Garrett Epps: Universal Health Care: Is It Constitutional?
[Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore. He lives in Washington, D.C.]
The heart of the challenge to the new federal health-care program is this image: an individual is doing nothing at all, bothering no one, when suddenly a federal bureaucrat appears and requires him or her to buy a commercial product or pay a tax. The program's opponents claim that, in the guise of regulating commercial activity, it regulates "inactivity." This, it is claimed, is unprecedented and tyrannical.
Three federal courts so far have taken a first look at the argument. One, in Michigan, rejected it. The second, in Virginia, indicated that it needs careful consideration. The third, Thursday's ruling from a District Court in Florida, bought it hook, line, and sinker.
When I read the argument about whether the government can regulate "inactivity," though, I can't help thinking about Ollie's Barbecue in Birmingham, Alabama. Ollie's was a neighborhood eatery. It never advertised. And when Congress passed the Civil Rights Act of 1964, Ollie's owner went to court to argue that Congress could not possibly regulate his private, local business and its personal decision of whom not to serve. A three-judge federal panel agreed: "No case has been called to our attention... which has held that the national government has the power to control the conduct of people on the local level because they may happen to trade sporadically with persons who may be traveling in interstate commerce."...
Read entire article at The Atlantic
The heart of the challenge to the new federal health-care program is this image: an individual is doing nothing at all, bothering no one, when suddenly a federal bureaucrat appears and requires him or her to buy a commercial product or pay a tax. The program's opponents claim that, in the guise of regulating commercial activity, it regulates "inactivity." This, it is claimed, is unprecedented and tyrannical.
Three federal courts so far have taken a first look at the argument. One, in Michigan, rejected it. The second, in Virginia, indicated that it needs careful consideration. The third, Thursday's ruling from a District Court in Florida, bought it hook, line, and sinker.
When I read the argument about whether the government can regulate "inactivity," though, I can't help thinking about Ollie's Barbecue in Birmingham, Alabama. Ollie's was a neighborhood eatery. It never advertised. And when Congress passed the Civil Rights Act of 1964, Ollie's owner went to court to argue that Congress could not possibly regulate his private, local business and its personal decision of whom not to serve. A three-judge federal panel agreed: "No case has been called to our attention... which has held that the national government has the power to control the conduct of people on the local level because they may happen to trade sporadically with persons who may be traveling in interstate commerce."...