Affordable Care Act: Congress Shouldn’t Have the Power to Compel Commerce
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Affordable Care Act: Congress Shouldn’t Have the Power to Compel Commerce

November 8, 2019


Forcing Americans to buy something is a coerced
contract, and a coerced contract is an oxymoron under the law. The constitutionality of the
health care reform law known as the Affordable Care Act is currently pending before the Supreme
Court, and at the heart of the debate is the constitutionality over a portion of the law
known as the individual mandate. This portion of the law basically says every American has
to buy health insurance whether they want to or not. Now the reason why this is so controversial
is because contrary to sort of a popular misconception, Congress doesn’t have the power to pass
any kind of law it wants to in the name of the general welfare. Instead, every time Congress
passes a law it has to base that law in 1 of 17 very specific enumerated power sources
listed there in Article 1, Section 8 of the Constitution. In the case of the individual
mandate, the power source relied upon is Congress’s power to “regulate commerce.” So the $6
million question, if you will, is whether or not Congress, using its power to regulate
commerce, can regulate people who are not buying something, who are sitting out the
marketplace. In other words, does the power to regulate commerce include the power to
compel it? Now the role of the Supreme Court in this
case is very important, and it’s often misunderstood. A lot of people think the Supreme Court can
just uphold this law and rubber stamp it if they agree with the policy decision by Congress
to try to solve the problem of access to health care for the uninsured. Instead, the Court’s
role in this case is simply to interpret the relevant portion of the constitutional text,
in this case the words “regulate commerce,” and figure out what that means. Does it include
the power to coerce or compel commerce or not? The Institute for Justice submitted a brief
to the Supreme Court of which I was one of the coauthors. And what we say in our brief
is that there’s no way the power to regulate commerce can be reasonably interpreted as
including the power to compel commerce. The reason for that is actually quite simple.
It’s because for hundreds of years prior to the ratification of the Constitution it’s
been understood that to be legally binding a contract has to be based on the voluntary
mutual assent of the parties to the contract. So in other words, the law has always presupposed
that you cannot coerce a contract—that a coerced contract is in fact an oxymoron under
the law. So we have to figure out whether or not compelled
commerce is within the ambit of the power to regulate commerce. The implications in
this case for individual liberty are enormous because presumably if the power to regulate
commerce includes the power to compel or coerce contracts, lifelong contracts against your
will, then presumably it doesn’t just stop with this individual mandate. Our individual
liberty is at stake because they can force us to buy anything else. So you have to realize that whether you like
the idea of providing access to health insurance or not, you should, as an American, have deep
constitutional concerns about the implications of upholding this individual mandate. It would
effectively eviscerate the constitutional architecture that we’re supposed to have,
where the federal government is supposed to only have limited and enumerated powers only.
This version of a commerce clause would be unstoppable. It would create essentially an
omnipotent legislature. And that’s exactly the kind of legislature that our founding
generation spilled its blood to resist.

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  1. Look at Thailand, you don't even need a universal healthcare. In fact, so many foreigners from US and many others come all the way to Thailand for treatments…..

    Like, seriously?

  2. @Joshie W are you kidding? I wouldn't let the Nutcases and Control-Freaks in Washington touch the Constitution with a 10ft stick! If rewritten, it would have crap like "Free Speech…Unless it offends someone" and "Right to bear hunting weapons, nothing else" and "Free Religion, so long as you don't mention it ANYWHERE in the government". No, there is nothing wrong with our Constitution.

  3. You are right. It is so crazy. Two of the most criticized industries are healthcare and banking. These are two of the LEAST capitalistic industries in the USA. Both are significantly cartelized and regulated by the gov't.

  4. Democracy is two wolves and a sheep deciding what is for lunch.

    The majority isn't always right. Democracy has been used to commit many atrocities.

    The point of a constitution is to limit what democracy can do because many people disagree about what is actually "the good of the people."

  5. Was the supreme court's decision was that the "fine" you pay for not purchasing health insurance was okay because it was a "tax?"

    If so, what's to stop the government from declaring that all U.S. citizens must buy ANY random thing and "taxing you" 100% of your life savings if you don't?

  6. I'm forced to get health insurance for myself and my family – why? We do not go to the doctor or hospital – EVER, unless it's a true emergency! I previously worked in the healthcare field and saw how MEDICAID patients abused their RIGHT of free healthcare. There were many of them who showed up almost everyday for ridiculous reasons! "His (a 2 month old) ear still hurts, he's teething, she has a runny nose, low-grade fever, her fingernail looks too pink" and on and on! But I have to pay – Thanks

  7. Joshie, where are you getting your statistics? "MILLIONS of people die or can't afford healthcare"??? No, the way our government is set up is that the so-called poor (who are NOT poor bc most are drug dealers) get "free" everything paid for by the rich and middle class, while the middle class do not qualify for ANYTHING, especially if they are MARRIED. But, if you want free stuff, have babies by several different men and BOOM – ya rich gurl! Everything is now "FREE"! Woo hoo!

  8. The way I see it, If you seperate the chooser and the payer of a particular good or service, prices will always rise substantially. Sure, the chooser still has the choice to shop around for drugs and medical sevices, but there's no incentive to do so. People only care if their insurance is accepted or not. And now this system of chooser/payer seperation is mandatory…

  9. I agree with Greta Van Susteren's sister's point of view. We have a history of laws in the U.S. there have been unconstitutional and yet upheld by the court. This is one of them. They ruled it a tax. That is like taxing people who don't own a gun because law enforcement has to protect them.

  10. Wait a second, if we leave it to each individuals to buy their own private healthcare programs, wouldn't we have 300 satisfied individuals?

  11. Who said that the systems they support will prevent individuals from buying it.

    For example I support the state providing a low quality healthcare alternative to individuals that cannot afford to pay for healthcare. This would solely be for individuals unable to afford healthcare, and give them a default healthcare that would at least prevent them from dying.

  12. unfortunately this bill is now Law,cuz the supreme court said yes it is commerce and can be regulated and taxed

    i do not agree with this decision because of Article 1 Section 8,which says…

    "Congress shall have power……to regulate commerce with foreign Nations, and among the several STATES, and with Indian Tribes…."

    it does NOT say regulate commerce between the federal gov't and individuals nor to force us into commerce and tax us for it

  13. they're not forced to, they just pay a tax if they don't. and rightly so, because they're gonna need medical care at some point, and they won't be able to pay for it, shifting the burden to the taxpayers.

  14. have you not been paying attention? costs have been going up every year by an amout that greatly exceeds the rate of inflation.

  15. article one section 8 im looking at it in my government textbook _American Goverment Roots and Reform 2011 Edition_ edition Karen O'Connor, Larry Sabato and Alixandria Yanus. Its a power of the legislative branch

  16. They aren't forced to buy health insurance, but if Obama had it his way, he would make people pay a penalty. Now it is worded as a "tax". You aren't exactly forcing, but you are punishing people.

  17. @Gillard, so your saying that if the constitution protects you from the government extorting you (it does), it needs to be changed? People need healed, not insurance. Insurance is what jacked the prices anyway. My sister has spinal arthritis and because of this companies won't hire full time and she can't afford insurance even if she could get it. Yet, she's going to have to pay a fine if she can't get any by 2014. I'm putting her under my plan, but it shows you how bad Obamacare is.

  18. That is a state issue, and not all states require it. In the case of health care we are talking about a federal issue, which is very different.

  19. I understand why we buy car insurance. That is because a car is a weapon and it kills more people than murder through guns, blunt objects, and drugs combined. Not only that, when you are in a car, is is not just you, you are putting at risk everybody around you.

    Health insurance is nothing like this.

  20. Our healthcare system isn't even based on capitalism, when was the last time you seen hospitals, pharmaceutical companies, doctors, and treatment centers advertising their rates? In order for anything to work in a democratic system it needs competition, there is NONE with our current healthcare system. Republicans had their chance to reform it and failed because there was too much money on the line, the end result is Obamacare. DEAL WITH IT.

  21. Responsibility is the point of the affordable care act. Every one is responsible for having health insurance. This was viewed as a great thing when the heritage foundation first came up with the idea. That's why Romney pasted it in Massachusetts. The justification you provide for car insurance applies the same with health insurance.

  22. That is not responsibility, that if forced payment. Responsibility is taking care of yourself because you decided to. Vermont, their health care costs the average person 300+ a month. South Carolina, its 170. How the heck is that possible if affordable care act so important? Healthcare in Switzerland, Hongkong, and Singapore are all cheaper, Not only that, they live the longest there.

  23. The affordable care act has yet to take full effect. We do not know yet if it will lower cost's. Insurance company's charge different rates in different states. That's just the market and has nothing to do with the ACA. The cost of health care out side the US is cheaper no matter where you look. Most nations have adopted socialized health care.

  24. It will not lower the costs. If you see the countries with the best results, and the cheapest healthcare, the circumstances are very similar. Switzerland, HongKong, and Singapore. Most nations have adopted socialized healthcare, but just because most people do something, does not make it right. If socialism did make things cheaper, then the Soviet Union should be the wealthiest nation in history… by your logic.

  25. Socialism in general is not about making wealth. The soviet union was a totalitarian regime that said it was on the path to communism yet never seemed to get there. We can look at the numbers. Germany the UK and France all have cheaper healthcare with better results. ACA assumes the truth of market competition leading to lower prices. Will this work? I think not. I think we should have single payer healthcare. How would you change things?

  26. Germany, the UK, and France have cheaper medicare, but they get less. In America, you get private rooms, surgery at a moments notice, and you can decide when and where to get it. You cannot in Germany, UK, and France. In fact, there is a wait list where 10% of the population have to wait more than 10 months of life threatening surgery.

    I said the Soviet Union because there was no profit and the government ran everything… Sound familiar?

  27. I have never met any one from the UK, France or Germany that had to wait 10 months for any medical procedure. I have asked many people from said nations none of them had such a complaint. What is the source for your 10% wait list? I do not understand what you are inferring about the soviet union and healthcare.

  28. Actually you can , just use private hospitals. Yeah they exists even in europe surprised?
    Health culture and food should be the few thing that every human being have granted. There are many way to archieve it , but one conditio sine qua non is to take out personal profit from the equation. I'm not talking about socialism just to grant some basic stuff.

    PS: Healthcare cost per capita in the us is 9000$ where in europe is arround 3000$ , we are better off. Go check the data.

  29. What you imply, is that profits weight down the system. If that was true then the Soviet Union, one of the most socialist countries that ever existed, should have been the most efficient machines on the planet. The fact is, profits help both producers and consumers prioritize where resources should go. And yes there are plenty of documented cases where people are on the wait list for months and die on it. In the US, you get treatment immediately but it will cost you. You value money or life?

  30. Those private hospitals are laughable. That is equivalent to saying "Of course luxury housing is available to everyone…. its just that only rich people use it"

    In Switzerland, Hongkong, and Singapore, they have the cheapest healthcare and their people are the most healthiest. They get the most for their money.

    America is not perfect. We have thousands of regulations and laws that bump up the price. Look at Hong Kong for a better example.

  31. Insurance can only make a profit by denying coverage. There is no prioritizing on the part of the consumer. If you cant afford medical care you ether do not get it or go bankrupt because you got it. Healthcare is not the same as a consumer good like a TV. Not getting a TV will not kill you where as not getting healthcare will. If for profit healthcare is good then why not privatize all social services. Police, fire, military all would be better off in the free market by your logic.

  32. That makes no sense. Healthcare is not denied to people. They raise the costs just like every other insurance company. If you try and get a mortgage, and you have a bad credit, guess what…. they are going to charge extra. If you have lots of tickets and crashed your car…. guess what…. they are going to charge more. Same with health care. And in America, Police and fire is mostly privatized. Only 20% is owned by the government. Military is different from healthcare…You should know

  33. Police and fire are only 20% owned by government? If you can give me evidence of this then I will say you are right and I am wrong. The military, healthcare and a TV are different from each other. How could any one not know? Do you have insurance and have you used it?

  34. Yes only 20% are owned by the government. The majority of police is funded by local governments and run independently. This accounts of sheriffs, county police, and many more. Most are located in the suburban neighborhoods and small cities.

    The famous ones that are not privately run are the ones in major cities like LAPD, NYPD, and Chicago PD. Those are under complete government control. Same goes for fire department.

  35. Fire Department is different in that majority of it is volunteer, but government owned is still the minority compared to private and volunteer. It is just not worth while for government to run the police and fire department if crime and fire is manageable and the people aren't dumbasses.

  36. What do you define as government? I can see from your comments that we have a different definition.

  37. Government funding is different from government run. Halliburton is government funded, the DMV is government run.

    This also goes to the private Sector. Toyota funds many researches, but they are not running it and they do not have autonomy over it. Government is similar in this aspect.

  38. Sheriffs are elected government servants. Saying a sheriff is not part of the government is like saying the governor of your state is not part of the government. .County police are run and paid for by county governments. There is no private sector police force in operation in the US. There is only different kinds of government police.

  39. Volunteer fire departments tend to be in small towns. If your town is very small then yes it would not make since to have a professional fire department. The equipment volunteer fire fighters use is paid for by the town. They serve the towns they live in as a civic duty not for profit or the market.

  40. Yes, that those private hospitals are only available to rich people when in Switzerland, Singapore, and HongKong they are available to everybody? And that Switzerland, Singapore, and HongKong have cheaper healthcare and better healthcare than those European countries? Maybe its that the people have more healthcare even though they spend less money…..Not sure which point you were trying to make there.

  41. Is says regulate commerce with other nations and the several states and Indian tribes. It does not nowhere say regulate commerce with each individual citizen.

  42. Wait why did we not hear this uproar when I was forced to buy car insurance, or homeowners insurance, or stuff for the military, or new roads, (the list could go on) this seems like a weak argument.

  43. because you are not forced to buy car or home insurance, in the way that you don't have to buy a car or home which you can rent. But with this you will be forced to buy health insurance, regardless, without the option to opt out or say no in ANY way

  44. I've spoke with an expert on Health insurance, and he explained how this bill is absolute brilliance.

    Most people who criticize the bill argue it's constitutional morality. Is it constitutional moral? I don't know

    But would it help this country a lot? Fuck yes it would.

  45. So you're saying that the gist of the health care bill is not to provide healthcare, but to impose standards of health en masse? Way to destroy your own argument.

  46. An "expert on health insurance," I see. Well, they're also a fool. The problem that needs to be addressed is the cost of health CARE. Further subsidizing already subsidized health care spending by expanding the use of insurance even further beyond the legitimate role of insurance will do what subsidization does: it will likely lead to product (care) shortages and/or rising prices, not decreasing prices. Socialized medicine doesn't work and neither will Obamacare, it's horrendous.

  47. Congress has the power to maintain an army The States pay for maintenance of most roadways, mandate the purchase of auto insurance and I would imagine homeowners insurance (if they do)..Have you read the Constitution, the history behind it or the words of it's defenders and ratifiers? Congress was intended to only have powers in very specific areas. Socialists don't like that, so they ignore it. States have powers not held by the central government..and for good reason.

  48. I understand what you're saying, but from a practical standpoint, prior to PPACA paying customers were forced to subsidize ER visits for the poor. Now we're saying they *must* pay their own way. The only other option I see is to not provide care to the poor/uninsured, but I don't see that happening. IF (big if) we're going to pay for them anyway, shouldn't they be asked to pay their own way?

  49. Although I disagree for reasons I won't mention in this comment, I'd just like to point out that I respect your argument for your lack of insults or capslock.

  50. "forcing" Americans to pay for a service is already well established. They already pay without complaint for firefighters, the police and road repairs (among other things). If individual liberty is so important, why don't we allow Americans to decide whether they would like to pay for those services? After all, not all American use the roads right? Why should they have to pay for someone's else's benefit?

  51. I greatly appreciate Foley's articulate argument here, but I believe that she should also discuss the federal jurisdiction laid out in the commerce clause. Even if we were to adopt the necessary fantasies to say that "regulate" implies "compel," the federal government is still not granted the power to regulate commerce WITHIN the states. It only has the power to regulate commerce AMONG the states, and with foreign powers and Indian tribes.

  52. The Constitution defines the role of the *federal* government. Everything you've mentioned here is a state/local matter. You would do well to know the difference.

  53. Wickard v. Filburn determined that NOT doing something can be regulated.. More significant is that the bill, ruled as a tax by scotus, originated in the senate and that the use of "budget reconciliation" in this case is unconstitutional.

    I am as sad as anyone that cares about the constitution that the argument put forward here is dead, but it still is.

  54. Regulate: To control or maintain the rate or speed of (a machine or process) so that it operates properly. Make of that what you will. Also since the Individual Mandate is being labelled as a tax (and if you pause at 0:56 you can see it very clearly; "The Congress shall have the power to lay and collect taxes") this whole video is 4 minutes and 32 seconds discussing a moot point. A.K.A. A waste of time.

  55. Well the supreme court upheld it. Libertarians and the US constitution have a complicated relationship.

  56. It's not forcing people to buy health insurance. They can pay the fine/tax if they really don't want to participate in the market. If you consider that to be unconstitutional, than you must consider the idea of government taxing individuals to be unconstitutional as well.

  57. "The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." just saying

  58. Not American, so don't know for sure, but isnt ACA the same as ObamaCare, in which case it is voluntary signups ?? So the whole thing about forcing to buy a product is bs?

  59. 00:59 Section 8, Clause 1, "…Congress shall have the power to lay and collect taxes… To pay for the debts and provide for the common defense and GENERAL WELFARE"

    If you're trying to prove a point it might help not to remind people at the very first minute of your video that your point is bullshit. Just saying.

  60. Lets say the people by an overwhelming majority want socialized medicine is the only Constitutionally allowed method to provide it through taxes?

  61. health insurance should be free. it's sick to require payment for making someone well. Canada has the right idea!

  62. Finally a group that agrees with me the individual. The Congress has zero authority to mandate and compel compliance regarding individual commerce. Commerce in the constitution means what it says – foreign nations, the states and Indian tribes. There is no mention to regulate / compel contracts among the citizens with anyone. A contract is voluntary. Only and individual who hates liberty and wants to be pulled around by the nose would believe in such a forced mandate. What is next mandating a specific vehicle that must be purchased? Mandating the types of homes that must be built. Individuals claim that one may elect to pay the fine if they refuse to comply. When one reads the law – anyone who does not receive a refund cannot be forced to pay such a fine and the IRS cannot enforce the fine mandate. Commerce was written to deal with taxation on businesses simply passing thru one state to deliver goods across several states.

  63. I think clause one would be the clause relied upon because of the part about taxes for the general welfar

  64. The SCOTUS has since ruled that the Affordable Health Care Act can compel an individual to buy health insurance against their will. Does this ruling also mean that insurance companies can be forced to sell health insurance against their will or at a loss?

  65. I believe its unconstitutional to fine me for no buying something I am not willing to use. I have a family History where doctors only killed my relatives. I believe in Human power to heal ourselves and its called immune system and Doctors don't have a magic dust or have a magic pill. I am 37 and I got sick many times I never had health insurance I never could afford it but I think is better because I learned to take care better of myself. I have seen how doctors mistreated patients in the USA they charge hundreds of thousands for doing something you could do on your own let your body heal. I believe all children should have health insurance and I don't mind paying on my taxes. But punishing me for no buying something I don't agree you taking money worth of food for myself that is even worse than forcing me to buy Obamacare that won't help me in the event of sickness.

  66. A MODEST PROPOSAL for Republicans to reform the health care system and provide many new
    benefits. This is a reasonable alternative to a single payers system or
    the ACA act.
    1. Repeal Obamacare and the expansion of medicaid.
    2. Stop paying for the uninsured and Illegals by the government or insurance companies.
    3. Make sure all people get appropriate treatment.
    3a. If a person cannot pay for the health care at the hospital they receive alternative treatment.
    they are transfer him to the euthanasia ward for a quick and painless death to
    end their and the families suffering.
    4. A panel of Insurance company Rep would decide who can afford regular
    treatment. Note this is a life panel, it picks out who will live.
    5. This plan would have a no negative cost since the organs of the euthanized would pay for the wards and treatment.

    Positives are
    The taxpayer are not stuck with the bill
    It would reduce the takers in society
    Everyone would be treated.
    Relieve the pain and slow death of the ill.
    Quicker treatments at the ER.
    All patients would have a sense of closure.
    Live expediency would increase (natural deaths).
    Provide organs for those in need of organ transplants
    The government would be out of health care and benefit the givers of society.
    A huge cut in health care expense to society and the government,
    Big tax cuts and lower insurance rates
    Much better health care for those that receive it.

  67. Obamacare is unconstitutional. No more taxation without an increase in representation. They want me to pay for healthcare, then I have a right to choose and vote on how that healthcare is provided and what it is.

  68. The 5th circuit has deemed that the ACA (ZERO's legacy } was Unconstitutional ?
    Wasn't ZERO a Constitutional attorney ???

  69. Interesting that healthcare has already been labeled a business and not a public health issue. So the next step is to apply the constitution to this commercial entity who should be a health and safety entity. How about working towards making it about health instead? We already have a large population pushing for a single payer system. When you allow the wealthy to re distribute their wealth so that they can add Medicaid benefits to their Medicare benefits, it is only fair to allow the person in the middle to access those benefits too. Medicaid was designed for the very poor based on income, if you are beyond that income and not disabled, you get nothing. Those are the people that affordable health care was meant for. If it wasn't doing that, it should have been modified and not destroyed. Now Medicaid is for the very poor and for the wealthy enough to hire attorneys to make them eligible for it. So, again, the middle is struggling. Medicare and the Social Security system was turned into some odd mutant when it allowed benefits for people that never worked and contributed to it, based on the fact that they have a disability that will keep them from working. WTF? SSI benefits for children and low income people that automatically comes with Medicaid and Food Stamps and HEAP benefits. Why? And we wonder why the budget can't be balanced federally and statewide? Each time legislators try to modify Medicaid, special interests make it a discrimination issue and force governments to make it more accessible and faster to get. Most people don't know that is not about attacking the poor and the disabled, but about regulating how the wealthy access Medicaid, so they side with the attorneys, the advocates, providers, etc. If there is to be a single payer system, it should be Medicaid for all, not Medicare. Politicians and even lawyers don't know the difference. I payed into Medicare, it should not be for those who never paid into it. But, stop keeping the middle class out!

  70. Forget about the "tax/penalty", the real meat of the question regarding the constitutionality of the A.C.A. is the 10th Ammendment and that nowhere at all in the Constitution does it provide the federal government power over health care or insurance. That said, health care/insurance is a state power at best.

  71. Why do they force Social Security in the same matter we can not opted out of it and car insurance. Lets take the government to court to sue them.

  72. Corporations are getting filthy rich…..🤔

    JUST BY SIGNING PEOPLE UP.👍

    No one's talking about that.😎

    No one.👍
    None.🤨
    NO BODY!! 😖

  73. I have a stake in Company A. I force you to buy Company A. Seems like a classic politician's move.

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