The Gravel Kraken has now responded fully to my piece. And so here, in turn, is my response. My apologies for the delayed writing, I’ll just jump right in.
Jastonite bases his entire case on the inactivity vs activity distinction, ignoring 70 years of precedent by the way (but I’ll give him a pass on this because he likely believes the court to be incorrect in setting those precedents). But then he gives away the whole store, by saying this (my emphasis):
[Solicitor General Verilli] seems not to like the idea that Congress could make people buy broccoli, so what in his mind is stopping them:
“No, that’s quite different. That’s quite different. The food market, while it shares the trait that everybody’s in it, it is not a market in which your participation is often unpredictable and often involuntary. It is not a market in which you often don’t know before you go in what you need, and it is not a market in which, if you go in and — and seek to obtain a product or service, you will get it even if you can’t pay for it.”
Quite right, it is different, but does the Constitution concern itself with those differences? Where in “The Congress shall have the Power To … regulate Commerce with foreign Nation, and among the several States, and with the Indian Tribes.” does he find a limitation so specific? Congress shall have the power to regulate Commerce … except if that commerce is predictable and voluntary, when one knows before what one needs before one goes in? No… It certainly seems to me that “regulate Commerce” is straight forward. If is can be deemed commerce, Congress authorize any rational regulation of it. Now, although my reading of what counts as “Commerce” may differ from the Court, the history of the commerce clause affirms it to be a wide, power.
So, Jastonite seems to be relying here on the fact that the commerce clause does not differentiate between commerce that is predictable (ie buying food such as broccoli) and not predictable (ie medical treatment). I agree! Nowhere in the commerce clause is such a distinction made! Anyone care to guess what else the commerce clause does not distinguish between? Activity and inactivity. Jastonite quotes a whole lot of Madison, and cites the constitution a lot (both good things!), and otherwise generally implies a case built on a solid constitutional principal. But nowhere does he mention that “inactivity vs activity” is not a solid constitutional principal. It was not discussed by Madison, or Jefferson. Or even Bill Clinton for that matter. It was invented by Randy Barnett, of the Cato Institute (a libertarian think tank) about a year ago as a line of attack against the ACA. Now if you want to use the inactivity/activity distinction as a legal argument that’s perfectly fine. But two things. First, don’t try to pass it off as a deeply held constitutional principal because it is not. Second, if your preferred extra-constitutional distinction is key to your case, you cannot dismiss the other guy’s preferred extra-constitutional distinction on the grounds that it is extra-constitutional, as Jastonite does above.
The remainder of Jastonite’s argument is broccoli (and other examples in the same vein). If we can be forced to buy health care, why not broccoli? Well, lets ask Randy Barnett:
Just because the government does have the power to do x, doesn’t mean they have the power to do y, even if y has the same effect as x. There’s no constitutional principle like that.
Indeed! Even the libertarian architect of the case against the mandate admits the broccoli argument is wrong. Jastonite continues with this:
Justice Ginsburg seems to think that Verrilli isn’t reading properly from the playbook, so she decides to interrupt him before he makes too big a fool of himself:
”Mr. Verrilli, I thought that your main point is that, unlike food or any other market, when you made the choice not to buy insurance, even though you have every intent in the world to self-insure, to save for it, when disaster strikes, you may not have the money. And the tangible result of it is — we were told there was one brief that Maryland Hospital Care bills seven percent more because of these uncompensated costs, that families pay a thousand dollars more than they would if there were no uncompensated costs. I thought what was unique about this is it’s not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don’t buy the product sooner rather than later.”
Now, I agree that Verrilli’s performance in articulating these principals was dismally poor, but saying that Justice Ginsburg thought he wasn’t reading from the playbook is just massively disingenuous. It implies that Ginsburg has a pre-determined opinion (and she probably does!) and is tossing out liberal talking points. Now, I’m fine with Jastonite making that implication, but not in a series of posts in which he quotes the conservative justices repeating the right’s party line six times without making the same implication.
But I’m getting off topic, so back to broccoli.
In his very first post on the subject, Jastonite stated that he found the limiting principal outlined by the government to be arbitrary and not based on any law. But is the broccoli argument not the same? It is arbitrary, in that I can pick any government action, and say it could possibly in some future scenario lead to some other government action. And it is not based on law because it ignores the very structure (and reason for that structure) of the federal government.
The broccoli argument is, essentially, a way of asking “what is the limiting principal?” Well, let’s look at taxes. The ability of congress to impose a tax is unquestionably, undeniably, 100% constitutional. It’s right there in the very same section as the commerce clause (Article 1, section 8, for those playing the home game):
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises…
OK, so how does this relate to broccoli? Well, we could use the very same argument! If congress is allowed to impose taxes, what’s to stop them from setting tax rates at 100%? Or 500%? As luck would have it, the answer to our tax problem is precisely the same as to our broccoli problem. If they did that, we would vote them out and elect someone to undo it. The limiting principal is our very system of government. Jastonite addresses this:
I am of the opinion that government should be limited by law. Even if I were under the rule of a good, benevolent king, I would want that king to be restrained by more than his conscience. Likewise, I want Congress to be restrained by more than its conscience, the American political process
I’m of the opinion that government should be regulated by law as well! So is, I believe, everyone else. But the limitation by the political system is a key part of the limitation developed by the Constitution! It is not just voting. It’s the system of checks and balances. To continue Jastonite’s trend, let’s consult James Madison. This time, in Federalist 51:
In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
Indeed, the limiting principle for the entire government is the electorate, but people can sometimes do foolish things, so there should be a fallback plan. Madison, luckily, had such a plan, with which he opened Federalist 51:
TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.
This is nothing more than the system of checks and balances as described in the constitution, and it is presumably what Jastonite refers to when he says government should be constrained by law and not the electorate. But as Madison said, the electorate is the primary control on government. To discount it as a limiting principle throws the entire underlying philosophy of the Constitution in question.
520 Chestnut 
Leave a Reply