What Can’t Congress Do Now?

If the federal government can force you to buy health insurance merely for being alive — on the theory that your inaction, while stubbornly remaining alive, has indirect effects on interstate commerce — then what can’t the federal government force you to do?

It’s a question I noted Randy Barnett asking a couple months ago, with some added salience now that a federal judge has ruled the individual mandate unconstitutional. Others have been asking similar questions, including Megan McArdle and Radley Balko.

The American left would like very much to find good answers, and Ian Millhiser proposes one: The federal government can’t prohibit murder, he says.

My first reaction: “Oh good! My liberties are intact, and we have a government of limited powers after all!” The sarcasm doesn’t come across well in print, but it’s there. If the only limits on federal power are those that stop it from doing something totally superfluous, then we’re in big, big trouble. (Also, this doesn’t really answer the question, because a prohibition on murder doesn’t really prevent the federal government from compelling an arbitrary number of other positive actions from the citizens. Presumably it prevents us from being compelled to commit murder, but that’s not very reassuring.)

My second reaction: “Like hell it can’t.” Not that it matters — preventing the feds from stopping murders matters remarkably little to questions of individual liberty — but it’s plausible that the federal government might be allowed to prohibit murder, at least on current constitutional theory, because murder rather obviously has indirect effects on interstate commerce. In this respect it’s like everything else in the known universe, thanks to Wickard v. Filburn.

Backed into a corner — surely he realizes that’s where he is — Millhiser brings out U.S. v. Lopez and U.S. v. Morrison, arguing that the doctrine of indirect effects really does have some limits after all.

Is he right? It’s hard to say.

U.S. v Morrison struck down the Violence Against Women Act; Millhiser comments (I suppose approvingly):

[I]f Congress can’t prevent violence against women, it follows that Congress also could not prevent other forms of violence, which is why a federal law criminalizing murder or assault is largely off the table. Congress could enact a limited ban on murder incidental to some of its other powers — because Article I of the Constitution empowers Congress to establish post offices, for example, Congress could make it illegal to kill or assault a postal worker during while they were engaged in their official duties — but a blanket federal law forbidding all murders is right out.

Yet these cases, both decided over ten years ago, have been without any serious judicial consequence in the meantime. The conservative, pro-devolution justices who supported them have been replaced by conservative, anti-devolution justices, and that makes all the difference. Given the change of personnel, these cases aren’t very good precedent for anything, and one can easily argue that they are inconsistent exceptions in current jurisprudence, not solid foundations for any constitutional reasoning.

I’m not just speaking hypothetically, either. This line of cases certainly didn’t carry the day in Gonzales v. Raich. As Jonathan Adler notes in his article titled “Is Morrison Dead?”

Insofar as United States v. Morrison had stood for the propositions that only intrastate economic activities could be aggregated for purposes of the “substantial affects” test, that attenuated connections between a regulatory scheme and interstate commerce exceeded Congress’s limited and enumerated powers, and, perhaps most importantly, that judicial review should serve as the ultimate check on overly broad assertions of federal power, it may now be a dead letter.

That was five years ago. Nothing in the meantime suggests any other conclusion. If Congress can prohibit smoking non-commercial pot in the privacy of one’s own home, why can’t it prohibit murder? Raich held that the indirect effect being regulated was on the interstate market for commercial pot, and that it mattered not one bit that commercial pot happens to be illegal.

Committing non-commercial murder surely has an indirect effect on the market for commercial murder, doesn’t it? And the murdered individuals would have participated in interstate commerce, if only they had not been killed! (Don’t laugh. That’s just how the indirect effects doctrine works. It really is that crazy.)

Amusingly, both Lopez and Morrison were also condemned, not praised, by left-leaning groups when they first appeared. Conservatives and libertarians have been dismissed as crackpots for daring to suggest that they might be important, or that limits to federal power might actually be a good idea. Notably, we’ve been condemned by one Ian Millhiser.

I’ll be charitable, though, and assume Millhiser has had a sincere change of heart since just this summer, when he wrote:

Yet Justice Thomas claimed in three separate cases—U.S. v. Lopez, U.S. v. Morrison, and Gonzales v. Raich—that this “substantial effects” test is “at odds with the constitutional design.” It’s difficult to count how many laws would simply cease to exist if Thomas’s view of the Constitution ever prevailed, but a short list includes the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, much of the Family and Medical Leave Act, and the most basic worker protections such as the minimum wage, overtime laws, and the regulation of child labor.

What a difference five months makes. Morrison and Lopez have become great, even necessary… for the expansion of federal power! It seems that anything is good, as long as that’s the end result.

(I’m not at all convinced, incidentally, that we must necessarily go as far as Millhiser suggests in reversing Commerce Clause jurisprudence. The distinction between compelled positive actions and prohibited actions is still a meaningful one, I think. Overturning the individual mandate is thus by no means the start of a slippery slope.)

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72 thoughts on “What Can’t Congress Do Now?

  1. First off by the “American Left” wants to justify the mandate you should be saying the “American Republican Party” who were not only fine with pushing the mandate for 20 or so years. Most of us on the Left would be fine with something less convoluted then the HCR we got. You know the kind with taxes and public options, something more like Canada or the Netherlands or Germany or France. But your not a Repub and this doesn’t relate to the constitutionality of the thing.

    While i enjoy some good snark this “on the theory that your inaction, while stubbornly remaining alive, has indirect effects on interstate commerce” is a ridiculous straw man and beneath anybody who understands the basics of HC, which i’m assuming you do. Not that i’m saying you have to agree with the HCR we got. The the rationale for having everybody chip for insurance is that is the only way to cover the costs of those who need treatment now. Everybody, unless you are lucky, or unlucky enough depending on how you look at it, to die of a sudden catastrophic accident while young will use and need to pay for HC. If you don’t have insurance then the rest of us will have to pay for you. So everybody needs to pay in to cover your own future costs and to cover those now.

    There is a whole list of things the Gov can’t do: make you get married, work, live, jerk off, assume any sort of good faith and human decency to ideological opponents, think Nirvana isn’t way overrated, leave the country, stay in the country, not assume every new change is always the final straw heading towards dictatorship and on and on and on.

    Quite a few people have taken a crack at this question, Sullivan has listed a bunch of responses here: http://andrewsullivan.theatlantic.com/the_daily_dish/2010/12/yesterday-megan.html., as well as Ezra Klein, Chait, Yglesis and Drum have all chimed in

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    • First off by the “American Left” wants to justify the mandate you should be saying the “American Republican Party” who were not only fine with pushing the mandate for 20 or so years. Most of us on the Left would be fine with something less convoluted then the HCR we got. You know the kind with taxes and public options, something more like Canada or the Netherlands or Germany or France. But your not a Repub and this doesn’t relate to the constitutionality of the thing.

      No, I don’t need to say the “American Republican Party,” because they aren’t fine with it now.

      Perhaps I should be declaring that the Republicans are in favor of it, and the Democrats are against it, because they support single payer? There was a time when this was true, but it’s not terribly informative to pretend we’re still living in it.

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      • If the American Republican party isn’t fine with it now, I’m left wondering what sort of revelation in Constitutional interpretation they’ve experienced that has caused them to abandon a position that they once advocated for. It’s funny how the Republicans were never troubled by the Constitutionality of a mandate to purchase health insurance previously. Come to think of it, they didn’t seem to have a problem with a mandate to purchase private securities for retirement in the recent past either.

        Odd, that.

        As for the Democrats, I don’t recall their support of single-payer relying on any sort of argument that a mandate was unconstitutional.

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  2. What Can’t Congress Do Now?

    Lock you up without trial and torture you to death. That’s a *presidential* power. Most of the politicians fulminating about the unconstitutionality of Obamacare seem to have no problem with that one. (And I said “politician” partly to exclude all of our hosts.)

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  3. If the federal government can forcibly take out of your legitimately earned income, what can’t it do? If the federal government can put you in prison for you to grow a certain kind of plant in your own home, what can’t it do? If the federal government can forcibly conscribe you to fight and die in a war that is denounced by the majority of the public, what can’t it do? If the federal government can round up and detain an entire ethnicity of US citizens and keep them in camps for any desired duration, what can’t it do?

    The federal government isn’t forcing you to buy insurance merely for being alive, it’s forcing you to buy insurance merely for being a US citizen, a privilege that has always come with a host of responsibilities.

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    • The federal government isn’t forcing you to buy insurance merely for being alive, it’s forcing you to buy insurance merely for being a US citizen, a privilege that has always come with a host of responsibilities.

      Can it tell me that I have to pick cotton, and that that’s one of my responsibilities as a citizen?

      Dress it up however you like, the constitutional authority here is incredibly weak.

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    • The federal government isn’t forcing you to buy insurance merely for being alive, it’s forcing you to buy insurance merely for being a US citizen, a privilege that has always come with a host of responsibilities.

      Exactly what other affirmative duties have been required of me as a citizen? You can’t make a claim like this and just leave it unspecified as though “of course we all know what content fills it,” because we don’t all know–certainly I don’t, and I remain dubious that you do, either.

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  4. I was working on this today, Jason, actually being interviewed on radio about the Founding, the Constitution, etc.

    James Madison, as president, vetoed a public works bill in 1817 saying it simply exceeded Congress’ authority.

    http://www.constitution.org/jm/18170303_veto.htm

    “The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.”</i

    Basically a reply your title, “What Can’t Congress Do Now?”

    “Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms “common defense and general welfare” embracing every object and act within the purview of a legislative trust.”

    Not that Madison’s is any definitive answer. He’s fucking dead, and the Constitution is “Living. ” Now, Congress can do anything—via the very “general power of legislation” that “the Father of the Constitution” explicitly rejected.

    Exc post, Jason, and some good replies as well. Federalism, as conceived—and sold to the Ratifiers of the Constitution, whom Madison himself said had the ultimate authority as to its meaning—left the details of day to day life at the local level.

    Murder? Perhaps abortion [at some stage or another] is indeed murder, depends on who you ask. The federal gummint also jailed Michael Vick for disposing of his private property as he saw fit. And perhaps one can dispose of his own body—and life—as he sees fit, spending his money on drugs, booze, possibly diseased sexual partners [pro, semi-pro, or just equally unconcerned with their health]. Riding motorcycles without a helmet. Eating Happy Meals.

    The argument seems to be that my health is your—my fellow taxpayer’s— concern. We, as a civilized and modern society, accept an obligation and duty to heal the sick.

    That’s fine, but there’s a distinction between accepting a duty to care for our brother and being his keeper.

    ______________

    [Andrew Sullivan], Ezra Klein, Chait, Yglesis and Drum have all chimed in…

    Heh heh.

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  5. Meh, I’m with Chait and Klein. The mandate is just a warty tramped up tax dressed in regulatory clothing since that’s how Obama, Pelosi et all chose to try and disguise it to get it through congress.
    If you don’t buy health insurance you get a fine. So the default negative action state has you paying more at tax time. You can be exempt from this tax by buying some form of health insurance. I don’t fancy it but that’s what it is and like it or not congress does have constitutional taxing authority.
    Now it’s possible the courts may strike it down. But HCR was written so that knocking out one part doesn’t take out the rest and the mandate was put in mostly to try and preserve the current state of the health insurance market. Personally I think that opponents of the Dems ugly health care reform (the GOP in particular) should probably pony up a suggested alternative so they can make a play for fixing it legislatively. I thought judicial activism was supposed to be a liberal game?

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    • Meh, I’m with Chait and Klein.

      Are you though? And where will that leave you when the next big project explicitly compels citizen participation, and when Obamacare is the shining, untouchable precedent?

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      • I understand the – to tack back to posts from earlier in the week – slippery slope concern, but isn’t this a different situation that needs to be handled differently?

        Everyone I know who works in the HC field – especially the finance side of it – agrees that it does not follow typical free market laws, and is not sustainable under any system that is not in some way highly regulated and/or demanding of the smoothing out of dollars from younger, healthier people.

        Can’t you take it as a special case, and make a different set of rules for it, without throwing out the entire concept of a democratic and free society? We’ve certainly done it before with other things such as Social Security, paying for road maintenance even if you don’t own a car, etc. and we’ve managed to hold the Fourth Reich at bay.

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  6. I’m going to put on my non-partisan hat for a brief moment and try to walk through HCR as I see it right now…

    The insurance mandate is unique because current law forces medical providers to provide emergency care for anyone who needs it. With that reality it seems more reasonable that Congress would require everyone that can afford it to have insurance and attempt to offset that cost. Additionally, insurance companies are now being forced to cover pre-existing conditions which usually means a guaranteed lost. The insurance mandate is the only way to really offset THAT cost. That’s why it was asked for by Republicans for several decades. Now that they have it, they’ve switched gears to a constitutional challenge in hoping they can crush HCR altogether.

    The constitutional challenge is a bad move for the GOP (and the Left should be happy about it).
    Megan McArdle recently wrote this (emphasis mine):

    “…And so [liberals] seem genuinely bewildered by…an attempt to overturn the mandate even though this might lead us into a single payer system.

    So imagine the mandate gets tossed out by SCOTUS. What next? The logical path seems to be a couple of things: 1) The government expands Schip and similar programs to cover even more of the poor than they already do. The liberal benefit here is that more and more people are brought on the federal dole and therefore dependent on government healthcare. Small leap to single payer. 2) Without a mandate the government will either need to subsidize care for pre-existing conditions or take those people onto the federal dole as well. The latter is smarter for the same reason as #1 – edging closer to single payer.

    If I’m President Obama I would welcome the mandate getting overturned because it puts the Right on the hot seat. The only real problem left to deal with in that scenario is those who can afford insurance and opt out. With a SCOTUS ruling you couldn’t mandate coverage so i’m not sure how to address it.

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  7. Presumably it prevents us from being compelled to commit murder, but that’s not very reassuring.

    Was the draft found to be unconstitutional?

    It ain’t me, it ain’t me…

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  8. Let’s quote Oliver Wendell Holmes (ptooey) from the landmark case Buck v. Bell.

    We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.

    Is OWH (ptooey) wrong here? I know why the crackpot libertarians think he is but I’d be interested in hearing from one of the progressives why he is.

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  9. There are substantive, procedural and institutional limitations on the power of the federal government. The substantive limitations are found in Amendments 1-10. Procedural limitations are found largely in Amendment 14. Institutional limitations are, well, institutional; largely by habit the Congress has left certain areas of the law to the discretion of the states. These include intrastate criminal law, family law, most contract law, and most property law.

    In my (leftyish lawyer) point of view, there have been two critical amendments to the Constitution relating to the power of the federal government, both of which have been ratified by the people.

    The first, following the Civil War, is reflected in the 14th Amendment. The union of several states was dissolved and a single Union was formed. Once the BoR was incorporated against the States, the Congress had to have the power to make that incorporation effective. Thus, the 14th Amendment is properly seen as an enormous (and intended) expansion of the Commerce Clause.

    The second arose in the Great Depression. Not many people still alive were adults in the Great Depression, so it’s hard to find first-person testimony about just how close this country came to collapse. The Bonus Army’s march on Washington brought this country to the naked edge of insurrection, according to my (now-dead) grandfather. FDR’s promises to the country of a New Deal was a promise to expand the power of the federal government to address the problems caused by the Depression. He was made President three times.

    So we live today not only with the “original public understanding” (assuming such a thing exists) of the Commerce Clause of 1789, but also the understanding of the 14th Amendment (please note that many people believe the Slaughterhouse Cases were wrongly decided, and it took the New Deal cases to reverse that point of view) and the contract made, re-made and re-made again between FDR and the electorate.

    So, what limits lie on the power of the federal government? It’s a fact-specific question. Can the govt punish me for not eating vegetables? Well, I guess the govt could impose a VAT on meat and fat, but not veg. Can the govt require me, however, to keep a log of what I eat every day and pay taxes based on that log? No. There exists a liberty principal in the 5th amendment that stops the govt from going so far. Can the govt punish me for buying a Ford vs a GM? I doubt it; I think Ford would have a great equal protection argument. What about a low-mileage vs a high-mileage car? Yes. We already pay gas taxes, which are levied based on how much gas you burn.

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    • I think the question at hand, though, is ultimately whether the Constitution imposes any limitations on the federal government that are not contained within the Bill of Rights, 14th Amendment, and/or other amendments. If the answer to that is no, then the follow up question would be “did it ever”?

      I should mention that I find Noah Millman’s response on this front entirely persuasive, in the comments here: http://theamericanscene.com/2010/12/16/standing-up-for-limits-on-the-commerce-clause

      BUT….for the most part, I haven’t seen any attempts to directly answer the question other than Millman’s.

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      • Noah’s response suggests a way out of the free rider problem the mandate seeks to address without forcing you to buy insurance for merely being alive – some indelible promise that you never plan to use the American health care system in any form without paying for it in advance. How about an exemption from the mandate if you get a tattoo showing that you opt out? If you have this tattoo, hospitals would be allowed to leave you to die in the ER if you can’t prove ability to pay.

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        • There was this kid i played hockey with in high school. We were waiting for the bus to take us to a game and he was smoking a cigarette, so i made some joke about how that would be great for his conditioning. He said he was in great shape ( he was) and he could run around the entire football while smoking the cig. I said go ahead. He ran around the entire circumference of the football field with the cig in his mouth. Then he coughed up a lung for 10 or so minutes.

          Sometimes proving, or doing, something just weakens your claim to have a clue.

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  10. Megan McArdle, one of the glibertarians worse than Hitler, asks a handful of related interesting questions here:

    theatlantic.com/business/archive/2010/12/the-limits-of-the-taxing-power/68179/

    Here are two of them:

    1) Can Congress enact a $50,000 tax on second term abortions?

    2) Can Congress enact a $50,000 tax increase, which is then rebated to anyone who does not have an abortion?

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    • Can individual states do such a thing? Can the Congress? Mass. has a mandate which i don’t see anybody challenging. The concerns about HCR are about an overreach of the Commerce Clause, so this is a debate about Federalism. So your question is: can only individual states mandate abortions and then give rebates to those who don’t have them?

      Signed
      A Liberal worse then Stalin

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      • I’m pretty sure that my question would be: Does the Constitution limit the Congress from passing a law that does this?

        If it does, how so?
        If it does not, how not?

        (Of course I know the crackpots think that this is unconstitutional. I’m wondering why the progressives may think so.)

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        • Well i don’t think its unconstitutional. The very very very short argument is HC is a national business/issue, necessary and proper and the Constitution was formed so we could deal with collective action problems the state couldn’t take care of individually.

          So to my question. Can individual states create the mandate McMegan suggests? If no, why not? If yes, then discussing federalism is the least of issues and concerns we have.

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              • There are a lot of little questions in there. I’ll try to unpack.

                I don’t think that “Constitutional” necessarily means “good” or “noble” or “moral”. I don’t think that “Unconstitutional” necessarily means “sub-optimal” or “wicked” or “venial”.

                Something can be Constitutional and be downright immoral.
                Something can be Unconstitutional and yet be something that I think everybody ought to do anyway.

                So my saying “X is Constitutional” should not be read as me saying “I am fine with X”.

                I am someone who believes in a right to privacy. This means that when the government puts its nose in certain spheres, it is violating rights. Abortion, for example, is something that the government should not have long enough tendrils to touch. Gay Marriage, for another, is something that the government should not have long enough tendrils to touch. How much money I (as a citizen) make, for yet another, is something that the government should not have long enough tendrils to touch (how much money I *SPEND* may be another matter in certain circumstances).

                So taxation, as it currently exists, is a violation of my rights. Whether or not I get an abortion (GET YOUR GOVERNMENT OUT OF MY UTERUS!) is none of the government’s business and so taxing me on whether I get one is yet another violation of my rights.

                And so on and so forth.

                The problem comes when you disagree that I have a right to privacy… that is to say that *YOU* have a right to know what I am doing with my so-called “private” things and regulate and/or tax them.

                Once you start doing that, you ought not be surprised when your private things get aired to God and everybody.

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                • “Something can be Constitutional and be downright immoral.
                  Something can be Unconstitutional and yet be something that I think everybody ought to do anyway.

                  So my saying “X is Constitutional” should not be read as me saying “I am fine with X”.”

                  This is the real argument in my opinion. If the Constitution contains loopholes which are now being exploited, is it better to have a strictly limited government with no loopholes? Constitutional and limited are obviously no loner the same thing. Rather than arguing over what the government can do, it might be better to talk about what it should be limited to doing.

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                    • I’m pretty sure that we can agree that there would be some theoretical taxes that would violate your privacy.

                      Maybe a tax every time you engaged in the act of love with another. Or a tax every time you engaged in the act of love without another.

                      I think we’d agree that such would be a violation of privacy despite the calls for the need for such taxes (think of “the children”, perhaps).

                      Okay, we agree that there are theoretical taxes that would, no doubt, violate privacy… right?

                      Okay, so let’s come up with a tax that we agree does *NOT* violate privacy. How about taxes on corporate profits? The corporation is a fiction created by government, right? The LLCs and whatnot are legal fictions.

                      So when they post a profit or enter into a sale of goods or purchase of goods, such would be taxable *WITHOUT* violation of any individual’s privacy, right?

                      Well, that’s what I mean. We should have taxes that do not violate privacy… instead of the privacy violating taxes we have.

                      Of course, if you do not believe in a right to privacy, this is less of an issue.

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  11. Im currently being forced to buy a house.

    I don’t actaully have one yet but apparently people with morgates get to pay less taxes than renters like me.

    HOW DARE THE GOVERNMENT FORCE ME TO BUY A HOUSE AT THE BARREL OF A GUN?!?!

    (interestingly the morgate exception is bad policy for a variety of reasons in my NERHMO)

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      • Actually no Jay, the guy who owned the building he’s renting wouldn’t get a mortgage tax exemption since it applies only to a mortgage on a person’s personal home. Even if he were living in the building and renting the rest of the apartments he’d only be able to write off his own unit’s portion of the mortgage. So there would never be any savings passed on to the renters from the mortgage tax deduction.
        If anything, by inflating property values the mortgage deduction probably causes higher real estate taxes and other fees that are passed on to the renters in the form of slightly higher rents.

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          • Rents are a category of taxes seperate from capital gains, at least they were in Canada when I was studying tax law. So they’re taxed very much like income.

            In any event since the mortgage tax deduction only gives one the ability to reduce ones taxable income by the amount of interest one pays on the mortgage of ones primary residence the question of rents is moot. If you had a mortgage on a property you were renting out none of the interest on that mortgage would be deductable. If you lived in say, half, of that building and rented out the other half then only half of the interest of your mortgage would be deductable.

            This of course actually strengthens your arguement rather than weakens it. In virtually every conceivable way the mortgage tax deduction screws renters over hugely.

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      • 1) It is a precedent that establishes that this type of thing is long constitutional, longer than I have been alive.
        2) It is bad bubble producing policy that gives money to the wealthy at the expense of the poor and middle class.

        So my opinion is that it is bad yet constitutional policy. I can see that you are on board with a repeal effort for it which is nice. Find me some additional senators/congress critters to sign on to it besides one Ron Paul and we could talk about changing it. Espcially if you stop going on about how HCR reform which is constitutional and better policy that what came before is evil and unconstitutional when it clearly isn’t.

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  12. I would like to ask a few questions. Is it best for society to have a government capable of regulating all aspects of the economy? If not all aspects, then what aspects, and why should it have power over some aspects, but not others? If all aspects, what prevents tyranny over our everyday economic activities? The last question — can’t all our activities be related in some fashion to economic activity?

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      • I’m a libertarian sort, but I’m an economist and a policy analyst, so I can go along with this.

        Of course, Mike Farmer also has a point, who gets to decide what counts as a market failure? Too many people seem to use to word to mean “outcome I dislike”, rather than the more technical definition used by economists.

        I would also raise the concept of government failure, the counterpart to market failure. There are some things governments (or at least the kinds of governments we have) just can’t do very well. In some cases this leads to government action aggravating problems with the market rather than ameliorating them. Would you agree in principle to using constitutional restraints to prevent governments from engaging in activities that lead to the more egregious government failures?

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      • To expand slightly, the way I mean this is essentially a tautology: that is, in the modern world states tend to have easily enough power to regulate all aspects of their (or, more properly “their,” or, ‘their people’s’) economies. This means that it is essentially a political question how much of an economy might be regulated in a given case. Constitutions are a means of managing this political question, but they in no way remove the question from the realm of politics; that is a Grail Quest. I appreciate the value of constitutional limits on the domain of economic activity that is subject to state regulation, but at the same time I see value in opening as much of economic activity to public political consideration as a polity feels collectively comfortable with so opening. This is precisely because of what I have laid out: that the scope of regulation is a political question in all instances, regardless of a constitution. In my view, it is a more vital public discussion that considers questions of economic regulation on the merits as a matter of course, than one that removes broad fields of activity from public consideration constitutionally. But, as I mentioned in the above comment, I realize this is not the constitutional establishment we have, and it is also not a sentiment in keeping with prevailing opinion at this site (which makes me especially pleased to offer it). Neither, though, (as I also have said) does the fact that in our society many large questions of economic regulation are in our constitutional framework removed from legislative purview mean that they are, in fact, removed from politics, nor from the factual reach of the state.

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