The Cost of Doing Nothing

How ObamaCare revived the debate over the use and abuse of the Commerce Clause

James Madison once described the judiciary as “an impenetrable bulwark against every assumption of power in the legislative or executive." Had he lived to see the Supreme Court’s sweeping definition of congressional power under the Commerce Clause, he might have revised that statement.

Under Article I, Section 8 of the Constitution, Congress possesses the power “to regulate Commerce with foreign Nations, and among the several States, and with Indian tribes.” In the 1942 case Wickard v. Filburn, the Court held that the Commerce Clause allowed Congress to forbid farmer Roscoe Filburn from growing twice the amount of wheat permitted by the Agricultural Adjustment Act and then consuming that extra wheat on his own farm. In 2005, the Court reinforced this decision, holding in Gonzales v. Raich that medical marijuana cultivated and consumed entirely within the state of California still counted as commerce “among the several States” and was thus open to the depredations of the Controlled Substances Act. As Justice Clarence Thomas observed in his Raich dissent, “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”

If the Democrats in Congress succeed in passing any of the health care bills currently under debate, Justice Thomas may get another chance to set his colleagues straight. Every leading bill features a so-called personal responsibility provision, also known as the “individual mandate,” which would require all Americans to either purchase or secure health insurance. And as the Senate version bravely asserts, this requirement is perfectly constitutional thanks to the Commerce Clause: “The individual responsibility requirement...is commercial and economic in nature, and substantially affects interstate commerce.”

Is that true? Not according to Georgetown University law professor Randy Barnett, the author of a leading law review article on the original meaning of the Commerce Clause and one of the lead attorneys involved in the Raich case. In a recent paper entitled “Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional,” Barnett and co-authors Nathaniel Stewart and Todd Gaziano make the strongest and most compelling case yet that the individual mandate is “unconstitutional as a matter of first principles and under any reasonable reading of judicial precedents.”

Turning to the Supreme Court’s notoriously broad readings of the Commerce Clause in Wickard and Raich, Barnett finds that each of those cases involved “economic activity” and a “fungible commodity.” Failing or refusing to buy health care, however, is, by definition, a non-economic inactivity. And there’s certainly nothing fungible about health insurance you don’t actually possess. Thus Wickard and Raich do not apply.

Furthermore, despite the permissiveness of those two precedents, the Court has placed genuine limits on Congress’ ability to regulate activity that “substantially affects interstate commerce.” First, in United States v. Lopez (1995), the Court struck down the Gun-Free School Zone’s Act, which had relied on the Commerce Clause to ban the possession of a gun within 1,000 feet of a school. Then, in United States v. Morrison (2000), the Court voided the Violence Against Women Act, which had imposed federal criminal penalties for gender-based violence under the Commerce Clause. In those cases, lawmakers asserted that the economic fallout from non-economic gun violence and non-economic gender-based violence, respectively, "affected" interstate commerce and was thus open to federal regulation. The Court disagreed.

On the other side of the debate, liberal legal scholars who favor health care reform see no constitutional trouble with the individual mandate. Writing in Politico, University of California law professor Erwin Chemerinsky argues, “Under an unbroken line of precedents stretching back 70 years, Congress has the power to regulate activities that, taken cumulatively, have a substantial effect on interstate commerce. People not purchasing health insurance unquestionably has this effect.”

Similarly, Yale University law professor Jack Balkin, writing at the website of The New England Journal of Medicine, claims that “like people who substitute homegrown marijuana or wheat for purchased crops, the cumulative effect of uninsured people’s behavior undermines Congress’s regulation—in this case, its regulation of health insurance markets. Because Congress believes that national health care reform won’t succeed unless these people are brought into national risk pools, it can regulate their activities in order to make its general regulation of health insurance effective.”

Yet neither Chemerinsky nor Balkin acknowledge the Court’s still-active precedents in Lopez and Morrison. More to the point, as Barnett observes, “there is every reason to believe that five Justices of the Supreme Court will be open, and perhaps even eager, to reaffirm the principles of Lopez and Morrison in a case... [not involving] marijuana.” He’s specifically referring here to Justice Antonin Scalia, who shocked many legal observers by siding with the majority in Raich, where he perhaps allowed his hostility towards illegal drugs to trump his commitment to limited constitutional government. (It’s worth noting that the equally conservative Justice Thomas, as quoted above, got Raich right.)

So where does this leave the individual mandate? If passed—and that's now looking like a very big if—there’s no question that a legal challenge will quickly follow. Here’s hoping the Supreme Court uses that as an opportunity to put Congress back in its constitutional place.

Damon W. Root is an associate editor at Reason magazine.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • The Gobbler||

    The health care bill is dead so you can stop beating the dead horse it rode in on.

  • Nancy Pelosi||

    Seriously? Seriously?

  • ||

    Shut up. I'm not finished celebrating.

  • JD||

    What's the debate here? Is the healthcare bill constitutional? Of course not. Has that ever made a damn bit of difference to Congress? Of course not.

  • Lazy Jack||

    It seems that this assessment is correct. No where in the constitution does the document grant the power to compel an individual to enter into a private contract. Article 1, Section 8 clearly does not grant the power. This is reinforced by Amendment Ten and, at the very least, by Madison himself in Federalist 41. As a layman, these documents clearly seem compelling in that they prevent the federal government from forcing an individual into an indenture of any kind.

    But, what do I know. Thank You.

    Lazy Jack

    http://thanksforthelaughs.word.....onscience/

  • T||

    Without bothering to read Root's article, the TX Attorney General laid out a host of problems with it here.

    The not very subtle message behind the letter was "pass it and Texas will file suit".

  • watch gossip girl season 4||

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  • Stretchy||

    If I am specifically prohibited from purchasing health insurance from another state, how can the purchase of health insurance be an act of interstate commerce?

  • WWJGD||

    Existence is an act of interstate commerce.

  • ||

    To coin a phrase, "And thereby hangs the tale."

  • LarryA||

    The same way Hawaii has interstate highways.

  • gossip girl season 4||

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  • Thomas||

    Slightly off topic, this is the most blatantly dishonest headline I've ever seen:

    http://www.usatoday.com/news/u.....care_N.htm

  • CrackertyAssCracker||

    I actually like the article.

    But is this debate even worth having any more. Either you believe the Constitution could have been a lot shorter and said "The government can do whatever it wants", or you believe you need to go and find the actual power granted. Has anybody here ever ecountered and unlimited-government believer who has ever changed their mind on this? I mean if you believe that there are some things that the Federal goverment can't do, that does make you a racist, right? so there isn't much room to debate, is there?

    To even argue on their ground (although way better then I'd ever do), seems to cede so much ground, that I've about given up on it.

  • ||

    Let's repeal the interstate commerce clause!

  • ||

    I don't have a problem with a universal mandate; i.e. one that applies to everyone equally. I don't understand though, how anyone can think that Congress can require individuals to pay for services with after tax dollars and exempt 80% of the population.

    Unless they include an exemption for individual subscribers, the mandate will be inherently unequal and an easy target for any challenge.

  • ||

    If it's unconstitutional for government to mandate its citizens to purchase coverage. When will SCOTUS overturn Medicare Part D?

  • gossip girl season 4 episodes||

    Great share how anyone can think that Congress can require individuals to pay for services with after tax dollars and exempt 80% of the population.

  • EscapedWestOfTheBigMuddy||

    If it's unconstitutional for government to mandate its citizens to purchase coverage. When will SCOTUS overturn Medicare Part D?

    Er...you are free to not participate in part D.

  • medicare||

    you are free not to participate in part D but you will be penalized for doing so. as far as the rest of Medicare, you also are free to not participate, you just have to give up all your social security benefits. the penalty for not taking medicare is probably bigger than the penalty for being under 65 without health insurance

  • TheNino85||

    So you can be a good libertarian and say screw it to a wide host of benefits. What does with have anything to do with forcing people to buy health care?

  • EscapedWestOfTheBigMuddy||

    you are free not to participate in part D but you will be penalized for doing so.

    Perhaps I have misunderstood what I have read. Are you penalized if you never enroll? Or are they just trying to prevent people from waiting until they are sick to sign up?

    And I know you can't duck the rest of medicare, but that's a different bad story.

  • CS%||

    What about the fact that health insurance can't cross state lines? I live in MA (home of the most expensive insurance in the nation), and I can't buy a plan from other states. You can only buy MA insurance in MA.

  • suckitupcrybaby||

    They think they can impose their will on us regardless if it is constitional or not. It comes down to states rights. The government doesn't have the right to force us to buy government run health care. The cost of doing nothing is B.S. They can let insurance companies cross state lines, tort reform and let capitalism run wild and the competition will bring cost down. I like my health insurance, leave it alone.
    www.suckitupcrybaby.com

  • ||

    I think we should not read too much into US v. Lopez. If memory serves me, the Court did not determine by its own reasoning that the gun restrictions had nothing to do with interstate commerce. The assistant attorney general arguing for the law actually admitted in oral argument that the law had no relation to the commerce clause. Some say that all Lopez means is that you need to at least pretend that an economic relationship exists.

  • gossip girl||

    Thanks good share I will bookmark your site for future references

  • ||

    How does this effect my right of free assembly? Am I still free to not "assemble" with a corporate entity I may not agree with? If my religion prohibits my sharing risk or gambling, am I still forced to buy a product that is by its very nature a form of risk sharing and gambling?

    Just saying because we all know the government doesn't give a shit about the 10th amendment but given people's feelings about the 1st makes it a fish of a different feather.

  • bill||

    "Failing or refusing to buy health care, however, is, by definition, a non-economic inactivity." That statement would be correct IF and this is a huge if, care providers weren't required by law to provide health care to all who request it. So, you should start your argument at one of the beginnings of the health care conundrum and work your way forward. Failing to buy health care insurance becomes an economic activity as soon as you receive health care. Some one is executing an economic activity, whether you purchased insurance or not. Your argument against mandatory health insurance, standing alone, is fine. But, the argument for mandatory health insurance was born somewhere and to not include that in your argument, renders your argument naive. Theory is great, but REASON is even better. thanks for your articles.

  • ||

    Hey all you Progressives and/or liberals. How about signing this petition and show us your intelligence. The Obama administration is doing it to us right now and you are supporting him so I guess you can support this petition.

    http://therealrevo.com/blog/?p=19737

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