More Thoughts On The Commerce Clause And Obamacare

Josh Marshall, writing at Talking Points Memo, has a really weak post up about the Virginia court’s opinion holding that the Obamacare legislation’s individual mandate is unconstitutional. 

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to “economic activity” seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia — that the federal health care mandate is unconstitutional — is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

Marshall, of course, is mistaken about the fact that “no one took seriously the idea that a federal health care mandate was unconstitutional.”  Lots of people who take the quaint constitutional notion of limited government and the actual words of the Constitution seriously also took seriously the idea that forcing people to buy something they don’t want goes beyond regulating interstate commerce.

But this statement really caught my eye: “[T]he idea that buying health care coverage does not amount to ‘economic activity’ seems preposterous on its face.”  Actually, what strikes many as preposterous is the idea that not buying health care coverage is an “economic activity.”

For example, when I am sitting at my kitchen table, not buying anything, not negotiating any purchases, and not contemplating any interaction with a vendor of any kind in the near future, most people would say that I am not engaging in any economic activity.  But under the Obamacare legislation, I would be compelled to initiate economic activity and go out and buy health insurance.  It is nonparticipation in the market that Congress would purport to regulate under the Commerce Clause. 

If Marshall is right, then Congress could decide that my not buying anything on Ebay this week threatens its viability and that Ebay’s continued prosperity is in the national interest.  Therefore, under pain of tax penalties, Congress could require that I stop blogging right now and go buy something on Ebay.   Or it could require me to buy a Chevy Volt, regardless of whether I want or need a car.  Or it could require me to buy some other thing I don’t want — perhaps a kaleidoscope — every second Tuesday.  Rather than regulating voluntary commercial activity, the individual mandate penalizes the decision not to participate in economic activity.

I happen to agree with Marshall that the individual mandate is likely to be found to be constitutional.  But that is not because it is consistent with Congress’ enumerated powers under the actual Constitution.  It is only because a handful of members of the Supreme Court over the years have determined to gut the Commerce Clause as a check on congressional powers.  As a result, we have decisions such as Wickard v. Filburn, 317 U.S. 111 (1942), in which the Supreme Court allowed Congress to penalize farmers who harvested wheat in excess of government quotas, even if it is grown and harvested solely for the farmers use in baking bread or feeding his livestock.

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Published in: on December 14, 2010 at 1:19 pm  Leave a Comment  

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