up in the discussion of the individual mandate.  The government lawyer tried to explain that Congress' right to regulate activity under the Commerce Clasue also gave them the right to regulate non-activity, i.e., the non-purchase of health insurance.  Here we go:

Virginia’s solicitor general, E. Duncan Getchell Jr., told Judge Hudson that in compelling citizens to purchase a commercial product like insurance, the government was exercising authority that is “unprecedented, unlimited, and unsupportable in any serious regime of delegated, enumerated powers.”

Ian H. Gershengorn, a deputy assistant United States attorney general, responded that the failure to obtain insurance was an active decision about when and how to pay for medical care, which everyone inevitably needs.

“You cannot opt out of the health care market,” Mr. Gershengorn said. “Nobody can tell if they’re the one that’s going to be hit by the bus.”

Well, hold on - I may not be able to predict with any particular confidence that I will be hit by a bus, struck by lightning, or otherwise snuffed so quickly that I won't need any significant health care coverage over the course of my life.  But in fact, there will be people who experience just such a fate.  If those people spent their walking around money on pleasurable pursuits rather than insurance, well, they may have had a better life before their untimely departure, and who are we to deny them their brief happiness?

Let's also note that if a person's hobbies include skydiving, drag racing, off-roading, and juggling chainsaws they might be very wise not to be worried about end-of-life care when he's old.

And finally, people whose best friend is Dr. Kevorkian might have the very rational belief that their insurance is wildly overpriced because their end-of-life care won't cost much more than a bottle of Scotch and a few pills (Not advocating, just identifying.)

Puzzling.  Obviously Congress can force people to save for their retirement by way of the Social Security tax, regardless of their own sense of an optimal lifetime saving strategy.  And if health care were a new universal entitlement funded by a new tax, there would not be any traction with the argument that people might want to opt out of both the insurance and the tax.

But if pigs had wings, jihadists would fly them into buildings.  The new insurance is not a tax and it is not being defended under Congress' taxing power.  And if the Constitution really grants Congress the power to regulate any activity or inactivity under the Commerce clause, well, what limits are left to their power?

JUST RUMINATING:  France spent decades promoting policies that would raise its birth rate to get its population on a par with its rival, Germany.  Closer to home, people in the US fret about the demographics of Social Security and Medicare and wonder where we can get the influx of young workers to pay for the elderly.

Since the decision to not have a baby clearly impacts both national defense and the health of our economy, it is obvious that under the Commerce Clause Congress can regulate abortion, and ban it.  Right?

And don't even get me started on sexual practices.  Comnsidering what this country spends on HIV and AIDS research, surely the Commerce Clause grants Congress vast power to regulate sexual habits.  Or it ought to, right?  A decision to not use a condom impacts all of us, and clearly could be criminalized, or at least taxed.

I just know libs will line up behind these prudent expansions of government power.

Comments

[Melinda Romanoff]

Gaagh!

Another failed image load.

Phooey!

[MJW]

Jane, I was composing my previous comment while you posted yours.

As I mentioned, without the clause the rest of the bill may not remain without the centerpiece individual mandate. But there's nothing that would logically prevent the rest of the law remaining, so if there were a severability clause, I think the court would defer to congress, despite the seeming impracticability.

[Mark Folkestad]

Pagar, thanks for the suggestion about Magic Jack. But I already use Skype with my computer. I will need a phone while I'm out fishing, hunting and mineral collecting, so I'm not going to be lugging my laptop around. Also, I will have internet service either through Starband satellite service or wireless broadband with AT&T or AP&T. It's a complicated situation, being so far out of the normal "wired world" circumstance. My cell phone use will not exceed a good contract, with the exception of calls that will fall outside of my unlimited minutes time frame. For calls during anytime minutes periods, I can use Skype from my homestead when possible. Our lifestyle will be fairly normal, with certain modifications. I do not intend to be without lights or TV or internet or phone service. I do not intend to be without nice hot showers, flush toilets and warmth. It will be a major adaptation trying to cope with the huge amounts of king, Dungeness and snow crab, shrimp, clams, abalone, scallops, mussels, deer, moose, grouse and other foods. I will whimper softly, grieving for the lack of cheap hot dogs and Spaghetios in my diet.

[glasater]

Janet--I would think that Barney spending that kind of money out of his pocket would hurt his financial bottom line.
In other words, I don't think he is a wealthy man but sure could have that wrong.

[Ignatz Ratzkywatzky]

I suspect he was probably "loaning" it to his campaign and will pay himself back out of his future campaign contributions, no?

[glasater]

Well there you go Ignatz. But what if he loses? I don't think anyone will take pity on the guy and bail him out of his campaign debt.

[MJW]

Jane: I've had a tough day and I'm really tired, so forgive me, but isn't it exactly the opposite? Isn't it supposed to say that if one part of the statute fails it all should fail?

Jane, I'm not sure if my mistyping of valid for invalid caused some confusion (as well it might), but a severability clause says that if any part of the statute is found to be invalid, that part can be removed without invalidating the other parts of the statute.

Also, regarding your comment, "Why have a severability clause at all if someone gets to pretend it means nothing?", I noticed that the author of the law review article I linked to earlier tends toward the view that courts do more or less treat severability clauses as though they mean nothing, by applying essentially the same severability analysis whether or not a bill contains a severability clause.

[Pagar]

Here is a Link for finding out how much money Barney Franks or any other incumbent has, at least according to the documents they are required to file.

My impression is that Barney Franks has the first dollar the taxpayers gave him and just adds to it.

[Rob Crawford]

Folks who find it really frustrating when survey questions aren't tailored to the answers they would like to give are actually a demographic in their own right. There are a lot of tests which purposely require you to make uncomfortable choices.

I'd say that tests purporting to measure political alignment that do not let you apply the same standard to their questions in the test that you would apply to those same questions in real life are no longer measuring political alignment. I suggest they are herding test-takers towards a particular result.

[Duke]

Nah, don't fall into arguing over the gov't position that you cannot opt out of healthcare. Hit them frontally.
The gov't says a citizen choosing NOT to purchase a healthcare policy is an ACTIVE decision, and since nobody can opt out of the healthcare market this ACTIVE decision means there is commerce clause authority to compel you to participate, so as to keep the health care system viable.
Similarly, a citizen choosing NOT to have children is an ACTIVE decision, and since nobody can opt out of the social security system this ACTIVE decision means there is commerce clause authority to compel you to have a baby, so as to keep the social security system viable.
Hows your argument over the scope of Congress' powers looking now, Mr. Gershengorn?