It is not clear what it will take for the Left to come up with a compelling response to originalism.
Over at the Originalism Blog, Mike Ramsey has been arguing that the provision of health insurance is interstate commerce. Ramsey writes:
My insurer (in California) is Anthem Blue Cross, which claims to be the largest health insurer in California; it’s a subsidiary of WellPoint, Inc., a company headquartered in Indianapolis with health insurance operations in at least 14 states. This all sounds pretty interstate to me, and I think my insurance situation is fairly typical, although I know little about the details of the health insurance industry and I could be persuaded otherwise. (It would be different if WellPoint were just a passive investor in independent insurance operations within various states, but my sense is that this is an integrated and centrally-managed operation.)
Let’s assume, as I think plausible, that the sale of insurance is commerce. But is it interstate commerce? It seems clear that the sale of insurance by a California corporation to California residents would be intrastate insurance. How does the ownership of the California corporation change things, if at all?
The mere fact a corporation has shareholders from other states seems unlikely to turn the sale of insurance from a California corporation to Californians into interstate commerce. After all, that would make all actions of publicly held corporations interstate. But why doesn’t the existence of these out of state shareholders make the corporation’s actions interstate? One very plausible reason is that there is a formal distinction between the shareholders of the corporation and the corporation itself. It is the corporation, not the shareholders, that are engaged in the action. It matters where the business is located, not its shareholders. And the corporation is providing the insurance in California.
If that analysis is true, then how does it apply to an Indiana Corporation that owns and centrally manages a California subsidiary? Under this analysis, the fact that an Indiana Corporation owns the California subsidiary does not matter. It is the California subsidiary that is legally making the decisions to provide the insurance and the insurance is occurring in California.
But it might be argued, as Mike Ramsey implies, that if the decisions are actually made in Indiana – “if its a centrally managed operation” – then the provision of insurance is not occurring only in California but also in Indiana. This is possible, but the opposite conclusion is also possible. It is true that one might say that the decisions in fact are made in Indiana. But legally, based on my limited memory of corporate forms, the decision is technically made by the California corporation (ultimately the President or the Board) and that might be what counts. It is not clear to me which of these two possibilities is the right answer here.
What then are the implications for the provision of health insurance by Anthem? First, Anthem might not be centrally managed in Indiana and therefore would be engaged in intrastate commerce. Second, Anthem might be centrally managed, and then whether it is engaged in interstate commerce would depend on how one answers the question I raised in the previous paragraph. Finally, I should note that some health insurance corporations may not be subsidiaries of corporations in other states and those health insurers will then be engaged in intrastate commerce. (Some would attempt to claim that the intrastate provision of health insurance can be regulated under the Necessary and Proper Clause as affecting the interstate market for health insurance, but I am skeptical of this power except in the most exceptional cases.)