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Saturday, Jul 14 2012 10:03 PM

PROGRESSIVE VS. CONSERVATIVE: Did chief justice, even in concurrence, misread the Commerce Clause?

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By WILLIAM BEZDEK

PROGRESSIVE: In the recent opinion of the Supreme Court upholding "Obamacare," Chief Justice John Roberts denied that the individual mandate could be upheld under the Commerce Clause of the Constitution. I respectfully disagree.

On Page 20 of the opinion, Roberts states: "the individual mandate, however, does not regulate existing commercial activity. It instead compels Individuals to become active in commerce by purchasing a product, on the grounds that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority." In his arguments he is attempting to make a distinction between activity and inactivity. Reading the opinion gives one the feeling that his logic is not very clear! He references Wickard v. Filburn and he cites the argument that the government could make you buy broccoli in order to compel a balanced diet.

Roscoe Filburn contested a federal penalty imposed on him because he exceeded his quota for wheat production. Filburn argued that by growing extra wheat for his own use, this permitted him the inactivity of not buying wheat on the open market. The court denied his argument on the ground that his inactivity when aggregated with others would affect the market price for wheat. Roberts seems to be confused by the fact that Filburn's activity of growing wheat in quantities beyond his quota was the main point but the ruling is against Filburn because his inactivity of not purchasing wheat for personal use was what would cause the interstate market harm.

His arguments about broccoli are also fallacious. There is not scientific evidence that eating broccoli improves health or not eating broccoli affects interstate commerce. Also, eating broccoli in no way lessens an individual's need for acute or emergency health care.

Physicians and hospitals by the very nature of their professions have an ethical duty to provide acute care and emergency care to any needy individual irrespective of their ability to pay. This duty has been formalized in the Emergency Medical Treatment and Active Labor Act. This act not only mandates these services but also imposes rather heavy penalties for failure to comply. The state has an interest in assuring that uninsured individuals not inflict an economic harm on caregivers or shift their burden to other segments of society. This need to assure that all users of medical care live up to their personal responsibility not to do economic harm certainly gives the state the ethical right to mandate that all persons buy insurance. (This applies if we as a society believe private insurance is the most desirable model needed to pay for everyone's need for acute and emergency care. The only other model to meet this ethical responsibility would be a national government-sponsored health system, i.e., Medicare for all. In this case the system would be financed by taxation.) The election not to buy health insurance certainly affects the economy of health care delivery and in my opinion should be covered by the Commerce Clause.

Roberts' most telling statement is this: "To an economist, perhaps, there is no difference between activity and inactivity: both have measurable economic effects on commerce." If this statement is true, why would he hold that the Commerce Clause does not apply to Obamacare? He attempts to justify his thinking by referring to the framers of the Constitution as "practical statesmen" not "metaphysical philosophers" and further states "the Framers of the Constitution were not mere visionaries, toying with speculations or theories, but practical men, dealing with the facts of political life, as they understood them."

This statement gives me pause about the chief justice's understanding of history. The Founding Fathers were certainly philosophers imbued with the ideas of the Enlightenment. They were indeed visionaries. In their time the predominant philosophical and political thinking was that the power to govern comes from God through the divine right of kings. The idea that political power comes from the consent of those governed was revolutionary and dangerous. Roberts states that the Constitution gave Congress the right to regulate commerce, not to compel it. The Federalists had explained that all prior democracies had failed and they knew that the survival of a "more perfect union" depended on a vibrant and regulated commerce. I am confident that they would have considered an inactivity that in the aggregate would make the commerce of health care unjust, unethical, excessively expensive, and prone to failure -- and that such inactivity would indeed compel regulation.

Dr. William D. Bezdek has practiced cardiology in Bakersfield for more than 35 years. He is a fellow of the American College of Physicians and a fellow of the American College of Cardiology.

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