Supreme Court Week: Day 2

On is the mandate constitutional.

Everybody thinks so. Why? Because of Wickard v Filburn. The Washington Post comes right out and says it.

In the recent past, the Supreme Court has struck down attempts by Congress to use the Constitution’s Commerce Clause to promulgate laws that had no connection to commercial activity, including those involving guns near schools and violence against women. Yet it has upheld Congress’s Commerce Clause power to reach individuals who were not obviously involved in commercial activity — most famously, the Depression-era farmer who grew wheat for his own consumption. The court concluded that his decision to grow — rather than purchase — wheat interfered with the government’s ability to regulate wheat prices.

The same logic should hold true for individuals able but unwilling to buy health insurance: Their absence has a significant impact on the market, especially because it is virtually inevitable that they will need health-care services at some point in their lives.

I understand that the Supremes follow precedent. But in the case of Filburn they may be thinking a) that is already overstepped bounds of the constitution during the days of a strong CIC and b) Wickard v Filburn forced Filburn to not grow, not TO grow, but to not grow grain for himself. In this case the government is not asking us to not smoke because it affects health which affects health insurance which is a big part of interstate commerce. Instead it’s asking us to buy insurance as a requirement for living.

Not only is it different, but the original case really needs to be relooked at- IMHO.

Thomas Sowell has a good column today:

The principle that the legal authority to regulate X implies the authority to regulate anything that can affect X is a huge and dangerous leap of logic, in a world where all sorts of things have some effect on all sorts of other things.

As an example, take a law that liberals, conservatives and everybody else would agree is valid — namely, that cars have to stop at red lights. Local governments certainly have the right to pass such laws and to punish those who disobey them.

No doubt people who are tired or drowsy are more likely to run through a red light than people who are rested and alert. But does that mean that local governments should have the power to order people when to go to bed and when to get up, because their tiredness can have an effect on the likelihood of their driving through a red light?

The power to regulate indirect effects is not a slippery slope. It is the disastrous loss of freedom that lies at the bottom of a slippery slope.