Affordable Care: Bicycling

BluesCatBluesCat is a resident of Phoenix, Arizona, who originally returned to bicycling in 2002 in order to help his son get the Boy Scout Cycling merit badge. His bikes sat idle until the summer of 2008 when gas prices spiked at over $4.00 per gallon. Since then, he has become active cycling, day-touring, commuting by bike, blogging ( and giving grief to the forum editors in the on-line cycling community.

The Supreme Court of the United States (SCOTUS) has upheld the constitutionality of the Affordable Care Act (Obamacare, as it is sometimes called, but more “officially” known as the ACA). I’m going to refrain from offering my opinion on the law itself, but briefly address why and how SCOTUS did what it did, and how it applies to federal funding for bicycle infrastructure.

Let me say, up front, that I am not a lawyer — at all — much less a Constitutional lawyer. I am a student of common sense, and as such am in a perfect position to understand and comment about this decision, as is almost everybody else.

Franz Liszt said “A person of any mental quality has ideas of his own. This is common sense.” So here are my ideas, based on my understanding of the health law and the whole legal hubbub surrounding it.

The Supreme Court
And you thought those steps weren't bike-friendly | Photo: Adam Fagen/Flickr Creative Commons

The attack on the ACA was based the idea that it was unconstitutional, under the Commerce Clause, to force people to buy something. One Federal Judge, Henry E. Hudson, said it well when he announced he could find no power under the Commerce Clause for Congress “to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market” (see Commonwealth of Virginia v. Sebelius).

The basic idea is that in any sort of economic activity where an individual is purchasing products or services, there is a certain element of voluntary action involved. To demand, by law, that all U.S. citizens purchase health care is to demand that they pay for something they may not want or even need. It would be like requiring everybody to buy a car, even if they don’t have any place to park it, can’t afford the gas to run it, and have their transportation needs satisfied via other means (buses, trains, bicycles, etc.).

The ACA supporters argued that it was Constitutional under the Commerce Clause, because you can force people to buy something if they still get the same benefit of the product or service as those who have paid for it. People cannot “opt out” of healthcare; eventually everybody is going to need it. As another federal Judge, George Caram Steeh III, said: “far from ‘inactivity,’ by choosing to forgo insurance (people) are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars … onto other market participants” (see Thomas More Law Center v. Obama).

As it stands now, a person without health insurance can simply go into an American hospital emergency room and treat the staff there as their own personal general practitioner; they cannot be refused care and so get the benefit of healthcare at no cost to themselves.

What both sides in the debate forgot is that The Constitution of the United States is not merely the Commerce Clause. And when SCOTUS makes a decision, it has to take all of the other constitutional clauses into account, including a very important one called the Taxing and Spending Clause. Congress is empowered to “lay and collect Taxes, Duties, Imposts and Excises, to … provide for the … general Welfare of the United States” (U.S. Constitution, Article 1, Sec. 8).

Because of the enormous burden of the cost of healthcare, and the genuine affect it has on “general Welfare,” the government proponents of the ACA mentioned this in their argument. They didn’t emphasize it because — as we all know — there’s a certain political element which goes ballistic at the mere mention of the word “TAX!”

The end result is that both opponents and supporters of the ACA were flabbergasted when SCOTUS came back saying that under the Commerce Clause of Article 1 the act was unconstitutional, but it certainly WAS constitutional under the Taxing and Spending Clause of that same Article 1 of the Constitution. What they’re saying is that the Feds cannot dictate what the citizenry must buy and sell, but it CAN require the people to pay for something — via a tax or fine or some other method — that is important to the health and welfare of the country.

Now, what does this have to do with bicycle funding in the federal funding for transportation? A popular argument for denying spending for pedestrian and bicycling infrastructure in the Transportation Bill is related to the Commerce Clause.

The complaint is similar to the one used by the opponents of the ACA: “Hey! You’re forcing the citizenry to pay for something they may not want and will not use!” And their argument would be perfectly valid if the Commerce Clause were the sum total of the Constitution.

It isn’t of course, and the Federal Government and the courts have long recognized pedestrian and bicycling infrastructure as important components of the overall U.S. Transportation system; so much so that language including such infrastructure has been woven into several parts of Title 23 of the United States Code (USC) which deals with Federal-Aid Highways.

Only a very fringe element of the anti-tax crowd would endeavor to eliminate taxes for the U.S. Transportation system. A lack of funding for infrastructure for roads and trains and airplanes (and bicycles and pedestrians) would be devastating for the American economy; there is nobody in the private sector, or in the governments at the local and state levels, with the resources to pick up the slack.

Dwight D. Eisenhower
Who put the "Ike" in "bike?" I did.

However, the economic impact of this lack of funding is not really the main reason for the importance of a national transportation system. As far back as 1919, a fellow named Dwight David Eisenhower recognized the need for a nationwide system of adequate roads and train tracks to be used in times of national emergency. President Eisenhower signed the Federal-Aid Highway Act of 1956 in order to build and maintain that infrastructure. In recent times the impact of the hurricanes, floods, tornadoes and wildfires across the U.S. would have been devastatingly greater without a way to transport help to those in need. Furthermore, the U.S. dependency on the foreign oil produced by countries not necessa
rily friendly to us makes it imperative that we find ways to reduce our overall fuel consumption.

The bicycle presents an alternative which can help free us from supporting oil-rich despots in other parts of the world. Using the power of the Taxing and Spending Clause, Congress can — and should — include bicycle funding in the Transportation Bill to “provide for the common defense,” and “promote the general Welfare.” Bicycling and pedestrian infrastructure is incredibly cheap when compared to the cost of a highway, it is truly “affordable care” for the health of our national transportation system.

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16 thoughts on “Affordable Care: Bicycling”

  1. mwmike says:

    Of course you’re right, BC. But you’re preaching to the choir. The illiterate, hateful, right wing, neo-con, tea-publicans will invoke the Constitution when they can twist it to their benefit, and condemn and attempt to change it when it’s seen to benefit anyone else. Keep fighting the good fight

  2. Vincent Lyon says:

    What a clever argument! I could not have guessed how you would have related the two issues, but this is an ideal rebuttal for those who refuse to help fund bicycle infrastructure. I like it!

  3. Jeff Gardner says:

    Blues, it won’t surprise you that we’ll disagree on almost all major points of your perspective on ObamaTax(es). Still, I can see that you worked very hard to try to keep an objective balance. I commend you for the effort.

    Forget the Commerce Clause. That route has caused endless angst on this forum. The years of cajoling unresponsive govt to understand and appreciate bicycle infrastructure has frustrated many of the readers here.

    Invented now is a much better way to achieve our objectives. Without question, Fedgov can now tax Americans for NOT cycling. A couple thousand dollars for not buying a bike; a couple thousand more for not using that bike to commute. Maybe a couple thousand more for not using it to shop. That would get more Americans on bikes in a day than all the gains over a decade. And this isn’t theoretical: after the incredibly important ObamaTax(es) decision, it is perfectly do-able. Now! After all, like everyone uses health care, everyone travels and commutes. Much more than they use health care.

    Of course, there is a downside. Congress in its infinite wisdom may instead determine that, say, there are too many head or knee injuries cycling. And that, therefore, Fedgov will impose the couple thousand dollars’ tax on the bicycle instead. Or on the 85-inch gear that blew out the knee. Or maybe we’re eating a bit too much trail mix and not enough broccoli on the road. Or, better yet, after corporate fast food America joins the gig, bicyclists shall pay a tax for NOT eating at McDonalds while on their way to work.

    I have argued in the past that Fedgov did not have the Constitutional powers many readers on this forum would like them to have. Now, let me be the first to say that as of last week they do. Albeit under an amazing interpretation of both the taxing power and Spending Clause.

    OK….now we’ve got the power! Anyone want to step up to the plate and use it? Just think…all of the advantages of cycling, primary and secondary, that we know would truly change the nation.

    But first, just think….

  4. Tom Bowden says:

    To paraphrase John Houseman in “The Paper Chase”

    “Mr. Cat – Here is a dime. I suggest you call your mother and tell her that there is every reason to think that you would have made a great lawyer.”

    In other words, I think you got it right. Check out what George Will had to say on the subject:

    I don’t particularly like the idea of using taxes to induce or coerce behavior one way or the other, but it is clear that Congress has that power. For that reason I am very pleased with the way Justice Roberts “split the baby” by finding support in the Article I taxing power. IN contrast I was outraged when Nancy Pelosi, upon being asked at a press conference what constitutional power justified Congress enacting a mandate, responded “Are you serious? Are you Serious!?” Actually, there is no more serious or salient question to ask in constitutional analysis and the fact that Ms. Pelosi tried to brush it off so sarcastically belied a deep lack of understanding on her part. As much as we all want everyone to have affordable health care, obliteration of one of the most fundamental limitations of government power in the Constitution is a bad way to achieve that goal.

    With respect to taxing the public to pay for bicycle infrastructure, there is no doubt that this is well within the power of the federal government, even if some vehemently oppose the exercise of that power for that purpose.

  5. BluesCat says:

    mwmike – Whenever I read one of your comments, there’s this youthful, rabble-rousing little fellow inside me who picks the lock of the door of the cell he’s been imprisoned in by my Mature Choir, shoves his head out and shouts “Dang! Hunt that guy down and buy him a BEER!”

    Vincent – Thanks, the SCOTUS decision just completed the whole argument I started developing a while back, with the help of Jeff Gardner when he and I traded comments in an exchange which lasted much too long here on CbB.

    Jeff – I don’t think you need to worry too much about Congress going all hog wild with taxing and spending. After all, shortly after I submitted this article to CbB, they did pass the Transportation bill; eliminating a bunch of spending for all of us pesky bicyclists.

    Tom – Aw, shucks! Comments like that from a genuine lawyer … you almost make me feel guilty I dropped out of pre-law! I have my own reservations about the ACA, but none of them concern the constitutionality of it. I am also FAR from being a so-called “tax and spend liberal.” I hate taxes as much as anybody, but I recognize them as something of a necessary evil.

  6. Jeff Gardner says:

    Returning to question, because I am genuinely curious to know what you think.

    As you have lobbied hard here for increased cycling structure under transportation and commerce authorities, will you now push just as hard for a vast increase in bicycle commuting via Congress’ authority to tax non-cyclists?

  7. hilzoy says:

    To my mind, the Congress has the power, under either the Interstate Commerce clause (plus the ‘necessary and proper’ clause) or the taxing clause, to pass the ACA.

    I think that pointing out the various ludicrous things that Congress could do using these powers misses one big point about democracy. Yes, the Congress *could* do all sorts of silly things. It could, for instance, tax us for not wearing funny hats, or say that interstate truckers had to get out of their trucks and sing ‘Row, Row, Row Your Boat’ whenever they enter a town whose name begins with B, or buy us all flat screen TVs ‘for the general welfare’.

    But we have a way to deal with these possibilities. It’s called democracy: when we don’t like what our representatives do in our name, we vote them out. And I’d vote against anyone who did any of these things, unless the rest of their record was truly extraordinary.

    And this is how it should be. The framers of the Constitution did not try to restrict the powers of any branch of government to those powers that could not be used to do stupid things. How could they possibly figure out which powers those would be? Instead, they gave the various branches powers that could be used for good or ill, and left us to elect people who would do what we think is a good job.

    The safeguard against bad legislation isn’t the constitution. It’s us.

  8. BluesCat says:

    Jeff –
    I’m in the camp which believes “If you build it, they will come.” Studies have shown that good, safe, convenient bicycling infrastructure encourages its use, and leads to a favorable environment for investment in even MORE bicycling infrastructure, which will lead to even MORE use, and so on and so on.

    I don’t believe in penalizing motorists, I think that is counterproductive. (I will TEASE my non-cycling friends and family mercilessly, in a tit-for-tat response to their ribbing me about getting around by “pedaling my butt off.”) There are some folks who simply cannot bicycle, for reasons which vary from the physical inability to do so all the way up to some insurmountable logistics; one example of the latter: people who live in rural areas miles from necessary services.

    Recall Tom Bowden’s terrific CbB article about How to Talk About Cycling to a Conservative. I made some snide comments in true BluesCat fashion, but I have NO argument with his bullet list about Here is what turns off conservatives. Peruse that bullet list and you’ll see why I won’t go there if it comes to talk of “punishing” motorists. I think the vast majority of Republicans are clueless about bicycling as transportation, but Tom has proven that there is at least ONE guy over there who ISN’T.

    Think about this: If the vote is split 50-50, you need just ONE guy to come over from the Dark Side in order to prevail. You ain’t gonna get him to do that if you just insulted his mother.

    Hilzoy –
    What a concept, eh? Let the PEOPLE decide, via their VOTE. You can’t cure Stupid, but you can VOTE Stupid out of office.

    Yet ANOTHER reason to review Tom’s bullet list for some ideas to get that ONE guy over on your side.

  9. Josh King says:

    Hilzoy, the constitution is essentially anti-democratic – which is exactly how we want it.

    Yes, elections have consequences, and yes, we can vote out the bastards if they pass stupid laws. But sometimes they pass stupid laws that a majority of us think are just dandy.

    That’s where the constitution comes in. It protects minorities from the “tyranny of the majority.” It allows for the judicial undoing of laws that seem like a fine idea at the time – think Jim Crow, internment camps, flag burning laws, obscenity restrictions – but which violate our core values.

  10. Jeff Gardner says:

    Josh, your thinking on the matter is appreciated. But there is no constitutional prescript for judicial undoing of laws. That is doctrinal fiction invented by John Marshall and expanded thereafter.

  11. Josh King says:

    Jeff, that “doctrinal fiction” is inherent to the operation of the Constitution. The document doesn’t make sense without the concept of judicial review. That’s the (obvious) conclusion Marshall reached, and through 200 years of case law and legal thought there has been no serious argument to the contrary.

  12. Jeff Gardner says:

    You are well-schooled on the judicial branches’ common arguments. Perhaps we will have the opportunity to look past that on a more appropriate forum one day. Until then, its summer in Seattle…not a moment’s ray of cycling sunshine to lose!

    1. Ted Johnson says:

      Jeff: You’re in Seattle? Josh King is in Seattle. Beer is sold in Seattle. You two should meet up. Tell us how it goes.

  13. BluesCat says:

    Jeff – Yeah, I’m really envious of you folks up in the northwest right now. Y’all have the bragging rights as far as biking comfort goes.

  14. Josh King says:

    Indeed – Jeff, feel free to give me a shout via the link on my name above. I’m sure we can reconcile the appropriate constitutional balancing of powers over a few beers!

  15. Jeff Gardner says:

    Sorry for the mis-impression all. I alluded to Seattle because that is Josh’s experience. And ‘Seattle’ experience with anything cycling is instructive for all of us.

    Several times in the past I’ve commented that I’m actually not far from BluesCat. Las Cruces, to be more specific.

    Josh, a few beers with good people in Seattle is ir-resistible! I’ll forego any govt talk though, having taught US Constitutional history for many, many years. No reason to do so any longer in a nation that has moved on, past those foundations. These days, I’m pretty sure that the right pannier has more to do with out quality of life than do academic recollections of days gone by.

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