What Can’t The Government Mandate?
What are the limits on government power?
With tongue firmly planted in cheek, The Wall Street Journal’s Allysia Finley suggests that the Federal Government’s decision to mandate that individuals purchase insurance, and more recently that employers provide insurance coverage for contraceptives, raises the question of what else the government should mandate:
• Fitness club memberships. Most doctors agree that exercising is one of the best ways to prevent disease. However, gym memberships can run between $240 and $1,800 per year. Such high prices force us to choose between exercising and buying groceries. While we could walk or jog outside, many of us prefer not to. Therefore, employers should be required to pay for workers’ gym memberships. Doing so might even reduce employers’ health costs, which is why many companies already subsidize memberships. Those that don’t are limiting our freedom to exercise.
• Massages. Stress raises the risk of heart disease, obesity, depression and a host of other maladies. About one half of Americans say they’re stressed, and studies show that health costs for stressed-out workers are nearly 50% higher than those for their chilled-out counterparts. According to the Mayo Clinic, a great way to reduce stress is to get a massage. However, since few of us can afford massages, it is imperative that employers be required to cover weekly massage treatments or hire in-office masseuses. Think of the millions of new jobs this mandate will create in the therapeutic field, too.
• Yoga classes. Like exercise and massage, yoga reduces stress and can relieve back pain, osteoarthritis and even menopausal symptoms. Yoga is also one of the best exercises for pregnant women since stress raises the risk of birth defects, which in turn increase health costs. While we could practice yoga with the aid of a DVD or Web video, classes offer social benefits that enhance our psychological well-being.
• Coffee. Studies show that coffee can ward off depression, Alzheimer’s disease, type 2 diabetes and sleepiness—which makes it one of the most powerful preventive treatments. Workers who drink java are also more productive and pleasant. While many offices have coffee makers, some employers—most notably those affiliated with the Church of Jesus Christ of Latter-day Saints—continue to deny workers this essential benefit. All employers should have to provide workers with freshly brewed coffee. Oh, and workers must also be able to choose the kind of coffee regardless of the price.
Republicans might argue that requiring Mormon charities to serve coffee is a violation of “religious liberty” since the Mormon church’s doctrine proscribes coffee, but this argument is a red herring. Leading medical experts recommend drinking coffee. Moreover, 99% of adults have drunk coffee at one point in their lives (including most Mormons).
• Salad bar. Studies also show that eating a lot of salad helps people maintain a healthy weight, which is key to preventing diabetes, heart disease and hypertension. Admittedly, mandating that employers include a free salad bar in their cafeterias would primarily benefit healthy eaters (women like myself) and raise prices for workers who subsist on junk (most men). However, such a mandate is necessary to expand our access to healthy food. Nanny-state conservatives who oppose this mandate merely want to ban salad and control what we eat.
And we can expand it beyond there. There have been numerous studies supporting the health benefits of moderate alcohol use, so can the government force my employer to subsidize my purchase of red wine, or force me to purchase it? A daily aspirin has been shown to reduce the risk of heart attacks and strokes, so why can’t we mandate that employer-provided health insurance include full reimbursement for aspirin purchases, which I will of course be required to purchase. To borrow an example that has come up during the course of the litigation over the PPACA’s health insurance mandate, could the government force every family in America to purchase a specific quota of vegetables and fine them if the failed to do so?
These may all sound like silly questions and, admittedly, some of them are. However, they go to the core of the question that the Supreme Court will be dealing with when it begins hearing oral argument in the PPACA litigation two weeks from today. The Constitution grants the government a specific set of powers. Over the past 223 years there has been much debate and disagreement about exactly what falls within the scope of those granted powers, and there will continue to be such a debate for as long as the United States of America continues to exist. However, the principle remains the same. Unless it’s covered by one of the powers explicitly granted to Congress under Article I, Section 8 (or one of the amendments) then Congress cannot do it. It doesn’t matter if it’s a really good idea. It doesn’t matter how popular it is. The entire idea of a Constitution that limits the power of government is that government cannot exceed those powers, unless the Constitution is amended and that power is explicitly granted to Congress. We can argue about where those limits lie, but we can at least agree that there are limits, right?
Some might argue that the scope of Congressional power should be decided by what the majority wants to do, but that strikes me as completely missing the point. The entire idea of limiting the power of Congress is centered upon the principle that the Constitution exists to prevent majorities from getting everything they want. Just because the majority wants to do something, doesn’t mean that Congress can do it, or should do it.
This is the issue that the Supreme Court will be faced with in two weeks. What are the limits of Congressional power? And. if there are no limits, then does the Constitution even mean anything anymore? So that’s the question that the ObamaCare lawsuits actually present, if the government can mandate that all of us purchase insurance, and that our employers not only provide us with insurance but that said insurance policy must cover specific items, then what can’t it do?
We have a government which claims authority to execute, surveil or permanently imprison anyone it wants without trial, and insurance is what this woman is outraged about?
@Ben Wolf:
It was a starting point for a conversation. As far as I’m concerned imprisoning people without trial, executing people on Presidential order, warrantless surveillance, and violations of the provisions of Article I, Section 8 are all part of the same problem
Excellent post. Bravo. You’ve really hit the nail on the head. Speaking of which, regarding the limits of government power, and with a tip of the cap to that noted philosopher, Ronnie James Dio, the problem with government mandates “for the public’s benefit” is that with respect to the eternal interplay of the proverbial hammer and the proverbial nail the government plays the role of the former whereas men inevitably play the role of the latter.
Oh, drat. Then it started to fall apart in the comments section. Internal vs. external. Citizens vs. non-citizens. Enemies on foreign soil vs. loyal residents at home. The war powers of a sovereign at war vs. domestic powers on commercial and economic issues at home. Perspective. History. Common sense.
This has already been decided Wickard v. Filburn. 1942. . Farmer (Filburn) is raising grain in excess of grain quotas but he is not going to sell it, he is raising it for his own consumption. Not only is this gain not going to cross state lines, it will never leave his farm.
He is ordered to destroy the grain and pay a fine. The argument is since he was storing the grain for his own consumption, he would not be buying grain on the open market.
To repeat, the govt was trying to force him to buy grain on the open market instead of raising his own.
Supreme Court found in favor of the govt. It found the govt could force the framer to buy grain on the market. This was 1942. 70 years ago.
To answer your question, the govt can regulate any thing it has to balls too when it comes to the economy including yes, every one of your examples.
@Jib:
And Wickard was a horribly badly decided opinion
I think that conservatives and libertarian take refuge in the word “mandate” and act as if it makes non-compliance a criminal act, under criminal law.
They conveniently forget that tax law is rife with credits and deductions.
Do we worry about the Volt-buying mandate? It’s there. All our taxes are that much higher because we do not take advantage of the credit.
(Not to mention the “house buying mandate,” the oldest and most-loved mandate of all.)
@john personna:
You are correct. The United States Code is rife with violations of Article I, Section 8. Let’s get rid of them
If Congress reinstates conscription the government can force you to kill for your country. If you accept that and still reject the insurance mandate, you’re willing to strain at a gnat and swallow a camel.
@Tsar Nicholas:
And that’s the extreme right mindset:
Buying insurance is tyrannical.
Dealing out injustice and death to americans with no evidence? Really F**king cool.
@Doug Mataconis: True, but it is still the law of the land. And it has been law for a very long time.
Are you arguing what the govt SHOULD be able to do or what the govt CAN do today.
Because until Wickard is overturned, which would be a radical, activist thing to do, overturning 70 years of precedent, the govt CAN require you to buy insurance, or just about anything else it wants to force you to buy.
@Jib:
With essentially the same membership, the Supreme Court also decided two years later that it was acceptable for the Federal Government to round up Japanese-Americans and put them in internment camps (See, Korematsu v. United States). That case has also never been over-turned.
My question is not about what the law is, but about what it should be.
Governments can do whatever their people allow them to do.
Mike
Could we focus maybe on the part where people are tortured and imprisoned without trial or even evidence…rather than on the part where people sometimes get to have sex without conception?
Maybe you can argue they come from the same problem but that does not mean that they are of equal weight.
Mike,
That’s not what the Constitutions says
@Doug Mataconis: “My question is not about what the law is, but about what it should be.”
Man’s law does not exist for its own sake. It exists to deal with Man’s problems. If Libertarians every want to be more than the fringe cranks of American politics, they need to focus on fixing problems, not coming up with brilliant reasons for why the law should ignore those problems.
Mike
@Doug Mataconis
Don’t you think questions regarding what the government should not be able to do are at this point meaningless? I hate to be the one to reveal this secret to the universe, but americans as a general rule are authoritarians, not lovers of liberty and independence.
There’s absolutely no way the clock will be turned back on any of this, not without blowing the entire system up and starting from scratch.
The only reason to mandate contraceptive coverage is because it is still (amazingly) controversial with a certain set of people and there’s no reason to let their barbarism victimize others. On the other hand coffee, gyms, and massages do not have any such enemies.
Was that really so hard? Can we get back to the part where the US now considers perfectly acceptable to disappear people to extra-judicial torture facilities hidden around the world?
@Doug Mataconis: “That’s not what the Constitutions says”
And for a heck of a long time, everyone understood the Constitution said that prayer in school was perfectly fine. What’s your point? If you think you can use the Constitution as a weapon to win political disputes, all you’re going to end up doing is breaking that weapon.
Mike
Obviously the government can do whatever the hell it wants as long as it gets five Supreme Court Justices to agree to it…whether or not that is right is another story…despite that, the health care mandate is hardly “tyranny” despite what some libertarians think…
It certainly can’t mandate something be stuck up my vagina with out my consent. Sweet baby jeebus, that one better be well established by now. If not, then good luck boys.
@Doug Mataconis: Ah, so its just another fantasy thread on the intertubes. Never mind, carry on.
@Jib:
Yea I get it. You don’t care about pesky things like laws and Constitutions.
The government can regulate taxes, but what if they decided to tax you everytime you blinked? They can coin money, but what if they used lead? They can declare war, but what if congress did it because the president lost a bet?
Logically, this is a bad line of argument. Unless the constitution was written in such a manner where it was only given powers that couldn’t be abused, then you aren’t actually arguing against anything, you’re just pointing out the ways congress can abuse powers it has. The ability of a power to be abused doesn’t magically mean the government doesn’t have that power. Health insurance pretty obviously falls under commerce.
The left has a pretty damn good way of limiting government abuse, and it’s been with the due process clause of the fourteenth amendment. The right has historically rejected this reasoning, while still embracing the general idea of a right to not be messed with by the government. So instead we just get inundated with bad constitutional logic from the right in reference to some rather explicit powers. Hell, Doug, you basically just implied in this thread that even taxing is out of purview of the government.
I break it to you conservatives, but you’re trying to read liberty out of a document that originally allowed SLAVERY.
@Tlaloc:
I don’t care if the mandate involves contraceptives or ketchup. I don’t think there’s any justification for the Congress to mandate any of the terms of an employer-sponsored health insurance plan.
@Console:
Try again. The power to tax is already in the Constitution.
Also, I am not a conservative
@Doug Mataconis:
That’s what john personna was saying.
We can go with the what-if’s forever on that on. If they government has the power to tax, then what can’t it tax, blah blah blah blah. The point is that it’s a bad argument. The government pretty obviously has the power to tax, and just going by article 1, section 8, it has almost an unlimited power to tax. Yes, congress has a specific set of powers. But some of those powers are ridiculously broad.
@Doug Mataconis: The only reason we have employer-funded health insurance is due to its tax-favored status under the federal statute ERISA, which mandates how employer-funded health insurance must be structured in order to receive favorable tax treatment. So under your argument, there should also not be any tax-favored treatment for employer-funded insurance plans.
Doug,
“You don’t care about pesky things like laws and Constitutions.”
We do. We just care more about how the Supreme Court views them than how Doug Mataconis thinks they should.
What MBunge says –
The PPACA mandate is a compromise between people who do not think we should let the old and the sick die for lack of money and those that think it costs too much. (With a big freaking bone thrown to the people that believe private insurance companies should be allowed to shake down the rest of the country.) Mandated contraception is a compromise between people that think women are basically walking incubators and those that think they deserve more choices.
Resolve those issues to the majority’s satisfaction without those mandates and you are golden.
Free-Riders add nearly $1000 a year to the health care costs of responsible people. The Governments role is to protect me from those whom I cannot protect myself. Should we mandate personal responsibility? Or should we not mandate that everyone is entitled to care regardless of ability to pay? That is the choice you set up.
Automobile insurance has been mandated for decades.
I have to buy a car with seatbelts.
Of course I can decide not to drive an automobile.
You cannot choose not to participate in the health care system.
These Libertarian fantasies fall apart with the least exposure to the real world.
Doug- I think it most Necessary and Proper that you post on this topic. Many people seem to have a fetish about the Constitution. They view it as inerrant. I dont think you fit into this group, I hope, so I would hope you understand that there is actually an honest disagreement about the meaning of the Constitution in this area. It is not clear. The proper course is for Congress to clarify it.
Steve
Pinning your hopes on a Supreme Court ruling is a sucker’s game.
@Doug Mataconis:
Well actually, it kinda does.
Yes, the federal government is limited, for example, to dealing with interstate commerce. But how do we ultimately decide what “interstate commerce” is and what the legitimate regulation thereof is? The answer is a combination of Congressional action (and popular will) mixed with the courts. The fact that there is a fight and that we have to answer the question of meaning is where the “limited” in “limited government” resides–not in some bright line about things like the mandate–because there is no bright line to see, i.e, we have to figure it out and part of that is exactly what @MBunge said.
This is not as clear in the constitution as you are making it out to be.
Heck, even the most definitive statements “Congress shall make no law…abridging the freedom of speech” end up being qualified through a series of congressional and judicial actions. And, by the way, the fact that they have been qualified does not mean that there aren’t limitations on the government (there clearly are).
And seriously: we by no means have a majoritarian system (not even close).
(And, to be honest, I thought the WSJ piece was silly–but it has been a busy day and I haven’t had time to blog). I understand the tongue-in-cheek element to it, but mandating health clubs is not the same thing as contraception, which is a radically important aspect of female health care–not to mention part of what has made equality of the sexes closer to reality in the last half-century than it ever was in all of human history. Indeed, when it comes to net expansions of liberty, insuring women so that they can access contraception is far more a net gain for liberty than a mandate that insurance plans cover it is a net detraction from liberty).
@ SLT…
Yes.
@Doug Mataconis: It’s funny, but whenever you write about gun laws, you treat the recent Supreme Court case overturning a century of precedent as if it had been handed down to Moses. Yup, that’s the settled law of the land, and since that decision, we go back and ignore the fact that anyone ever had a different interpretation of the second amendment. Now that you’re talking about something you disagree with, Supreme Court decisions are just more arguments for you to dismiss as tyranny.
So is the Supreme Court the only valid determinator of the law, or is it a voice that can be wrong and should be overturned when it is? Or does it depend on whether their decision matches your opinion?
Taylor is correct. The Constitution is not a document that was sent down by God to define what is and isn’t permissible for our society. It was written by men, who were concerned with defining the rules surrounding the problems they faced at the time. They also provided a framework for figuring out the problems that would come in the future, problems that they knew they couldn’t even begin to envision the scope of: one branch of government proposes, one executes, one decides.
The fact is that our modern world, and America’s place in that world, is based upon the supremacy of the Federal goverment over the State governments. We had a big keruffle about it and settled it right good a while back, and court case after court case has solidified that supremacy. Part of that supremacy is the right to mandate at the national level certain laws and regulations that are essential for our nation to function as a cohesive whole. To pretend that health care isn’t an integral part of modern life – and that lack of health care isn’t a tremendous economic drag on our entire society, even if someone is an idiot and believes they can do without it – is to pretend that things should be completely different than they are today. A different America,and there’s zero evidence it would be a better one.
I continually maintain that Libertarianism is a juvenile philosophy, not a workable one for society as a whole; a mindset that ignores the consequences of actions and the interconnected nature of modern life. It does not provide solutions. It only provides complaints about solutions proposed by others, and a callous hand to anyone who falls by the wayside.
@ Stan
Killing people is much more important than getting them to the doctor if they are sick. Where are your priorities?
Apparently they can’t mandate that contraception be covered by health insurance….
@Steven L. Taylor:
I would not say we have a system where the majority sets the rules or gets (or even should get) what it wants. Just that we have a system that the majority has to accept a given policy or it won’t succeed and/or won’t stay policy. It leaves a lot of grey area for solutions.
@c.red: Granted, my statement needs explication. However, due to federalism,gerrymandered single member districts, the Senate, and the filibuster we do not have a pure majoritarian system, not by a longshot (I will try and come back to this later).
I think I had just given you a perfectly valid justification- to keep the trogoldytes from sending women’s health back to the stone age. That certainly strikes me as a valid reason to step in. And it seems that there’s ample means to justify the step constitutionally as health care is about as obvious a case of “general welfare” as you’ll ever meet, along with insurance being a national market covered under interstate commerce, and the whole thing being subsumed under tax laws in the first place. That’s a trifecta of constitutionality right there.
So back to those torture chambers then…
They kept it to practically a pamphlet. They knew they didn’t have a crystal ball…
Denying the government the power to intelligently regulate an industry they pay half the bills on isn’t common sense.
@Doug Mataconis: No, it’s not what the constitution says; it’s what John Locke noted is the nature of the social contract that forms the foundations of constitutional government.
The problem with the examples is they are all non-medical, so they aren’t really useful to the PPACA discussion. Finding a cup of joe is just a little easier than contraception. Could Congress create a
broccolicoffee mandate? Sure, just add it to the IRS 1040 form as a new line item, and it’s done. Of course they could have done that 30 years ago, but they didn’t and aren’t going to in the future, so I’m not clear why it’s suddenly an issue after Obamacare was passed. (Of course I know it’s only controversial because of the childish temper tantrum the GOP has been in for the last 3 years. I firmly believe if Romney was elected in 2008, the mandate would not be newsworthy, so it’s hard for me not to laugh at the GOP arguments against it.)@Cycloptichorn: Bravo, especially for your last paragraph. Doug, for someone who is a lawyer, you certainly have a view of the Constitution that doesn’t fit that of any law professor I ever had. (Most of whom are quite cynical about it and any judgment handed down by the Supreme Court.) You may want to make the U.S. Constitution the equivalent of Natural Law and rant and rave about how modern regulations don’t follow it, but you know the Constitution is a mess. It was written with huge gaping holes and ambiguous bits in order to paper over the dissent between slaveholder and non-slaveholder, federalists and state’s rightists, and we’ve already had a freakin’ Civil War about certain other aspects that didn’t get mentioned.
The fact is, the more people you have together in a country, the more complex the links are going to have to be if you want to keep the economy chugging along, and the greater the push there will be towards federalism simply because it’s easier to keep the whole thing going that way.
Oh, and anyone who thinks that the lower courts actually DO believe that the Supreme Court is the “highest law of the land” should take a look at some patent law decisions. It’s a running joke among practitioners that the Supreme Court makes a decision on patent law, whereupon the Federal Circuit makes a whole bunch of decisions afterwards which totally ignore it and which drag the law off in some entirely different direction. Whereupon the Supreme Court gets miffed, grants cert to another case, and the whole thing starts again. (We’re having a nice squabble now about what Bilski REALLY meant.)
The problem I have with these, “OMG, you mean the government can…” arguments is they are at base unreasonable (in the Greek sense of lacking sophrosyne).
Cleon: Well, yes, I do admit we need an army.
Thrasymachus: The constitution provides for that. In fact, the government has the power to conscript to fill the ranks.
Cleon: Could the government draft me? I’m over 70.
Thrasymachus: There is nothing in constitution to prevent the government from drafting anyone it pleases to fill the ranks. However…
Cleon: Oh my god, you mean the government can draft my grandmother if it so wishes?
Thrasymachus: There’s nothing to prevent it in the constitution. But, look…
Cleon: But if the government can draft my grandmother, there’s no limit to what it can do. We’re living under tyranny.
Thrasymachus: That’s unreasonable. You’re supposing that because the government can do something, it will do something. There are other restraints on governmental power than the mere judicial. Anyone who seriously suggested we draft our grandmothers would be hooted down. He would be rightly characterized as a loon. Once again, just because the government can do something, doesn’t mean it will do something. Or better, just because the government can do something doesn’t mean it can really do that something.
We are well on the way to being subjects, not citizens. The question is still valid of just where in the Constitution is the Congress granted the authority to mandate that individuals buy health insurance. The answer is, of course, nowhere, not even in the Constitution’s “good and welfare” clause that House Judiciary Committee Chairman John Conyers, D-Mich., claimed justified the act. But of course, there is no such clause.
The Constitution does begin by saying that it’s purpose is (among others) to “promote the general welfare.” The signs have been evident for literally decades, but now it is blindingly clear that Democrat party believes that the preamble – which delegates no powers, that comes later in the document – gives them unlimited authority “to control the people,” in the words of Rep. John Dingell.
I wrote in 2003 that this was where we were headed under Bush. I did not think then that it would come this quickly.
The government keeps trying to fix lapses or disagreements in ethics or morality by creating mandates which tell people and entities how they should treat other. These lapses occur and it becomes a chicken and egg argument.
1. People who have health ‘insurance’ go to the doctor more than they would if they had to cover routine appointments out-of-pocket. This eats up time and resources for those who actually need to see the doctor. A cold or flu will usually go away on its own without a doctor’s appointment or prescription, but many people insist on a doctor’s visit and antibiotics if they have health care coverage.
2. Doctors/hospitals bill a lot more than what is covered under insurance to ensure they get the maximum amount of money they can from the insurance company. Of course, they do. However, that also means that if you choose to not have medical coverage, you will get billed the high dollar amount as well and you do not get to pay just a portion of it. You are expected to pay all of it. This inflates the cost of healthcare for everyone.
3. Hospitals are not allowed to turn away those without insurance. Not such a bad policy if it were not for two things. 1) The inflated cost of healthcare which almost ensures you will be unable to pay for the visit out-of-pocket. 2) A general feeling among the population that they should not have to pay for medical expenses, but rather it is a right, meaning most will not even try to negotiate a smaller bill and make payments.
4. The population, the hospitals/doctors and the insurance companies all behave badly and all deserve some of the blame for the current cost and state of healthcare in America. Yet, all of them point the finger at each other and refuse to behave better unless someone else does it first.
I realize this is a lot more specific than the original blog and there is more involved as these are just off the top of my head. However, the point is that mandates have been and are created in order to instruct people/businesses how to treat others because they are all treating each other unfairly. I understand the next question to be: whose ethics or morality? I think there are some which exist that almost any person can agree with like ‘treat others how you would wish to be treated.’ However, this starts with a core belief in doing what is right even when no one is watching.
@Donald Sensing:
Providing for the “general welfare” is most definitely mentioned in article 1, section 8. Not just the preamble. And it’s scope is an argument that dates back to when the constitution was written. Go back and read what Alexander Hamilton had to say about that clause.
Conyers may have mangled his words, but that doesn’t magically mean the guy in your article actually knows what the hell he’s talking about.
@Steven L. Taylor:
This is what frustrates me so much about you Doug. You think you have this monopoly on what “liberty” is, and you can’t seem to understand that there’s more perspectives than just yours.