Where does the federal government get the power to compel an individual to purchase a product from a private entity? According to the act itself,
The individual responsibility requirement provided for in this section ... is commercial and economic in nature, and substantially affects interstate commerce.Presumably, then, the power comes from the Commerce Clause of the Constitution, which reads:
The Congress shall have Power... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;One of the questions put before U.S. District Judge Henry E. Hudson was whether or not the power to regulate interstate commerce extends to the power to regulate any inactivity that otherwise could potentially affect interstate commerce. In his ruling, Judge Hudson found the reasoning for the Minimum Essential Coverage Provision to be a very slippery slope:
In her argument, the Secretary urges an expansive interpretation of the concept of activity. She posits that every individual in the United States will require health care at some point in their lifetime, if not today, perhaps next week or even next year. Her theory further postulates that because near universal participation is critical to the underwriting process, the collective effect of refusal to purchase health insurance affects the national market. Therefore, she argues, requiring advance purchase of insurance based upon a future contingency is an activity that will inevitably affect interstate commerce. Of course, the same reasoning could apply to transportation, housing, or nutritional decisions. This broad definition of economic activity subject to congressional regulation lacks logical limitation and is unsupported by Commerce Clause jurisprudence.The astonishing thing to me is that this isn't the first step we've taken along this dangerous path! Allow me to explain:
It is clear that the health care mandate is headed for the Supreme Court. While I was brushing up on this topic, I came across some previous cases decided by the Supreme Court that were relevant here. One of those cases, Wickard v. Filburn, 317 U.S. 111 (1942), stood out from the pack.
The case dealt with a farmer named Roscoe Filburn who grew more wheat than he was permitted under the Agricultural Adjustment Act of 1938, which attempted to control the price of wheat on the national market by limiting the amount of wheat that farmers could produce. Filburn argued that his wheat was not part of interstate commerce since the wheat was grown only for consumption by himself and his livestock. Therefore, Congress's power to regulate interstate commerce did not apply.
In a baffling decision, the Supreme Court ruled that despite the fact that the activities (production and consumption of wheat) were local, when taken in the aggregate they significantly affected interstate commerce, and therefore could be regulated by Congress. Presumably, if Filburn and others like him did not grow enough wheat to feed their families and livestock, they would have to purchase it on the national market. Here is a key excerpt from the Wickard ruling:
But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'This has to be the most outrageous Supreme Court ruling I've ever seen. Think about it: The Court decided that Congress has the authority to stop a person from growing his own food for his own consumption using his own property. This is an insane intrusion into the lives of private citizens, and it absolutely should not be acceptable in a free society. It cannot possibly be what the founding fathers had in mind, and it is not within the spirit of the Constitution.
Nor is it within the letter of the Constitution—at least, it is not in the letter of the Commerce Clause. Merrium Webster defines commerce as
the exchange or buying and selling of commodities on a large scale involving transportation from place to place.The text of the Commerce Clause says that Congress has the power to regulate "commerce", not the power to regulate "any economic activity that affects commerce". It should be patently clear that Congress does not have the power to regulate production or consumption of goods and services, but only the exchange of those goods and services itself, and only if that exchange takes place between different states.
The sticking point, in my view, is the Constitution's Necessary and Proper Clause:
The Congress shall have Power... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.This clause grants Congress implied powers that go along with the powers explicitly given to it. It has been used in the past, including the Wickard ruling, to grant Congress very broad authority. The Obama administration has a pretty good case as to why the health care mandate is necessary—indeed, it is crucial—to the success of its health care overhaul.
But is it proper?
Unfortunately, there seems to be a lot of room for subjectivity in the interpretation. In my view, the huge problem with both Wickard and the health care mandate is that there is no logical limitation to the applied reasoning. That makes them both highly improper. The Wall Street Journal identified this problem last year:
All human activity arguably has some economic footprint. So if Congress can force Americans to buy a product, the question is what remains of the government of limited and enumerated powers, as provided in Article I. The only remaining restraint on federal power would be the Bill of Rights, though the Founders considered those 10 amendments to be an affirmation of the rights inherent in the rest of the Constitution, not the only restraint on government. If the insurance mandate stands, then why can't Congress insist that Americans buy GM cars, or that obese Americans eat their vegetables or pay a fat tax penalty?Wickard started down a perilous road by essentially allowing Congress to regulate anything that you do do. The Minimum Essential Coverage Provision would be another step along the same path, allowing Congress to potentially regulate anything you don't do.
Maybe to save us all the trouble, the founding fathers should have just included the following clause:
The Congress shall have Power... To do anything it damn well pleases.Update: January 31, 2010 - Another federal judge has ruled the Patient Protection and Affordable Care Act unconstitutional.
