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A MULTIWAVE PUBLICATION

Issue No. 116 Thursday, December 23, 2010

COMPLIMENTARY

THE LOS ANGELES PROfESSIONAL ExPRESSLAProfessionalExpress.com

OMISSIONS AS COMMERCE; CONLAW AND HEALTHCARE

What critique can be made of thecourts opinion in VA v. Sebelius?

The court was seized by the con-cept of passive inactivitythe ideathat if a person chooses notto do acertain thing in commerce (e.g., notpurchase health insurance), thenthat person remains outside com-merce, be it of an inter- or intrastatenature. The court therefore believedthat aggregating the choices ofindividuals to abstain from this formof commerce simply adds up abunch of zeros, equaling zero eco-nomic activity. This blunts the ideaof a bunch of small effects adding upto a big one. Penalizing a person forchoosing not to purchase healthinsurance, as the MEC provisionsrequire, regulates inactivity, and, asthe argument concludes, Congresscannot regulate this choice unless ithas a substantial impact on inter-state commerce.Well, how did the court get itwrong?

Not purchasing health insuranceis not like standing around watchingthe grass grow. Whatever one is

doing, there are an infinite number ofthings one is not doing, but some ofthem may need to be done to main-tain an otherwise valid surroundingsystem. The Acts insurance systemis a field or network within which weall reside, and everything we do ordont do affects everyone elselike magnets within a magnetic field.(OK, the analogy is overdone, but itgets the idea across.) Regulatinghealth insurance is not the samething as requiring everyone to brushtheir teeth after every mealthats ahamfisted argument. Not brushingyour teeth doesnt go to destroying

some economic program, whateverthe effect on dental visits and fees.The inability to draw a precise linebetween the permissible and theyouve-gone-too-far doesnt blow outthe clear cases. Serious issues oflaw and value necessarily involvethis sort of imprecision.

If one chooses not to purchasehealth insurance, he or she simulta-neouslyactivelyelects to be afree rider in at least two ways: re-questing future emergency services,which are more expensive thaninsured expenses, which the taxpay-ers pay for; and opting into the insur-ance system later, without beingblocked by exclusions for preexistingconditions, again when treatment ismore expensive. This is deferredaction, not inaction. Characterizingthe omission to obtain health insur-

ance as mere inaction or noneco-nomic activity consciously disre-gards what we all know to be trueabout health care as an institution inthis country and the manner in whichpeople interact with that institution.How does doing nothing notpurchasing health insurance,kicking back at home on thecouch fall within the sphere ofactions which congress may con-stitutionally regulate? Isnt theresome requirement that the subjectof regulation be an activity ininterstate commerce?

As I said, the key idea is that ifthere is an overall valid programsurrounding your inactivity, it isutterly different from simply standingin the rain soaking up naturewhichis its own form of action. Everyoneis simultaneously doing and not-doing different things. But one isactive or inactive with respect tosomething. If youre active withrespect to standing in the rain,youre inactive with respect to sittinginside by the fireplace. If youreinactive with respect to buyinginsurance, thenwithin the sur-rounding programyou are activewith respect to self-insuring or visit-ing the ER or opting in at a laterdate.

The Commerce Clause does notsay anything about activity, whereactivity is defined as buying andselling rather than choosing not tobuy or sell. The Commerce Clausegrants Congress the authority toregulate commerce among thestates. Commerce comprehendsconduct, and that includes bothdeciding to do one thingand decid-ing not to do somethingelse within a

network of organized activity. Youdont have to be in motion to be incommerce. In this sense, requiringactivity under the commerce clausewould be judicial activism. Takethat, inactivists!

In any case, the significance ofthe not-doing depends on the con-text. The impact of many peoplechoosing to remain uninsured andgetting their medical care in ERs issonot the same as many people noteating broccoli, which lots of peopledont. The oft-made argument thatthe individual mandate penalizessomeone simply for existingfor

being thereis thus quite inappro-priate. The regulated field encom-passing the conduct is critical. Ifthere were no overarching insurancesystem under the Act, the govern-ment couldnt just step in and tellone person or another to buy insur-ance. So, one can see that inactivityis pretty active. Standing theredoing nothing is fine when yourealone. Standing there doing nothingwhen someone needs to be warnedabout an oncoming train is some-thing else. Of course, the point hereis that inactivity has to be assessedin contextnot that refusing to buyinsurance is just like letting someoneget run over by a train.

The idea of deferred action isinstructive here. The supposedinactivity of not buying insurancenowis tantamount, in the real world,

to the lateractivitiesof going to theER or opting into insurance withoutexclusions. This is doing. It isnt not-doing or merely existing. You are

pursuing a course of conduct creat-ing negative externalities.

The negative externalities hereare the resources youll consume forwhich you do not pay the costbutthe taxpayers do. Thats free riding.The drumbeat about inactivity is

just playing with words. There aredifferent kinds of inactivity, withindifferent networks, having differentimpacts. Whether as a matter ofpolicy the Act embeds a good sys-tem, all things considered, however,does not directly affect the constitu-tional analysis, at least in this case.By the way, much of this also ap-plies to the employer mandate,which were not discussing here.This is mentioned less often, per-haps because people are less con-cerned with regulating businessesthan individuals.How about the people who selfinsure and actually pay for theirown medical treatment, or thosewho refuse medical treatment onreligious grounds? Havent we

now lumped their inactivity intothe sphere of things that may beregulated by Congress despitethe fact that their inactivity doesnot cause them to overtly enterinterstate commerce?

If by some chance an uninsuredperson never gets sick, or pays forall health care herself, or eschewsall medical care no matter whatand some might do thisit hardlydefeats the overall program. Thereis no right to a perfect degree ofindividuation in this situation, andindividuation is impossible anyway:we cant predict the future that way.

Unless its dealing with speciallyprotected constitutional rights andinterests, Congress usually seeks toenact legislation based on what isgenerally the case, and doesnt haveto calibrate matter to exclude everyimperfection. Absolute precision isnot required in such regulation, andif a few people are scooped in whoare self-paying or otherwise not adrain, it doesnt defeat the program.This is long-standing and fairly un-controversial commerce clausedoctrine and in most areas of legisla-tion, absent a serious impingementon a right or interest that triggersheightened scrutiny.Ive heard some say, Universalhealth coverage is the morallyright thing to do because every-body in this, the wealthiest coun-try in the world, should have ac-

cess to medical care when re-quired. Is there a place for thecontemplation of morality duringa constitutional analysis?

You want a review of the last fewcenturies of jurisprudence and legaltheory? There is no formal role forpure moral analysis in constitutionallaw. (The theoretical possibility ofexceptions has to be for anothertime.) When they interpret constitu-tional provisions, the courts do haveto investigate traditional views onwhat is right and wrong. For exam-ple, there is nothing in the constitu-tion about proof beyond a reasona-ble doubt in criminal cases, but inAmerican tradition we think this is amoral necessity embedded in theideas of both justice and utility, andso this moral sentiment is held to beembedded within the due processclauses, without being there in haecverba. Pretty active, huh? There isvery little interpretation withoutactivism. Its an analytically use-less term of opprobrium, whateverits rhetorical value. Its important toremember that the constitution is notitself value neutral; we have it not

just to create a reasonably orderlysociety but to promote liberty, equali-ty, fairness, justice, and utility orwelfareall of which are moralvalues. The stance of the courts isthat it is an empirical and a legal factthat the constitutionand much oflawembeds moral values, and thetask of the court is to determine howsociety views these values. In prac-tice, its true, the concepts are sys-tematically ambiguous and not easilysusceptible to empirical verification,so the judges own values will cometo be used as a kind of proxy for

societal values. This is pretty dan-gerous, but there is no help for itbecause all important concepts areseriously ambiguous and vague.

The view that it is simple to dis-cern right and wrong in all contestedpolicy issues is simple. It remainsimproper, however, to invoke puremoral analysis as an overarchingnon-legal determiner of legal inter-pretation. And if it were otherwise,morality could be used to furthereither side of the argument. Theopponents of the mandate complainthat it is immoral to force someoneto make a particular economic deci-

sion. But proponents can argue thatits immoral to be a free rider andimpose avoidablecosts on everyoneelse. Neither point should be madesolely in moral terms except in thelegislature or in public discourse.

The question is whether such opt-out decisions are part of what wetraditionally understand as highlyprotected liberty and whether avoid-ing the impairment of a valid publicprogram is a rational governmentalgoal. Even if there is no preciseprecedent for such a requirement, itis clearly within existing doctrine: it

just never came up before becausewe never had a nationwide insur-ance system, so theres nothingremarkable about the absence of acase on all fours. By the way, thereused to be a federal law, based onthe militia clauses of the constitution,requiring persons to buy muskets ifthey were designated as militiamembers by the state. Requiredpurchase! And, in Heart of Atlanta

Motel v. U.S., the Court upheld theCivil Rights laws requirement that ifthe hotel is indeed in business andserves anyone, it cannot excludepersons on the basis of race.

Of course, the motel was activelyin business, and this was a lot moreeconomically active than simplybeing a member of a group most ofwhom will eventually need serviceswithin the healthcare market, so Iwouldnt press the comparison, butits still a case of forcing a transac-tion within a field of activity to pro-mote the public good.

Its worth an extra comment onfree riding and moral analysis. Itswidely understood, if not alwaysfollowed, that everyone has a dutynot to be a free rider. A free rider isone who consumes resources forwhich he did not pay a price.

(CONTINUED below, next page)

The United States Constitution, or supreme law of the land, was adopted onSeptember 17, 1787 at the Constitutional Convention in Philadelphia, Penn-sylvania and thereafter ratified by each state. Jacob Shallus, then AssistantClerk to the Pennsylvania General Assembly, scribed the original document.A 1937 investigation revealed that the founders paid a total of thirty dollars toclerks employed to transcribe & engross the Constitution. According to theNational Constitution Center, the U.S. Constitution is the worlds oldest writtenconstitution still in use by any nation in the world. The National Archives and

Records Administration in Washington, D.C. houses the original document,comprised of seven articles and the first ten amendments, which such tenamendments are also known as the Bill of Rights.

INTERVIEW: USC LAW PROFESSOR MICHAEL SHAPIRODONS RIGOROUS ANALYSIS OF CONGRESSS POWERS

Professor Michael H. Shapiro is aProfessor of Law at the University of

Southern California Gould School ofLaw. Professor Shapiro earned hisB.A. and M.A. from the Universityof California, Los Angeles andearned his J.D. from the University ofChicago Law School, where he wasan associate editor of the Universityof Chicago Law Review. At Gould,Shapiro specializes in bioethics andin constitutional law, and in particu-lar, medical and legal ethical issuessurrounding reproductive, genetic,and behavior control; death anddying; organ transplantation; andresearch and experimentation.

BAD COMIC OF THE WEEK

OREILLYS TOP FIVE LIST:DUMB STATEMENTS OF 2010

The following top is borrowed fromThe OReilly Factorairing on the FoxNews Channel, December 17, 2010.5. Speech by then Speaker of theHouse, Rep. Nancy Pelosi (D-CA)

in March, 2010: The final healthcarelegislation that will soon be passedwill deliver successful reform at thelocal level. But we have to pass thebill so that you can find out what is init away from the fog of the controver-sy.4. Former BP Chief ExecutiveOfficer Tony Hayward in May 2010:Were sorry for the massive dis-prruption its cost their lives. Were -Theres no one who wants this thingover more than I do Id like my lifeback.3. U.S. Senate Candidate for Ne-vada, Sharron Angle (R) October inMarch 2010, while addressing 150Hispanic high school students: Idont know that all of you are Latino.Some of you look a little more Asianto me. I dont know that. What weknow is that we are a melting pot inthis country. My grandchildren are

evidence of that. I am evidence ofthat. I have been called the firstAsian legislator in our Nevada StateAssembly.2. In May 2010, United States

Attorney General, Eric Holderresponding to questions from Rep.Ted Poe (R) in a House hearingregarding the controversial Arizonaimmigration law which the AttorneyGenerals office filed suit againstArizona to invalidate as unconstitu-tional. Rep. Poe: Have you readthe Arizona law? AG Holder: I havenot had a chance to I have glancedat it, I have not read it. Rep. Poe:Its ten pages - its a lot shorter thanthe health care bill which was 2,000pages long. Ill give you my copy ofit if youd like to have a copy . . .1. Late 2009 on the House Floor,Rep. Alan Grayson (D-FL): TheRepublicans health care plan forAmerica Dont get sick! If you getsick America, the republican healthcare plan is this: Die Quickly.Thats right, the Republicans wantyou to die quickly if you get sick!

Email the editor your own top five listeditor@LAProfessionalExpress.com

As businesses slow down, sodoes the touring calendar. Whilesome musicians celebrate Christmas others are just saving their energyfor New Years Eve. If youre staying

in LA through the end of the year unfortunately your options are limited,but they are still pretty good.

On Christmas, sonic Santa Clausgifts us dubstepper Datsik and hardto define Busdriver at The MusicB ox an d I n f e c t e d Mus h-room at Avalon. My guess is youllprobably see a lot of Jewish peoplethat like to party hard.

Tuesday the 28th, Project Blowedh o s t s t h e i r p a r t y w i t hguests Freestyle Fellowship, A-Team, Nocando, 2Mex, Dibia$e andmore. Its a local hip-hop heads endof the year must do and definitely thebest eastside option for mu-sic. SMOG hosts its final Dubtroitinstallment for 2010 at Detroit Bar RSVP@smogla.com if youll be inOrange County.

The night before NYE, The Roxy

hosts a rock fiasco with The Dukespirit and Crash Kings. Long Beachgr izz ly rockers The Growl-

ers with Grand Elegance are thecheaper, eastsider indie preferredoption. Those seeking nostalgiamight want to see Flock of Sea-gulls at Brixton South Bay.NEW YEARS EVE OPTIONSOn the final day of the year, the musi-cians come out to party again. If youwant to go see music, just check outour list that includes a few pointersand what you might expect to en-counter at each show.

Rusko, 12th Planet, Diplo, MajorLazer, Wolfgang Gartner and moreat Together As One. This event isfor the fans of dubstep, wild partiesand those that enjoyed EDC. Expectlasers, people dressed in lingerie andno one over the age of 35.

Pharcyde at Key Club. Heard itmay have all members and a fullband. This is for fans of old schoolhip-hop, those looking for a quality -

but not too rowdy live music experi-ence. Expect anyone who's drivenWest on Sunset Blvd. while listening

to "Passing Me By" in the last few

weeks.Rebelution at House of Blues

Anaheim. Only reggae tinged NewYears Eve event I'm aware of in town- and whether it is the only one ornot, it is the best. The young quartetis killing it and this will be their last LAperformance before they embark ontheir Winter Greens Tour in late2011. Expect UCSB graduates andunder-graduates home for the holi-days, Silverback Management crew(shout outs - they're cool), hipstersinto dub-soul, rastafarians and lot ofpeople who want to talk to Sampson("fly me to the moon...").

NOFX at The Wiltern. The LAformed American punk rock band willbe playing music from their extensivecatalogue, including, hopefully, somematerial from the recent "Cokie TheClown" release. Expect die hard

punk fans, people in their 40s tryingto relive college experiences, fans ofopener Dead To Me.

HARD LA at The MusicBox. Another installment of theHARD Series featuring DJ Falcon,Mr. Oizo, Congorock, Sean Per-ry and of course Destructo - plusother artists. Expect tweekers intoFalcon, young people on that stuffMiley Cyrus was smoking, peoplewho like electronic music but don'treally like dubstep, girls in yetti bootsand people who will regret not goingto Together As One.Camp Freddy at The Roxy. Thefinal night of Freddy's Friday residen-cy that has seen the likes of StevenTyler and other rockstars paradethrough the legendary Strip ven-ue. Expect fans of Camp Freddy,Sunset Strip regulars, and at leastone person hungover from CrashKings and The Duke Spirit at TheRoxy the night before.The Raveonettes, Autolux, School

Night DJs at Standard Holly-wood. The pricier choice for thehipster elite. Definitely for those whodig Mondays at Bardot.

Be in the knowSign up for the 2011Blast at www.supergoodmusic.com!

www.SUPERGOODMUSIC.comBy Brandon Dorsky, Esq. Entertainment Columnist

The negative ex-ternalities here arethe resourcesyoull consume forwhich you do notpay the costbutthe taxpayers do.Thats free riding.

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A senior executive at Halliburtonin Iraq alleged in a private diplomat-ic cable that security companies areoperating a "mafia" to artificiallyinflate their outrageous prices,"according to a recent documentpublished by Wikileaks.

Written by a senior diplomat inthe US's Basra office, the confiden-tial diplomatic cable discloses thehostility between private securityfirms, oil corporations and the Iraqigovernment as coalition forces pullout from defending foreign industryinterests.

John Naland, chief of the recon-struction team in Basra province,wrote in January this year thatseveral oil company representativescomplained of "unwarranted highprices" given an improving securitysituation since 2008.

"Halliburton Iraq country manag-

er decried a 'mafia' of these compa-nies and their 'outrageous' prices,and said that they also exaggeratethe security threat.

"Apart from the high costs forroutine trips, he claimed that Halli-burton often receives what he saysare 'questionable' reports of vulner-ability of employees to kidnappingand ransom. He said that he recent-ly saw an internal memo from theirsecurity company which tasked itsemployees to emphasize the persis-tent danger faced by IOCs

[international oil companies]." Na-land wrote.

The document, written ninemonths after British troops handedover command of their base inBasra to the US army, does notname the Halliburton manager.

According to the leaked diplomat-ic cable, it cost around six thousanddollars to hire a security firm for fourhours in Basra in January. A typicaltrip would include four securityagents, drivers, and four armoredvehicles. A recent visit by a memberof Iraq's government from Baghdadto Basra and back cost abouttwelve thousand dollars, the cablestated.

Hostilities between private securi-ty companies and the Baghdadgovernment had increased in Iraqfollowing the decision by the UScourts in December 2009 not to

prosecute anyone for the Blackwa-ter killings of 17 Iraqis in Baghdadin September 2007.

The source for this informationwas a British security companyboss, whose name has been re-dacted.

"According to [the British nation-al] a China National PetroleumCompany (CNPC) security teamwas stopped in Basrah [sic] city bythe Iraqi police in a 'clear attempt todisrupt and cause panic to theclients.' [The British national] said

that the Iraqi police stopped theconvoy and showed a letter fromthe Ministry of Interior (MOI) statingthat as of January 12, personalsecurity teams now faced a morerestrictive weapons regime. Thesituation was eventually resolved,and the convoy was released, but[the British national] said that thisepisode could presage a morerestrictive posture towards securityfirms 'in retaliation or the Blackwa-ter verdict'," wrote Naland.

The cable also says that securitycompanies are being encouragedby the Iraqi government and the oilcompanies to employ more Iraqisand fewer westerners in frontline

jobs."According to XXXXXXXXXX

[sic], the GOI [government of Iraq]is anxious to 'get rid of all the whitefaces carrying guns' in their

streets," it reads.Afghan authorities last weekarrested a British private securitycompany employee and sentencedhim to eight months in jail, the latestmove in the government's crack-down on private security firms.Global Strategies Group consultantMichael Hearn was arrested lastWednesday for allegedly failing toregister weapons with the govern-ment.

By Edgar Tenenbaum | Staff Writer

HALIBURTON EXECUTIVE: FIRMS ARECRIMINALLY INFLATING SECURITY PRICES

Samten Dakpa was victimized bythe communist Chinese police forpainting classic Tibetan images asa teenager. The Chinese police ,intent on suppressing Tibetan cul-ture, arrested, beat and torturedDakpa, shoving his hands into acoal-burning oven.

"It was like a barbecue," he said,describing the painful burns on hishands. CNN International reported,Police shoved a rifle butt intohis mouth, forced him to stare atthe sun and beat him when hewas unable to keep a cockroachwithin a small circle, using astick.

Dakpa escaped from police cus-tody, crossed the border into Nepaland then to India before finallyarriving in the United States in2003, a dozen years after his tor-ture.

"When Sampten first came to us,he was in excruciating pain, bothphysically and emotionally. Hecould barely use his hands," said DrAllen Keller of the Bellevue HospitalCenter at New York University. "Hewould try to paint and he couldbarely hold a paint brush. When hedid, he would get terrifying memo-ries of the torture he endured."

Doctors performed surgery onDakpa's right hand, allowing him to

hold a paint brush without pain forthe first time in years. His left handis still badly scarred and has limitedmobility.

"Just these two fingers are stuckhere and I cannot open more thanthis," Dakpa said as he tried tostretch out his hand. "Middle finger,if I try to open strongly, it hurts alot." This spring surgeons plan tooperate on the left hand.

As a result of torture, Dakpasays he has nightmares in whichhe is chased along an icy river.The ice cracks and he falls intothe freezing water.By Yuri Isacov | Staff Writeryuri@laprofessionalexpress.com

Above: Private security contractors near the Rumala oil fields pose for a photograph on a rooftop. Courtesy AFP.

From our Dearest Sex Advisor

LA(id) Realationship Advice

COMMUNISTS TORTURE TIBETAN ARTIST

Dear Dearest Sex Advisor,My boyfriends mother is a ragingalcoholic. Is it neCESSary for me togo visit her in the hospital during theholidays when all she does is yell atme?-Mama Drama

Dear Dramamine,If your relationship with your boy-friend is serious, you should accump(oon)any him while he visits hismother because there are probablyfew rarer joys in her bleak world thanbeing able to lash out at you forstealing away her precious son,using him for all the things that lawsand customshave prohibit-ed her fromexpressing.Also, chancesare yourb o y f r i e n d smother's alk-holeic prope-nisty for par-oxysms hasgiven him asizable shareof traumafrom his

mama, muchmore severethan theonslaught ofinsults shebestows uponyou. You areostensibly asource ofcumfort forhim, so bestrong andsupport himduring thetime of crysisthat is theholiday see-son and usethe woundscaused byfamilial painand sufferingas a scatalystthat (con)

fuses you to-get-her.She and Icum from the

same geografuckal region, andshare the same twisted perversion ofreality. When she first met me, shedismissed me as another egotesticlescoundrel, another of the countlessvillainous civilians, but somethingabout the glimerence in my eye,beamed straight from my heart,

caught her at10ion for long enoughto allow me to transmit a vortextmessage.Ive got glockoma, all I see areguns. It was the most earnest at-tempt at cum-unication I could con-trive, given all the pressure, I cantbelieve that I survived. Time shootspast me like bullets, light grazes and

near misses and misters materi-alzed in the skies, twinkling likethe stars in her eyes.My thoughts are whipped from liquidto ice, and then into gold. Cummer-cials have crapitalized and com-mode-ified anything worthwhilethats ever been tried. Cynical Trials

and Errors of Judge Mints. Men-thol8 and wait, ignore the rapidpassing of the dates, hear the clink-ing of the plates.

Assuredly,Vitus S. Hearn

Happy Holedays:

A MULTIWAVE PUBLICATION

Issue No. 116 Thursday, December 23, 2010

COMPLIMENTARY

THE LOS ANGELES PROfESSIONAL ExPRESSLAProfessionalExpress.com

IRAQI SECURITY FIRMS OPERATE MAFIA

CONLAW(CONTINUED from first page)

Our discussion focuses on theconstitutionality of a law in the UnitedStates, where each person has theright by virtue of laws imposed atevery level of government (local,

state and federal) to receive stabi-lizing care in some emergency room.Everyone gets sick sometime, and asubstantial portion of those whomake use of emergency room lawswill not pay their bill; they are neitherinsured nor can they afford to paythe cost of their visit. Free riding isdangerous to all of us. Thats whythe Act has the individual mandateto keep the payers from paying toomuch. As David Lazarus of the L.A.Times said, theres safety in num-bers. (L.A. Times, 12/21/10.)

Why mention this if moral analysisisnt directly relevant? Because itsinstructive in guiding us throughdoctrine. If you think of why freeriding is morally wrong, you get aclue as to why a legislaturewould tryto blunt itand legisla-tures are where moralconsiderations in law

making are supposed tobe addressed. And ifthelegislature decides toenact something, basedon the legislators moralviews (yes, they also dohorse trading), the con-stitutional question iswhether the legislaturein this case Congresshas the constitutionalpower to implement itsmoral position. If there isno special right to optout, then the question iswhether Congress could rationallybelieve that the economic impact offree riding in imposing unjustifiablecosts on the rest of us is sufficientlygreat to permit regulation under thecommerce clause. The answer isyes, and we dont have toandindeed are not supposed torevisit

the moral considerations that(supposedly) informed the legislativeprocess. So thats one way to seehow moral analysis filters into consti-tutional doctrine. If there were aspecial right or interest triggeringheightened scrutiny, then the ques-tion would be whether the govern-ment has an important or compellinginterest that is substantially furtheredby narrowly tailored means to reachits goal. How to rate this importanceor compellingness sounds like amoral issue, but as a jurisprudentialmatter, the courts task is to deter-mine if these interests can, withintraditional U.S. moral and policybeliefs, be rated strong enough toovercome the constitutional claim-ants interest. Note that even if aspecially protected constitutionalinterest were at stake and that regu-lating economic activity is presump-

tively unconstitutional, the govern-ments program can still surviveheightened scrutiny if its interests are

strong enough. Not all governmentaction is struck under strict scrutiny.What if I agree with the objectiveof the Act, but as an advocate offederal-state separateness, havefears in light of the SupremacyClause, that states rights wouldbe totally swallowed by the fed ifthis law is permitted to stand.

After all, if inaction is grounds forfinding effects on interstate com-merce, and the growth of marijua-na in ones own house is a feder-ally regulable matter per Gonzalesv. Raich, then what remains out-side the scope of Congressspowers? Surely, the Constitutiondoes not grant Congress plenarypowers.

This is the proves-too-much argu-ment, and Ive already said that theanalogy to making people eat broc-coli or brush their teeth is quite a bitoff. There is no algorithm to show uswhere to draw a line here, but recallthat were discussing inactivity withrespect to an overall, otherwise validprogram (whether you like the pro-gram or not) that might be shattered

without the individual mandate.Thats a major factor and allows afairly clear decision. We dont haveto be able to decisively answer allcontested cases in order to validatethe clear ones. If someone believesthat the Act or the MEC provisionsare bad economic policy, bad moral

policy or unconstitutional, he or sheshould take the only sound course ofconstitutional argument under pre-sent conditions: concede that theprogram is valid under the doctrineas isas I said, the absence of anexactprecedent obviously cannot beitself determinativeand then pro-pose that the doctrine be changedonthe ground that the doctrine is consti-tutionally unsound, and that thechange be implemented by in part,by overrulingcertain cases, includingWickard v. Filburn. That case heldthat a farmer, Roscoe Filburn, whogrew wheat to feed his farm animalsfor home consumption, was requiredto abide by nationally-imposed limitson wheat growth because his individ-ual wheat growth, when aggregatedwith that of all other farmers, woulddisrupt the federal quota devised tohelp iron out business cycles.

This change-the-doctrine argu-ment would be more straightforward,if more uphill, and it would be hon-

est. It might even garner the votes ofseveral conservative Justices. If itdoesnt work, it doesnt work. True,as a lawyerly tactic, one generallyargues this is beyond current doc-trine before one argues we dieunder this doctrine and it should bereplaced with sounder rulings.

Recall that in a federal system

there is a federal government; wearent just a loose aggregation ofseparate nations, however muchsome would like to see the Articles ofConfederation restored. There is aspectrum of types of federalism, andin one type, the federal governmentis expected to do things that thestates would like to do but cant verywell do separately. If you think, forphilosophical or other reasons, thatstates shouldnt do certain things,thats another matter.Switching gears, there are numer-ous cases pending before federaldistrict courts across the countrychallenging the Act and its MECprovisions. How do we knowwhich of these we should follow,or which will end up in the Su-

preme Court?I dont think its pos-

sible to tell in ad-

vanceit depends onthe configuration ofeach case and how itrelates to the othercases. The Court han-dles this in lots of differ-ent ways. Sometimes itconsolidates cases, butfocuses on a particularonee.g., Brown v.Board of Education(holding segregatedschools to be inherentlyunequal) was decidedvia a consolidated

opinion deciding the determinativerule for all the cases. Alternatively,the Court could take all the cases,write an opinion deciding one ofthem, and remand the others to thelower courts to be decided in light ofthe decided case. But on this specif-ic issue, you need to talk to a federal

courts person.Finally Professor Shapiro, muchdiscussion has been made regard-ing whether the MEC provisions istax or penalty, and if it is a penal-ty, the argument goes, the MECprovisions are unconstitutionalbecause they penalize citizens fornot doing. What say you?

The analysis is not very differentfrom the one we just conducted.Inaction is coupled with anotheraction. My colleague and formerchief of staff at t he Joint committeeon Taxation, Professor Ed Kleinbard,has published an extensive analysisof this issue in Constitutional Krep-lach.

Thank you Professor Shapiro foryour many insights and for help-ing the Pro Express fulfill its edu-cational mission. We hope to

have you back.

Interview by Zein E Obagi Jr

There used to be a fed-

eral law, based on the mi-litia clauses of the consti-

tution, requiring persons to buy muskets if they were designated as mili-tia members by the state.Required purchase!