The Health Care Reform Act seeks to reduce the number of uninsured Americans
and the escalating costs they impose on the health care system.
The crux of plaintiffs’ argument is that the federal government has never attempted
to regulate inactivity, or a person’s mere existence within our Nation’s boundaries, under
the auspices of the Commerce Clause. It is plaintiffs’ position that if the Act is found
constitutional, the Commerce Clause would provide Congress with the authority to regulate
every aspect of our lives, including our choice to refrain from acting.
The Supreme Court has expanded the reach of the Commerce Clause to reach
purely local, non-commercial activity, simply because it is an integral part of a broader
statutory scheme that permissibly regulates interstate commerce. Two cases, decided
sixty years apart, demonstrate the breadth of the Commerce power and the deference
accorded Congress’s judgments. (p. 12)
Plaintiffs in the present case focus on the common fact that each
of the regulations that survived Supreme Court scrutiny under the Commerce Clause
regulated an economic “activity,” as opposed to the “inactivity” they have demonstrated by
merely existing and not purchasing health care insurance. The Supreme Court has always
required an economic or commercial component in order to uphold an act under the
Commerce Clause. The Court has never needed to address the activity/inactivity
distinction advanced by plaintiffs because in every Commerce Clause case presented thus
far, there has been some sort of activity. (p.15)
The health care market is unlike other markets. No one can guarantee his or her
health, or ensure that he or she will never participate in the health care market. Indeed, the
opposite is nearly always true. The question is how participants in the health care market
pay for medical expenses – through insurance, or through an attempt to pay out of pocket
with a backstop of uncompensated care funded by third parties. This phenomenon of costshifting
is what makes the health care market unique.
As inseparable and integral members of the health care services market, plaintiffs have made a choice regarding the method of payment for the services they expect to receive. The government makes the apropos analogy of paying by credit card rather than by check.
Similarly, plaintiffs in this case are participants in the
health care services market. They are not outside the market. While plaintiffs describe the
Commerce Clause power as reaching economic activity, the government’s characterization
of the Commerce Clause reaching economic decisions is more accurate.
The Act regulates a broader interstate market in health care services. This is not
a market created by Congress, it is one created by the fundamental need for health care
and the necessity of paying for such services received. The provision at issue addresses
cost-shifting in those markets and operates as an essential part of a comprehensive
regulatory scheme. The uninsured, like plaintiffs, benefit from the “guaranteed issue”
provision in the Act, which enables them to become insured even when they are already
sick. This benefit makes imposing the minimum coverage provision appropriate. (p. 18)
a. There is No Right to Consume or Feed Children Any Particular Food
b. There is No Generalized Right to Bodily and Physical Health
c. There is No Fundamental Right to Freedom of Contract
(1) Plaintiffs do not have a fundamental right to own and use a dairy cow or a dairy herd;
(2) Plaintiffs do not have a fundamental right to consume the milk from their own cow;
(3) Plaintiffs do not have a fundamental right to board their cow at the farm of a farmer;
(4) The Zinniker Plaintiffs’ private contract does not fall outside the scope of the States’ police power;
(5) Plaintiffs do not have a fundamental right to produce and consume the foods of their choice;
(6) DATCP [Wisconsin Department of Agriculture, Trade and Consumer Protection] . . . had jurisdiction to regulate the Zinniker Plaintiffs’ conduct.
The principle which justifies… a discrimination in assessment and taxation, where one of the owners is a railroad corporation and the other a natural person, would also sustain it where both owners are natural persons
It would be a singular comment upon the weakness and character of our republican institutions if the valuation and consequent taxation of property could vary according as the owner is white, or black, or yellow, or old, or young, or male, or female… Strangely, indeed, would the law sound in case it read that in the assessment and taxation of property a deduction should be made for mortgages thereon if the property be owned by white men or by old men, and not deducted if owned by black men or by young men; deducted if owned by landsmen, not deducted if owned by sailors; deducted if owned by married men, not deducted if owned by bachelors; deducted if owned by men doing business alone, not deducted if owned by men doing business in partnerships or other associations; deducted if owned by trading corporations, not deducted if owned by churches or universities; and so on, making a discrimination whenever there was any difference in the character or pursuit or condition of the owner. To levy taxes upon a valuation of property thus made is of the very essence of tyranny, and has never been done except by bad governments in evil times, exercising arbitrary and despotic power.
The circuit court in Santa Clara did not avoid discussion of an underlying jurisprudence. Its opinion confidently presented corporate personality as a legitimate and necessary aspect of economic “leadership” in society, rather than as a form of economic domination as the Populists argued. The decision announced broad constitutional protection for corporate persons within a description of society as a system of market relations…
The court thus asserted, in a converse syllogism, that where law prohibits discrimination between human beings (“natural persons”), no discrimination may be made between human beings and corporations. The court’s justification for this proposition was set out in a series of hypothetical statements describing varieties of discrimination. The text moved from discrimination based on human characteristics to discrimination based on characteristics of human economic behavior to discrimination involving strictly economic categories…
Note the semantic structure of the opinion. The distinction between individual economic activity and the activity of economic organizations was smoothly elided. Differences of economic function were neatly equated with human differences. Signs of natural human difference—race, sex, age—were intertwined with signs denoting types of institutions and forms of business organization. In this way the doctrine of legal personality admitted no distinction between humans and human organizations, between biology and politics—one was included within the other. Human existence was subsumed in the abstract realm of political economy. This semantic movement reached its foreordained conclusion: the concept of human equality in the Fourteenth Amendment not only extended to the nonhuman but prohibited any distinction between human and nonhuman, between humans and corporations.
the aggregate wealth of all the… companies engaged in business, or formed for religious, educational, or scientific purposes, amounts to billions upon billions of dollars… and furnishes employment, comforts, and luxuries to all classes, and thus promotes civilization and progress… the persons composing them—amounting in the aggregate to nearly half the entire population of the country.
With the adoption of the [Fourteenth] amendment the power of the state to oppress any one under any pretense or in any form was forever ended; and henceforth all persons within their jurisdiction could claim equal protection under the laws…. This protection attends every one everywhere, whatever be his position in society or his association with others, either for profit, improvement, or pleasure. It does not leave him because of any social or official position which he may hold, nor because he may belong to a political body, or to a religious society, or be a member of a commercial, manufacturing, or transportation company. It is the shield which the arm of our blessed government holds at all times over every one, man, woman, and child, in all its broad domain, wherever they may go and in whatever relations they may be placed.
With the adoption of the amendment the power of the state to [protect] any one under any pretense or in any form [except in the form of property] was forever ended; and henceforth all persons within their jurisdiction could claim equal protection under the laws [insofar as they are property owners and/or profiteers]…. This protection attends [all property (but really big, concentrated property)] everywhere, whatever be his position in society or his association with others, either for profit, improvement, or pleasure. It does not leave [property] because of any social or official position which [it] may hold, nor because [it] may belong to a political body, or to a religious society, or be a member of a commercial, manufacturing, or transportation company. It is the shield which the arm of our blessed government holds at all times over [the sword of] every [large-scale property owner], in all its broad domain, wherever they may go and in whatever relations they may be placed [, and especially wherever it aggresses].
We’ll soon find out what’s the latest from the SCOTUS on unconscionable contracts of adhesion, extortionate ”contracts” forced upon us through the coercion of monopoly and artificially created economic hardship. These strong-arm contracts are increasingly popular, and are imposed anywhere the corporations attain the position of dominance which enables them. In theory such contracts, just like gambling, are supposed to be unenforceable, uncontracts. But here too the SCOTUS has usually served as the corporate goon. The Lochner era was based upon the legalization of “contract” extortion, and although the court nominally abandoned this doctrine in 1937, in practice courts almost always still find such contracts valid. In the case of AT&T vs. Concepcion, AT&T’s thefts were so outrageous that the lower courts found the contracts it imposed, forestalling its victims to combine to sue as a class, to be unconscionable. But this will be the SCOTUS’ big chance to restore Lochner as official court doctrine.
The gist of the case, AT&T Mobility vs. Concepcion, is that AT&T systematically committed flat out fraud and theft by tacking bogus charges onto bills. The goal was to cover up for these by slathering the contracts in fine print boilerplate jargon, forcing the customer, as a condition of the contract, to agree to “arbitration” in any dispute, and make the thefts small enough that the customer either wouldn’t notice or would consider it too much of a hassle to pursue a refund. And by keeping the victims informationally isolated from one another, AT&T hoped the thefts would all look like mistakes which at worst warranted crediting the customer’s account, not felonies which warrant punitive damages as well as prison sentences for company cadres.
There’s a lot here which shouldn’t be able to happen, according to the capitalist textbooks. According to capitalist ideology, a competitor should come along and take all of AT&T’s business by offering better service. This competitor will allegedly offer clear contracts, no fine print, which don’t require the customer to surrender his constitutional rights as the condition of the contract. (The contract should always be absolutely clear, as a matter of market efficiency. Anyone who makes the contract opaque is simply hindering the market, not behaving as a legitimate capitalist, and will hurt himself in the competitive marketplace. The ideology says so.) This hypothetical competitor will also be so good as to not, um, steal. The contracts which surrender the right to sue are clearly invalid, as they are unconscionable contracts of adhesion. Meanwhile a conscientious government, conscientiously enforcing a conscientious law, will see that the victim gets his day in court and will vigorously prosecute the wrongdoer. The system will be vindicated!
Of course, in reality the opposite happens. In reality the telecom sector matured, congealed, and calcified. It concentrated into a stagnant oligopoly with full government assistance. All the oligopolists collude to impose the same opaque, unconstitutional adhesion contracts upon the prostrate customer. The government encourages them to do this. No competitor is likely to arise. The government helps set up the insurmountable barriers to entry. There is no competition. “Competition” is just another Marie Antoinette “let them eat cake” term – “You don’t like the contract? Go to the competition!”
There is no competition. In almost every sector, a few oligopolists have a stranglehold, and they collude to impose this grip with no escape, no alternative. The government does all it can to help them attain this death grip. Capitalism is a failure and a fraud.
“The dissent claims that class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system,” Scalia wrote. “But states cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.”
“The overarching purpose of the FAA,” Scalia wrote, “is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings. Requiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.”
But one should not postpone more direct political action, while awaiting the gradual change in public opinion to be effected through education and information. Business must learn the lesson, long ago learned by labor and other self-interest groups. This is the lesson that political power is necessary; that such power must be assidously (sic) cultivated; and that when necessary, it must be used aggressively and with determination — without embarrassment and without the reluctance which has been so characteristic of American business.
As unwelcome as it may be to the Chamber, it should consider assuming a broader and more vigorous role in the political arena.
Neglected Opportunity in the Courts
American business and the enterprise system have been affected as much by the courts as by the executive and legislative branches of government. Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change…….
This is a vast area of opportunity for the Chamber, if it is willing to undertake the role of spokesman for American business and if, in turn, business is willing to provide the funds.
As with respect to scholars and speakers, the Chamber would need a highly competent staff of lawyers. In special situations it should be authorized to engage, to appear as counsel amicus in the Supreme Court, lawyers of national standing and reputation. The greatest care should be exercised in selecting the cases in which to participate, or the suits to institute. But the opportunity merits the necessary effort.
These decisions placed two serious obstacles in the path of campaign
finance reform. First, the Court interpreted very broadly the connection
between corporate political spending and free speech, thus
setting a high constitutional bar in front of any efforts to restrict political
spending. Second, the Court interpreted very narrowly the issue of
corruption, making it difficult for reformers to use systemic corruption
(as opposed to direct favor trading or quid pro quo corruption). Together,
these two obstacles have drastically narrowed the ability of state
and federal legislatures to deal with the overwhelming influence of
corporate money in the political process.
Like a myopic Dr. Frankenstein, the Court had worked piecemeal
and haphazardly, grafting a finger here, an eyebrow there, until the result
was a full-fledged legal super-person. Yet only sporadically, in dissents
interspersed across the decades, was there an explicit recognition
that the cumulative impact of its decisions was to tie the hands of legislative
bodies seeking to control corporate power. In general, the Justices
displayed no awareness that the Supreme Court’s creation of a corporate
bill of rights amounted to an immense transfer of power from democratic
institutions to private ones. The process was not driven by any
overarching theoryto this day, the Court has yet to lay out any consistent
rationale to support its creation of the corporate bill of rights. On
the contrary, the process has been muddled and blurry, a perfect illustration
of the Orwellian ability of large, unaccountable institutions to bend
even ordinary language into a tool to serve their own needsthe gravitational
force exerted by power. Far from laying orderly tracks, that
force of power seemed to operate between the cracks of reason, leaving
in its wake only muddled, blurry traces.