The last two days I have discussed the Obamacare Supreme Court case in terms of what the Supreme Court will do. This is all reading tea leaves, of course, and what authority have I to think I read them right? Well, if you’re reading this, I guess it’s because you accept my authority. (Thank you Hypatia and Aloysius!)
Today, rather than saying what I think the Court will do, I’ll take a stab at what they should do.
First of all, against Kennedy (the libertarian) and the liberals (the utopianists), I support the rule of law. I think we need to abide by the text of the Constitution, or change it. I could say much more about the complications of stare decisis, and the expansive way the Constitution is sometimes read, but for now, I think it suffices to say I think the only real question is whether the Obamacare mandate can be described as part of Congress’s power “to regulate commerce between the seveal States.”
So: is health care interstate commerce? On first glance, I would say obviously not. I take my children to their doctor in the next county over in our state. That transaction is not interstate commerce, anymore than the decision to buy bread from the baker down the street.
Sometimes we go to see doctors in New York, across state lines. But even that, I think, is not commerce among the several States. I’m getting into hazier territory here. But I can take a stab. Article nine, on the limits of Congress, talks about States passing tarrifs on interstate Commerce, or Congress preferencing one State’s ports over another. The original meaning of interstate commerce would seem to be questions of what happens at state borders: the federal government can search for contraband in a car crossing state borders, but a state government cannot.
Take raw milk, a current issue. New Jersey has a law that you cannot sell unpasteurized milk. Pennsylvania does not have such a law. It would seem to me that the point about regulating commerce among the States is to say that New Jersey has the right to make laws about commece within New Jersey; the federal governmnet does not. What I buy within New Jersey is none of Congress’s business, so Congress can neither outlaw nor legalize raw milk sales within the state.
But if I go to Pennyslvania to buy raw milk (as some people do), then it gets complicated. Pennyslvania has the right to legalize or outlaw those sales within Pennyslvania borders. New Jersey still has the right to say that I cannot sell that milk in New Jersey; it may have the right to say I cannot drink raw milk within New Jersey (that would involve other issues, both in New Jersey’s Constitution and perhaps in the Fourteenth Amendment); and New Jersey can even pass a law saying I can’t carry raw milk over the border. But Congress has the right to intervene, trumping New Jersey’s law and saying that I either do or do not have the right to buy things in Pennyslvania for consumption in New Jersey. Since this is interstate commerce, Congress has a right to make regulations, pro or con.
As interstate commerce got more complicated, so did interstate commerce laws. In the late-nineteenth century, Congress passed anti-trust laws. Railroads are, for the most part, of their very essence matters of interstate commerce. A company whose whole raison d’être is to transport things across state lines is subject to Congress. A railroad wholly within New Jersey is none of Congress’s business. But when it goes across state lines, Congress can say that this company needs to abide by the rules of companies that participate in interstate commerce.
Next Congress got involved in the meat packing industry. The stockyards in Chicago are doing a discrete task: chopping up animals and shipping them off. And to that extent, they are only under Illinois state law. But they are shipping that meat off to other states yet. Congress can say, you can do whatever you want with animals within your state, but we pass laws saying that you can’t ship them east across the Indiana border if they are a contraband product by Congressional law. If Congress says that meat crossing state lines cannot participate in certain business practices (like price fixing) so be it.
Later comes the truly absurd claim that if a farmer produces corn for his own cows, because he could have bought that corn from someone in another state instead, Congress can stop him. That is absurd. I guess it does produce a precedent the Court has to think about, making my Scalia-rather-than-Thomas argument difficult. But . . . well, for now, let me ignore that. Let’s stipulate that regulating interstate commerce means Congress has a right to pass laws about products that cross state lines.
Now, modernity makes this complicated. When I take my kids to the doctor in Oradell, we are paying the doctor for a service, and we are not crossing state lines. So far, not interstate commerce. But what about when he gives them a shot from a factory in Pennsylvania? At first it seems reasonable to say that Congress could say, do whatever you want with your doctor. But if he’s going to give you a shot made in a different state, here are the conditions: he must also give you all the other shots we think are appropriate, he must have the federal licensing we think appropriate, etc.
But how far does this go? If he uses rubber gloves made in China, does my doctor visit now become “commerce with Foreign nations”? What if his lab jacket is from Argentina? Or his shoes from Italy? At some point we draw a line.
Take the rubber gloves. It seems reasonable for Congress to pass laws about the import of rubber gloves: to put a tarriff on them, maybe even to check that they are not carrying rubber-glove-borne diseases(?!) But at some point, Congress has to settle down. In the eighteenth century, eating in an Inn built with nails from another state would not, I’m pretty sure, be construed as interstate commerce, even though those nails are absolutely essential to the Inn.
We might recognize that Interstate Cartels are an example of interstate commerce; but that does not mean that everything remotely involving things that have crossed state lines is interstate commerce. When the New Jeresy doctor buys vaccines from Pennsylvania, that is interstate commerce, and Congress probably has the right to ask whether he’s the kind of person who is allowed to purchase appropriately regulated medicines across state lines. But when the New Jersey doctor gives vaccines to New Jersey kids, that isn’t interstate commerce.
Interesting to note, by the way, that when it came to the Chicago slaughterhouses, the application of Interstate Commerce law was NOT to say that because the pigs crossed state lines, you could dictate how they were fed before they crossed the lines. What Congress regulated was the business practices – price-fixing – which were of themselves interstate acts: people in Chicago setting prices in New York.
What about our doctor visits in New York? I don’t think it’s interstate commerce for me to buy a hot dog in New York. And I don’t think it’s interstate commerce for me to get medical care in New York. It is not interstate commerce for me to get a prescription in New York, or to fill it in New York. But if I bring the prescription or the pills over the border? Then, perhaps, New Jersey has a right to question whether such a presctiption is allowed here – and Congress has the right to override New Jersey’s decision in either direction.
Which brings us to insurance. Even if health care itself is not interstate, insurance might be. I definitely think that the power to regulate interstate commerce means that Congress has the right to say that I can buy insurance from a provider in Pennyslvania. This is precisely the original purpose of Congress’s right to regulate interstate commerce – to be able to override New Jersey if it tells me I can’t buy things in Pennyslvania. Though if I buy insurance from a company (or branch of a company) operating exclusively within New Jersey, and everyone in the pool is in New Jersey (which is, I think, the way it works now), that is not interstate commerce, and Congress does not have the right to regulate it.
But what if I use my insurance here to pay a doctor in New York? That seems to be crossing state lines. And so there, perhaps, New York has a right to say we don’t deal with that kind of insurance company, and Congress has a right to override them. They can, at the least, require New York to let my doctor receive payment from my New Jersey insurance company – or my Pennsylvania insurance company, for that matter. Or they could say that interstate insurance companies can’t work that way.
My conclusion, then, would seem to be that if Congress wants to make things difficult for me, they could prevent me from using my insurance to go to a specialist in New York. But it’s hard to see why. This is not about preserving health, not the great big noble purpose Obamacare sets out to pursue. The goal of helping health can happen entirely within state lines. The only place Congress needs to intervene is to make sure that I can get medical care – including, perhaps, more affordable insurance – across state lines.
But forcing me to buy insurance? Even granted that everyone needs insurance (which I do not grant) and that government has a fundamental interest in the health of every individual (which I grant only in part), it’s not clear to me that there’s anything fundamentally inter-state about health care or health insurance.