The Commerce Clause and Health Care

[Project Grudge]

According to Wikipedia the text of the commerce clause is: " To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes"

Also from Wikipedia:
The significance of the Commerce Clause is described in the Supreme Court's opinion in Gonzales v. Raich, 545 U.S. 1 (2005):
“ The Commerce Clause emerged as the Framers' response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890.

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So, is it possible for the U.S. Supreme Court to find individual mandate in healthcare reform unconstitutional? I think it's likely.

[kenny blankenship]

1. The commerce clause, though, is infinitely elastic like Goatse

If it wasn't exactly born with those dimensions, by prolonged and depraved abuses it has acquired them, and there's no surgeon now who can restore it to its original scope and shape.

[OHdem10]

2. Here are some thoughts on this court which just might influence

their response. Under Rehnquist as the Chief Justice, there
was an era of Federalism as never before seen. Most especially
Business Issues before SC. In other words the Conservatives
on the Court have a propensity for sending power back to the
states. Knowing this, I could believe this court more than
most just might be the one to find the mandate unconstitutional.

They could also find Mandate Constitutional

[dennis4868]

3. If a federal judge who is looking at the individual mandate....

in the HCR law decides to be objective and apply case law (and not their hatred for Obama) I think they have to say that the mandate is constitutional....Chief Justice Marshall in 1824 said that commerce is defined as "every species of commercial intercourse." This basically means that congress has BROAD POWERS to regulate any activity that involves 2 or more states. The courts over the past 70 years have held that any activity, even a purely local activity, can be regulated by congress if the activity itself or repeated by others (cummulative effect doctrine) has a substantial economic effect on interstate commerce.

I think a very good case can be made that the mandate is constitutional due to the fact that if a bunch of people decide not to purchase health insurance, they still get cared for by doctors (i.e., in ER) and the rest of the people are stuck paying for this person's care via higher premiums. Based on this you can make a great argument that this has a SUBSTANTIAL ECONOMIC EFFECT ON INTERSTATE COMMERCE. 2 courts have already agreed with this argument and held that the individual mandate is CONSTITUTIONAL. This one judge in VA who has ties with an organization that has been trying to kill HCR is the lone judge so far that held the individual mandate as unconstitutional.

[Abq_Sarah]

4. If the mandate is constitutional

The congress can mandate far more than just purchasing health insurance. The list is endless.

It's a shame my small business doesn't sell health insurance. That's one hell of a fucking gravy train.

[OHdem10]

5. There is a good possibility he made his judgement with the

thought in mind, send this baby to SCOTUS.

He did not place an injunction saying the whole
law was so unconstitutional, stop it now.
It almost appears he was setting up a case
for the SC.

[truedelphi]

6. So then could the Federal Government decree that

Every one who owns a motorcycle must purchase a motorcycle helmet? Even if there were only three companies in any region and all of these motorcycle helmet companies charged exorbitant amounts for their helmet.

Could the Federal Government decide that every one operating a professional kitchen had to according to Federal Law purchase a fire extinguisher, even if the fire extinguishers available were produced by only two or three or four fire extinguisher companies in any area. Again, meaning the purchase would bear an exorbitant price.

I am not against motorcycle helmets being used, or even mandated by state law. or fire extinguishers being mandated by state law.

But this very egregiously deficit Health Care Reform bill mandates that people purchase something that is so expensive that many people cannot use the services that the purchase implies. For instance, even for many here on this board, after they pay sky rocketing premiums, and realize how much they must cover in terms of huge deductibles, and huge co pays, they cannot even consider using their health insurance.