Health Care Mandate and the Commerce Clause (Part 2)

Health Care Mandate and the Commerce Clause

The patient protection and affordable care act purchase mandate

A four-part series on the relation and effects of the Commerce Clause to Health Care

By: Thomas W. Loker

The following is the second segment of a four-part series where author, Tom Loker, explores the impact of the Commerce Clause on Obama-Care.

Part Two: Simple Issues—Complicated Problem

In the prior segment, Clear Words – Muddy Intent, we discussed the evolving debate over for what most people on the surface seems a simple, clear and concise statement as to where the federal branch of government’s responsibility related to commerce begins and ends.  The simple and direct interpretation that most laypeople draw from the Commerce Clause—which is an “enumerated power” in the United States Constitution (article I, section 8), that provides that Congress has the power ” To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”—is that when commerce transpires among the states, as in between one or more states, then the federal branch is responsible to provide regulations that control such commercial transactions, and when commerce is between citizens inside of the boundaries of a state then it is the state’s responsibility to regulate those transactions.  This seems clear to most people but…

Over the past several hundred years, smart men, (perhaps sometimes not-so-smart) often trying to secure honorable goals, (OK, sometimes selfish goals) for the common good, (yes, sometimes not for the common good at all) have parsed, prodded, twisted and convoluted these sixteen simple words into marvelous interpretations that confound the average persons intellect.

Wickard v. Filburn: A broad reach?

Filburn was growing more wheat than allowed—even though it for private consumption. He was fined and ordered to destroy his crops by the federal government.

The historical applications of the authority as interpreted under the sixteen words in this clause have ranged from the sublime to the ridiculous.  In Wickard v. Filburn, 317 U.S. 111 (1942), the U.S. Supreme Court upheld a lower court’s decision that increased the power of the federal government to regulate what  would seem to most a state-based, perhaps private activity.  Roscoe Filburn was growing wheat for his own consumption.  As part of the “New Deal” legislation, rushed through congress to ameliorate the effects of the Great Depression, The Agricultural Adjustment Act of 1938 limited the area in which farmers could devote to wheat production. Filburn was growing more wheat than was permissible—beyond the limits even though it was not for sale. Filburn intended it for private consumption. Ultimately, he was fined and ordered to destroy his crops.  The courts found that because Filburn was growing more wheat than allowed, his actions somehow reduced the amount he would have purchased on the open market. Simply because wheat was traded nationally, the courts maintained Filburn’s acts affected interstate commerce which meant that he was under the federally regulated mandate of the court’s interpretation of the Commerce Clause.

The Government’s Unfettered Access

It seems that it is a difficult and dangerous stretch to view the Commerce Clause as a law that allows the federal government unfettered license to restrict individual freedoms in the same manner as the restrictions against Filburn. By nature of the argument as upheld in Filburn, any self-reliant activity could be determined to impede commerce in that if I,  as an individual grow it, hunt it, or fish it, then I am not purchasing the item from others and therefore am affecting interstate commerce.  I further find the argument specious, in that there is no basis to determine, other than abject supposition, that should Filburn have not grown his wheat himself that the wheat would have been purchased from an interstate supplier instead of an intrastate source.   More likely in keeping with the times, he would have simply bartered for the un-grown grain in the first place.  I believe this is a very dangerous expansion of federal powers that directly and potentially infringe permanently upon Filburn’s liberties which, in the end, caused him economic harm.

What’s the Logic?

If this remains the modern interpretation of the Commerce Clause, then it is would be clear that the mandate to purchase health care, as proscribed by the PPACA, strictly by the historic definition as decided in Wickard v. Filburn is therefore constitutional because any commerce between parties, even intra-state, can affect the purchase of goods and services inter-state.  Further, using the same logic, any affect that the lack of purchase could have on the cost of care to others within a state to offset the cost to the individuals supported by the state’s health systems, including private insurance, Medicaid, community based etc., would also become subject to the federal regulation under the commerce clause.

There are at least two flies in the ointment to these arguments.  One is the obvious one as discussed in the Wickard v. Filburn case, which is that it is a large conceptual leap for most normal people to see how the actions that Mr. Filburn engaged in should have been subject to federal intervention in the first place.  But the second, and more interesting, argument is based on the circumstances of how insurance is actually provided to citizens of the states in the first place, and the resistance by some in the federal government to actually have a national insurance market at all.

Crossing State Lines?

Insurance within states today is subject to regulations that exist in, and are specific to, each state.  Health care provided within one state is subject to the health regulations of that state.  There is little, to no, transportability of an insurance policy for a worker in Pittsburg, Penn. to have the same policy in San Francisco, Calif.  Recently, during a congressional hearing on tort reform, one democratic congressional representative (and noted constitutional lawyer) remarked—and I will paraphrase here—that since health care was not provided in a manner that it crossed state lines, that in every case he was aware of such care was provided within the jurisdiction of the state, and since he had never heard of care being provided in any hospital where the patient receiving care, or the hospital itself for that matter, existed simultaneously in two states at the same time, therefore, in his learned opinion, tort reform was a state’s rights issue and not subject to federal jurisdiction under the commerce clause.   So how is it that the foregoing statement can be factual and true, while at the same time Wickard v. Filburn is also true?  One of them simply must be a dangerous canard!  But the key question is which one?  This is THE question that today we, the people, must decide as the outcome of this decision will either fundamentally empower us or further restrict our life and liberties.   This must be our collective choice alone.

In the next installment, we will look at other regulations and decisions by the courts that further confound this vital determination, and most importantly, further expand the gulf between the ordinary ability of a normal person to read and understand common language and the legal wrangling and interpretations that follow.

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This entry was posted in General Comments, Other Related Comments, Patient Protection and Affordable Care Act "ObamaCare" and tagged , , , by Thomas W. Loker. Bookmark the permalink.

About Thomas W. Loker

Meet the Author - Thomas Loker is a Startup Consultant and Advisor at SYDK.ORG, Angel Investor, Mentor and Advisor at Keiretsu Forum & Venture-Med and an established operations guy with serial successes with startups, transitional companies and turnaround situations. He has had a long career serving in the fields of science, technology and healthcare related industries. He is an active board member in both for-profit and not-for-profit companies. Tom has written numerous articles in the areas of healthcare, technology, politics and the economy. He is currently the principal author of Health Reform 2.0: Beyond partisan divide lies pragmatic solutions – a whitepaper focused on moving beyond the partisan rhetoric of the ACA (Obamacare) to a simple, efficient, effective, accessible and affordable healthcare system. He maintains a passion for serving the underserved and has founded, supported and worked in various companies to serve the most fragile among us. Because of his expertise on the business of healthcare, he was invited to conduct multiple congressional briefings on healthcare reform in Congress, meeting with more than 100 congressional representatives. He has been a guest on HuffPost Live to talk about health care issues, and is a frequent keynote speaker on the topic for many groups and events. Prior to his latest book, The History and Evolution of Healthcare in America: The untold backstory of where we've been, where we are, and why healthcare needs more reform, Tom published “Delusional Ravings of a Lunatic Mind”—a collection of essays on healthcare, politics and their interaction with the economy, available at Amazon, Barnes and Nobles, and other bookstores. Tom's passion for Music is currently expressed by his role as VP Operations and General Manager of David Victor Presents. See www,davidvictorpresents.com to find out more. You can find Tom online at: Website: http://www.loker.com Blog: https://tloker.wordpress.com LinkedIn: http://www.linkedin.com/in/thomaswloker Photography: http://www.loker.net

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