Well, it seems to me to be a regulation of interstate commerce.
John
-----Original Message-----
From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]] On Behalf Of Bagley, Connie
Sent: Monday, November 14, 2011 5:34 PM
To: [log in to unmask]
Subject: Re: The need for a limiting principle?
Isn't it important that even uninsured use medical care that is interstate. Thus that is what congress is regulating. Connie
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-----Original message-----
From: Michael O'Hara <[log in to unmask]>
To: "[log in to unmask]" <[log in to unmask]>
Sent: Mon, Nov 14, 2011 22:32:03 GMT+00:00
Subject: Re: The need for a limiting principle?
ALSBTALK:
The comparison of health care to broccoli and to automobiles seems to my eyes to be more reflective of politics (e.g., Bush41 did not like broccoli) than relevant to constitutional law. Let's start with cars versus health care. Which of those two is intimately connected most frequently with one or more fundamental constitutional right(s) and which of those two is intimately connected most frequently with one or more constitutional privilege(s)? Is congressional authority under the "necessary and proper" clause identical when acting to foster a fundamental constitutional right as when fostering a constitutional privilege? Repeating those two questions with broccoli and health care is likely to generate the same answer for health care.
An attribute of the decision to or not to buy insurance for health care is the immediacy of, what economists call, the spillover cost. All market transactions always contain some magnitude of spillover costs and some magnitude of spillover benefits. All. Always. That said, most frequently the magnitude of error generated by even a remotely free market clearly is smaller than any likely magnitude of error from a remedial governmental action. But not always is government less efficient than the free market. Can you say "university"? And what are the relative magnitudes of spillover costs and of spillover benefits when a consumer does NOT purchase broccoli, a GM car, or insurance for health care? Are those relative magnitudes of error generated by a well functioning free market (let alone the actual insurance market in the USA that is far from a theoretical free market) from NOT buying broccoli, a GM car, and health insurance even as close as an order of magnitude different (e.g,, $1 for broccoli and $10 for insurance); or, are those relative magnitudes separated by multiple orders of magnitude (e.g., $1 for broccoli and $100,000 for insurance)? Additionally, that spillover cost, as measured by total dollars, primary falls on the government's budget. Is that relevant to "necessary and proper"? When, if ever, is deliberate imposition of a spillover cost actionable as theft; and, thus as preventable as such?
Often, straw men are relatively easy to defeat. Also, it's good to recall that some arguments are made as part of political discourse and are not seriously made as part of discourse on the law. The purpose is shift the location of the political center rather than to accurately describe the contours of permissible constitutional action.
Michael
Professor Michael J. O'Hara, J.D., Ph.D.
Finance, Banking, & Law Department
College of Business Administration
Mammel Hall 228
University of Nebraska at Omaha
6708 Pine Street
Omaha NE 68182-0048
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(402) 554 - 2823 voice fax (402) 554 - 2680
http://cba.unomaha.edu/faculty/mohara/web/ohara.htm
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