The Molotov Cocktail and the Future of Mandated Healthcare

By R. Tamara de Silva

On August 12, 2011, the United States Court of Appeals for the Eleventh Circuit

issued an opinion that the portion of the Patient Protection and Affordable Care Act

(“PPACA”) mandating that individuals purchase private health care, violates the United

States Constitution. At first blush, this case is a bit of yawner and easy, considering it is

304 pages long, to ignore. The commentators have correctly pointed out that the United

States Supreme Court will have the final word on the future of President Obama’s

healthcare bill as there now there are two conflicting circuits (the Sixth Circuit upheld the

PPACA as not violative of the Constitution in June)-so why and even read it when the

Supreme Court will have the last word on it during its next session?

Yet I would urge every American to put their politics aside and read the Eleventh

Circuit’s opinion. It is of monumental importance to any breathing American because it

spells out why any decision on the PPACA is far more than just a decision on Obama’s

darling healthcare bill, it is of fundamental importance to either keeping the

Government’s powers under the Commerce Clause checked, or allowing them to be let

upon this nation, unbounded, limitless and absolute. The future of this decision will affect

nothing less than whether Congress is ever again, held back from regulating absolutely

everything in America under its Commerce powers.

Chief Justice John Marshall wrote almost two hundred years ago in Gibbons v.

Ogden, 22 U.S. 1 (1824), that Congress’ power under the Commerce Clause is the

power, “to prescribe the rule by which commerce is to be governed. This power, like all

others vested in Congress, is complete in itself, may be exercised to its utmost extent, and

acknowledges no limitations, other than are prescribed in the Constitution.”

1 Congress has long had the power to regulate insurance and as such, health insurance.2

In the Eleventh Circuit case, twenty-six states sued the Government for using the

Commerce Clause to have Congress require by law that Americans must buy health

insurance from “birth to death” from a private company or pay a penalty-in effect

legislate that every American buy a product from a private vendor whether they want it

or not.

The Government has argued that those who do not have health insurance and use

the emergency room or public hospitals when sick (what are called “cost-shifters” in the

court opinion)

3 affect interstate commerce and fall within the ambit of the Commerce

Clause because they shift an economic cost on those who have health insurance and the

insurance industry as a whole.

The Obama administration's defense before the Eleventh Circuit asserts that by

merely breathing, individuals affect interstate commerce, "and therefore Congress may

regulate them at every point of their life." This argument would seek to expand

Congress’ powers under the Commerce Clause beyond current law and give the Federal

Government absolute unfettered power to regulate

any activity that had but the most

tenuous connection to interstate commerce.


Id. at pp. 196


Think of ERISA, CORBRA, HIPAA, et. al.


Interestingly, under the PPACA, the largest cost-shifters-illegal aliens that account of

$8.1 billion in health care costs and low-income persons that will be covered by an

expansion of Medicaid (currently costing $15 billion in costs to health care system) will be

exempt from the mandated health care regime of PPACA. Shifting the purchasing

mandate of the PPACA to healthy and voluntarily uninsured individuals-requiring that

this group and not the costliest cost-shifters purchase private insurance. See pp. 140 of

Eleventh Circuit Opinion


However, Justices Joel Dubina and Frank Hull questioned whether the

Commerce Clause subjects those outside of the stream of commerce to Congress’

authority over commerce. People that do not buy health insurance are “not making a

voluntary decision to enter the stream of commerce, but this choice is being imposed on

them by the Federal Government.”


The Court of appeals points out the instances of when Congress has actually

mandated personal action on United States citizens solely because they are American are

relatively few: serving on juries, registering for the draft, filing tax returns and responding

to the census. Before the PPACA, Congress has not been able to compel Americans to

engage in an activity, even one with substantial economic consequences-for example, no

one is required by law to purchase flood insurance even if they live in a flood plain or for

that matter stop building homes in flood plains. Congress has not yet required that

people abandon New Orleans, nor hurricane prone areas or other geographic areas

proven to attract recurring and costly natural disasters.

There is absolutely no precedent for Congress using the Commerce Clause to

enforce a purely economic mandate. All previous government mandates of individual

behavior that have an economic consequence primarily affect an American’s

responsibilities as a citizen with the United States. The government’s mandate of a draft,

filing a tax return and serving on a jury, all affect a citizen’s interaction with the

government itself and affect how government defends itself and operates. However,

mandated health care would affect and mandate that every citizen interact with a private

company-a requirement never before asked by the Government under the Commerce



Eleventh Circuit opinion at pp. 123


Obama’s lawyers make the argument in favor of mandating that an individual

purchase a good or service just because the decision not to purchase a good or service, if

taken in the aggregate of all person who similarly made this decision, have a substantial

impact on interstate commerce. The Eleventh Circuit cites Lopez v. United States to

which held that the a Congressional finding of the aggregate effect of economic activity

was not sufficient to hold legislation a valid exercise of the Commerce Clause, “Simply

because Congress may conclude that a particular activity substantially affects interstate

commerce does not necessarily make it so.”


This reasoning would mean that Congress may use the Commerce Clause to

mandate every conceivable economic decision, even decision lacking what the courts

have historically required, “a nexus” or connection or a regulated economic activity.

Even areas that have historically been under the jurisdiction of the states such as

marriage, divorce, child custody, choice of education and all have substantial economic

effects in the aggregate and would theoretically be candidates for regulation under the

Commerce Clause. Health care has historically been regulated by the states.

If the Government can mandate the purchase of private health insurance, it can

mandate every other private purchase. The Eleventh Circuit’s opinion points out the

Constitutionally untenable nature of the defendants’ position,

“In sum, the individual mandate is breathtaking in its expansive scope. It regulates those

who have not entered the health care market at all. It regulates those who have entered

the health care market, but have not entered the insurance market (and have no intention

of doing so). It is overinclusive in when it regulates: it conflates those who presently

consume health care with those who will not consume health care for many years into the

future. The government’s position amounts to an argument that the mere fact of an

individual’s existence substantially affects interstate commerce, and therefore Congress


514 U.S. at 557 n.2, 115 S. Ct. at 1629 n.2


may regulate them at every point of their life. This theory affords no limiting principles

in which to confine Congress’s enumerated powers.”


Obama’s lawyers also tried to argue in the alternative that the Congressional

mandate of the PPACA was a tax under the Taxing and Spending Clause. The Court

declined to see it thus pointing out how many times, Congress describes the mandate not

as a tax but as a penalty and in its legislative history makes clear the PPACA was intended

as a penalty and not exclusively a revenue-raising mechanism.

This is where the Molotov cocktail comes into play. Congress’ power under the

Commerce Clause was not found to extend to holding arson of a private residence as a

Federal crime. In 1998, in Fort Wayne, Indiana, a certain Dewey Jones from Detroit

decided the best way to dispose of a Molotov cocktail was to throw it into his cousin,

James Walker, Jr’s house. Predictably, Jones was convicted in U.S. District Court of

violating 18 U.S.C. section 844(i), which holds that it is Federal crime to "maliciously

damage or destroy, means of fire or an explosive, any building... used in interstate or

foreign commerce or in any activity affecting interstate or foreign commerce." Jones’

lawyers unsuccessfully argued that section 844(i), when applied to the arson of a private

residence, exceeds the authority vested in Congress under the Commerce Clause of the


The Supreme Court in a unanimous opinion, delivered by Justice Ruth Bader

Ginsburg, agreed. The Court ruled that an owner-occupied private residence not used

for any commercial purpose does not qualify as property "used in" commerce or

commerce-affecting activity, such that arson of such a dwelling is not subject to federal

prosecution under section 844(i). Justice Ruth Bader Ginsburg wrote for the Court that


Eleventh Circuit Opinion at pp. 130-131


"[w]ere we to adopt the Government's expansive interpretation of section 844(i), hardly a

building in the land would fall outside the federal statute's domain."


What is most interesting about the Jones case is that in it the Supreme Court

Justices asked the Government’s lawyer what if anything he thought would not be

included in the Government’s suggested reading of the Commerce Clause—he could not

seem to come up with limitation.

In Marbury v. Madison, 5 U.S. 137 (1803), Chief Justice John Marshall

established the United States Supreme Court’s power of judicial review. In this case,

Justice Marshall pointed out words that are still forceful today- that the Constitution was

"the fundamental and paramount law of the nation" and that "an act of the legislature

repugnant to the constitution is void." The Constitution is the nation's highest law and

when an act of Congress conflicts with it, that act is to be held invalid.

The Constitution creates a limited federal government with powers that are not

enumerated belonging to the people and the individual states. Yet every expanded use of

the Government power through the mandate of Federal law, for the purposes of this

writing, the Commerce Clause, is one less power to be held by the states or retained by

the individual in determining how to live.

How to live has been a fundamental question posed by philosophers from the time

of Plato and Aristotle and arguably earlier in ancient Buddhist texts. Today concerns

about individual liberty are so often dismissed as the political diatribe of the libertarians

or some other group. It is as if popular political discourse has hijacked the need for

meaningful analysis. What is lost is that every power surrendered to the Federal


Jones v. United States, 529 U.S. 848 (2000)


government through the Commerce Clause is one less that the individual states and the

individual may retain in deciding how to live.

If everything that affects interstate commerce (which, by the reasoning of the

Obama’s lawyers in defending the PPACA, is every imaginable activity) then the states

and the individual American are merely custodians or temporary repositories of power,

powers, affecting every aspect of American life and powers that may be reclaimed by the

Federal government at any time.

This would mean that there are no powers left exclusively to the states. The

Federal government would discover its political reach, one power at a time.

The Commerce Clause simply states that Congress shall have power "To regulate

Commerce with foreign Nations, and among the several States, and with the Indian

Tribes.” The Commerce Clause was intended to facilitate interstate commerce by

allowing Congress to prevent states from passing discriminatory restrictions on the freeflow

of interstate commerce.

8 To allow Congress to regulate all manner of activities far

removed from that end, is to turn our system of a government of limited and enumerated

powers on its head. Justice Marshall would find the PPACA unconstitutional.

However, if the Supreme Court does not strike down the PPACA as

unconstitutional, which it clearly is, it would be allowing for the very time, Congress to

use the Commerce Claus to

mandate an activity on the part of an American and open

the flood gates to mandating any private action.@

R. Tamara de Silva

August 14, 2011

Chicago, Illinois


United States v. Lopez, 514 U.S. 549 (1995) and see also, United States v. Morrison,

529 U.S. 598 (2000)