William Larsen

Whe cares enough?

I had a call from a person who reads the Fort Wayne Politics blog. He wanted to know if I was the William Larsen who posts there. We have a lot in common and agree on many things. He asked if I knew of a federal law, statue or prohibition that prevented the U.S. Government from competing with private enterprise. For example, could the government open gas stations and sell gas to the public for a profit? Could they open up grocery stores to compete with Kroger?

I was taught in my class on U.S. Government that they could not compete with private companies. It was prohibited from owning equities/companies and competing with private busniess. The question then arose, how could government offer public insurance if it was prohibited from owning and competing against companies? This is an excellent question. I like to think that I question the validity of many things government does. It is my right and civil responsibility to question the Government. It is the only way we keep tabs on what they do and to expose wrongs.

In the past year the government has bailed out banks taken ownership in banks, insurance companies, mortgage companies and even two of the big three automobile companies. I would think everyone of these actions would violate some law, statute or regulations. However, I like many others have taken for granted they could not do so, but I have never actually verified the existence of this. My question is who cares enough to challenge this? We are beginning down a slippery slope. Is there a means to stop this before it is too late?

After a quick search on the subject I found 20 §437.32 Equipment

(3) Notwithstanding the encouragement in §437.25(a) to earn program income, the grantee or subgrantee may not use equipment acquired with grant funds to provide services for a fee to compete unfairly with private companies that provide equivalent services, unless specifically permitted or contemplated by Federal statute.

Though this does not deal with subject directly, it would lead me to believe that there is in fact some statute that prevents government ownership from competing with private companies. I did find a Supreme Court Case that leads me to believe the court would not strike down Public supported Health Insurance.

“Flow control” ordinances require trash haulers to deliver solid waste to a particular waste processing facility. In C & A Carbone, Inc. v. Clarkstown (1994) , this Court struck down under the Commerce Clause a flow control ordinance that forced haulers to deliver waste to a particular private processing facility. In this case, we face flow control ordinances quite similar to the one invalidated in Carbone. The only salient difference is that the laws at issue here require haulers to bring waste to facilities owned and operated by a state-created public benefit corporation. We find this difference constitutionally significant. Disposing of trash has been a traditional government activity for years, and laws that favor the government in such areas—but treat every private business, whether in-state or out-of-state, exactly the same—do not discriminate against interstate commerce for purposes of the Commerce Clause. Applying the Commerce Clause test reserved for regulations that do not discriminate against interstate commerce, we uphold these ordinances because any incidental burden they may have on interstate commerce does not outweigh the benefits they confer on the citizens of Oneida and Herkimer Counties."

A - The Commerce Clause provides that “Congress shall have Power … [t]o regulate Commerce with foreign Nations, and among the several States.” Although the Constitution does not in terms limit the power of States to regulate commerce, we have long interpreted the Commerce Clause as an implicit restraint on state authority, even in the absence of a conflicting federal statute.

B - To determine whether a law violates this so-called “dormant” aspect of the Commerce Clause, we first ask whether it discriminates on its face against interstate commerce. In this context, “ ‘discrimination’ simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.” Discriminatory laws motivated by “simple economic protectionism” are subject to a “virtually per se rule of invalidity,” which can only be overcome by a showing that the State has no other means to advance a legitimate local purpose....

C - The flow control ordinances in this case benefit a clearly public facility, while treating all private companies exactly the same. Because the question is now squarely presented on the facts of the case before us, we decide that such flow control ordinances do not discriminate against interstate commerce for purposes of the dormant Commerce Clause.

Compelling reasons justify treating these laws differently from laws favoring particular private businesses over their competitors. “Conceptually, of course, any notion of discrimination assumes a comparison of substantially similar entities.” But States and municipalities are not private businesses—far from it. Unlike private enterprise, government is vested with the responsibility of protecting the health, safety, and welfare of its citizens. These important responsibilities set state and local government apart from a typical private business.

Given these differences, it does not make sense to regard laws favoring local government and laws favoring private industry with equal skepticism. As our local processing cases demonstrate, when a law favors in-state business over out-of-state competition, rigorous scrutiny is appropriate because the law is often the product of “simple economic protectionism.” Laws favoring local government, by contrast, may be directed toward any number of legitimate goals unrelated to protectionism. Here the flow control ordinances enable the Counties to pursue particular policies with respect to the handling and treatment of waste generated in the Counties, while allocating the costs of those policies on citizens and businesses according to the volume of waste they generate.

Finally, it bears mentioning that the most palpable harm imposed by the ordinances—more expensive trash removal—is likely to fall upon the very people who voted for the laws. Our dormant Commerce Clause cases often find discrimination when a State shifts the costs of regulation to other States, because when “the burden of state regulation falls on interests outside the state, it is unlikely to be alleviated by the operation of those political restraints normally exerted when interests within the state are affected.” Here, the citizens and businesses of the Counties bear the costs of the ordinances. There is no reason to step in and hand local businesses a victory they could not obtain through the political process.
...

Finally, it bears mentioning that the most palpable harm imposed by the ordinances—more expensive trash removal—is likely to fall upon the very people who voted for the laws. Our dormant Commerce Clause cases often find discrimination when a State shifts the costs of regulation to other States, because when “the burden of state regulation falls on interests outside the state, it is unlikely to be alleviated by the operation of those political restraints normally exerted when interests within the state are affected.” Here, the citizens and businesses of the Counties bear the costs of the ordinances. There is no reason to step in and hand local businesses a victory they could not obtain through the political process.

Justice Alito, with whom Justice Stevens and Justice Kennedy join, dissenting.

This Court long ago recognized that the Commerce Clause can be violated by a law that discriminates in favor of a state-owned monopoly. In the 1890’s, South Carolina enacted laws giving a state agency the exclusive right to operate facilities selling alcoholic beverages within that State, and these laws were challenged under the Commerce Clause in Scott v. Donald (1897)....

Thus, were it not for the Twenty-first Amendment, laws creating state-owned liquor monopolies—which many States maintain today—would be deemed discriminatory under the dormant Commerce Clause. There is, of course, no comparable provision in the Constitution authorizing States to discriminate against out-of-state providers of waste processing and disposal services, either by means of a government-owned monopoly or otherwise.

Nor has this Court ever suggested that discriminatory legislation favoring a state-owned enterprise is entitled to favorable treatment. To be sure, state-owned entities are accorded special status under the market-participant doctrine. But that doctrine is not applicable here.

Under the market-participant doctrine, a State is permitted to exercise “ ‘independent discretion as to parties with whom [it] will deal.’ ” The doctrine thus allows States to engage in certain otherwise-discriminatory practices (e.g., selling exclusively to, or buying exclusively from, the State’s own residents), so long as the State is “acting as a market participant, rather than as a market regulator.”

Respondents are doing exactly what the market-participant doctrine says they cannot: While acting as market participants by operating a fee-for-service business enterprise in an area in which there is an established interstate market, respondents are also regulating that market in a discriminatory manner and claiming that their special governmental status somehow insulates them from a dormant Commerce Clause challenge....

The dormant Commerce Clause has long been understood to prohibit the kind of discriminatory legislation upheld by the Court in this case....
...........................................

It seems to me the U.S. Supreme Court would be divided on whether U.S. Government could compete with private insurance companies in providing healthcare to the public. On one hand the Court says the "state" can regulate as long as they are equitable upon all private parties (treat them the same). On the other hand it implies it would not be acceptable saying the "state" would not be insulated from a dormant Commerce Clause challenge.

My take is as long as the "federal" government discriminates equally and causes all insurance companies and employers equal harm, the "federal" government can survive a challenge to the Healthcare Reform proposed by Obama. The way the court sees it, is we as a people get what we vote for. We have the power to stop this with our RIGHT TO VOTE.

Can anyone provide information on the subject?

posted by William Larsen @ 2:22 PM