Gabbing health reform, Supreme Court, and why the Tea Partiers seem more effective than the Occupiers

Another Bloggingheads with Glenn Loury.

I’m frustrated that I didn’t express myself better and more-succinctly here. Having devoted so much time and energy to health reform, it’s hard to describe my relief. Had ACA been struck down, it would have been decades before another president would have tried something this hard. Anyway, here you go.

For those who want more of my reaction to the Supreme Court, you might look here, and here. Oh yeah, here, too.

Author: Harold Pollack

Harold Pollack is Helen Ross Professor of Social Service Administration at the University of Chicago. He has served on three expert committees of the National Academies of Science. His recent research appears in such journals as Addiction, Journal of the American Medical Association, and American Journal of Public Health. He writes regularly on HIV prevention, crime and drug policy, health reform, and disability policy for American Prospect,, and other news outlets. His essay, "Lessons from an Emergency Room Nightmare" was selected for the collection The Best American Medical Writing, 2009. He recently participated, with zero critical acclaim, in the University of Chicago's annual Latke-Hamentaschen debate.

11 thoughts on “Gabbing health reform, Supreme Court, and why the Tea Partiers seem more effective than the Occupiers”

  1. A mildly off-topic question: In light of the new/now extant interpretation of the commerce clause, can federal law prohibit growth of marijuana for own use, so long as the grower does use it to engage in either interstate commerce or, perhaps, any commerce? If the answer is no, then may the grower give it away within the state (again, asking only about the scope of federal law, not what individual states prescribe or prohibit)? Again, if the answer is no, does this reasoning also apply to other drugs? Meth is apparently quite easy to produce if you can get hold of the precursors, so… In each case, the individual in question is not engaged in commerce. I guess my question is whether the ruling overturned allowing the regulation of agriculture for own use under the Commerce Clause.

    This occurred to me because of this post at TPM about implications of the Medicare portion of the ruling for lower drinking ages.

  2. The Supremes didn’t overturn Wickard v. Fillburn–they only said that it did not apply to inaction. So formally, the ACA decision does not affect the federal law pertinent to marijuana (Raich v. Gonzalez.) And if you want to know about the future of the commerce clause, you’ll better spend your time prognosticating the 2012 election returns than parsing Supreme Court case law.

    1. a) Thanks for the info.

      b) However, with your last sentence, you are trying to stomp out our fun. Stop being such a scrooge!

  3. With kidnapping, Congress claims the right to regulate local, noncommercial use of the *intruments* of interstate commerce; a kidnapping that uses a telephone (even locally) can be federally prosecuted, even though there is no interstate or commercial activity involved.

    With marijuana (and previously wheat, see Wickard v. Filburn), the argument is that producing things at home that might otherwise have been purchased on the interstate market affects commerce enough to be regulated by Congress.

    While I agree that Congress has the authority to regulate interstate commerce and protect its infrastructure (e.g. transportation, communication, contracts), I can’t see how a reasonable person could accept either of the above scenarios as regulation of interstate commerce, even indirectly.

    I enjoy the contrast between these cases:

    Gonzales v. Raich: “Prohibiting the intrastate possession or manufacture of an article of commerce is a rational means of regulating commerce in that product.”

    NFIB v. Sebelius: “The individual mandate … [unconstitutionally] compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.”

    Failure to purchase marijuana on the (illegal) interstate market can be regulated. Failure to purchase health insurance can’t.

  4. I understand that there are other times in which a social insurance act of Congress has been upheld under its taxing authority when the commerce clause was likely to be ruled inapplicable to the law. The depression-era unemployment insurance law was needed because no single state could adopt UI, since the taxed employers would just leave the state in question. The four conservative justices who had struck down much of FDR’s New Deal legislation were also against UI, but the law was upheld as a tax. talks about the case but I do not think this was cited in the SCOTUS decision from last week.

    Anyone have any insights into the parallels here?

  5. I’m sorry, but at times in that conversation Mr. Loury sounded like he was so easily swayed by the claims of the Right that he could, in the words of the old gag, be mugged over the telephone. In particular, his repeated refrain that any legal theory capable of receiving support by the most nakedly partisan and radical court in memory was thereby automatically legitimated and made a respectable part of non-politicized mainstream legal theorizing was offensively credulous.

    1. Yes, this was really weird. I imagine he wants to believe in the institution, and in a practical sense he is correct, in so far as it’s the best we might be able to come up with. But the idea that it therefor must be without flaw – that because of the importance of their position judges are non-political manifestations of “pure” jurisprudence and “above” ideological pettiness – is frightening. It seems a sort of institutional relativism to avoid moral critique that might subvert the righteousness of an institution.

  6. I’m about to listen to the podcast now (as I do the dishes!). But I always enjoy your conversations, Harold, and am glad to see Glenn asking you back. Sometimes his bending over backwards for the right makes me want to choke – his conversations with Ann Althouse are the few bloggingheads I absolutely refuse to listen to – but he’s bright and interesting and usually sets the “table” of discourse quite nicely.

  7. The reason for the success of the Tea Party is obvious to any honest observer- they were pursuing goals which (in general) the elites wanted.

    All else is details.

    1. Au contraire, I think. I believe the reason for their success is that they espouse the “wants” of a great many Americans:

      I want security; i.e., keep your Government hands off my Social Security, keep your Government hands off my Medicare, etc.

      I want the good life; i.e., fix my roads, fix my schools, fix the economy, etc.

      I want my money; i.e., keep your Government hands off my paycheck, lower my outrageously high taxes.

      Unfortunately, “I want…” is not always a rational constellation of well-thought-out ideas.

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