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Commodifying Health Care

Yesterday, the Washington Post argued that Congress may regulate health insturance throughout the Union because health care is a "commodity,"

The Supreme Court has given Congress wide but not unfettered latitude in regulating interstate commerce. It barred federal efforts to promulgate laws that ban guns near schools and those addressing violence against women, ruling that these activities have nothing to do with commerce. But health insurance is a commodity, and a consumer who sits on the sidelines has a significant impact on the market.

Strange argument.  I thought that the Court ruled that the gun free school zone act was unconstitutional because it did not regulate commerce, not because it was regulating commerce, but, at the same time, that commerce was not interstate.  The same is true of the other case. The court was saying that not all activity is commerce, even if it might, in some way, have some consequences for the market.

What's behind the Post's language, I suspect is Wickard v Filburn, a ruiling of the FDR Court which ruled that a farmer growing wheat on his own land for his own use was still engaging in interstate commerce, because his actions had an impact on the market as a whole.  What was really going on is that many other farmers were doing the same thing, trying to get around the limits the federal government sought to impose on wheat production.  If there was a private use exemption, the regulation would be greatly weakened, therefore, the court argued, the law must allow the U.S. government to limit a farmer's use of his own land for his own purposes.

The trouble with that ruiling is not that it is entirely illogcal.  One can make a case that the decision was, indeed, necessary to regulate interstate commerce in the fashion the federal government wanted to.  The trouble is that it makes a mockery of the Constitutional text. Regulating the amount of his own, private land that a farmer may use is not a constitutional means of economic regulation. If the Congress has the right to regulate "interstate commerce," and not simply "commerce" throughout the U.S., that necessarily implies that there is such a thing as non-interstate commerce.  The Court ruiled that, in effect, there is no such thing.   As Thomas Jefferson noted long ago, "It is an established rule of construction where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless."  The Court violated this rule in Wickard, ruiling that, in effect, all commerce is interstate commerce, and thus interpreting an important provision of the Constitution out of existance.

P.S. As Randy Barnett reminds us, in the eyes of the Constitution, "commerce" does note mean "economic activity," even if that's how our ruiling class tends to understand it nowadays.

Update: I wrote the above in a bit of haste as I was rushing off to a meeting.  I fear I didn't quite complete my thought.  It may be true that one could argue that all farming is, somehow, connected to interstate commerce. That was no less true in 1789 than it is today.  The logic of the constitution suggests that simply having an impact, however remote, on the general flow of commerce across statte lines, is not a sufficient condition for concluding that an activity may be regulated as "interstate commerce" in the eyes of the constitution.  Beyond that. the language of the constitution is built upon a deepter understanding of the nature and purpose of government, and that deepter understanding is the criterion which we should use to interpret the text.

Categories > Health Care

Discussions - 3 Comments

Another part of the Wickard opinion describes the delegation of the price-setting to a farmers' co-op, as I recall. So the victims were forced to tyrannize over their fellow farmers.

Where does it stop?

If a farmer growing wheat so as to grind it for his own family's bread affects interstate commerce by his not buying Pillsbury or Montana Sapphire, what if he grows beans and chooses not to eat bread? Can Congress then regulate the growing of beans? Even the backyard gardener won't be safe from interference.

There is no limit to the reach of Federal law when argued in this fashion, and we become mere commercial creatures of the state. Looked at this way even procreation becomes a commercial act potentially subject to Federal regulation.

Some Constitutional limit must be found to halt this creeping tyranny.

Commodities, like any other good that needs to be distributed equitably (rather than equally), can/should only be converted into a guaranteed right when a monopoly is the only source of that commodity (e.g., state-regulated utilities). The market is a moral mechanism -- a person's prosperity is predicated on his/her usefulness to other people (which is why neurosurgeons live in mcmansions, while drug addicts hang out in crack houses).

The only way we'll ever win this argument with the Left is to make people understand that its not about greed, money, or even status -- its the distribution of benefits based on social usefulness.

And yes, there are exceptions, although some of them (e.g., drug lords) are the creation of government interventionism.

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