CO-04 (Special Election)
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(R) Greg Lopez
(R) Trisha Calvarese
90%
10%
President (To Win Colorado)
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(D) Joe Biden*
(R) Donald Trump
80%
20%↓
CO-01 (Denver)
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(D) Diana DeGette*
90%
CO-02 (Boulder-ish)
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(D) Joe Neguse*
90%
CO-03 (West & Southern CO)
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(D) Adam Frisch
(R) Jeff Hurd
(R) Ron Hanks
40%
30%
20%
CO-04 (Northeast-ish Colorado)
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(R) Lauren Boebert
(R) Deborah Flora
(R) J. Sonnenberg
30%↑
15%↑
10%↓
CO-05 (Colorado Springs)
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(R) Dave Williams
(R) Jeff Crank
50%↓
50%↑
CO-06 (Aurora)
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(D) Jason Crow*
90%
CO-07 (Jefferson County)
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(D) Brittany Pettersen
85%↑
CO-08 (Northern Colo.)
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(D) Yadira Caraveo
(R) Gabe Evans
(R) Janak Joshi
60%↑
35%↓
30%↑
State Senate Majority
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DEMOCRATS
REPUBLICANS
80%
20%
State House Majority
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DEMOCRATS
REPUBLICANS
95%
5%
November 29, 2011 07:43 PM UTC
7 Comments
Why can’t we legalize pot again? Oh yeah, commerce power!
I hope he catches a mine for Romney though. Romney will need more minesweepers after.
States have police powers, which is the ability to regulate activity designed to promote the health, safety, welfare and morals of its citizens. The federal government has enumerated powers, which do not include the generalized police powers. That means that in order to perform a regulatory act, there must be a specific grant of that authority in the Constitution. Does the power to regulate commerce between the states encompass the insurance mandate in the health care reform bill, maybe. Some of the post-Lochner decisions by the Supreme Court suggest they do, while the recent Lopez/Morrison decisions suggest they don’t. It is an interesting legal question. BUT, there is absolutely no question that a state has the right to create a health insurance mandate (assuming no state law or state constitutional provision prevents it).
As for marijuana, the question was whether the regulation (i.e. prohibition) of drugs was covered by the powers granted to it by the Commerce Clause. If the answer is yes, then the state provision legalizing it is overridden based on supremacy, not commerce. Seems pretty simple.
… can regulate one aspect of “health” – i.e. drugs – due to the Commerce Clause, it stands to reason that they can regulate another aspect, i.e. health insurance. While supremacy is the legal reasoning for overriding state MJ laws, it is the Commerce Clause which gives the Federal government any say in the matter at all and thus legitimizes the supremacy claim.
As to the direction the SCOTUS will take on the ACA, Lopez and Morrison both address much narrower issues than the health insurance crisis, which by any measure is interstate in nature and directly affects Commerce both internationally and interstate – areas which directly fall under Federal regulation.
The drug issue appears to be different than the health insurance issue. With the growth, production, distribution, and sale of drugs, the person is clearly engaging in an economic activity (albeit an illicit one). It is not the fact that it is “health” that the federal government is able to get involved, it is because it is commerce. So, having one aspect of commerce being in the area of health doesn’t, on its own, open up all other forms of health to federal regulation.
The argument on the health insurance mandate is that regulating a person for not engaging in an economic activity is not commerce. Nothing is being bought, sold, or produced by these people. In fact, the exact opposite, they have removed themselves from the economic equation. While I understand, and think I can articulate the argument, I am not sure it is a winner. I don’t see how to get passed cases like Wickard v. Filburn.
As for distinguishing Lopez/Morrison, realize that there were Congressional findings in both cases clearly showing a direct connection between the guns in school and commerce (Lopez), and domestic abuse and commerce (Morrison). Granted, the insurance mandate would be pushing the boundary of those cases, it isn’t that much of an extension.
In Lopez, the connection between guns in schools and interstate commerce was indirect at best. In Morrison, the government’s reasoning failed to appropriately apply the Commerce Clause in a way that made it any stronger than Lopez – even some women’s rights groups acknowledged that.
OTOH, an individual mandate is a necessary part of the remainder of the ACA, and the ACA overall is broad enough to easily fall under the Commerce Clause – as two prominent conservative appeals court justices have already penned.
If the sale of drugs (which again are only illicit because they fall under Commerce – not vice versa) is a valid commerce concern, then so to is the sale of health insurance. It’s hard to say that health insurance isn’t covered by Commerce when it covers the sale of drugs which are…
I fail to see the connection between controlled substance regulation (which is clearly economic in every sense of the words), and not purchasing insurance (which is non-economic). Congress clearly has the power to dictate how insurance should be bought and sold, that is economic. The issue is whether that same power extends when there is nothing being bought and sold. How is something that is not sold, not bought, not exchanged and so forth, be economic or commerce in nature? It is an interesting legal question.
As for comparing Lopez/Morrison with ACA, you provide a distinction without a difference. There were clear ties between gun violence in schools and economic growth, and even greater links between domestic violence and economics. The Court seems to be saying that since neither regulated act was economic (possession a gun near a school, or men beating women), they do not in their own right fall under commerce. Clearly they fell under the police powers of the state, but not under Congress’s enumerated powers.
The ACA is at heart a commerce measure. The enforcement of penalties against those who do not purchase insurance is necessary to the bill’s regulatory structure. Any measure deemed necessary to the overall success of a law that properly falls under Federal authority is generally considered to also fall under Federal authority. You can’t really separate the mandate provision from the rest of the law without damaging the rest of the law, and so the mandate falls in to the realm of “necessary and proper”.
(And, even if you were to separate it out, the early Militia Act which required citizens to purchase military equipment, and the Marine Hospital Service law requiring sailors to contribute to essentially a private health insurance system both seem to indicate that Congress can compel the purchase of items by private individuals if doing so falls under Federal jurisdiction. The justification of the MHS was to increase the health of merchant sailors, who if they were sick could damage the shipping economy.)
Lopez (and Morrison which followed) states that the Federal government cannot use the Commerce Clause to gain Federal jurisdiction in an area otherwise not granted to Congress (i.e. forbidding gun possession in some area, or committing otherwise criminal acts) when there is only an indirect and distant relationship to Commerce. While gun use and domestic violence both affect economics (as, indeed, does when someone wakes up on the morning…), neither act in question addressed a direct Commerce issue. To contrast with the ACA and bring this back to my first sentence, the regulation of health insurance itself is a Commerce issue.