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February 05, 2011

More on “wheat, weed, and Obamacare”

Harold Pollack

As you already presumably know, federal Judge Roger Vinson found the Affordable Care Act unconstitutional. I will let actual lawyers analyze the substance of Vinson’s decision. I do want to note something about the decision’s tone, and about the video shown below, too.

As Jonathan Chait and Jonathan Cohn note at the New Republic (and as staffers at the Center for American Progress describe here), Vinson’s decision was strangely partisan. Briefly put, the decision reads like a very wordy statement put out by the Tea Party or the Wall Street Journal editorial page. Its underlying logic, applied outside the realm of healthcare, would strike down Social Security privatization and other favored Republican initiatives.

One striking passage occurs on pages 46-47. The judge quotes a ReasonTV video called Wheat, weed, and Obamacare: How the Commerce Clause made Congress All Powerful:

Or, as was discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system.  Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile — now partially government-owned — because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business. 

I pause here to emphasize that the foregoing is not an irrelevant and fanciful “parade of horribles.” Rather, these are some of the serious concerns implicated by the individual mandate that are being discussed and debated by legal scholars. For example, in the course of defending the Constitutionality of the individual mandate, and responding to the same concerns identified above, often-cited law professor and dean of the University of California Irvine School of Law Erwin Chemerinsky has opined that although “what people choose to eat well might be regarded as a personal liberty” (and thus unregulable), “Congress could use its commerce power to require people to buy cars.” See ReasonTV, Wheat, Weed, and Obamacare: How the Commerce Clause Made Congress All-Powerful, August 25, 2010. 

I found the video. The debate to which Judge Vinson refers mainly consists of unkindly edited, short comments by the designated liberal professor Chemerinsky, followed by extended rebuttals with greater production values by John Eastman, the former dean of Chapman University Law School. Not surprisingly, Eastman says unkind things about ObamaCare and the “nationalized health care bill.” 

Given the ambush-interview nature of ReasonTV’s presentation, I contacted Professor Chemerinsky. Sure enough, his emailed reply expressed got a really expansive view of the commerce clause in American law: 

If Congress can regulate Angela Raich growing wheat for her own medicinal use, it can regulate economic transactions.   Congress, under the commerce clause, could require that people buy cars. There is no personal freedom to not do so and it would have an enormous effect on the national economy.   The weakness in the judge’s argument is that he is urging a view of the commerce clause that the Court has not followed since 1937.

(Not that he would favor such a law. In the video, he explains that the Constitution does not protect us against stupid laws, only against unconstitutional ones.)

Reading Chemerinsky’s response, I’m struck by how moderate the government’s argument really was. Government lawyers acknowledged that the commerce clause put limits on federal power. They did not make the expansive argument Chemerinsky did. Rather, backed by a list of distinguished health economists, they argued that the particulars of health insurance render this market unique, and uniquely in need of federal intervention. 

Individuals have a unique ability to free-ride in the hope that they could later obtain subsidized care. Hospital emergency departments face specific legal obligations to care for the uninsured.  The decision to go uninsured alters the overall risk-pool and thus the premiums paid by others. An individual mandate provides a foundation of at-once massive and intricate changes in public policy governing 1/6 of the U.S. economy.

On their account, one could therefore affirm the constitutionality of an individual mandate while acknowledging the possibility that the commerce clause places serious limits on federal power. Vinson’s logic, in contrast, poses a very stark choice between expansive federal power and a pre-New Deal conception of the federal government rejected by the Supreme Court more than 70 years ago. 

That stark framing might carry the day in our current judicial-political moment, in which Republican-appointed judges are making aggressive use of temporary court majorities. Over the long-run, though, I doubt this is the choice legal conservatives really want to offer.


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Pete Guither

"If Congress can regulate Angela Raich growing wheat for her own medicinal use..."

Um, it's Angel Raich and she grew marijuana. Filburn (of Wickard v. Filburn) was the one who grew wheat and it wasn't for medicinal use - it was for his chickens.

Did Professor Chemerinsky actually get it that wrong? Or is this a transcription error?

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