June 30, 2010

PLF on the road

By PLF on the road

Author: Timothy Sandefur

Last evening I spoke at the annual convention of the American Health Lawyers Association in beautiful Seattle, Washington, on the topic of the constitutionality of the Obama Administration’s health care mandate—that is, the law that requires every American, no matter what, to buy health insurance from a private company. Each side only got 10 minutes, plus five minutes each for a rebuttal, so it wasn’t really possible or desirable to get in to the minutiae—not to mention that in a convention of attorneys who make their living off of the existing health care regulations (and a convention held in Seattle) you can't expect to persuade the audience that their darling is unconstitutional. (My name didn’t even appear on the program!) But I think the debate went well enough to at least make some people think about issues they had not previously considered. My opponent, Prof. Stewart Jay of the University of Washington Law School, insisted that there was “no question whatsoever” that the law is constitutional, but the audience disagreed with him; when I asked the audience how many people had serious doubts about its constitutionality, there were quite a few hands raised.

Prof. Jay insisted that Congress has the power under the commerce clause to force people to buy insurance, because the health insurance market is a large national economic matter, and in regulating it, Congress can regulate any activity that relates to it. I then challenged him directly to tell me what the limiting principle is—what can Congress not do under the commerce clause? And not only did he give no answer, but a member of the audience was forced to re-ask the question later—what can Congress not regulate under his interpretation of that clause? Cornered, he responded that Congress could not regulate “trivial” things that had no real effect on interstate commerce—to which I responded, “You mean, like smoking marijuana in your own back yard?” Under the Raich decision, which I think was wrongly decided, Congress is allowed to regulate even this trivial, non-commercial, non-interstate activity.

I then pointed out that under this theory, Congress could force every American to drink a glass of milk before bed every night. This, he insisted, was “silly.” But why? After all, the dairy industry is a multibillion dollar national industry. The New Deal Supreme Court issued crucial decisions allowing the federal government to establish a massive bureaucracy governing the dairy industry. Calcium deficiency is a serious nationwide health problem, not to mention the collapse of the family farm. The United States loses billions of dollars annually because of people not drinking milk, and certainly if this were a convention of dairy farmers, they would insist that it was a vital national interest to require everyone to drink a glass of milk a day. After all, it does a body good…. Why could Congress not require it?—to this, Prof. Jay had no answer, and that was obvious to all in the audience.

Again, you can’t expect to convince people in a forum like this. But I think I did manage to make some people think more deeply about these problems, and face questions they might otherwise have not considered—or sought to avoid.

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