As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress’s power…[however], this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.¹

First, how is choosing not to purchase something ‘economic activity?’ I choose not to purchase literally thousands of products annually by simply not purchasing them; under this court’s finding, the most absurd, but seemingly allowable, conclusion I must draw is that these decisions can be regulated by Congress under the commerce clause. One might argue that Congress would never go beyond health care, but what would stop them from writing legislation doing just that in the future? Wouldn’t this set a precedent for future legislation and case law?

Perhaps my logic is unsound, but a little explanation can go a long way here–I certainly need it.

What I can gather, based on some of the commentary I’ve read before and related to this decision, is that the market for health care is deemed a special case in this instance because everyone eventually requires the use of some health services. And now that insurance companies must accept all comers at the same price levels, regardless of risk, the costs would spiral out of control unless everyone purchases a plan to balance things out. Thus, choosing not to purchase health insurance would have a negative economic impact on everyone else, so it must be regulated.

But none of this makes a lick of sense. Government regulation created the conditions, not economic activity/inactivity. What stops them from regulating/mandating everything under this rationale?

In a recent post discussing rights and duties, James Otteson lays out the interplay between the two very well and the important roles each play:

Whether one has a “right” to something is whether someone else has a duty to provide it. The two—a right and its correlative duty—are logically inseparable; like mountain and valley or ebb and flow, one exists only with the other. Hence if no one has a duty to provide you something, you have no right to it; and you can claim a right to something only if it is someone else’s duty to provide it for you.

He goes on to say that if one really, really wants whatever it is they’re clamoring for, it does not then become a right, nor does it become a duty for another to provide it for them.

The whole post is a pretty interesting discussion concerning positive and and negative liberty, one that I’ll leave to you to read and digest, but it brushes nicely over the current health care debate.

The question we have is, if health care is a right, as claimed, who then has the duty to provide it at their expense? Anyway, read the article and the accompanying discussion for a little balance.

From a certain perspective, what is deemed moral is that which is seen as the “greatest good for the greatest number of people.” Though the act of passing universal healthcare is done with great moral intentions, it will ultimately impact the greatest number of individuals more negatively over time, and will serve to help the fewest at inception.

What negative impact would such a program have on a greater portion of society than that which it is designed to serve? Simply, its costs will become increasingly astronomical and undeniably unaffordable over time, and in such a way as to cause catastrophic collapse unless a change is made in expenditures or in tax collection.

And while we are, in sum total, the wealthiest nation on earth, a great deal of this wealth is built on debt, from the car or house many own to the ever increasing debt of the federal government built year after year on deficit spending for various social programs and military expeditions.

This is not to say that those less well off should be left to wallow in misery; it is simply the role of societal institutions, and not government, to ensure individuals are cared for, and seemingly the most moral way. And so from this interpretation of morality it is difficult to say whether the passage of a government program designed to assist such a small percentage of the population is truly the most moral path to take.

But, of course, the issue of morality is complicated. Our tradition of governance is not; it is about negative liberty, or rather what the government will not do in order to maintain an individual’s right to life, liberty, and private property.

Passage of universal health care, or the passage of a similar program, diminishes this tradition by creating a sense of entitlement in a population looking for positive liberty—or what the government will provide—at the expense of an individual’s right to property, by increasing taxes, and the liberty one enjoys when deciding how to provide their own health and wellness, by supplanting that with a system designed to mandate what qualifies as quality care rather than that which is based on an individual’s needs.

Mike Mattner
Benton Harbor, MI

“Cynthia, I have filled out my travel history half a dozen times already this year. I’ve told six different airlines that I flew to Detroit twice and Houston once. Every time I fly, I answer the same battery of questions. At least a dozen airlines have my travel history. Why don’t you get it from them?”

“We have no way we could do that. We do not have access to other companies’ records, and our personnel have our own system for collecting travel history.”