« Jeremy Bailey on Charles Thach's "Creation of the Presidency, 1775-1789"
Michael Ramsey
| Main | Marshall and Madison on Immigration Power, Part 1
Michael Ramsey
»

05/20/2012

Brett Bellmore: Is Insurance "Interstate"?
Michael Ramsey

Brett Bellmore sends the following, continuing the discussion of the originalist case for the individual mandate (see here):

I must admit that I've never been comfortable with the N&P argument for the federal government getting to exercise unenumerated powers. (Maybe we ought to amend the Constitution to incorporate a "convenient and eh, whatever" clause, but we haven't yet.) But I can at least understand it where a regulation targets interstate commerce, and incidentally impacts some part of intrastate commerce.

However, how does the ACA fall into this category? I've got insurance with BC/BS of South Carolina. This *can* involve an element of interstate commerce, if the insurance happens to cover me when I'm in another state. But as a simple matter of actual fact, my insurance company has paid out tens of thousands of dollars for my treatment, and not one cent of it was ever out of state. Most people's experiences are much the same.

Health insurance is almost entirely intra-state, the inter-state component is small and incidental. This isn't a matter of incidentally impacting matters beyond the enumerated power, virtually the entire impact of the law is on intra-state commerce. The intra-state commerce isn't an incidental target of the regulation, it's the primary target.

This isn't Congress regrettably regulating some intra-state commerce to make the inter-state regulation effective. This is Congress totally blowing off the distinction, simply not caring about anything following "To regulate..."

This is deciding that most of the language in the interstate commerce clause is void, and just using a claim that they're regulating the intra-state commerce to get at interstate commerce as an excuse. And not even a premeditated excuse, they didn't even bother to consider such matters when they wrote the ... law, they just proceed on the basis that if they feel like regulating something, they can.  ...

Two points in response:   (1) I agree it's an core question for originalists whether the insurance market is principally interstate or principally intra-state.  If the latter, the individual mandate seems like a large stretch, for the reasons stated above.  But I'm not sure that's right on the facts.  My insurer (in California) is Anthem Blue Cross, which claims to be the largest health insurer in California; it's a subsidiary of WellPoint, Inc., a company headquartered in Indianapolis with health insurance operations in at least 14 states.  This all sounds pretty interstate to me, and I think my insurance situation is fairly typical, although I know little about the details of the health insurance industry and I could be persuaded otherwise.  (It would be different if WellPoint were just a passive investor in independent insurance operations within various states, but my sense is that this is an integrated and centrally-managed operation.)  

(2) I wonder if Mr. Bellmore's quarrel is really with McCulloch v. Maryland (which an originalist could quarrel with, but it would take a very weak view of precedent to back away from it now).  Nonetheless, I like his counterpoint of the "convenient and eh, whatever clause": there must be some limit to Congress' ability to leverage interstate commerce to reach whatever it wants, or the necessary-and-proper clause renders the rest of Article I, Section 8 irrelevant.  That's the core power of the "there must be some limit" argument in the health care litigation.  I don't dispute that; I only expressed some doubts about whether the ACA is the place to draw the line (assuming my view of the industry in (1) is right).   Again, I think the focus must be on the "proper" part of the clause: the problem with the individual mandate, if there is one, must be not that it isn't sufficiently related to interstate commerce to be "necessary" [in the McCulloch sense], but that it is such an intrusive form of regulation upon individuals that it isn't "proper."  Put another way, if you think the problem is just that insurance isn't "interstate" (or "commerce"), then an individual mandate in sectors that clearly are "interstate" and "commerce" like cars or broccoli should be constitutional.  I don't think most people who object to the health care mandate think that's the right answer, so it seems that this case really turns on the nature of the mandate, not the nature of the product.

RELATED: David Kopel: The PPACA in Wonderland.

UPDATE:  Brett Bellmore adds:

A few large companies? I'm not sure that's an accurate description. Sounds more like a bunch of franchises renting out the nationwide name, to me. But that's one of the questions here. If you locally sell something in Iowa, and you locally sell something in Georgia, I suppose you can call this part of a national market, in that the intra-state transactions are happening in all parts of the nation. But does that mean they're not intra-state anymore? Not by my understanding of "intra-state."