Tuesday, February 02, 2010

State Anti-Mandates


By Mike Dorf

An AP wire story that reports on a movement in state legislatures to forbid any sort of "individual mandate" to buy health insurance, even one coming from a federal statute.  The story (accurately) quotes me as follows: 
"They are merely symbolic gestures," said Michael Dorf, a constitutional law professor at Cornell University. "If this Congress were to pass an individual mandate, and if it is constitutional - which I believe it is - the express rule under the supremacy clause (of the U.S. Constitution) is that the federal law prevails."
In a display of typical two-sides-to-every-issue false equivalence, the story introduces this quotation by noting only that "it's questionable that such . . . measures could shield state residents from a federal health insurance requirement."  Questionable?  I'll say.  Much in the same way that it's questionable that the Flintstones accurately portrayed early human life in all of its details. You know, what with the "experts" questioning the co-existence of humans and dinosaurs.  Because, after all, other experts don't raise those questions.

Thus, at the risk of stating the obvious, I thought I'd reproduce my reasoning.  Here's the core of a fairly typical email I received:
Why do you believe that a Federal mandate to force individuals to buy private insurance is constitutional?  Furthermore, why do you believe that States who choose to exercise their 10th Amendment rights are only going through "symbolic gestures"?
And my reply:
If Congress has the power under Article I to enact an individual mandate, then it is valid law that, under the Supremacy Clause of Article VI, displaces any contrary state laws: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."  The Tenth Amendment reserves to the states only those powers that are not given to the federal government: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

So the only way that the state laws could be enforceable would be if Congress lacked the power to adopt the individual mandate.  However, as I argue here, Congress has the affirmative power.  Nor is the libertarian objection a constitutional obstacle, as I argue here
None of this is to say that the individual mandate or any particular health care reform bill is wise policy.  But the constitutional objections being raised are extraordinarily weak under existing precedents.
To all of that, I would simply add that discarding the modern doctrines on which my analysis is based--as was suggested to me by another emailer and has been sometimes advocated by Justice Thomas (but by no other Justice in over 70 years)--would be extraordinarily disruptive of the national economy.  There was a time, not to long ago, when stability was especially valued by conservatives.  Where have you gone, Dwight D. Eisenhower?  Our nation turns its lonely eyes to you.

Finally, happy Groundhog Day to all, especially the robotic groundhog being proposed by the counter-productive, self-parodying PR gurus at PETA.  (In case you're wondering, my complaint isn't that PETA is too radical; on the contrary.)

7 comments:

egarber said...

I think a lot of folks, to the extent they know the constitution at all, either 1) read it as if we're at day one, with no precedents on the books (ironically, these tend to be conservatives who lash out about "activism"), or 2) selectively read what they want into previous rulings.

I've run into both in my discussions with friends. In one case, when I cited M v Maryland as a foundation for implied powers over the economy, a guy replied, "nationalizing one six of the economy isn't a means to a proper end."

The fallacy of "nationalization" aside in the current healthcare debate, I asked if he really thinks that kind of arbitrary edict could form the basis of any disciplined legal opinion today? And then I said, "on the contrary, that healthcare is such a large segment of the economy cuts in favor of commerce power over it, because its size makes it unavoidably interstate in character."

徵信社 推薦 said...

護貝機,護貝機,碎紙機,護貝機維修,護貝膠膜,護貝問與答,台中徵信社,台中徵信,外遇,徵信,徵信社,尋人,尋人網,尋人網,徵信,外遇,抓姦,徵信社,徵信,徵信社,婚姻諮詢,私家偵探,偵探社,免費法律諮詢,徵信社,捉姦,抓姦,尋人,大陸徵信,徵信社,外遇,離婚,徵信社,離婚,分手,徵信協會,尋人查址,尋人,徵信公司,商業徵信

徵信社 推薦 said...

徵信,徵信,徵信公司,徵信評鑑,徵信網,抓姦,外遇,討債公司,離婚,外遇,婚姻諮詢,離婚,離婚訴訟,捉姦,外遇,徵信社,徵信公司,徵信公司,外遇,尋人查址,外遇蒐證,徵信社,徵信社,徵信公司,台中徵信,台中徵信,台中徵信,台中徵信,台中徵信社,台中徵信社,台中徵信社,台中徵信社,台北徵信,台北徵信,台北徵信社,台北徵信,台北徵信社,台北徵信,台北徵信社,台北徵信社

goodsasa33 said...


監視器


監視器材


手機訊號強波器


亂剪
 雷門刺青

京王監視器
 大哥大訊號強波器  網站SEO

Stella亂剪旗艦店

網站排名首頁

Dolphin said...

BB
享受成功的人生與快樂^^
整形 雙眼皮 隆鼻 電波拉皮 眼袋 植髮 雷射溶脂 瘦小腹 大陸新娘 外籍新娘 外籍新娘 大陸新娘 大陸新娘 外籍新娘 香港民宿 香港旅館 香港平價住宿 民宿 旅館 平價住宿MOTEL 汽車旅館 MOTEL 汽車旅館 白蟻 除蟲 跳蚤 除白蟻 防治白蟻 SEO 關鍵字

Dolphin said...

AA
生活的樂趣與分享^^
整形 豐胸 整形外科 隆鼻 抽脂 整形 除疤 隆鼻 隆乳 拉皮 抽脂 雙眼皮 玻尿酸 果凍矽膠 脂肪移植 裝潢 室內設計 系統傢俱 系統櫃 室內設計作品 抽油煙機 宜蘭民宿 民宿 老鼠 蟑螂 滅鼠 跳蚤 除蟲公司 捕蚊達人 清潔公司 居家清潔 關鍵字排名 網頁設計 網路行銷 網站排名 排名行銷 網頁優化

Dolphin said...

CC
健康的身體和充實的人生^^
防水 抓漏 防水工程 抓漏工程 蛋糕 彌月蛋糕 塑膠棧板 棧板 棧板 塑膠棧板 棧板 塑膠棧板 棧板 塑膠棧板 熱水器 太陽能 整形 眼袋 隆鼻 隆乳 拉皮 抽脂 雙眼皮 玻尿酸 果凍矽膠 格子 格子王 格子舖 團購 公仔 公仔製作 公仔模型 公仔設計 SEO 關鍵字 關鍵字排名 網頁設計 網路行銷 網站排名 網頁優化 SEO