Saturday, February 5, 2011

A Solution to the Affordable Care Act's "Individual Mandate" Issue: Amend Congress's Powers Under the Commerce Clause

Judge Vinson, in his 78 page ruling on the unconstitutionality of the Affordable Care Act, and it's individual mandate clause, outlined current opinion by the Supreme Court on the case law concerning Congress's Commerce Clause powers.  He informs the reader that according to Supreme Court case law/judicial precedent,

"[W]e have identified three broad categories of activitythat Congress may regulate under its commerce power.  First, Congress may regulate the use of the channels of interstate commerce.  Second, Congress is empowered to regulate and protect the instrumentalities of interstatecommerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce."

Thus, based on judicial precedent from other Supreme Court cases, in particular "N.L.R.B. v. Jones & Laughlin Steel Corp. (1937)," "United States v. Darby (1941)," and "Wickard v. Filburn (1942)," the Supreme Court has ruled that Congress, via the Commerce Clause may regulate activities *inside* individuals states that affect or are in some way connected to interstate commerce, directly or indirectly connected though they may be.  

Personally, I cannot disagree anymore than I already of with this line of thinking by the Supreme Court.  I find it blatantly wrong, and ignorant of the specific use of the word "among" in the Commerce Clause, which states, "Congress shall have the regulate commerce *among* the several states."  "Among," in this sense, when looked at in the Oxford English Dictionary, has no meaning of "within."  Rather, it closest meaning/synonym is "between."  The OED's definition of among in this sense is "[o]f the relation of reciprocal action between the members of a group."  This also appears in Merriam-Webster's Online Dictionary.  Webster's states as "among's" definition in this sense, "through the reciprocal acts of <quarrel amongthemselves>."  It even sites some ussage discussion between "among" and "between."  Also, Noah Webster's 1828 dictionary defines among as "Expressing a relation of dispersion, distribution, etc.; also, a relation of reciprocal action."  The examples given are "Divide that gold amongst you. Marlowe.  Whether they quarreled among themselves, or with their neighbors. Addison."  The synonyms used are between and amidst.

"Within", however, is not one of the synonyms associated with "among" in these dictionaries. " Within" has a meaning of inside, which would correlate more with "intrastate", whereas "among" correlates with "interstate."  Indeed, the prefix "inter-" means specifically, "between" or "among, while the prefix "intra-" means "on the inside" or "within, again all of this according to the OED.

Indeed Judge Vinson also recounts the history of the Commerce Clause, and how it came to be in our Constitution.  He writes, beginning on page 23, "There is no doubt historically that the primary purpose behind the CommerceClause was to give Congress power to regulate commerce so that it could eliminatethe trade restrictions and barriers by and between the states that had existed under the Articles of Confederation"  "In the Supreme Court’s 1888 decision in Kidd v.Pearson, Justice Lamar noted that “it is a matter of public history that the object ofvesting in congress the power to regulate commerce . . . among the several stateswas to insure uniformity for regulation against conflicting and discriminatory statelegislation.” See Kidd, supra, 128 U.S. at 21. More recently, Justice Stevens hasadvised that when “construing the scope of the power granted to Congress by theCommerce Clause . . . [i]t is important to remember that this clause was theFramers’ response to the central problem that gave rise to the Constitution itself,”that is, the Founders had “‘set out only to find a way to reduce trade restrictions.’”"  

Judge Vinson continues, on page 25 of his 78 page ruling:
"The foregoing history is so “widely shared,” [seeid. at 245 n.1], that Constitutional scholars with opposing views on the CommerceClause readily agree on this point. Compare Stern, supra, at 1344 (“There can beno question, of course, that in 1787 [when] the framers and ratifiers of theConstitution . . . considered the need for regulating ‘commerce with foreign nationsand among the several states,’ they were thinking only in terms of . . . the removal of barriers obstructing the physical movements of goods across state lines.”)"

He also continues:

"To acknowledge the foregoing historical facts is not necessarily to say thatthe power under the Commerce Clause was intended to (and must) remain limitedto the trade or exchange of goods, and be confined to the task of eliminating tradebarriers erected by and between the states."

On this last issue, I would agree with Judge Vinson, but not to the point where I agree that Congress has the authority under the Commerce Clause to enter a state's domain, or even all the state's domains in order to regulate intrastate activities that affect or are related or connected with interstate commerce.  That realm, in my opinion, which is based off the definitions of the word "among" belongs only to the states.  The Congress has the power to regulate the actual activity of "commerce" between or among the several states, saying how it can happen, and in what manner, but it cannot regulate a commercial activity within the actual state itself, even if it is connected to interstate commerce.  It doesn't become interstate commerce until it actually crosses boarders in the form of commerce.

But, obviously the Supreme Court disagrees with me.  However, they base their rulings on Commerce clause powers solely on the word "Commerce", and fail to look at the word "among", as does Judge Vinson, respectfully.  They feel that "commerce" is a broad enough term that it allows them to regulate intrastate activities as well, while they fail to remember the importance and existence of the word "among."  I strongly believe that Congress's meddling with production, manufacture, and sale, all inside a state, just because it may someday be sold or transfered out of state and into another state, thus becoming "interstate commerce," is trampling on and encroaching upon the sovereignty of the individual state to regulate those things.  Congress may regulate it once it becomes interstate commerce, once the sale of the item becomes a sale between two or more states, but not until that very time, in my opinion.  And I believe linguistic evidence proves my point.  But, I also know that proponents of a strong, completely centralized, all powerful Congress, via the Commerce Clause, as well as those judges and lawyers who continue to uphold judicial precedent as sacred and infallible, even in the face of  repudiating outside reputable historical and linguistic evidence, will never surrender that power Congress has, in my opinion, unjustly taken for its own. Therefore, I have a solution that I believe will fix this problem once and for all.  It will be difficult, will take work, and may take some time to complete, but I believe it can be done, and that it should be done.

I propose that we amend the Constitution, particularly the Commerce Clause in Article 1 Section 8, stating that "Congress shall have the regulate commerce among the several states.  But, it shall not have the power or authority, under that clause, to enter the boarders of any of the individual states, nor the boarders of all the states as as whole, and regulate the production, manufacture, and interstate sale of any product or commodity, even though it may directly or indirectly affect the interstate commerce market or one day be sold out of state, and thus becoming interstate commerce.  Rather, it's sole role and authority in regulating interstate commerce shall be to regulate the manner in which commodities being sold between the states may be sold and transported, including the waterways highways, and airways meant for that transfer; and for maintaining a uniform system of interstate commercial activity, such that no individual state laws may disrupt nor prohibit the free flow of trade or commerce between the boarders of all the states.  And in no way shall the wording of the Commerce Clause or the words, clauses, and sentences appearing in this amendment be construed so as to give the Congress the authority to mandate any individual resident or citizen in America, nor Americans as a whole group, to purchase any commodity or product, be that commodity a private one or public one, be it for sake of intrastate commerce or interstate commerce."  It is a long amendment, and which could probably be put into more concise language, but I feel that being specific in every way possible, so as to leave no room for misguided or cunning interpretation or inference by those designing individuals or groups who would seek to encroach upon the liberties of the people of the United States of America via the federal government.

What say you?  Would you support such an amendment?  It would once and for all put to rest these debates about just how far Congress can go and what they can or can't actually do under the powers of the Commerce Clause.  

I also have an idea in mind for a solution to the problem, brought up by the defendants of the individual mandate to purchase health insurance in Judge Vinson's case, of people opting out of health insurance, getting sick/injured, receiving care, & failing to pay for it.  If the IRS can track even the most insignificant, unknown, & remote individual in the U.S. for unpaid taxes, it, or another gov. agency like it, can do the same with those who fail to pay their health care costs/debts. Those who fail to pay their healthcare costs, must be made to pay a small mandatory amount to the payment of their debt every time they receive income, until their debt is paid (without interest), much like they do with other debts or with taxes. Or, if they can't actually pay their debt by means of money, due to a lack of income or insufficient income, they must be required to fulfill some kind of service to the community that was stuck with paying that individual's healthcare costs, every so often, until their debt has been sufficiently paid to that community. I think this a law Congress would be able to pass, under the authority of private property rights, contracts, and the resulting debt laws of these two.  I do not suggest a debtors prison, nor any kind of high payment rate from their income, nor any kind of time consuming or debilitating form of service to the community.  Rather, I would suggest something that still allows them live their life, earn their income, and fulfill their dreams, while at the same time paying their debt to the community that paid for their healthcare costs.  Service could be in the form of service to the hospital, like cleaning the floors, volunteering to visit the elderly, cleaning the toilets, or something that effect.  Service outside of the hospital in the community as a whole would be acceptable as well, and can be found in many different forms of service.  Some kind of service to the community that would have otherwise been paid by the taxes of the people of the community, but instead went to the payment of that individual's healthcare costs, would be the best compensation.  I think this sounds reasonable.  What say you, my readers?

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