Yesterday was the first day since I graduated from law school that I actually wish I was back in a law classroom. I would have been willing to undergo three hours of a Socratic-style beatdown to listen to some law scholars debate Judge Hudson’s decision that the individual mandate provision is outside the scope of the Constitution’s Commerce Clause.
In dealing the first Constitutional blow to healthcare reform, Judge Hudson ruled that,
“Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntary enter the stream of commerce by purchasing a commodity in the private market.”
Requiring Americans to buy insurance “would invite unbridled exercise of federal police powers,” Judge Hudson wrote.
Previous Supreme Court precedent has found that Congress can regulate almost any “economic activity.” The question is whether not purchasing healthcare insurance counts as activity.
Despite receiving an A in Constitutional Law (pats himself on back) I think its best to leave the Commerce Clause arguments to the heavy hitters. So as Constitutional scholar Ilya Somin notes , “The Obamacare indivudal mandate…seems to regulate inactivity – not purchasing a product.”
Somin goes on to dismiss the two arguments for why such inactivity should nevertheless count as economic activity. First, some scholars argue that by avoiding the insurance market, purchasers are nevertheless involved in an economic activity because they are influencing the market by changing supply and demand. As Somin notes, if this is the definition, then
“Congress could not only force people to purchase any product of any kind, it could also force them to engage in just about any other kind of activity that affects the price of some good or other that “Congress set out…to control.”
Second, supporters of the individual mandate argue that the healthcare market is “unlike other markets.” As Attorney General Eric Holder wrote in today’s Washington Post, “none of us is a bystander when it comes to health care. All of us need health care eventually. Do we pay in advance, by getting insurance, or do we try to pay later, when we need medical care.”
That is absolutely true. But it misses the point. We will all, most likely and at some point, need health care. But healthcare is different than insurance. This is where supporters of the law engage in some rhetorical sleight of hand – by discussing it in terms of healthcare, rather than insurance, they’ve redefined the market to fit their need.
Each of us will require care, but who is to say what that will be. I may need a relatively inexpensive prescription. You may need a hundred thousand dollar heart transplant. But the individual mandate is not about individual need, it is about ensuring that the relatively healthy pay into the system to ensure that there is money to pay for the relatively sick. To do so it sweeps everyone into the same regime – forcing you to buy a defined plan of minimum benefits not tailored in any way to need.
The problem, as Somin notes, is that if you take this argument one step further, it leads to some ridiculous outcomes. For instance ,
“Consider the case of a mandate requiring everyone to purchase General Motors cars in order to help the auto industry. Sure, there are many people who don’t participate in the market for cars. But just about everyone participates in the market for ‘transportation.’”
Or how about ,
“ A requirement that each citizen purchase a gym club membership and exercise for one hour per day could be defended on the basis that, otherwise, people will be less healthy, which will make it more likely they will spend more money on medical care, health insurance, and perhaps other forms of exercise.”
Ruling that the individual mandate is constitutional opens up a can of worms. Both of the supporters’ arguments in favor of the constitutionality of the healthcare law leads to a reading of the Commerce Clause without limits.
If the government can force you to do something you otherwise wouldn’t have done on the basis that not doing it is an economic activity, is there literally anything that Congress can’t regulate. I defy you to name me one. No really, try. Our modern jurisprudence may encourage this result, but I have a hard time believing that was part of the Framer’s design for a limited government.
by Brandon Greife, Political Director of the College Republican National Committee